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2017 DIGILAW 1317 (JHR)

Ajay Munda v. State of Jharkhand

2017-08-01

RAJESH SHANKAR

body2017
JUDGMENT : 1. The present writ petition has been filed for quashing the order dated 27.07.2000 passed by the respondent No.4 in Land Restoration Case No. 21/1999 (Annexure-3 to the writ petition) under Section 46(4-A)(a) of the Chota Nagpur Tenancy Act [hereinafter to be referred to as 'the said Act'], the order dated 08.08.2001 passed in appeal by the respondent No.3 in Land Restoration Appeal No. RAN-13/2000 (Annexure-4 to the writ petition) and the order dated 24.01.2006 passed in revision by the respondent No.2 in Land Restoration Revision No. 124/2001 (Annexure-5 to the writ petition). 2. The factual background of the case is that Ram Sati Munda and Bathuwa Munda filed Title Suit No. 1069/1966 on 01.12.1966 against Bigal Mahto and Maya Ram Mahto for recovery of possession of the land in dispute. The said suit was disposed of vide order dated 04.05.1967 on the basis of compromise between the parties affirming the possession of Bigal Mahto and Maya Ram Mahto (defendants therein). Subsequently, Land Restoration Case No. 297/1974 was filed by Ram Sati Munda against Bigal Mahto & Ors. under Section 46(4-A)(a) of the said Act for restoration of the entire land. In the said case, Bathuwa Munda (father of the petitioner) filed an affidavit dated 12.12.1974 stating, inter alia, that Ram Sati Munda is his own brother. Moreover, the restoration application filed by him is not maintainable and Bigal Mahto and Maya Ram Mahto are continuing in possession over the said property for last 30 years. Bathuwa Munda also admitted that the compromise petition filed in the suit was genuine and no fraud was practised. In the proceeding of Land Restoration Case No. 297/1974, on the order of the Land Reforms Deputy Collector, Hazaribagh, a report was submitted on 15.09.1974 by the Circle Inspector, Ramgarh to the effect that the opposite parties (Bigal Mahto & Ors.) were in possession of the land in question for several years and their names were also mutated in Register-II (tenant's ledger register) in Circle Office, Ramgarh. Accordingly, vide order dated 13.01.1975, Land Restoration Case No. 297/1974 instituted at the instance of Ram Sati Munda was dismissed as barred by limitation, as the said application for restoration was not filed within a period of 12 years. No appeal or revision was filed against the said order. 3. Accordingly, vide order dated 13.01.1975, Land Restoration Case No. 297/1974 instituted at the instance of Ram Sati Munda was dismissed as barred by limitation, as the said application for restoration was not filed within a period of 12 years. No appeal or revision was filed against the said order. 3. In the year 1980, another restoration case being Land Restoration Case No. 98/1980 was filed by Ram Sati Munda under Section 46(4-A)(a) of the said Act for restoring the land measuring an area of 7.82 acres and vide order dated 01.11.1980, the Deputy Commissioner, Sadar, Hazaribagh dismissed the said restoration application. 4. Being aggrieved by the order dated 01.11.1980 passed in Land Restoration Case No. 98/1980, Ram Sati Munda filed an appeal being Land Restoration Appeal No. 13/1980 and vide order dated 05.11.1982, the Additional Collector, Hazaribagh dismissed the said appeal affirming the order dated 01.11.1980 whereby, the Land Restoration Case No. 98/1980 was dismissed. However, no revision was filed against the said order by Ram Sati Munda. Subsequently, another Land Restoration Case No. 21/1999 was filed by Prakash Munda (son of Ram Sati Munda) against Maya Ram Mahto and Ors. wherein Bathuwa Munda, father of the petitioner (brother of Ram Sati Munda) filed an intervention petition, which was allowed vide order dated 17.07.2000. Finally, vide order dated 27.07.2000, the Land Reforms Deputy Collector, Ramgarh dismissed Land Restoration Case No. 21/1999 on the ground of res judicata and being barred by limitation. 5. Against the said order dated 27.07.2000 passed in Land Restoration Case No. 21/1999, Prakash Munda did not prefer any appeal, rather Bathuwa Munda (father of the petitioner) preferred an appeal being Land Restoration Appeal No. 13/2000, which was dismissed by the Additional Collector, Hazaribagh vide the order dated 08.08.2001. 