Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 114 (JHR)

Ram Kumar Singh v. State of Jharkhand

2018-01-15

RAJESH SHANKAR

body2018
ORDER : RAJESH SHANKAR, J. 1. The present writ petition has been filed for quashing the order dated 26.7.1998 by the Circle Officer, Sadar, Ranchi whereby, the Jamabandi running in the name of the petitioners with respect to the land appertaining to R.S. Plot No. 336, Sub-Plot No. 336/K, under Khata No. 119, situated at Mouza-Bajra, P.S.-Sukhdeonagar, District-Ranchi (hereinafter referred to 'as the said land') has been cancelled. The factual background of the case, as stated in the writ petition, is that the tend in question was originally recorded in the name of Maharaj Kumar Manghil Lal Jugal Kishor Nath Sahdeo and the same was settled in favour of Jagdishparsanna Nath Sahdeo on 15.11.1915 by virtue of Hukumnama. Further, said Jagdishparsanna Nath Sahdeo settled the said land as well as some other land to one Jai Kumar Nath Sahdeo on 1.3.1935 by a Hukumnama with Chhaparbandi right. Thereafter, the said land was sold to Kumar Shri Mahendra Pratap Singh Deo in the year 1960, who came in possession of the same. The said land was also mutated in the name of Kumar Shri Mahendra Pratap Singh Deo vide order dated 29.5.1984 passed in Mutation Case No. 1699-R-27/1983-84. The petitioners purchased some part of the said land in the year 1985 and came in possession of the same and also made construction thereon. The purchased land were also mutated in their respective names and they paid rent thereof to the State. However, suddenly vide order dated 26.7.1998, the Jamabandi running in the name of the petitioners has been cancelled, which gives rise to filing of the present writ petition. 2. Learned counsel for the petitioners submits that Jagdishparsanna Nath Sahdeo had also settled the said land under Khata Nos. 119 & 113 to one Ishwar Dayal Singh on 2.2.1952, which was subsequently transferred by a sale-deed to one Mithila Sahakari Grih Nirman Samittee Ltd. whose name was also mutated in Mutation Case No. 1067-R-27/83-84. However, a proceeding under Section 4(h) of the Bihar Land Reforms Act, 1950 (hereinafter referred to as 'the Act, 1950') was initiated against Ishwar Dayal Singh and finally the settlement was cancelled. However, a proceeding under Section 4(h) of the Bihar Land Reforms Act, 1950 (hereinafter referred to as 'the Act, 1950') was initiated against Ishwar Dayal Singh and finally the settlement was cancelled. Mithila Sahakari Grih Nirman Samittee Ltd. filed a writ petition being W.P.(C) No. 4320 of 2002 against the said cancellation and finally vide order dated 25.4.2003, the said writ petition was allowed holding that the settlee has been in possession of the said land for about 5-6 decades and the required entry has already been made by the respondents in Register-II of the concerned Revenue Circle. The rent of the said land has also been realized from the settlee as well as the transferee of the said land. It is further submitted that the appeal filed against the said order being L.P.A. No. 818 of 2003, was also dismissed vide order dated 13.12.2004. The petitioners' case also stands on the similar footing. The petitioners have been in possession of the said land for more than 25 years and prior to that, their vendor had been in possession of the said land for the period of more than 35 years and after expiry of about 60 years, the respondents are trying to dispute their title and possession over the respective land. It is also submitted that as per the provisions of Bihar Tenants Holdings (Maintenance of Records of Right) Act, 1973, while issuing the rent receipt, the respondents are required to see the possession only. It is settled position of law that while dealing with the mutation matter, the concerned revenue authority has to see only the possession and if it is found correct, the authority should issue the rent receipt, as allowing the mutation application and acceptance of rent do not create any title in favour of a person over the land. It is further submitted that the Jamabandi is running in the name of the petitioners for the last three decades and as such the aggrieved party has to take shelter before the competent Civil Court for claiming the title over the land. The petitioners are the bona fide purchasers of the land in question and their names have been mutated after making due enquiry on the factum of possession. The petitioners are the bona fide purchasers of the land in question and their names have been mutated after making due enquiry on the factum of possession. The Sub-Divisional Officer, Ranchi (respondent No. 3) has no jurisdiction to cancel the long running Jamabandi without taking recourse of law or without initiating any proceeding under Section 4(h) of the Act, 1950. 3. Learned counsel for the respondents submits that the said land is recorded in the R.S. Record of Right as 'Gair Mazurwa Malik' having nature of 'Parti Pathar', 'Parti Garah' and Tungri' and as such the said land has vested in the Government under Sections 3 and 4 of the Act, 1950. The Jamabandi of the said land was recorded in the name of Jai Kumar Nath Sahdeo in collusion and connivance with the then Revenue Officials without obtaining any order of the competent authority, but no rent receipt was issued in his favour. The illegal Jamabandi running in the name of Jai Kumar Nath Sahdeo has been cancelled by the then Sub-Divisional Officer, Sadar, Ranchi in terms with the order dated 21.5.1998 passed in Misc. Case No. 29 of 1993-94 and entry to that effect has already been made in Register-II. It is further submitted that the case of the petitioners is not similar to that of W.P.