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2018 DIGILAW 1364 (JHR)

Mangovinda Mahato v. State of Bihar

2018-06-29

ANUBHA RAWAT CHOUDHARY

body2018
ORDER : 1. Heard Dr. H. Waris, counsel appearing on behalf of the petitioners. 2. Heard Mr. Aditya Raman, counsel appearing on behalf of the respondent-State 3. This writ petition has been filed for the following reliefs:- “For quashing order dated 21.11.94 passed by the respondent no.3 in S.A.R. Appeal No. 69 of 1989-90 contained in Annexure-3 and order dated 14.12.99 passed by the respondent no.2 in Singhbhum Revenue Revision No. 47 of 1995 contain in Annexure-4 to this writ application” 4. Counsel for the petitioners submits that vide order dated 18.08.2006, following two questions of law were framed by this Court and they referred to Hon’ble Division Bench for decision:- “(i) whether a person can hold land in dual capacity i.e. as a tenure holder and as a Raiyat and whether the superior right will prevail over the inferior right? (ii)whether the dual right of a person as of tenure holder which he was having prior to 1920 can be said to have been taken away by the subsequent amendment by Section 20 of the Chotanagpur Tenancy Act which came into force in the year 1920 and whether the said provision has retrospective effect?” 5. The aforesaid questions were answered by Hon’ble Division bench vide order dated 06.07.2011 and the matter was referred back to Single bench for decision on the merits of the case. 6. The counsel for the petitioner submits that aforesaid question no.(i) was answered by Hon’ble Division Bench and it has been held that in any holding in dual capacity in terms of sub-Section 1 of Section 20, only superior right shall prevail over the inferior right. 7. The counsel further submits that so far as question no.(ii) is concerned, it was decided that by Section 20, no right accrued to any person prior to coming into force of Section 20, rather it was only recognition of the accrued right which otherwise accrued to the person by virtue of rights given under the Chotanagpur Tenancy Act, 1908. 8. It is submitted that , however, the Hon’ble Division Bench being a Court of reference did not examine the finding of fact whether the ancestors of respondent nos.5 to 15 Muchi Ram Bhumij was only tenure holder or raiyat or was recorded as both in revenue records as findings of first Court and revisional Court are different on these issues. It is submitted that , however, the Hon’ble Division Bench being a Court of reference did not examine the finding of fact whether the ancestors of respondent nos.5 to 15 Muchi Ram Bhumij was only tenure holder or raiyat or was recorded as both in revenue records as findings of first Court and revisional Court are different on these issues. In such circumstances, after answering the issues, the Hon’ble Division bench left the case to be decided on merits by single bench. 9. The answer to the aforesaid two questions which were referred to the Hon’ble Division Bench has been answered vide para-6 to 8 to the order dated 06.07.2011 which is quoted herein below for ready reference:- “6. In view of the interpretation given by the Revisional Authority referred above, and the contention raised by the petitioners, the above two questions were framed and referred to Division Bench. Unamended Sub-section (1) of Section 20, as it was in the Act of 1908, is as under: “20 (1) When the immediate landlord of an occupancy holding is a proprietor or a permanent tenure holder, and the entire interest of the landlord and the raiyat in the holding become united in the same person by transfer, succession or otherwise, such person shall not retain a right of occupancy in the holding, but shall hold the same as a proprietor or permanent tenure-holder, as the case may be; but nothing in this sub-section shall prejudicially affect the rights of any third person.” After amendment sub-Section (1) of Section 20 of the Act, 1908 is as follows: “When the immediate landlord of an occupancy holding is a proprietor or a permanent tenure-holder and the entire interests of the landlords and the Raiyat in the holding become united in the same person by transfer, succession, or otherwise, such a person, shall hold the land as a proprietor or permanent tenure-holder, as the case may be, and shall not hold it by any subordinate right whatsoever, but nothing in this sub-section shall prejudicially affect the rights of any third person.” 