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2018 DIGILAW 366 (JHR)

Mantu Keshri v. State of Jharkhand

2018-02-14

ANUBHA RAWAT CHOUDHARY

body2018
ORDER : 1. Heard Mr. Rahul Kumar, counsel appearing for the petitioners. 2. Heard Mr. Rajiv Nandan Prasad assisted by Mr. S.C. Prakash, counsels appearing for the respondent nos. 6 to 13. 3. Heard Mr. A.K. Thakur, counsel appearing for the respondent nos. 1 to 5. 4. This writ petition has been filed by the petitioners for the following reliefs: a. for quashing the order dated 05.09.2003 passed by the Commissioner, Dumka in revenue miscellaneous appeal no. 457/1995-96, rejecting the case of the petitioners against the order of the Deputy Commissioner, Dumka dated 20.12.1995 in revenue miscellaneous Appeal no. 4 of 1989-90. b. for quashing the order dated 20.12.1995 passed by the Deputy Commissioner, Dumka in revenue miscellaneous appeal no. 4/1989-90, whereby and whereunder the appeal of the respondents second set against the order of S.D.O., Dumka dated 4.3.1989 passed in E.A. Case No. 84 of 1987-88 has been allowed. c. For restoring the order dated 7.3.1989 passed by the Sub-Divisional Officer, Dumka in E.A. Case No. 84 of 1987-88 passed by the learned Sub-Divisional Officer, Dumka who was pleased to direct for deposit of Rs. 11,400/- by the petitioners for payment to respondents second set in his court in purported exercise of his power under section 20(5) of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949. 5. Before proceeding with the merits of the case the counsel for the petitioners submits that I.A No. 2488/2003 was filed interalia for substitution of deceased respondent no 13 but as per order dated 25.01.2018 there is an order for deletion of the respondent no 13 although the respondent no 13 was to be substituted by his son namely Arun Thakur. He submits that due to inadvertence submission was made to delete Respondent no 13. 6. Considering the submission made by the counsel for the petitioner and upon perusal of I.A No. 2488/2003 to which no counter affidavit has been filed, it appears that deceased respondent no. 13 was to be substituted by his son and accordingly the order dated 25.01.2018 is hereby modified and the deceased respondent no 13 is to be substituted by his son namely Arun Thakur for which necessary correction has already been made by the counsel for the writ petitioner. 7. 13 was to be substituted by his son and accordingly the order dated 25.01.2018 is hereby modified and the deceased respondent no 13 is to be substituted by his son namely Arun Thakur for which necessary correction has already been made by the counsel for the writ petitioner. 7. The facts of this case as submitted by the counsel for the petitioners is as under: a. A petition being E.A. Case No. 84 of 1987-88 was filed on 23.11.1987 by the respondents (the second set of respondents herein) or their predecessors before the court of learned Sub-Divisional Officer, Dumka for evicting the father of the petitioners as well as the petitioners from their house situated in Mouza Belguma Khurd over Plot no. 23, Jamabandi no. 18 (area 3 Kathas 16 Dhur) and for restoration of land to them. The petition was filed u/s 20/42/69 of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 in which the applicants of the said case claimed that the property, in question, stood recorded in the name of the ancestor of the applicants and they have been paying rent to the State Government up to date. It was the specific case of the applicants of the said case that they have been growing paddy on the land till about 5 years back and in February, 1982 the father of the petitioners as well as the petitioners had started some construction work and accordingly the petition for restoration of land was filed. b. The counsel for the petitioners submits that it has been mentioned in the application itself that the opposite party nos. 1 to 3 (i.e. father of the petitioners as well as the petitioners) are carrying business in the building at village Basukinath since 10 to 15 years which they have taken on rent. c. Pursuant to the said petition notices were issued and an inspection report was prepared which is contained with Annexure-2 to the writ petition. d. The petitioners submits that as per the inspection report itself, the petitioners herein had produced one agreement said to be of the year 1343 under the Hindu calendar and he claims that it is equivalent of the year 1936 as per the English calendar. Along with the said agreement certain receipts were also shown to the Circle Officer during the inspection and claimed that the petitioners are in possession of the property since 1936. Along with the said agreement certain receipts were also shown to the Circle Officer during the inspection and claimed that the petitioners are in possession of the property since 1936. The counsel submits that the circle officer after considering the facts had recorded that the petitioners and their father have been residing at the land by constructing a house since last 20 to 25 years and the construction was valued at Rs.1 lac. In such circumstances, the Circle Officer recommended for giving compensation to the applicant of the said case. e. Pursuant to the aforesaid application a final order dated 04.03.1989 was