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2017 DIGILAW 2064 (JHR)

Kumud Jaiswal v. State of Jharkhand

2017-11-30

RAJESH SHANKAR

body2017
ORDER : Heard learned counsel for the parties. 2. The present writ petition has been filed for quashing the order dated 11.08.2005 passed by the Land Reform Deputy Collector, Bundu (respondent no. 4) in M.A Case No. 01 of 2005-06 by which, the Jamabandi running in the name of the petitioners husband namely Bhuneshwar Ram Bhagat since vesting of Zamindari pertaining to Khata No. 1111, Plot No. 67 for an area of 1.98 acres of land situated in village Bundu, has been cancelled. A further prayer has been made for quashing the orders dated 02.06.2006 passed by the respondent no.3 by which, the Mutation Revision Case No. 36 R 15/2005-06, filed by the petitioner, has been dismissed ex-parte, and also for quashing the order dated 27.07.2006 by which the respondent no.3 has dismissed the restoration application of the petitioner. 3. The factual background of the case as stated in the writ petition is that the husband of the petitioner namely Bhuneshwar Ram Bhagat had purchased the land under Khata No. 1111, Plot No. 67 having area of 1.98 acres situated in village-Bundu (hereinafter to be called as “the said land”) by way of registered sale deed dated 22.02.1939 from Khatiyani raiyats Balram Singh and Ram Narayan Singh. Since the date of purchase, the husband of the petitioner regularly paid the rent to the Zamindar and after vesting of Zamindari, his name was entered in the revenue record of the State of Bihar and since then he continued to pay rent to the State of Bihar till his death. After the death of Bhuneshwar Ram, the name of the petitioner was entered in the revenue record. Suddenly, on 30.08.2004, the private respondent no.7 namely Manoj Kumar Jaiswal filed a petition before the Circle Officer, Bundu for cancellation of Jamabandi running in the name of the petitioner’s husband and subsequently in the name of the petitioner. Thereafter, the Circle Officer called for a report from the, the Circle Inspector, Halka Karamchari and Amin and after receiving the report, the Circle Officer rejected the petition for mutation filed by the private respondent no.7 vide his order dated 23.03.2005 passed in Mutation Case No.45 R 27 of 2004-05 by holding that the respondent no.7 has failed to prove his entitlement upon the said land. The private respondent nos.6 to 8 thereafter filed Mutation Appeal before the Land Reform Deputy Collector, Bundu (the respondent no.-4) being M.A. No. 01 of 2005-06, which was allowed vide order dated 11.08.2005 and cancelled the Jamabandi running in the name of the petitioner’s husband on the ground that the said land was transferred to Haripado Bhagat by virtue of a family agreement exchange deed dated 27.05.1958 and in lieu of that land, Bhubaneswar Ram Bhagat (the petitioner’s husband) had taken a land under Khata No.1358, Plot Nos. 1737 and 1748 having area of 0.14 acre for residential purpose. Thereafter, the petitioner filed Mutation Revision before the Additional Collector, Ranchi (the respondent no.-3) on 27.08.2005 being Mutation Revision Case No. 36 R 15/2005-06, which was dismissed vide order dated 02.06.2006 by holding that the petitioner did not seem interested to pursue the matter. Thereafter, the petitioner filed an application dated 06.06.2006 for revival/restoration of the revision petition, which was also dismissed vide order dated 27.07.2006, which gives rise to filing of the present writ petition. 4. The learned counsel appearing on behalf of the petitioner submits that the respondent no.4 has committed serious error in law and also on facts by cancelling the Jamabandi, which has been running for more than 50 years on extraneous consideration of forged Sada Badlen Patta, which was never filed before the respondent no. 5. It is further submitted that the respondent no.3 has passed the order dated 02.06.2006 in violation of principal of natural justice as the petitioner was not given opportunity of hearing before the said order was passed. The petitioner is an old lady, who, due to unavoidable circumstances, could not press the revision petition in the court of the respondent no. 3 on 02.06.2006, however, the same was dismissed on an erroneous ground as the petitioner has lost interest in her case. 5. Per contra, the learned counsel appearing on behalf of the respondent nos. 1 to 5 submits that the petitioner and her husband are not in possession over the land in question, in fact, the land is in possession of different persons. 5. Per contra, the learned counsel appearing on behalf of the respondent nos. 1 to 5 submits that the petitioner and her husband are not in possession over the land in question, in fact, the land is in possession of different persons. It is further submitted that the said land was purchased by Bhuneshwar Ram Bhagat (husband of the petitioner) and later on, the same was transferred to Hari Pado Bhagat by terms of a family mutual exchange deed and in lieu thereof, he kept the residential building named ‘Hari Bhawan’, which is situated over plot no.1737 and 1748, having area 0.14 acre under Khata No.1358. 6. Heard the learned counsel for the parties and perused the materials available on record. Admittedly, the aforesaid land was purchased by the husband of the petitioner in the year 1939 and he had been paying rent to the ex-landlord and after vesting, to the State. After several years, on 30.08.2004, respondent no.7 filed an application before the respondent no.5 for cancellation of jamabandi running in the name of the petitioner/her husband. The respondent no. 5 dismissed the application of the respondent no.7 on the ground that he failed to show his title upon the said land. The respondent nos. 6 to 8 filed an appeal against the order of the respondent no.5, which was allowed by the respondent no. 4 by holding that the land was transferred by the husband of the petitioner to Haripado Bhagat, who was the ancestor of the respondent nos. 6 to 8, by virtue of a family agreement exchange deed dated 27.05.1958. The revision application filed by the petitioner was dismissed by the respondent no. 3 holding that the petitioner did not have interest to pursue the matter and her application for revival/restoration of the revision was also dismissed. 