6. Being aggrieved by the said orders passed by the original Court as well as the appellate authority, Bathuwa Munda preferred Land Restoration Revision No. 124/2001, which was also dismissed by the Commissioner, North Chotanagpur Division, Hazaribagh vide order dated 24.01.2006 holding, inter alia, that the restoration application is barred by limitation, as Bathuwa Munda in his affidavit filed in Land Restoration Case No. 297/1974 has admitted the possession of the private respondents for a period of more than 30 years, which was affirmed by the enquiry report submitted by the Circle Inspector, Ramgarh. It was also observed by the revisional authority in his order dated 24.01.2006 that the said restoration application was also barred by the principle of res judicata, as the issue pertaining to restoration of the land in question has already attained finality in previous proceedings. 7. It is not in dispute that Ram Sati Munda and Bathuwa Munda are own brothers. The present writ petition was originally filed by Bathuwa Munda. However, during the pendency of the writ petition, Bathuwa Munda died and he was substituted by his son Ajay Munda. 8. The main submission of learned counsel for the petitioner is that though the intervention petition filed by Bathuwa Munda (father of the petitioner) was allowed by the respondent No.4 in Land Restoration Case No. 21/1999, yet he was not afforded any opportunity to file his show cause and therefore dismissal of the said restoration case on the ground of res judicata is violative of the principle of natural justice. Learned counsel for the petitioner puts reliance on a judgment rendered by this Court in the case of Ram Pyare Upadhyay & Ors. Vs. The State of Jharkhand & Ors. reported in 2010 (4) JLJR 415 . 9. It is further submitted by learned counsel for the petitioner that when the property in question belonged to two brothers, namely, Ram Sati Munda and Bathuwa Munda and the restoration case was filed only by Ram Sati Munda for the entire land, the right of another brother, namely, Bathuwa Munda, cannot be taken away and he cannot be prevented from seeking restoration of his part of the land, applying the principle of res judicata. It is also submitted that under such situation, the fact of adverse possession would also not apply, since the interest of Bathuwa Munda over the land in question cannot be ceased. In support of his said submission, learned counsel for the petitioner relies on a judgment rendered by this Court in the case of Ranjit Theodore Vs. Ramawatar Ram reported in 2004 (3) JLJR 205 . 10. Learned counsel for the petitioner also relies on judgment of this Court rendered in the case of Shri Krishna Kumar Kanth Vs. Smt. Indulal Devi & Ors. reported in 1999 (3) PLJR 977 as well as in the case of Mahendra Singh Vs. The State of Bihar & Ors. reported in 2008 (2) JLJR 538 . 11. 10. Learned counsel for the petitioner also relies on judgment of this Court rendered in the case of Shri Krishna Kumar Kanth Vs. Smt. Indulal Devi & Ors. reported in 1999 (3) PLJR 977 as well as in the case of Mahendra Singh Vs. The State of Bihar & Ors. reported in 2008 (2) JLJR 538 . 11. Learned counsel for the petitioner, accordingly, submits that the order dated 24.01.2006 passed by the respondent No.2, order dated 08.08.2001 passed by the respondent No.3 and order dated 27.07.2000 passed by the respondent No.4, being erroneous, are liable to be set aside. 12. On the other hand, learned counsel appearing on behalf of the respondent Nos. 5 to 9 submits that the respondent Nos. 5 to 9 or their ancestors have admittedly been in possession over the land in question for more than 12 years. Even the suit being Title Suit No. 1069/1966 for recovery of possession brought by Ram Sati Munda was disposed of on the basis of compromise admitting the possession of ancestors of the respondent Nos. 5 to 9. Thus, it is submitted that Bathuwa Munda (the original writ petitioner) was dispossessed from the land in question for more than 12 years. Section 46(4-A)(a) of the said Act clearly provides that restoration petition is maintainable, if the same is brought within a period of 12 years from the date of dispossession. In view of the said facts, all the Courts below consistently held that the restoration application filed under Section 46(4-A)(a) of the said Act is barred by limitation. 