passed by the Sub-Divisional Officer in E.A. Case No. 84/1987-88 wherein the said officer directed the petitioners for paying compensation for an amount of Rs. 11,400/-. f. Against this applicants (the second set of respondents herein) or their predecessors filed an appeal before the Deputy Commissioner, Dumka which was numbered as Rev. Misc. Appeal No. 4/1989-90. g. The Deputy Commissioner, Dumka allowed the appeal and the ordered for restoration of the property in favour of the applicants (the second set of respondents herein) or their predecessors. h. Against this the petitioners herein, filed a revision which was numbered as Rev. Miscellaneous Appeal No. 457/95-96 before the Commissioner, Santhal Pargana Division, Dumka. i. Order dated 16.07.1996 was passed by the Commissioner Santhal Pargana Division, Dumka wherein the Sub Divisional Officer was directed to make a local enquiry and submit a report on following points:- (i) how the land was transferred to the appellant (ii) value and nature of house constructed and approximate time (year) of construction. j. Pursuant to this order, an enquiry was conducted and enquiry report is annexed as Annexure-6 to the writ petition. In the enquiry report it has been mentioned that by daanpatra or gift-deed the property in question, was handed over to the writ petitioners about 50 years back although such transfer is not permissible under Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949. Further It has also been recorded that the rent to the state in connection with this property was still being paid by the original raiyats i.e. by those who were the applicants in E.A. Case No. 84/87-88, and are the respondents in this case. It has been mentioned in the report that the house has been constructed on the property in the year 1970-71 by the writ petitioners. It has been mentioned in the report that the house has been constructed on the property in the year 1970-71 by the writ petitioners. k. The petitioners have also mentioned that a written notes of arguments was filed on their behalf before the Commissioner, Santhal Pargana Division, Dumka, which is contained at Annexure-7 to the writ petition wherein various points including point that section 20(5) of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 does not apply to the facts of this case was taken as the same applies only to Schedule Tribes and admittedly the parties are not schedule tribes. He further submits that the writ petitioners are in possession on the land much before 1949 was also specifically mentioned in the written submission. He also submits that, as the property in question is no more agricultural land, section 42 of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 cannot be applicable in this case. The grounds of appeal has been filed along with this writ petition at Annexure-8 and the counsel for the petitioners has drawn the attention of this Court on two grounds which mentions that from the inquiry report and the documents showing the possession of appellants on the land and house, was sufficient to prove that the building, in question, was constructed with consent of the recorded tenants and that the claim was barred under section 64 of Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949. He further draws the attention of this Court to para 4 of the memorandum of appeal which shows that all the relevant documents such as electric bills showing connection in the house long before 1982, to show the possession of the appellants long before 1949, was filed and Considering, all the aspects Sub-Divisional Officer, Dumka vide order dated 04.03.1989 refused to vacate the applicants from the house in question. l. However vide impugned order dated 05.09.2003 the commissioner, Santhal Pargana Division, Dumka, rejected the revision being Revenue Miscellaneous Appeal No. 457/95-96 by holding that the property in question, is raiyati land and its transferred is barred u/s 20 of the Act and that the appellants were not descendants of the original raiyat and they have come from outside for the purpose of business. The said authority held that the transfer is in total contravention to the provisions of Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 and, therefore, the revision was dismissed. m. Counsel for the petitioner has raised the following questions for consideration:- i. Whether on the admitted possession that the building stood on the property, in question, can the same properly be said to be the agricultural land so as to attract the provisions of section 42 of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949? ii. Even otherwise, in view of the fact that the petitioners came into possession of the property by virtue of one sada document executed as back as in the year 1936 coupled with certain receipts issued in favour of the petitioner by the original raiyat, whether the petitioner has perfected his title by way of adverse possession, being in possession 12 years prior to coming into force of Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 and accordingly the proceeding itself was barred by limitation under section 64 of the said Act? n. Learned counsel for the petitioners relied upon the following judgments and submitted as follows: i. 2000 (1) PLJR 488 and it is submitted