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2014 DIGILAW 359 (JHR)

Ram Prasad Mahton v. State of Bihar

2014-03-06

N.N.TIWARI

body2014
JUDGMENT In this writ petition, the petitioners have prayed for quashing the order dated 7th June, 1989 passed in Title Partition Suit No.43 of 1983 by the Assistant Settlement Officer, Godda and order dated 26th February, 1998 passed by the Charge Officer, Dumka in Title Partition Appeal No.31 of 1989. The petitioners have further prayed for declaration of the order dated 7th June, 1989 passed by the Assistant Settlement Officer, Godda and the order dated 26th February, 1998 passed by the Charged Officer, Dumka being ultra vires and without any authority of law. The petitioners have further prayed for restraining the Assistant Settlement Officer, Godda to act upon and give effect pursuant to the order dated 7th June, 1989 passed by the Assistant Settlement Officer, Godda in Title Partition Suit No.43 of 1983. The petitioners have further prayed for restraining the respondents not to disturb their physical possession over the suit land. 2. The fact, giving rise to the instant case, in short, is that Chakradhar Mahto, son of Ram Prasad Mahto (Petitioner No.1) filed Title Partition Suit No.79 of 1965 in the court of learned Subordinate Judge, Godda against Darbari Mahto, Balram Mahto, Bidya Mahto, Buchu Mahato and others, stating, inter alia, that Gopal Mahto was common ancestor of the party. He had two sons, namely, Shyam Mahto and Dinaram Mahto. Gopal Mahto and Shyam Mahto died before last settlement. In the settlement, the land was recorded in the names of Rupan Mahto, son of Shyam Mahto and Dinaram Mahto, son of Gopal Mahto. Those lands are described in Schedule-A of the plaint. 3. Shyam Mahto had a son, namely, Rupan Mahto and daughter, namely, Most. Khudia. Most. Khudia was married to Kisto Mahto. Chakradhar Mahto (plaintiff) was son of Most. Khudia. Rupan Mahto was issueless. Dinaram Mahto had two sons, namely, Darbari Mahto and Lachhu Mahto. Lachhu Mahto died much before filing the title suit, leaving behind two sons, namely, Bibia Mahto and Budhu Mahto. Rupan Mahto had separated from his uncle Dinaram Mahto five years after the last settlement. Rupan Mahto died in the state of separation, leaving behind his widow, who also died in the following year. 4. The plaintiff filed the suit, claiming half share and praying for a preliminary decree for partition of Schedule-A property. 5. Rupan Mahto had separated from his uncle Dinaram Mahto five years after the last settlement. Rupan Mahto died in the state of separation, leaving behind his widow, who also died in the following year. 4. The plaintiff filed the suit, claiming half share and praying for a preliminary decree for partition of Schedule-A property. 5. By order dated 11th January, 1969, the then 2nd Additional Subordinate Judge, Deoghar at Camp Godda dismissed the suit filed by Chakradhar Mahto. Chakradhar Mahto filed Title Appeal no.17 of 1969/51 of 1974 against the judgment and decree dated 11th January, 1969, which came to be heard and disposed of by learned 1st Additional District Judge, Dumka. Learned 1st Additional District Judge by his judgment dated 27th September, 1974 allowed the appeal and reversed the decree. He decreed the plaintiff's suit for partition of the suit land. The plaintiff's suit for partition was decreed. 6. The branch of Darbari Mahto and Gulachi Devi @ Guluchi and others filed second appeal in the Hon'ble Patna High Court, challenging the judgment and decree dated 27th September, 1974 and 10th October, 1974 passed by the 1st Additional District Judge, Dumka. The second appeal was dismissed by order dated 10th February, 1981. 7. In or about the year 1983, Chandmuni Devi and Lalmuni Devi filed Title Partition Suit NO.43 of 1983 against cosharers including the petitioners. They claimed 1/12th share in the properties recorded in the names of Dinaram Mahto and Rupan Mahto. It was stated in the partition suit that the judgment and decree passed in Title Partition Suit No.79 of 1965 and in appeal was not binding on them, as they were not parties to the suit. 8. In October, 1983 Chandmuni Devi and Lalmuni Devi also filed Title Suit No.22 of 1983 in the court of Sub JudgeI, Godda against the heirs and successors of Gopal Mahto, including these petitioners, seeking a declaration that the judgment and decree passed in earlier title suit was void and inoperative and for a decree of permanent injunction, restraining the defendants from taking delivery of possession of the decree passed in Title Suit No.79 of 1965 and appeal arises therefrom. In the said suit, the fact that they have filed separate Title Partition Suit no.43 of 1983 before the Settlement Officer was not mentioned. 9. In the said suit, the fact that they have filed separate Title Partition Suit no.43 of 1983 before the Settlement Officer was not mentioned. 9. In the meanwhile by order dated dated 18th January, 1985, learned Sub Judge accepted the report of the Pleader Commissioner, making the same a part of the final decree, allowing eight Annas share to the plaintiff of the said suit. The said decree was executed in Execution Case No.2 of 1985. By order dated 5th July, 1985 delivery of possession was issued, directing to deliver possession of the Takhta allotted to Ram Prasad Mahto, Premlal Mahto, Most. Gandhari Mahto and Most. Sushni. 10. On 7th July, 1985, a report was submitted by Nazir regarding effecting delivery of possession in favour of Ram Prasad and others. 