7. A bare perusal of old as well as new sub-section (1) of Section 20 reveals that it is a special provision to cover the effect of merger of two rights and it says that, if a landlord of an occupancy holding is a proprietor or a permanent tenure-holder and the entire interests of the landlords and the Raiyat in the holding become united in the same person by transfer, succession, or otherwise, such person shall not retain a right of occupancy in the holding and it shall hold the same as proprietor or permanent tenure-holder, as the case may be, and it was made clear that it will not prejudicially affect the right of any third party. By new sub-section (1) of Section 20, only a position which was obvious with respect to the supremacy of the superior right has been made clear by use of express words by adding the words ‘ and shall not hold it by any subordinate right whatsoever’. Therefore, by amended sub-section (1) of Section 20, it was made clear that what has been allowed to a person who was landlord of an occupancy holding and proprietor or a permanent tenure-holder and if also acquires the raiyat right in the holding then he shall hold the same as proprietor or permanent tenure holder, obviously, shall not remain holder of subordinate right after automatically merger of inferior right into his superior right. Therefore, question no.1 is answered as it is held that in any holding in dual capacity in terms of sub-section (1) of Section 20, only superior right shall prevail over the inferior right. 8. The next question is with respect to the affect of Section 20 upon the said merger of the rights, referred above of landlord of occupancy holder, a proprietor or a permanent tenure-holder with the acquisition of the raiyat right. For this, we may examine the legal position, as it was of 1909, the year in which it has been recorded that the respondent nos.5 to 15’s ancestor was recorded as tenure-holder as well as raiyat. (We as Court of reference are not examining the finding of fact whether ancestor of respondent nos. 5 to 15 Muchi Ram Bhumij was only Tenure Holder or Raiyat or was recorded as both in revenue records as finding of first court and revisional court are different on these issue). (We as Court of reference are not examining the finding of fact whether ancestor of respondent nos. 5 to 15 Muchi Ram Bhumij was only Tenure Holder or Raiyat or was recorded as both in revenue records as finding of first court and revisional court are different on these issue). The moot question, which has been posed is that, whether by Section 20, any right of such person has been taken away. We are of the considered opinion that unless it is specifically provided in the Statute or by necessary implication, the law is required to be treated to be affective from the date of enactment and whenever a dispute arises, then the relevant is the law which is in force at the time of raising a claim on the basis of such law, subject to perfection of the right, which is sought to be affected by new enactment. Here, in this case, as we have already observed that the person having superior right and also acquires an inferior right than the superior right is not affected, rather that inferior right merges into superior right. Admittedly raiyat is an inferior right to the right of a proprietor or permanent tenure-holder then even when sub-section (1) of Section- 20, the person who had a dual rights, superior as well as inferior right, had a right to exercise his all authority to deal with the property in accordance with the superior right. However, in the present facts and circumstances, the person who had a superior right may be adversely affected because by superior right, he could have transferred the land and under inferior right, he could not have transfer the land and now the transfer made by him goes against him transfer but the legal position remains the same that person who had a better right to enjoy the property could have exercised this better right, irrespective of old and new sub-section (1) of Section 20. No accrued right is sought to be taken away but it is only the recognition of the accrued right which otherwise accrued to the person by virtue of the rights given under the Chotanagpur Tenancy Act. Therefore, question no.2 is answered that by Section – 20, no right accrued to any person prior to coming into force of Section 20 stands to be taken away.” 10. Therefore, question no.2 is answered that by Section – 20, no right accrued to any person prior to coming into force of Section 20 stands to be taken away.” 10. In the aforesaid background, counsel for the petitioners submits as under:- (a) The ancestors of private respondents herein namely Prem Singh Bhumij and others filed an application before land Reforms Deputy Collector, Dalbhum, Jamshedpur under Section 71 A of Chotanagpur Tenancy Act, 1908 for restoration of land measuring 4.17 acres of Plot No. 822, 887, 886, 917, 916, 915, 914 and 867 under Khata No. 111 under Thana No. 26 of Mauza Sari which was registered as R.P. Case No. 151 of 1978-79. The applicant claimed that the land in dispute was recorded in the name of the applicant in Cadestral Survey, 1909 and applicants are the members of Schedule tribe. It was alleged that the petitioners’ ancestors got the land entered in their name in survey of 1964 and took possession of the land. A report was called for from the Anchal Adhikari