13. Learned counsel for the respondent Nos. 5 to 9 puts reliance on the judgments rendered by this Court in the case of Jagan Bediya & Ors. Vs. Kameshwar Narayan Singh & Ors. reported in 2010 (4) JCR 51 (Jhr) and in the case of Gadia Oraon Vs. State of Jharkhand reported in 2004 (1) JCR 237 . 14. Learned counsel appearing on behalf of the respondent No.10 adopts the arguments made on behalf of the petitioner and submits that all the impugned orders suffer from non-application of mind and as such the same are liable to be set aside. 15. Learned counsel appearing on behalf of the respondent Nos. 14. Learned counsel appearing on behalf of the respondent No.10 adopts the arguments made on behalf of the petitioner and submits that all the impugned orders suffer from non-application of mind and as such the same are liable to be set aside. 15. Learned counsel appearing on behalf of the respondent Nos. 1 to 4 while supporting the impugned orders, submits that all the learned Courts below have rightly held that the restoration application filed in the year 1999 by Prakash Munda (son of Ram Sati Munda) was barred by the principle of res judicata as well the law of limitation. 16. Having heard learned counsel for the parties and going through the relevant documents placed on record, it appears that Ram Sati Munda and Bathuwa Munda filed Title Suit No. 1069/1966 against Bigal Mahto and Maya Ram Mahto for recovery of possession over the land in question. The said suit was disposed of affirming the possession of Bigal Mahto and Maya Ram Mahto on the basis of compromise between the parties. Thereafter, Land Restoration Case No. 297/1974 was filed by Ram Sati Munda against Bigal Mahto and others under Section 46(4-A)(a) of the said Act for restoration of the entire land in which Bathuwa Munda filed an affidavit dated 12.12.1974 stating that Ram Sati Munda is his own brother and the restoration application filed by him is not maintainable, as Bigal Mahto and Ors. have been in possession of the suit property for more than 12 years. Bathuwa Munda also admitted in his affidavit that the compromise entered between the parties in the suit was genuine and no fraud was practised. The said fact is apparent from the order of the revisional authority dated 24.01.2006 passed in Land Restoration Revision No. 124/2001 (Annexure-5 to the writ petition). In the Land Restoration Case No. 297/1974, the Circle Inspector, Ramgarh also submitted a report that Bigal Mahto & Ors. were in possession of the land in question and their names were also mutated in Register-II in the Circle Office, Ramgarh. Accordingly, Land Restoration Case No. 297/1974 filed by Ram Sati Munda was dismissed vide order dated 13.01.1975 as barred by limitation under the provisions of Section 46(4-A)(a) of the said Act. It is important to notice here that against the said order dated 13.01.1975 passed in Land Restoration Case No. 297/1974, no appeal or revision was filed. Accordingly, Land Restoration Case No. 297/1974 filed by Ram Sati Munda was dismissed vide order dated 13.01.1975 as barred by limitation under the provisions of Section 46(4-A)(a) of the said Act. It is important to notice here that against the said order dated 13.01.1975 passed in Land Restoration Case No. 297/1974, no appeal or revision was filed. However, Ram Sati Munda filed another Land Restoration Case No. 98/1980 under Section 46(4-A)(a) of the said Act, which was again dismissed by the Deputy Collector, Sadar, Hazaribagh vide order dated 01.11.1980. Thereafter, Ram Sati Munda filed restoration appeal being Land Restoration Appeal No. 13/1980, which was dismissed by the Additional Collector, Hazaribagh vide order dated 05.11.1982 affirming the order passed in Land Restoration Case No. 98/1980. Ram Sati Munda did not file any revision against the order passed in Land Restoration Appeal No. 13/1980. Thereafter, the third round of litigation was started by Prakash Munda (son of Ram Sati Munda) by filing Land Restoration Case No. 21/1999 against Maya Ram Mahto & Ors. It is important to note that in the said restoration case, Bathuwa Munda filed an intervention petition, which was allowed by the Land Reforms Deputy Collector vide order dated 17.07.2000. Finally, the said restoration case was dismissed vide order dated 27.07.2000 on the ground of res judicata and limitation. 