11. An appeal against the said order was filed by Gulachi Devi and others, being Misc. Appeal No.15 of 1985, in the Court of District Judge, Dumka. By order dated 18th October, 1985, the District Judge, Dumka set aside the order dated 5th July, 1985 passed by the Subordinate Judge, Godda in Title Execution Case no.2 of 1985 and remitted back the record to the court below with certain observations. 12. In the meanwhile, survey and settlement operation commenced and according to the provision of the Santhal Pargana Tenancy Act, all suits pertaining to land were transferred to the Survey Authority. 13. The said suit was, thus, transferred to and heard by the Assistant Settlement Officer, Godda. 14. By judgment dated 7th June, 1989, the Assistant Settlement Officer, Godda declared the plaintiffs (Chandmuni Devi and Lalmuni Devi) entitled for 1/12th share in the suit property and a preliminary decree was prepared, granting the said share. It was also directed that Parcha on that basis be issued in their favour. The defendants were also restrained by a decree of permanent injunction from taking delivery of possession by virtue of decree in Title Suit No.79 of 1965 and in the appeal arising therefrom. 15. The petitioners, thereafter, filed appeal against the said judgment and decree in the court of Charge Officer, Dumka, being Title Appeal No.31 of 1989, challenging the same and also the jurisdiction of the Assistant Settlement Officer, Godda to pass such judgment and decree. 16. Chandmuni Devi and Lalmuni Devi filed a petition before the Sub JudgeI, Godda, seeking permission to withdraw the said Title Suit No.22 of 1983. 16. Chandmuni Devi and Lalmuni Devi filed a petition before the Sub JudgeI, Godda, seeking permission to withdraw the said Title Suit No.22 of 1983. The petition was allowed and they were permitted to withdraw the suit. 17. By order dated 17th January, 1997, the Subordinate Judge, Godda rejected the petition filed by the judgment debtor to dismiss the execution case on the ground of jurisdiction. 18. The Charge Officer, Dumka dismissed the appeal by order dated 26th February, 1998, holding that Chandmuni Devi and Lalmuni Devi are entitled to 1/12th share of the suit property. 19. It has been stated that in Title Suit No.79 of 1965 Lachhu @ Lakshman Mahto had died ten years ago prior to coming into force of Hindu Succession Act, 1956. That was also admitted by his sons in Title Suit No.79 of 1965. The daughters of Lachhu, namely, Chandmuni Devi and Lalmuni Devi were, thus, not entitled to any share in the property of Lachhu @ Lakshman Mahto. The petitioners being descendants of Shyam Mahto are entitled to half share of the suit properties. 20. Without appreciating the said facts and provisions of law, learned Trial Court decreed the plaintiff's suit, declaring his 1/12th share in the suit properties. Son of Chakradhari Mahto, namely, Ram Prasad Mahto filed Title Appeal No.31 of 1989 against the said judgment and decree dated 7th June, 1989. Learned Charge Officer heard both the parties and thoroughly discussed the facts, material and evidences on record as also the provisions of law and upheld the judgment and decree of the learned Assistant Settlement Officer by his order dated 26th February, 1998. 21. The petitioners have challenged the said judgment and decree on the ground that though the suit was barred by res judicata, the same was entertained by the Trial Court. The Assistant Settlement Officer had no jurisdiction to decide the title partition suit filed by Lalmuni Devi and Chandmuni Devi. All the issues were earlier decided in Title Partition Suit No.79 of 1965 in which their brothers were parties. The suit was filed before a wrong forum. Learned Assistant Settlement Officer has committed error in entertaining and deciding the suit. The appellate authority also committed serious error in upholding the said judgment and decree. All the issues were earlier decided in Title Partition Suit No.79 of 1965 in which their brothers were parties. The suit was filed before a wrong forum. Learned Assistant Settlement Officer has committed error in entertaining and deciding the suit. The appellate authority also committed serious error in upholding the said judgment and decree. The said judgment and decree passed in title partition suit by the Assistant Settlement Officer and the appellate order passed by the Charge Officer are wholly illegal and without jurisdiction and the same are liable to be set aside. 22. The Respondent Nos.7 and 8 contested the writ petition. 23. Mr. V. Shivnath, learned Senior Counsel, appearing on behalf of the said respondents, submitted that the partition suit filed by the said respondents was rightly entertained by learned Assistant Settlement Officer. After commencement of survey, such suits cannot be heard and decided by any other Court or the forum in view of the notification issued by the Governor of the State in exercise of power conferred by Section 10 of Santhal Parganas Settlement Regulation (Regulation 3 of 1872) and Section 30 of Santhal Parganas Rent Regulation (II of 1886), prescribing Rules for conducting settlement proceeding under the said regulation in supersession of the earlier notification. In the said notification, Clause (xxv) clearly prescribes that during pendency of the settlement operation, all suits of the kind specified in Section 5 of Regulation III of 1872 shall be heard and determined by the Officers of Settlement, appointed under Section 10 of Regulation, 1872 and by the Civil Courts when entrusted to hear and dispose of the same by the Settlement Officer in accordance with the prescribed rules. 