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2011 DIGILAW 604 (JHR)

Rasmoni Mahto v. State of Bihar

2011-07-06

P.P.BHATT, PRAKASH TATIA

body2011
JUDGMENT 1. The matter come up before this Court on reference by the learned Single Judge vide order dated 18th August,2006 and following questions of law have been referred for decision of the Division Bench: (i) Whether a person can hold land in dual capacity i.e. as a tenure holder and as a Raiyat and whether the superior right will prevail over the inferior right ? (ii) Whether the dual right of a person as of tenure holder which he was having prior to 1920 can be said to have been taken away by the subsequent amendment by Section 20 of the Chotanagpur Tenancy Act which came into force in the year 1920 and whether the said provision has retrospective effect ? 2. To decide the above questions of law, it will be appropriate to narrate the facts. Respondent Nos. 5 to 15's ancestor Prem Singh Bhumij and others submitted a petition under Section 71A of the Chotanagpur Tenancy Act, 1908, claiming that the land in dispute was recorded in the name of the applicant in the Cadestral Survey, 1909 and the applicants are members of the Schedule Tribe. The Petitioners' ancestors got the land entered in their name in the survey of 1964 and took the possession of the land. The Petitioners being members of Scheduled tribe and their land having been illegally occupied by the Petitioners' ancestors, therefore, prayed in their petition under Section 71A of the Act of 1908 that the possession of the land in dispute may be redelivered to the applicant, ancestor of the Respondent Nos. 5 to 15. The Deputy Collector(Land Reforms), Dhalbhum, Jamshedpur registered a case being R.P. No. 151 of 197879 and after hearing the parties and after considering the relevant land records held that there was change in the original khata number which correspondence to new number, however, there is no dispute with respect to the identity of the land and the said land was originally recorded in the name of Muchi Ram Bhumij, the ancestor of the Respondent Nos. 5 to 15. However, the learned Deputy Collector(Land Reforms) held that the said Muchi Ram Bhumij was not the raiyat but was the tenure holder and former Jagirdar gave its land by Patta dated 16th June, 1903 to Muchi Ram Bhumij. The said Muchi Ram Bhumij died leaving behind the four sons as his heirs. 5 to 15. However, the learned Deputy Collector(Land Reforms) held that the said Muchi Ram Bhumij was not the raiyat but was the tenure holder and former Jagirdar gave its land by Patta dated 16th June, 1903 to Muchi Ram Bhumij. The said Muchi Ram Bhumij died leaving behind the four sons as his heirs. The Petitioners' ancestor, non applicant before the first court, obtained the Patta from the tenure holder on 28th June, 1943 and then on 13th November, 1945 and vide Chakbandobasti of the year 1953 the land was recorded in the name of the ancestor of the Respondent Nos. 5 to 15 and since then the ancestor of the Petitioner and thereafter the Petitioners came in possession. The first court also considered the return submitted by the former Jagirdar about his land and also considered the certified copy of the said Return submitted in the Compensation Case No. 6 of 195960 and on the basis of these evidence, held that Muchi Ram Bhumij was the tenure holder and was not the raiyat and consequently his application under Section 71A was rejected. 3. The said Prem Singh Bhumij, the ancestor of the Respondent No. 5 to 15 preferred an appeal before the Deputy Commissioner, East Singhbhum, Jamshedpur, upon which appeal, S.A.R. No. 69 of 198990 was registered. The first appellate court allowed the appeal and consequently allowed the application for eviction of the Respondent Nos. 5 to 15's ancestor, Prem Singh Bhumij. 4. Being aggrieved with the order passed by the Deputy Commissioner, East Singhbhum dated 21st November, 1994, a Revision petition was preferred before the court of Commissioner, South Chotanagpur Division, Ranchi upon which Revision No. 47 of 1995 was registered and this revision petition was dismissed vide order dated 14th December, 1999. 5. The Revisional authority, for the first time, observed that in Cadestral Survey, 1909 the ancestor of Respondent Nos. 5 to 15 have been shown as Raiyat as well as the tenure holder with respect to the land in dispute and since the holding was in dual capacity, one as a tenure holder and another as raiyat, therefore, question came up for consideration with respect to interpretation of Section 20 of the Chotanagpur Tenancy Act, 1908, which is a specific provision for defining the consequence of merger of two rights, one of tenure holder and another of occupancy right i.e., raiyati right. The Revisional authority held, that Section 20 cannot be applied retrospectively and it appears that, so has been held by taking into account the rights of the ancestor of the Respondent Nos. 5 to 15 as it was in the year 1909 and according to the revisional authority, Section 20 came into force subsequently to the year 1909, therefore, the retrospective effect of subsection(1) of Section 20 cannot be given which will divest the right of the ancestor of Respondent Nos. 5 to 15. 