17. Under the said factual background, Bathuwa Munda (original petitioner) cannot plead ignorance about the order passed in Title Suit No. 1069/1966 and also the fact that he filed an affidavit on 12.12.1974 in Land Restoration Case No. 297/1974 stating, inter alia, that Bigal Mahto & Ors. were in possession of the land in question for more than 12 years. It is also evident that in the year 1999 when Land Restoration Case No. 21/1999 was filed by Prakash Munda (respondent No.10), the respondent Nos. 5 to 9 were in possession of the land in question for more than 30 years. 18. Further, in view of the provisions of Section 265 of the said Act, the provisions of the Code of Civil Procedure have been made applicable. Thus, the principle of res judicata in terms of Section 11 C.P.C is also applicable to a proceeding under the said Act. Admittedly, Bathuwa Munda lost two successive proceedings brought by him for the same land against the respondent Nos. 5 to 9 and the orders passed in previous proceedings have become final. Thus, the principle of res judicata in terms of Section 11 C.P.C is also applicable to a proceeding under the said Act. Admittedly, Bathuwa Munda lost two successive proceedings brought by him for the same land against the respondent Nos. 5 to 9 and the orders passed in previous proceedings have become final. Thus, in my considered view, a fresh proceeding for restoration of the land in question, brought by Prakash Munda (respondent No.10) i.e. the son of Ram Sati Munda wherein Bathuwa Munda was also allowed to intervene as a co-applicant, is barred by the principle of res judicata. 19. In the case of Ranjit Theodore Vs. Ramawatar Ram (Supra), this Court has held that no coparcener can alienate even for value his undivided interest without the consent of other coparcener unless the alienation is for legal necessity or for payment of antecedent debts. The said judgment was rendered under a completely different factual context, which has not bearing in the facts of the present case. 20. In the case of Shri Krishna Kumar Kanth Vs. Smt. Indulal Devi & Ors. (Supra), it has been held that if a contesting person is not a party to the suit then the principle of res judicata will not apply. The said judgment was rendered while considering the effect of Section 11 C.P.C in a partition suit, which cannot be applied in the factual context of the present case. 21. The judgment rendered in the case of Ram Pyare Upadhyay & Ors. Vs. The State of Jharkhand & Ors. (Supra) has no relevance in the facts of the present case, as in the said case, the revisional authority (Commissioner) had dismissed the revision application in cryptic manner without affording any opportunity of hearing to the petitioner of the said case. 22. Moreover, the judgment rendered by a Division Bench of this Court in the case of Mahendra Singh Vs. The State of Bihar & Ors. (Supra), on the facts of the said case, it was held that the order passed in earlier restoration proceeding, cannot be operated as res judicata against the co-sharers of the land. The fact of the said case is completely different from the fact of the case in hand. As has been discussed hereinabove that Bathuwa Munda filed an affidavit in Land Restoration Case No. 297/1974 on 12.12.1974 confirming the possession of the ancestors of the respondent Nos. The fact of the said case is completely different from the fact of the case in hand. As has been discussed hereinabove that Bathuwa Munda filed an affidavit in Land Restoration Case No. 297/1974 on 12.12.1974 confirming the possession of the ancestors of the respondent Nos. 5 to 9. Further, he was also a party to Title Suit No. 1069/1966. Not only that, Bathuwa Munda also filed an intervention petition in Land Restoration Case No. 21/1999 for being a co-applicant, which was also allowed on 17.07.2000 by the Land Reforms Deputy Collector, Ramgarh (Annexure-2 to the writ petition). 