24. Learned counsel submitted that the said Rule clearly prescribes for hearing and determination of all suits without any exception by the Officer of the Settlement except the suit is made over for the said purpose to the Civil Courts. 25. Learned counsel submitted that all suits include title partition suit as well and by entertaining and deciding the said suit, learned Assistant Settlement Officer has not committed any jurisdictional error. 26. Learned counsel further submitted that the point of res judicata was also not available in the suit, as the plaintiffs of Title Partition Suit No.43 of 1983 were not parties in Title Suit Not 79 of 1965. 26. Learned counsel further submitted that the point of res judicata was also not available in the suit, as the plaintiffs of Title Partition Suit No.43 of 1983 were not parties in Title Suit Not 79 of 1965. He further submitted that the said suit was fraudulent and was fought collusively only in order to deprive the plaintiffs of their legal share. The judgment and decree of the said suit is vitiated on account of the said fraud and misrepresentation and the same are not binding, as the plaintiffs were not parties to the earlier suit. 27. Learned counsel submitted that the Assistant Settlement Officer as well as Charge Officer have concurrently recorded their findings of facts and there is no illegality or error in the judgment and decree. 28. I have heard learned counsel for the parties and considered the facts, evidences and material on record as well as submission of learned counsel. 29. On going through the judgment and decree of the learned Settlement Officer, I find that the issues of maintainability and res judicata were raised in the suit and the learned Trial Court has decided the same after thorough discussion and consideration of the facts and the provisions of law. Learned court below has held that in Title Suit No.79 of 1965, the plaintiffs of this suit were not parties and as such the said judgment and decree is not binding on them. He has further found that the plaintiffs were the cosharers and they are necessary parties in the partition suit of 1965, but they were not made parties. A collusive suit was filed by other cosharers, excluding the plaintiffs to deprive them of their legal share. The said judgment and decree passed in the said collusive and fraudulent suit is not binding on the plaintiffs. 30. So far as the ground on the point of jurisdiction is concerned, Section 5 of Santhal Parganas Settlement Regulation, 1872 provides for bar of jurisdiction of Civil Court during settlement, which reads as follows: “5. The said judgment and decree passed in the said collusive and fraudulent suit is not binding on the plaintiffs. 30. So far as the ground on the point of jurisdiction is concerned, Section 5 of Santhal Parganas Settlement Regulation, 1872 provides for bar of jurisdiction of Civil Court during settlement, which reads as follows: “5. Bar of jurisdiction of Civil Court during settlement(1) From the date on which under Section 9 of the State Government declares, by a notification in the Official Gazette, that a settlement shall be made of the whole or any part of the Sonthal Parganas, until the date on which such settlement is declared, by a like notification, to have been completed no suit shall lie in any Civil Court established under the Bengal, Agra and Assam Civil Courts Act, 1887 [12 of 1987] in regard to,- (a) any land or any interest in, or arising out of, land, or (b) the rent or profits of any land, or (c) any village hardship or other office connected with any land in the area covered by such first mentioned notification nor shall any Civil Court proceed with the hearing of any such suit which may be pending before it. (2) Between the dates referred to in subsection (1), all suits of the nature therein described shall be filed before or transferred to an officer appointed by the State Government under Section 2 of Sonthal Parganas Act, 1855 (37 of 1855), or Section 10 of this Regulation according as the State Government may from time to time direct and such officer shall hear and, even though during the hearing the settlement may be declared to have been completed, determine them.” 31. In the instant case, the notification of the State Government was issued and published in the official gazette dated 5th August, 1978 and Clause (xxv) of the said notification also clearly mentions that during the pendency of the settlement operation, all suits of the kind specified in Section 5 of Regulation III of 1872 shall be heard and determined by the Officers of Settlement, appointed under Section 10 of Regulation, 1872 and by the Civil Courts when entrusted to hear and dispose of the same by the Settlement Officer in accordance with the said rules and the Commissioner, the Special Officer, the Settlement Officer, and Charge Officers within whose jurisdiction settlement is being made, were vested with appellate and revisional powers. 32. Further Section 11 of the said Regulation, inter alia, provides that the decisions and the orders of the Settlement Courts made under these rules regarding interest and right shall have the force of a decree of Court. 33. Nothing has been brought on record to show that before the suit was filed, the settlement operation was finally concluded. 34. In view of the above discussion, I find no illegality or infirmity in the order of the Settlement Officer, Godda dated 7th June, 1989 and the order of the Charge Officer dated 26th February, 1998. 35. I, therefore, find no merit in this petition. 36. This writ petition is, accordingly, dismissed.