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2016 DIGILAW 669 (JHR)

Most. Chouthi Orain v. State of Jharkhand

2016-04-21

SHREE CHANDRASHEKHAR, VIRENDER SINGH

body2016
ORDER : Aggrieved of order dated 26.03.2004 in W.P.C. No. 3472 of 2001 whereby, the order passed by the Commissioner, South Chhotanagpur Division in Lohardaga S.A.R. Revision No. 218 of 1987 in favour of the appellants been set-aside, the instant Letters Patent Appeal been filed. 2. The appellant nos. 1(a) to 1(g) are the legal heirs and successors of Madho Oraon who was respondent no. 5 in the writ petition and the appellant no. 2 was respondent no. 6 in the writ petition. The appellant nos. 1(a) to 1(g) were substituted in place of Madho Oraon vide order dated 15.04.2015. It needs to be mentioned that vide order dated 17.08.2015 the instant appeal was dismissed for want of prosecution however, subsequently, the application for restoration vide C.M.P. No. 311 of 2015 was allowed on 11.03.2016. The instant appeal was admitted vide order dated 21.09.2004 and after the parties exchanged affidavits, it been taken up for final hearing. 3. Briefly stated, the father of the original respondent nos. 5 and 6 in the writ petition namely, Moti Oraon filed application under Section 71A of Chhotanagpur Tenancy Act, 1908 for restoration of land comprised under Khata No. 92 bearing Plot Nos. 946, 973, 1019 and 1705, total area 5.46 acres in village Juria, P.S. and District Lohardaga. The said application was registered as Land Restoration Case No. 229 of 1977. The case pleaded by the applicant namely, Moti Oraon was that the aforesaid land was recorded in the Revisional Survey in the name of his father namely, Dhandeya Oraon and after his death the aforesaid land came in possession of Moti Oraon. It was pleaded that Bhadru Sahu had held large chunk of land belonging to the Schedule Castes which were released by him after extracting money from them. The said Dhandeya Oraon was an illiterate tribal and the alleged signature of Dhandeya Oraon on the deed of surrender is forged one. The applicant produced a copy of Kewala on which Dhandeya Oraon had only put his signature which establishes that he was an illiterate person. The father of the applicant namely, Moti Oraon remained in possession of the land in question till 1956 and thereafter, he went to Calcutta however, before that rent was paid by Moti Oraon to the Exlandlord from 1934 to 1952. The father of the applicant namely, Moti Oraon remained in possession of the land in question till 1956 and thereafter, he went to Calcutta however, before that rent was paid by Moti Oraon to the Exlandlord from 1934 to 1952. The Special Officer dismissed the restoration application vide order dated 10.07.1978 against which Moti Oraon filed an appeal vide S.A.R. No. 75/R15/7879 however, the appeal was also dismissed on 04.05.1987. The revision petition against the appellate order dated 04.05.1987 was filed by Madho Oraon and Ramjeet Oraon being the legal heirs and successors of Moti Oraon who, in the meantime, had died. As noticed above, the revision petition was allowed vide order dated 09.04.2001 against which Chaitu Oraon and Lalmohan Bhagat preferred the writ petition. 4. Heard the learned counsel for the parties and perused the documents on record. 5. Mr. P. Gangopadhyay, the learned counsel for the appellants submits that the finding of fact returned by the learned Commissioner in Lohardaga S.A.R. Revision No. 218 of 1987 that the registered deed of surrender was forged could not have been interfered with by the learned Writ Court. Moreover, the period of limitation under Section 71A of C.N.T. Act is not strictly confined to 30 years and the Hon'ble Supreme Court in "Situ Sahu and others v. State of Jharkhand and Others" reported in (2004) 8 SCC 340 held that the power under Section 71A can be exercised even after lapse of 30 years. 6. Per contra, the learned counsel for the respondents submits that the restoration application was filed about 43 years after the deed of surrender was executed by the father of Moti Oraon which admittedly is not a reasonable period for exercise of powers under Section 71A of C.N.T. Act. It is further submitted that the finding recorded by the learned Commissioner in Lohardaga S.A.R. No. 218 of 1987 that the deed of surrender is forged, is based on mere conjectures and surmises and in fact, the learned Commissioner no jurisdiction to declare the deed of surrender executed in the year, 1935 a forged document. 7. At the outset, we may notice that the deed of surrender dated 18.07.1935 executed by Dhandeya Oraon is a registered document. 