6. In view of the interpretation given by the Revisional Authority referred above, and the contention raised by the Petitioners, the above two questions were framed and referred to Division Bench. Unamended Subsection(1) of Section 20, as it was in the Act of 1908, is as under: 20(1) When the immediate landlord of an occupancy holding is a proprietor or a permanent tenure holder, and the entire interest of the landlord and the raiyat in the holding become united in the same person by transfer, succession or otherwise, such person shall not retain a right of occupancy in the holding, but shall hold the same as a proprietor or permanent tenure holder, as the case may be; but nothing in this Sub-section shall prejudicially affect the rights of any third person. After amendment Sub-section (1) of Section 20 of the Act,1908 is a follows: When the immediate landlord of an occupancy holding is a proprietor or a permanent tenure holder and the entire interests of the landlords and the Raiyat in the holding become united in the same person by transfer, succession, or otherwise, such a person, shall hold the land as a proprietor or permanent tenure holder, as the case may be, and shall not hold it by any subordinate right whatsoever, but nothing in this Sub-section shall prejudicially affect the rights of any third person. 7. 7. A bare perusal of old as well as new subsection(1) of Section 20 reveals that it is a special provision to cover the effect of merger of two rights and it says that, if a landlord of an occupancy holding is a proprietor or a permanent tenure holder and the entire interests of the landlords and the Raiyat in the holding become united in the same person by transfer, succession, or otherwise, such person shall not retain a right of occupancy in the holding and it shall hold the same as proprietor or permanent tenure holder, as the case may be, and it was made clear that it will not prejudicially affect the right of any third party. By new subsection(1) of Section 20, only a position which was obvious with respect to the supremacy of the superior right has been made clear by use of express words by adding the words ' and shall not hold it by any subordinate right whatsoever'. Therefore, by amended subsection(1) of Section 20, it was made clear that what has been allowed to a person who was landlord of an occupancy holding and proprietor or a permanent tenure holder and if also acquires the raiyat right in the holding then he shall hold the same as proprietor or permanent tenure holder, obviously, shall not remain holder of subordinate right after automatically merger of inferior right into his superior right. Therefore, question No. 1 is answered and it is held that in any holding in dual capacity in terms of subsection(1) of Section 20, only superior right shall prevail over the inferior right. 8. The next question is with respect to the affect of Section 20 upon the said merger of the rights, referred above of landlord of occupancy holder, a proprietor or a permanent tenure holder with the acquisition of the raiyat right. For this, we may examine the legal position, as it was of 1909, the year in which it has been recorded that the Respondent Nos. 5 to 15's ancestor was recorded as tenure holder as well as raiyat. (We as Court of reference are not examining the finding of fact whether ancestor of Respondent Nos. 5 to 15 Muchi Ram Bhumij was only Tenure Holder or Raiyat or was recorded as both in revenue records as finding of first court and revisional court are different on these issue. (We as Court of reference are not examining the finding of fact whether ancestor of Respondent Nos. 5 to 15 Muchi Ram Bhumij was only Tenure Holder or Raiyat or was recorded as both in revenue records as finding of first court and revisional court are different on these issue. The moot question, which has been posed is that, whether by Section 20, any right of such person has been taken away. We are of the considered opinion that unless it is specifically provided in the Statute or by necessary implication, the law is required to be treated to be affective from the date of enactment and whenever a dispute arises, then the relevant is the law which is in force at the time of raising a claim on the basis of such law, subject to perfection of the right, which is sought to be affected by new enactment. Here, in this case, as we have already observed that the person having superior right and also acquires an inferior right than the superior right is not affected, rather that inferior right merges into superior right. Admittedly raiyat is an inferior right to the right of a proprietor or permanent tenure holder then even when subsection(1) of Section20, the person who had a dual rights, superior as well as inferior right, had a right to exercise his all authority to deal with the property in accordance with the superior right. However, in the present facts and circumstances, the person who had a superior right may be adversely affected because by superior right, he could have transferred the land and under inferior right, he could not have transfer the land and now the transfer made by him goes against him transfer but the legal position remains the same that person who had a better right to enjoy the property could have exercised this better right, irrespective of old and new subsection(1) of Section 20. No accrued right is sought to be taken away but it is only the recognition of the accrued right which otherwise accrued to the person by virtue of the rights given under the Chotanagpur Tenancy Act. Therefore, question No. 2 is answered that by Section20, no right accrued to any person prior to coming into force 8. of Section 20 stands to be taken away. 9. Therefore, question No. 2 is answered that by Section20, no right accrued to any person prior to coming into force 8. of Section 20 stands to be taken away. 9. Since, this is a reference, therefore, the matter is sent back to the Single Bench for deciding the writ petition on merits. Petition dismissed.