23. In the aforesaid factual backdrop, I am of the considered view that the application filed by the respondent No. 10 in the year 1999 as well as appeal and revision filed by Bathuwa Munda (the original writ petitioner) were barred by the principle of res judicata and therefore the orders passed by the Courts below rejecting the application, appeal and revision, being barred by the principle of res judicata, appear to be correct. 24. In the case of Gadia Oraon Vs. State of Jharkhand (Supra), this Court has held that the statutory authorities committed error of law in entertaining the second restoration application after lapse of 17 years when first restoration application filed by the recorded tenant had already been rejected and the said rejection order in course of time and in absence of any appeal has already become final. 25. Further, in the case of Jagan Bediya & Ors. Vs. Kameshwar Narayan Singh & Ors. (Supra), while considering the principles of res judicata and limitation, which apply to the provisions of Section 46(4-A)(a) of the said Act, has held as under. “5. So far as the appellant nos. 5 to 8 are concerned, even if on account of their being co-sharers, the principles of res-judicata may not be applicable directly, but the fact of moving of restoration by Smt. Rabni Devi would indicate that before 1977 they had been dispossessed from the land. It is not possible In case of a joint holding that only some of the co-sharers may be dispossessed by third parties.” “6. It is not possible In case of a joint holding that only some of the co-sharers may be dispossessed by third parties.” “6. Having been dispossessed and two land restoration application having been filed one after the other by one co-sharer, the other co-sharers who sat quietly watching the fate of the first restoration and second restoration applications and allowed 20 years to lapse should not be permitted, by extending the principle of re-judicata, to apply for restoration, as it would amount to abuse of the process of Court by allowing initiation of a third round of litigation. However, this is not the only ground on which we are inclined to dismiss the appeal.” “7. So far as the appellant no. 5 to 8 are concerned, it has been rightly held that having been dispossessed before 1977, their restoration application moved in 1996 is far beyond the permissible period of 12 years prescribed by the first proviso to section 46(4-A) (a) of the The Chota Nagpur Tenancy Act. For ready reference, the said proviso is reproduced below:- 46(4-A)(a):- The Deputy Commissioner, may, of his own motion or on an application filed before him by an occupancy-Raiyat, who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of clause (a) of the second proviso to sub-section (1). Provided that no sub application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof: Provided further that before passing any order under clause (b) or clause (c) of this sub-section, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter.” 26. On the basis of the facts discussed hereinabove, it has emerged that the ancestors of the respondent Nos. 5 to 9 had been in possession of the land in question for more than 12 years whereas, the restoration petition was filed by Bathuwa Munda (original petitioner) in the year 1999 i.e. after about 33 years. The period of limitation for filing the restoration petition under Section 46(4-A)(a) of the Act is 12 years. 5 to 9 had been in possession of the land in question for more than 12 years whereas, the restoration petition was filed by Bathuwa Munda (original petitioner) in the year 1999 i.e. after about 33 years. The period of limitation for filing the restoration petition under Section 46(4-A)(a) of the Act is 12 years. The said fact has been appreciated by all the Courts below. Thus, I find no infirmity or illegality in the impugned orders dated 27.07.2000 passed by the respondent No.4 in Land Restoration Case No. 21/1999, the order dated 08.08.2001 passed by the respondent No.3 in Land Restoration Appeal No. 13/2000 and the order dated 24.01.2006 passed by the respondent No.2 in Land Restoration Revision No. 124/2001 on the point of limitation also. 27. Consequently, I find no reason to interfere with the impugned orders. 28. Accordingly, the writ petition, being devoid of merit, is dismissed.