which showed that the land was recorded in the name of the petitioners in 1964 Survey Settlement. (b) Counsel for the petitioners submits that the aforesaid property is appertaining to C.S. Khata No. 33 under Khewat No. 6 Tauzi No. 1 of Mauza Sari in C.S. Plot No. 805, 806 and 744 recorded in the name of Muchi Ram Bhumij, the ancestor of the private respondents. He submits that these are the corresponding old plot numbers. (c) Further case of the petitioners is that Muchi Ram Bhumij had taken the property on rent from the ex-landlord by registered Patta dated 16.06.1903 and accordingly he became the tenure holder of the property. He further submits that tenure holder of the property is entitled to create tenancy by settlement of land and by virtue of this right the tenure holder namely Muchi Ram Bhumij created tenancy in favour of the ancestors of the petitioners vide registered Patta dated 28.6.43 and 13.11.45 and also took settlement in the year 1953 which was followed by delivery of possession and thereafter the ancestor of the petitioners came in possession of the property and now the petitioners are in possession of the property in question. (d) He further submits that one of the grandsons of Muchi Ram Bhumij filed return at the time of vesting of Zamindari and in the return the ancestors of the petitioners was projected as tenure holders and similar was the position in compensation Case No.6 of 59-60. He submits that the status of the ancestor of the petitioners as tenure holder was throughout acknowledged by the ancestors of the private respondents and after the vesting under Bihar Land Reforms Act, 1950 the status of the ancestors of the petitioner became a raiyat and accordingly they paid rent to the State of Bihar. He submits that in view of this position, the provisions of Section 71 A of Chotanagpur Tenancy Act, was not at all applicable to the facts and circumstances of this case as the petitioners did not possess the property by way of transfer of land by any raiyat rather they have acquired the property by way of transfer from the original Zamindar and they were holding the property in the capacity of the raiyat by virtue of registered settlement. (e) He submits that this aspect of the matter was properly considered by the S.A.R. Officer and the S.A.R. Officer passed order in their favour. He further submits that otherwise also the ancestors of the petitioners had come in possession of the property by way of registered document and they were throughout in possession of the property and therefore the application which was filed was barred by limitation. (f) However, he submits that point of law having been decided in the instant case and records of the case would clearly show that Muchi Ram Bhumij was tenure holder of the property and accordingly he had right to create tenancy which was duly created in favour of the ancestors of the petitioners. (g) Accordingly, the claim of descendants of Muchi Ram Bhumij that they have been wrongly dispossessed is totally unfounded and their case is fit to be rejected. (h) Although, the private respondents are not appearing in this case, counsel for the petitioners has submitted that the specific case of the respondents herein is that the petitioners by illegal means have got the property transferred in their favour and they have taken a specific plea that Muchi Ram Bhumij, their predecessor had dual status as an intermediary right holder as well as a raiyat having occupancy right. Thus, he could not have settled or leased out the land to others particularly to non-aboriginal permanently under Chotanagpur Tenancy Act, 1908. (i) Counsel for the petitioners further submits that the appeal was filed against the order passed by the original authority which were numbered as S.A.R. Appeal No. 69 of 1989-90 and the appellate court had set-aside the order passed by the lower court and an order of restoration of land was passed. He further submits that from the perusal of the appellate court’s order, it is apparent that the court was swayed away by the idea that there has been transfer of the land from the member of tribal community to a member of non-tribal community and in spite of all the materials on record the appellate authority without any rhyme or reason doubted the genuineness of the transfer of land. The appellate authority was also of the view that the property could not have been transferred to a resident of another village as per the customs. (j) Counsel for the petitioners submits that there is no materials on record to establish any such custom which prevented the nature of transfer which is involved in this case and merely because the property has been transferred from a tribal to non-tribal, that itself does not vitiate the transfer if it is otherwise found to be in accordance with law. (k) Against this, the petitioners had filed revision which was numbered as Singhbhum Revenue- Revision No.47 of 95 and the