7. In the judgment rendered by Hon’ble Division Bench of this Court in the case of Mahabir Mahto Vs. State of Jharkhand reported in 2012 (4) JLJR 210 , it has been held as under:- 26. 3 holding that the petitioner did not have interest to pursue the matter and her application for revival/restoration of the revision was also dismissed. 7. In the judgment rendered by Hon’ble Division Bench of this Court in the case of Mahabir Mahto Vs. State of Jharkhand reported in 2012 (4) JLJR 210 , it has been held as under:- 26. In sum and substance, the mutation proceedings have limited scope so far as its effect is concerned and the purpose of mutation proceeding is very clear from the Act of 1973 itself which substantially suggests that these are proceedings to safeguard the interest of the State and the revenue authorities primarily so that the State may know the persons’ right over the agricultural land and once the names are entered in the revenue record they can be altered only because of the reasons mentioned in Sections 3 to 13 of the Act of 1973. The provisions referred above are not meant for getting a declaration in serious dispute cases with respect to the entitlement and, therefore, it has been specifically provided by Section 5 of the Act of 1973 that when under the Code of Civil Procedure, possession of a holding or part thereof has been delivered in execution of a decree to the decree holder or to a purchase at Court auction sale or when a final decree for partition or for foreclosure of a mortgage has been passed the Court executing the decree or the Court passing the final decree for partition or foreclosure, as the case may be, shall also give notice of the fact in the prescribed form to the Anchal Adhikari of the area. The Anchal Adhikari has no jurisdiction to alter or modify or disobey the court’s decree and consequential effect of the possession under the Act of 1973 or otherwise. Looking to the nature of the proceeding and limited jurisdiction of the Anchal Adhikari of making correction in the revenue record, the Anchal Adhikari has no power and jurisdiction to pass a decree or order of declaration of a right, title or interest in the property or has right to declare about legality and validity of an instrument of transfer or a settlement or decide the issue of contentious succession cases which power vest under the provisions of the Indian Succession Act, in civil courts. 8. 8. It is settled position of law that mutation neither creates nor extinguishes any right, title and interest of any person upon a land. It is only for the purpose of collecting revenue from a person who is in possession of a particular land. The revenue authority dealing with the mutation proceeding does not have power to decide the intricate question of title of any person over a particular land. The respondent no.7 is claiming his right upon the said land by virtue of a family agreement exchange deed dated 27.05.1958 but he did not pursue his claim till the transferor (husband of the petitioner) was alive and after about 47 years agitated his claim before the revenue authorities, which was denied by the petitioner. Thus, the question before the revenue authority was to first declare the exchange deed as genuine and then pass an order for mutation, which was in fact the dispute of title between the parties. Thus, the respondent no.4 acted beyond jurisdiction in cancelling the Jamabandi running in the name of the petitioner/ her husband by entering into the intricate question of title between the petitioner and private respondents, hence the same cannot be sustained in law. Further, on perusal of the order-sheet of the Mutation Revision Case no. 36 R 15 of 2005-06, it would be evident that the petitioner appeared before the respondent no.3 on 09.05.2006 but thereafter could not appear on 02.06.2006 and on that day, the revision application was dismissed without going into the merit of the case assuming that the parties have lost interest in the case. Immediately thereafter on 06.06.2006, the petitioner filed revival/restoration application stating that due to her old age and heavy rain, she could not appear on 02.06.2006, which shows her willingness and eagerness to contest the case. However, the said revival/restoration application was dismissed by the respondent no.3 observing that the petitioner has not disclosed any cogent reason for revival. 9. In view of the aforesaid facts and circumstances, the order dated 11.08.2005 passed by the respondent no. 4 (Land Reforms Deputy Collector, Bundu) as well as the orders dated 02.06.2006 and 27.07.2006 passed by the respondent no. 3 (Additional Collector, Ranchi) are, hereby, quashed and set aside. However, the respondent no. 9. In view of the aforesaid facts and circumstances, the order dated 11.08.2005 passed by the respondent no. 4 (Land Reforms Deputy Collector, Bundu) as well as the orders dated 02.06.2006 and 27.07.2006 passed by the respondent no. 3 (Additional Collector, Ranchi) are, hereby, quashed and set aside. However, the respondent no. 7 is at liberty to take appropriate recourse before the competent civil court for declaration of his title upon the said land, if so advised. The observations made in this order is confined to the issue of cancellation of Jamabandi and it will not prejudice the case of either party before the competent civil court. 10. The writ petition is allowed and disposed of with the aforesaid liberty.