7. At the outset, we may notice that the deed of surrender dated 18.07.1935 executed by Dhandeya Oraon is a registered document. Admittedly, the original applicant namely, Moti Oraon or his successors never filed a suit seeking a declaration that the registered deed of surrender dated 18.07.1935 is forged and thus, null and void and not operative. Jhanga Lal who was respondent no. 7 in the writ petition pleaded that after the surrender of land in question by Dhandeya Oroan on 18.07.1935, the Exlandlord settled the said land in favour Bhadru Sahu on 01.08.1935. After vesting of Zamindari name of his father was duly entered in Register-II and rent was fixed in his name by the State of Bihar. He remained in possession of the said land for more than 40 years. Subsequently, the successor-in-interest of the settlee namely, Bhadru Sahu sold about 1.70 acres land by executing two registered saledeeds in favour of Bhola Bhagat. Thereafter, the said Bhola Bhagat got his name mutated in respect of the land purced by him and he remained in peaceful possession thereof. During the pendency of the revision petition, one Sheikh Abbas Ansari purced 60 decimal land in Plot no. 973 within Khata No. 92 through registered sale deeds dated 10.05.1988 and 10.08.1988 from Jhanga Lal, the respondent no. 7 in the writ petition. Subsequently, the writ petitioner no. 1 purced the aforesaid 60 decimal land from Sheikh Abbas Ansari through registered sale deed dated 13.04.1989. 8. No doubt, the application filed under Section 71A of C.N.T. Act can be entertained even after the period of limitation, the period of 43 years is definitely a period so unreasonable as to exercise powers under Section 71A of C.N.T. Act by the Special Officer. The Special Officer dismissed the application under Section 71A of C.N.T. Act and the said order was affirmed by the Appellate Authority. The Revisional Authority merely noticing that the mortgage deed and the affidavits produced by the applicant disclosed that Dhandeya Oroan was illiterate, held that the deed of surrender is a forged document. Order dated 09.04.2001 discloses that the learned Commissioner had merely formed an opinion that the deed of surrender appeared to be forged and on that ground alone interfered with order passed by the Special Officer and the Appellate Authority. The learned Commissioner did not advert to the plea of limitation taken by the respondents. Order dated 09.04.2001 discloses that the learned Commissioner had merely formed an opinion that the deed of surrender appeared to be forged and on that ground alone interfered with order passed by the Special Officer and the Appellate Authority. The learned Commissioner did not advert to the plea of limitation taken by the respondents. The Revisional Authority definitely erred in law in interfering with the orders passed by the Special Officer and the Appellate Authority. In "Situ Sahu & Ors. v. State of Jharkhand & Ors.", reported in (2004) 8 SCC 340 the Hon'ble Supreme Court observed as under: "14. ..... We need not go into the details of the transaction for we may even assume that the transfer was fraudulent. Even then, as held in Ibrahimpatnam [ (2003) 7 SCC 667 ], the power under Section 71A could have been exercised only within a reasonable time. Looking to the facts and circumstances of the present appeal, we are not satisfied that the Special Officer exercised his powers under Section 71A within a reasonable period of time. The lapse of 40 years is certainly not a reasonable time for exercise of power, even if it is not hedged in by a period of limitation. We derive support to out view from the observations made by this court in Jai Mangal Oraon Case [ (2000) 5 SCC 141 ] which was also a case which arose under the very same provision of law. There this Court took the view that Section 46(4)(a), which envisaged a prior sanction of the Deputy Commissioner before effecting the transfer in any of the modes stated therein, was introduced only in the year 1947 (with effect from 5.1.1948) and no such provision existed during the relevant point of time when the surrender was made in that case (15.1.1942). Obviously, therefore, no such provision existed in 1938, and the same reasoning applied." 9. The learned Writ Court also dealt with the question of limitation and recorded as under: "Admittedly, the application for restoration u/s 71 A of Chhotanagpur Tenancy Act was filed in the year 1977 whereas the land in question was surrendered by the Registered deed of surrender in the year 1935. Therefore, it is clear that it was filed after about 43 years. The limitation for filing an application u/s 71 A of the Chhotanagpur Tenancy Act is only 30 years. Therefore, it is clear that it was filed after about 43 years. The limitation for filing an application u/s 71 A of the Chhotanagpur Tenancy Act is only 30 years. Therefore, apparently the application for restoration was barred by limitation as it was filed beyond the period of limitation of 30 years. In the case of Sheikh Rahimuddin and others (Supra) it been held that the application for restoration filed after expiry of about 20 years of abandonment of tenancy cannot be allowed, more so where the settlee from the Ex-Land Lord had perfected his title by remaining in possession for more than 12 years before the enactment of Scheduled Area Regulation, 1969." 10. Considering the fact that the deed of surrender dated 18.07.1935 is a registered document which was not challenged by the original applicant or his successors-in-interest, the Special Officer rightly refused to exercise powers under Section 71A of C.N.T. Act, after expiry of about 43 years of the execution of the deed of surrender. We find no merit in the instant appeal and accordingly, it is dismissed. 11. At this stage, Mr. P. Gangopadhyay the learned counsel for the appellants submits that the appellants may be permitted to challenge the deed of surrender dated 18.09.1935 by filing a suit. To the aforesaid prayer, we may only observe that the appellants may avail remedy as available to them in law. Appeal dismissed.