(C) No. 4320 of 2002 and as such the law laid down in that case is not applicable to the case of the petitioners. 4. Heard learned counsel for the parties and perused the materials available on record. The land in question was settled by Jagdishparsanna Nath Sahdeo to Jai Kumar Nath Shahdeo on 1.3.1935 by virtue of a Hukumnama with Chhaparbandi right. Thereafter, the said land was sold to Kumar Shri Mahendra Pratap Singh Deo in the year 1960 and Jamabandi was also created in his name in the year 1983-84. The petitioners purchased the respective parts of the said land in the year 1985 and the Jamabandi was also created in their names and they paid rent for the respective part of land till 2009. The petitioners claim that they have been residing over the said land by making construction thereon. Admittedly, the Jamabandi was running in the name of the predecessor-in-interest of the petitioners and after purchase of the said land, the Jamabandi was created in the name of the petitioners for the respective parts of the purchased land. The petitioners claim that they have been residing over the said land by making construction thereon. Admittedly, the Jamabandi was running in the name of the predecessor-in-interest of the petitioners and after purchase of the said land, the Jamabandi was created in the name of the petitioners for the respective parts of the purchased land. The petitioners have averred that they have paid rent of the said land till 2009 and the said fact has not been denied by the respondents. 5. In the case of Municipal Corporation, Aurangabad vs. State of Maharashtra & Ors., reported in (2015) 16 SCC 689, the Hon'ble Supreme Court has held as under: "13. It is settled that mutation does not confer any right and title in favour of any one or other, nor cancellation of mutation extinguishes the right and title of the rightful owner. Normally, the mutation is recorded on the basis of the possession of the land for the purposes of collecting revenue." 6. In the case of Mahabir Mahto & Ors. vs. State of Jharkhand & Ore. reported in 2012 (4) JUJR 210, learned Division Bench of this Court has 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. 29. From the scheme of the above provisions it is clear that the application for mutation, obviously for alteration of the entries in the Continuous Khatian and Tenants' Ledger Register cannot be claimed by a person having totally adverse interest to the person whose name is entered in the revenue record and, therefore, the application filed for the entry of the names of the appellants with a claim that their source of right is independent and is adverse to the respondents/writ petitioners itself, was not maintainable. It appears that by passage of time, the mutation proceedings which has limited scope and which gives limited jurisdiction to the Anchal Adhikari under the Act of 1973 expanded to beyond its scope and in practice may have become an adversary litigation in a proceeding for entering the names of the person who is claiming right through the person whose name is recorded in the revenue record and, claiming the right by virtue of either death of original recorded person and being successor of the recorded persons or by virtue of transfer, exchange, agreement, settlement, lease, mortgage, gift, or by any other means or by virtue of the court's decree or by virtue of grant of land by the Bhoodan Yagna Committee or by virtue of consequence of the acquisition of the land under the Land Acquisition Act or other statutes, but legally, Anchal Adhikari has no jurisdiction to decide adverse claims, other than provided under Sections 3 to 13 of the Act." 7. On perusal of the aforesaid judgments, it would be evident that the order of mutation neither confers nor extinguishes any right of the parties. The purpose of mutation is only to collect Government revenue from a person who is in possession of the land. While deciding the mutation case, the revenue authority are not supposed to look into the right and title of a person upon the said land. Once the mutation of the land is allowed and the rent receipts are being issued for long, the same cannot be stopped without any order passed in accordance with law. 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. 8. In the case of Ramayan Yadav vs. State of Bihar reported in 2013 (3) PLJR 533 , learned Division Bench of this Court has held as under: "8. So far the other point is concerned, it is settled principle of law that the Jamabandi cannot be cancelled by the said authority, rather a civil suit is the only remedy. On this point, a plethora of decisions are available including a decision of the Division Bench of this Court in case of Khiru Gope and two Others vs. The Land Reforms, Deputy Collector, Jamui and three Others, reported in A.I.R. 1983 Patna 121. On this point, a plethora of decisions are available including a decision of the Division Bench of this Court in case of Khiru Gope and two Others vs. The Land Reforms, Deputy Collector, Jamui and three Others, reported in A.I.R. 1983 Patna 121. Learned counsel for the appellants completely failed to controvert this issue." 