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2015 DIGILAW 397 (JHR)

Suraj Deogam v. State of Jharkhand

2015-03-24

SHREE CHANDRASHEKHAR

body2015
ORDER : Aggrieved by order dated 23.07.2013 in S.A.R. Revision Case No. 13 of 2007, the present writ petition has been filed. 2. The brief facts of the case are that, in Tuckey Settlement of 191418 the land comprised in Khata No. 159, Revenue Thana No. 108, Mouza Diliyamarcha, total area 1.40 decimals was recorded in the name of one Mata Ho and Bamia Ho. In the survey khatiyan of 195964 the land in question was erroneously recorded in the name of one Laxmi Narayan Singh though, the ancestors of the petitioners remained in peaceful possession of the said land. Again, in the survey settlement of the year, 197072 the land in question was recorded as Gair Mazarua land however, the petitioners remained in possession of the said land. After the petitioners were forcefully dispossessed by the respondent no. 5, they filed an application under Section 71 A of C.N.T. Act which was registered as S.A.R. Case No. 10 of 200102. Initially, the said case was allowed vide order dated 28.05.2001 however, the appellate authority remanded the matter vide order dated 29.09.2003 for granting opportunity of hearing to the respondent no. 5. The Deputy Collector Land Reforms ordered restoration of possession in favour of the petitioners and allowed application under Section 71 A of C.N.T Act vide order dated 31.05.2006. The respondent no. 5 preferred S.A.R. Appeal No. 06 of 200607 which was dismissed on 07.02.2007 and challenging the same, S.A.R. Revision Case No. 13 of 2007 was preferred by the respondent no. 5. The Revision Case has been allowed by the Commissioner, Singhbhum (Kolhan) Division and therefore, the petitioners have approached this Court. 3. Heard the learned counsel for the parties. 4. The learned counsel for the petitioners submits that, though the Deputy Commissioner dismissed the appeal filed by respondent no. 5 against the order passed on the application of the petitioners, directing restoration of possession in favour of the petitioners, the Revisional Court without recording a finding that the respondent no. 5 has been in continuous possession of the land in question and without interfering with the finding of the S.A.R. Court that the respondent no.5 is in illegal possession of the land in question, allowed S.A.R. Revision Case No. 13 of 2007 which cannot be sustained in law. Per contra, Mr. Indrajit Sinha, the learned counsel for the respondent no. 5 has been in continuous possession of the land in question and without interfering with the finding of the S.A.R. Court that the respondent no.5 is in illegal possession of the land in question, allowed S.A.R. Revision Case No. 13 of 2007 which cannot be sustained in law. Per contra, Mr. Indrajit Sinha, the learned counsel for the respondent no. 5 submits that, since entry dated 20.08.1964 in the survey khatiyan was never challenged by the petitioners, the petitioners' possession over the suit land has been admitted by them. It is further submitted that, more than 35 years after the entry in survey khatiyan, the application under Section 71 A of C.N.T. Act was filed which was not maintainable. Supporting the impugned order dated 23.07.2013 in the Revision Case, the learned counsel for the respondent no. 5 submits that, in the proceeding under Section 71 A of C.N.T. Act, the entry in survey khatiyan cannot be challenged. 5. Having heard the learned counsel for the parties and after perusing the documents on record, I am of the opinion that the writ petition deserves to be allowed. The Deputy Collector Land Reforms has recorded a specific finding in S.A.R. Case No. 10 of 20012002 that the petitioners have been illegally dispossessed and the respondent no. 5 is in illegal possession of the land belonging to the petitioners. It has also been found that without taking permission under Section 46 of C.N.T. Act transfer in favour of a non-tribal was not permissible. The appellate court has dismissed S.A.R. Appeal No. 06 of 200607. The revisional authority has taken a view that in the proceeding under Section 71 A of C.N.T. Act, the entry in the survey khatiyan cannot be challenged rather, the entry in survey khatiyan can be challenged under Sections 83, 87, 89 and 90 of C.N.T. Act. I find that the Revisional Court has ignored the fact that the entry in survey khatiyan is only a piece of evidence of possession of respondent no. 5 over the suit land. The factum of possession has to be proved by the respondent no. 5 by leading cogent evidence and merely because the name of one Laxmi Narayan Singh appears in the survey khatiyan dated 20.08.1964, it cannot be presumed that the said person was in possession of the land. 5 over the suit land. The factum of possession has to be proved by the respondent no. 5 by leading cogent evidence and merely because the name of one Laxmi Narayan Singh appears in the survey khatiyan dated 20.08.1964, it cannot be presumed that the said person was in possession of the land. The Deputy Collector Land Reforms has recorded a finding that the petitioners have been illegally dispossessed from their land and the said finding has not been interfered by the revisional authority. The application under Section 71 A of C.N.T. Act was filed seeking restoration of land and in the said proceeding, the petitioners have not sought correction in the survery khatiyan. The revisional authority has failed to consider this aspect of the matter and accordingly, the impugned order dated 23.07.2013 is hereby setaside. The matter is remanded back to the revisional authority for a fresh consideration of the matter. The parties are directed to appear before the revisional authority, after 4 weeks, when a date for hearing shall be fixed.