main contention which was raised by the petitioners before the revisional authority was that the opposite parties were the tenure holders for the land in dispute and not raiyats and therefore they could not have taken shelter of Section 71 A of Chotanagpur Tenancy Act, 1908. (l) It was also argued that as the ancestors of the respondents herein were the tenure holders of the property they had rightly transferred the property in favour of the ancestors of the petitioners by way of registered documents and there is no illegality in such transfer. (l) It was also argued that as the ancestors of the respondents herein were the tenure holders of the property they had rightly transferred the property in favour of the ancestors of the petitioners by way of registered documents and there is no illegality in such transfer. The revisional authority rejected the revision filed by the petitioners by holding that Section 20 (1) had no retrospective effect and held that the ancestors of the respondents herein were not entitled to settle the land as it was their raiyati land and held that a raiyat can have an under raiyat but cannot settle the raiyati land to another raiyat. (m) The authority further held that the status of the petitioners as per the kabuliyat was not of an under raiyat and held that as per the customary law of village the land were to be settled to a person residing in the same village. The said authority held that there has been violation of Chotanagpur Tenancy Act, 1908 by fraudulent means and the ingredients of Section 71 A of Chotanagpur Tenancy Act, 1908 are present and therefore the same provision applies to the facts of this case. On the point of limitation, the said authority held that the name of the petitioners was entered in the record of right for the first time in the year 1966 and the application was filed in the year 1978, therefore, the petition was not barred by limitation. 11. Counsel for the respondent-State on the other hand by referring to para- 8 of the counter-affidavit submitted that alleged settlement of land by the ancestors of the respondents was illegal and the same was violation of Chotanagpur Tenancy Act, 1908. He further submits that land in question was recorded land of ancestors of respondent nos.5 to 15 who were the occupancy raiyat and the petitioners are resident of a different village. He further submits that in para-10 of the counter-affidavit, it has been mentioned that respondents were the raiyat and not landlord. 12. He further submits that land in question was recorded land of ancestors of respondent nos.5 to 15 who were the occupancy raiyat and the petitioners are resident of a different village. He further submits that in para-10 of the counter-affidavit, it has been mentioned that respondents were the raiyat and not landlord. 12. After hearing the counsels for the parties and after considering the materials on record, this Court is inclined to allow the writ petition on account of following facts and reasons: (a) From the perusal of the order passed by the S.A.R. court in R.P. Case No. 151 of 1978-79, it appears that after considering the materials on record including the return filed by one of the grandsons of Muchi Ram Bhumij at the time of vesting of jamindari under Bihar Land Reforms Act, 1950 and also the records of Compensation Case No.6 of 59-60 which were filed by the grandsons of Muchi Ram Bhumij and the return filed, it clearly reflected that Muchi Ram Bhumij was a tenure holder and there is no dispute that a tenure holder had a further right to create tenancy. The S.A.R. Court on this basis held that, Muchi Ram Bhumij being a tenure holder had rightly created tenancy in favour of the ancestors of the petitioners by way of registered document and rejected the application filed under Section 71 A of Chotanagpur Tenancy Act, 1908. (b) Against this, the appeal was filed which was numbered as S.A.R. Appeal No.69 of 1989-90 by the private respondents herein and the appellate court while setting-aside the order passed by the S.A.R. Court has not at all considered this aspect of the matter and misdirected itself and was swayed away by the fact that there was a transfer of property from a member of schedule tribe community to a member of another community and doubted the genuineness of the transfer and held that otherwise also the transfer could not be justified as the ancestors of the petitioners belonged to another village. On the one hand, the materials on record were not considered by the appellate authority and on the other hand the appellate authority had mentioned about some customs although there is no material on record to establish any custom. On the one hand, the materials on record were not considered by the appellate authority and on the other hand the appellate authority had mentioned about some customs although there is no material on record to establish any custom. (c) Against the order of the appellate