that it has been held that date of dispossession from the property is a vital fact which has to be decided by the authority when it is claimed that the date of dispossession is 12 years prior to coming into force of Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949. ii. 1985 PLJR 1 (Full Bench) and it is submitted that it has been held that the prescriptive period of 12 years for perfecting title by adverse possession (the original transfer being in contravention of section 27 of Regulation 3 of 1872) would stop running from the 1st of November 1949, being the date of enforcement of Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949. iii. Also upon the judgment passed by the Hon’ble Supreme Court reported in 1998(2) PLJR 3 (SC) whereby the ratio of the judgment passed in 1985 PLJR 1 full bench has been upheld in relation of reckoning of 12 years prior to 1.11.1949. 8. Counsel for the respondents, on the other hand, submits that the property, in question, was recorded as agricultural land and they have been paying rent directly to the State Government. 8. Counsel for the respondents, on the other hand, submits that the property, in question, was recorded as agricultural land and they have been paying rent directly to the State Government. He further submits that merely because some construction has come up they will not change the nature of the land automatically. It is submitted that the petitioners are rank outsiders as admittedly they had come from outside the area of Santhal Pargana for doing business. In view of this situation there is complete bar for transfer of land to the petitioner under the provisions of section 20(1) of the Act. He submits that section 20(5) of the Act will have no role to play on account of admitted position that none of the parties belong to Schedule tribe category and in view of this admitted position there was no question of payment of compensation under section 20(5) of the Act and payment of compensation is not contemplated u/s 20(1) of the Act. By referring to Section 42 of the Act, he submits that the documents were sada (unregistered) documents and the documents relating to payment of rent by the petitioner to the respondents (who were the applicants before the Sub Divisional Officer) were never produced or filed before the authorities and only in the report of Circle Officer it is mentioned that it was produced before the inspecting officer. He submits that these documents are not even a part of the record before this writ Court. 9. He also submits that otherwise also Sada documents which is claimed to be a gift deed or hukumnama as claimed by the writ petitioners in para 6 of the writ petition cannot be relied upon being an unregistered documents and accordingly, the same has not values in the eye of law. The petitioners were never recognized or identified by the Government the rent receipts as claimed by them were alleged to be issued by the applicants of E.A. Case No. 84/87-88 and not by the land lord or the state. The Government has throughout identified and recognized the answering respondent as the raiyat of the property and throughout accepted rent from them. The possession of the writ petitioners since prior to twelve years from 1.11.1949 is categorically denied by the answering respondents. The Government has throughout identified and recognized the answering respondent as the raiyat of the property and throughout accepted rent from them. The possession of the writ petitioners since prior to twelve years from 1.11.1949 is categorically denied by the answering respondents. Counsel for the respondents relied upon the judgment reported in 1985 PLJR 1 (Full Bench), 2018 (1) JLJR 302 , 2009 (4) JLJR 1 , 2010 (4) JLJR 575 . 10. After hearing the counsel for the parties and considering the facts of this case, this Court finds no reason to interfere with the impugned orders passed in this case and the instant writ petition is being dismissed on account of following reasons:- a. Admittedly, the property, in question, is recorded in the Government record as Dhani land i.e. agricultural land and the private respondents herein are recorded as raiyat in the Government records. Admittedly, the private respondent have paying rents to the Government from time to time as agricultural land in the capacity of raiyat. b. The contention of the writ petitioner that some construction has come up on the property and therefore it ceases to an agricultural land and hence section 42 read with section 20(1) of the said Act will not be attracted, is rejected. This court is of the considered view that the property in question stands recorded as agricultural land in the record of rights of the government and it will continue to be so unless the same is duly amended by the government. Merely because some construction has come up on the property in question is not sufficient to change the nature of land so as to exclude the applicability of the provisions of section 20 read with section 42 of the said Act. For the purpose of change in the nature of land there is special procedure prescribed and merely because the construction on property comes up on the land the same will not change the nature of land in any manner what so ever. This court finds no illegality or perversity in the findings