9. In the case of Gulabasi Devi vs. State of Bihar reported in 2003 (3) JLJR 793 , a Coordinate Bench of this Court has held as under: "6. Admittedly the land was recorded in the survey record of right as Gair Mazarua Malik in the name of the ex-landlord who settled the land in favour of the vendor of the petitioner Ram Kewal Sahu. The ex-landlord submitted his return showing Ram Kewal Sahu as settlee and jamabandi was opened in his name. The genuineness of the record of right, the settlement made in favour of Ram Kewal Sahu and the jamabandi opened in his name was never challenged by the State of Bihar rather in all the proceedings initiated at the instance of Baijnath Prasad and respondent No. 7 the authorities of the State decided all those proceedings in favour of the petitioner. It is well settled that once jamabandi opened in favour of a person and that continued for a number of years, it can be cancelled only by initiating a proceeding by the Collector under Section 4(h) of the Bihar Land Reforms Act. Reference may be made to a Division Bench decision of the Patna High Court in the case of Harihar Singh vs. Additional Collector, 1978 BBCJ 323 ." 10. The contention of the respondent-State that the said land is recorded as 'Gair Mazarua Malik' in the Record of Rights and the nature of the said land is "Parti Pathar', 'Parti Garah' and Tungris' and as such after vesting of Zamindari, the same has vested in the State Government, cannot be accepted as a good ground as it is well settled by catena of judgments of this Court that the Zamindar had full authority to make settlement of the land recorded as 'Gair Mazarua Malik' and if the State challenges the correctness of the said settlement and possession, the onus is entirely upon the State to prove that the same is illegal. In the present case, the respondents on the one hand claim that the said land belongs to the State and on the other hand, the Revenue Officer of the State Government opens the Jamabandi in the name of the petitioners and the rent of the said land is also accepted. Thus, in my view, the State authorities should refrain themselves from such action (as has been done in the present case) and if such occasion arises, they should move before the competent Civil Court for redressal of their grievance. The respondents have tried to justify their action contending that the Jamabandi created in favour of Jai Kumar Nath Shahdeo has been cancelled by the Sub-Divisional Officer, Sadar, Ranchi in terms with the order dated 21.5.1998 in Misc. Case No. 29/1993-94. However, on perusal of the record, it appears that during the relevant period, the petitioners were in possession of the said land by virtue of the sale-deeds, but the notices were not issued to them before passing the impugned order of cancellation of Jamabandi. Thus, the impugned order dated 26.7.1998 is also vitiated having been passed in violation of the principles of natural justice. The petitioners have contended that no proceeding under Section 4(h) of the Bihar Land Reforms Act has been initiated against them or their predecessors-in-interest over the said land and the said fact has not been controverted by the respondents. 11. Moreover, it appears from the record that the settlement of the land of the same khata made in favour of Ishwar Dayal Singh by a sada Hukumnama was cancelled by initiating a proceeding under Section 4(h) of the Act, 1950. The said cancellation was challenged by Mithila Sahakari Grih Nirman Sahyog Samittee Ltd. by filing a writ petition being W.P.(C) No. 4320 of 2002, who claimed to have purchased the property in the year 1983-84 and the said writ petition was allowed by a Bench of this Court vide order dated 25.4.2003 holding, inter alia, that after settlement of the said land, the respondents recognized Ishwar Dayal Singh as the genuine settlee and the rent receipts were also issued to him and after purchase, Mithila Sahakari Grih Nirman Sahyog Samittee Ltd. had also been in possession of the said land paying rent to the Government. It has further been held that a person who claims to have obtained the possession of raiyati interest by an unregistered Hukumnama and continued in possession, his title to the said land must be recognized. The said order has also been upheld by learned Division Bench of this court in L.P.A. No. 818 of 2003 and as such the same has attained finality. In the present case also, the settlee of the said land was recognized as a genuine settlee and thereafter the rent receipts were also issued to the petitioners as well as their processors (sic--predecessors?)-in-interest by the respondents-authorities, however, their Jamabandi have been cancelled by reasons of the impugned order that too, without initiating any proceeding under Section 4(h) of the Act, 1950. 12. In view of the discussions made hereinabove, the impugned order dated 26.7.1998 (Annexure-A to the counter affidavit) cannot be sustained in law and thus the same is, hereby, quashed and set aside. The respondents are directed to issue rent receipt(s) to the petitioners in respect of the respective purchased land. The present writ petition is accordingly allowed.