authority, the petitioners had filed revision before the Commissioner and the learned Commissioner also did not appreciate the case in the proper perspective. Although, the submission of the petitioners regarding compensation case was recorded but the revisional authority did not take into consideration the documents which were filed by the petitioners before the original court to substantiate the case of the petitioners and was supported by certified copies of some of the documents. (d) The revisional authority further held that the provisions of Section 20 (1) of Chotanagpur Tenancy Act, 1908 cannot be given retrospective effect and held that the raiyati right of tenure holder of the holding prior to 1920 are not affected by amended Section 20. The revisional authority also found that in the khatian prepared during the cadestral survey 1903, the ancestors of the private respondents herein have been shown as raiyat as well as the tenure holder with respect to the land in dispute in the khatian prepared. (e) In view of the aforesaid, this Court finds that there was enough material on record to hold that the ancestors of the private respondents were tenure holder and not raiyats after introduction of Section 20 (1) of Chotanagpur Tenancy Act, 1908 although in Cadestral Survey of 1903 the ancestors of the private respondents was shown as raiyat as well as tenure holder and the sub-ordinate right of raiyat merged into the superior right of tenure holder. Accordingly, on the basis of materials on record the learned S.A.R. Court rightly rejected the application filed under Section 71 A of Chotanagpur Tenancy Act, 1908 but neither the appellate court nor the revisional court properly appreciated this aspect of the matter as well as the materials on record while giving contrary finding. (f) In such circumstances, this Court finds that the ancestors of the respondents were tenure holder of the property and not raiyats both prior and after the amendment in Section 20 of Chotanagpur Tenancy Act, 1908 and they had the right to create tenancy. (f) In such circumstances, this Court finds that the ancestors of the respondents were tenure holder of the property and not raiyats both prior and after the amendment in Section 20 of Chotanagpur Tenancy Act, 1908 and they had the right to create tenancy. This is because of the reason that question no.(i) as quoted in para - 4 has been answered by Hon’ble Division Bench and it has been held that in any holding in dual capacity (i.e., tenure holder as well as raiyat) in terms of sub-Section 1 of Section 20, only superior right i.e., tenure holder shall prevail over the inferior right i.e., raiyati right. Accordingly this court finds that there was no illegality in the transfer involved in this case and Section 71A of Chotanagpur Tenancy Act, 1908 was not attracted to the facts and circumstances of this case. (g) Further, the revisional authority had rejected the plea of limitation as raised by the petitioners on the ground that as per the name of the petitioners in the record of right had come only in the year 1966 and the applicants were dispossessed in the year 1969 on the submission of the applicants that the petitioners never put forth their claim before the revenue authorities for inclusion of their names in the land records prior to 1966. The specific case of the petitioners was that the ancestors of the petitioners came in possession of the property by virtue of registered documents and this aspect of the matter has been totally ignored by the Learned Commissioner while passing the impugned order. Further the execution of the registered documents by the ancestors of the applicants is not in dispute. In such circumstances, this Court is of the considered view that merely because the ancestor of the petitioners did not approach the revenue authorities for inclusion of their names in the record of rights prior to 1966, the same cannot be a ground to reject the claim of possession of the petitioners on the basis of registered documents dated 28.6.43 and 13.11.45. Thus, this Court finds that the application for restoration was itself fit to be rejected as barred by limitations having been filed beyond reasonable time from the date of dispossession. 12. In view of the aforesaid findings and reasons, this writ petition is allowed. Thus, this Court finds that the application for restoration was itself fit to be rejected as barred by limitations having been filed beyond reasonable time from the date of dispossession. 12. In view of the aforesaid findings and reasons, this writ petition is allowed. The impugned order dated 21.11.94 passed by the respondent no.3 (Appellate Authority) in S.A.R. Appeal No. 69 of 1989-90 contained in Annexure-3 and impugned order dated 14.12.99 passed by the respondent no.2 (Revisional Authority) in Singhbhum Revenue Revision No. 47 of 1995 contained in Annexure-4 to this writ application are hereby set-aside.