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2018 DIGILAW 1603 (JHR)

Most. Guli Kuar v. Jugeshwar Singh

2018-07-23

RAJESH KUMAR

body2018
ORDER : 1. Heard learned counsel for the appellants. 2. Appellants are original plaintiffs. 3. The plaintiffs has filed a suit being Title Suit No. 89 of 1993 for setting aside the order of L.R.D.C. passed on 23.08.1993 in Misc. Case No. 3 of 1990-91 and further for declaration of right, title and interest over the suit land and also for possession. 4. The case of the plaintiffs is that Khata No. 33 of village-Bakhari was recorded in the cadestral survey in the name of Kail Singh, who died leaving behind a son, namely, Janki Singh. Janki Singh has two sons, namely, Lal Nath Singh and Jugeshwar Singh. The land lord of Khata No. 33 where Gulabchand Sao, Laxmi Chand Sao and Babu Beni Prasad. The rent of Khata no. 33 failed in paying arrear and so the landlord brought the rent suit and got the alleged decree passed against Janki Singh for default in rent. Subsequently after obtaining decree, Execution Case No. 177/35-36 (Exhibit-8) has been filed by the landlord and in the execution of the same, the whole property was purchased by the landlord himself in auction sale. Thereafter, the land has been settled to different person including one Rowan Singh by sada hukumnama (parwana). In the pleading, neither the date of settlement nor the date of coming into possession of the suit land, has been mentioned. 5. It is further case of the plaintiffs that it has come into the possession of the predecessor of the present plaintiffs and by inheritance, they got the suit land. It has been further asserted that in the year 1991, through sale deed on 26.08.1991, some portion of the suit land has been purchased in the name of Moharmani Devi. 6. The case has been contested by the defendants. The case of defendants is clear as it is admitted position of both the parties that the defendant no. 6 and 7 now respondent nos. 1 and 2 are the legal heirs of recorded tenant i.e. Kail Singh through inheritance, they will get the property unless plaintiffs succeed in proving the auction purchase and settlement in their favour. 7. The Trial Court has framed various issues which are quoted hereunder: “(1) Is the suit as framed maintainable? (2) Whether the plaintiffs have any cause of action for the suit? (3) In the suit hit by non-joinder or mis-joinder of parties? 7. The Trial Court has framed various issues which are quoted hereunder: “(1) Is the suit as framed maintainable? (2) Whether the plaintiffs have any cause of action for the suit? (3) In the suit hit by non-joinder or mis-joinder of parties? (4) Whether the suit land has been auction sold and purchased by the landlord of village-Bakhari and got delivery of possession? (5) Whether the order passed by LRDC is without jurisdiction, null and void? (6) Whether the plaintiffs are the raiyat of the suit land? (7) To what relief or reliefs the plaintiffs are entitled?” 8. All the issues have been decided against the plaintiffs and accordingly, the suit has been dismissed. 9. In appeal, issue has been recasted. Appellate Court also approved the finding of the Trial Court and accordingly, decree has been affirmed. 10. Thus, there is concurrent finding against the plaintiffs vide order passed by L.R.D.C. on 23.08.1993 in Misc. Case No. 3 of 1990-91 and by the Trial Court as well as Appellate Court. 11. The proceeding under Section 71-A of the C.N.T. Act contemplates that the land belonging to the tribal cannot be transferred to non-tribal. Thus, defendants, who transferred their land has been dispossessed by the plaintiffs, who are non-tribals. Section 46 (3) of C.N.T. Act is quoted hereunder: (3) No transfer in contravention of sub-section (1) shall be registered or shall be in any way recognised as valid by any Court, whatever in exercise, of civil, criminal or revenue jurisdiction. Section 46 - 3(a) of C.N.T. Act is quoted hereunder: (3A) Notwithstanding anything contained in any other law for the time being in force, the Deputy Commissioner shall be a necessary party in all suits of a civil nature relating to any holding or portion thereof in which one of the parties to the suit is a member of the Scheduled Tribes and the other party is not a member of the Scheduled Tribes. 12. In a suit between the tribal and non-tribal, Deputy Commissioner is a necessary party and in fact in plaint original defendant nos. 1 to 5 was Deputy Commissioner and other official of the State but reason best known to the plaintiffs, their names have been deleted. 13. 12. In a suit between the tribal and non-tribal, Deputy Commissioner is a necessary party and in fact in plaint original defendant nos. 1 to 5 was Deputy Commissioner and other official of the State but reason best known to the plaintiffs, their names have been deleted. 13. Law declares that Deputy Commissioner is a necessary party and in the absence of necessary party, the suit has to fail and on this ground alone, the suit must fail. 14. However, in the present case, there are concurrent findings of Trial Court, Appellate Court as well as Executive Court, who is competent under the provisions of C.N.T. Act to pass order. 15. In view of above discussion, this Court finds that no substantial question of law is involved in present appeal, accordingly the present second appeal is hereby dismissed. Appeal dismissed.