recorded by the learned Commissioner in the impugned order dated 5.9.2003 passed in Revenue Miscellaneous Appeal No. 457/95-96 that the property is a raiyati property and the said findings in my view is correct. Accordingly, the section 42 of the Act would be fully applicable for the property involved in this case. Accordingly, the section 42 of the Act would be fully applicable for the property involved in this case. c. So far as the applicability of section 20(5) of the Act is concerned it has been admitted by both the parties that the said section would have no applicability in view of the facts and circumstances that as none of the parties belongs to the category of Schedule Tribes. In view of the admitted position that the provision for giving compensation applies only for the Schedule Tribes u/s 20(5) of the Act, compensation can never be granted to the respondents herein. This view has been rightly taken by the appellate authority who has set aside the order of granting compensation to the private parties herein. d. Both the parties have advanced their arguments regarding applicability of section 20(1) of the Act. The bone of contention between the parties is as to whether the writ petitioners were in possession of property since last 12 years prior to 01.11.1949 and as to whether the petitioner has established this fact before the authority. From the perusal of the report filed by the Circle Officer as contained in Annexure-2 to the writ petition, it appears that certain documents including one agreement of the year 1936 said to have been executed by the ancestor of the recorded tenant (respondents in this writ petition) along with certain rent receipts said to have been issued by the private respondents to the petitioners were produced before the inspecting Officer. These documents are not on record of this writ Court and there is nothing on record to show that these documents were filed before any of the adjudicating authorities below. Otherwise also the so called agreement said to have been executed in the year 1936 which is now being claimed to be a hukumnama as mentioned in para 6 of the writ petition and termed as gift-deed has no sufficient value in the eye of law being an unregistered document. Particularly in absence of any corresponding entry in record of rights. This document has been claimed to be an agreement and subsequently claimed to be a hukumnama and/or a gift deed. The petitioners are not sure about the nature of these document and have not filed in the writ records. It would be relevant to note that raiyats had no right to execute a hukumnama. This document has been claimed to be an agreement and subsequently claimed to be a hukumnama and/or a gift deed. The petitioners are not sure about the nature of these document and have not filed in the writ records. It would be relevant to note that raiyats had no right to execute a hukumnama. e. Otherwise also as per section 20(1) of the said Act, the tenant can transfer his right only to the extent the right to transfer is recorded in the record of rights. Section 20(1) of the aforesaid Act is quoted hereinbelow for ready reference:- “Section 20 Transfer of raiyat’s rights – (1) No transfer by a raiyat of his right in holding or any portion thereof, by sale, gift, mortgage, will, lease or any other contract or agreement, express or implied, shall be valid unless the right to transfer has been recorded in the record-of-rights, and then only to the extent to which such right is so recorded: Provided ….. Provided ….. Provided …….” f. In the instant case it is not the case of the petitioners that the tenant had transferred the right as per his right to transfer as recorded in the record of rights. Accordingly even if it is assumed that the recorded tenant has executed any document of transfer as back as in the year 1936 the same is apparently in contravention to his right under section 20(1) of the aforesaid Act as similar provision was there even in section 27 of regulation III of 1972 which was applicable in the year 1936. Moreover the recorded tenant has been paying the rent to the government and the petitioners had never paid rent to the government and accordingly the story of transfer as back as in the year 1936 that too by an unregistered document as put forth by the petitioners has been rightly disbelieved by the impugned order. g. As per the report of the circle officer the construction was said to be about 20 to 25 years old although there is a witness in the report of the Circle Officer itself stating that the construction has been made about 7 to 8 years back. There is no basis in the report of the Circle Officer to hold that the construction is about 20 to 25 years old. There is no basis in the report of the Circle Officer to hold that the construction is about 20 to 25 years old. This report is dated 11.08.1988.There is another report dated 8.10.1996 which was prepared pursuant to the order passed by the Commissioner at the revisional proceedings which has clearly recorded a finding that the construction on the property is of the year 1970-71 and the recorded tenant has been paying rent of the property. In totality of the circumstances the petitioners have failed to prove before the authorities below as well as before this Court that they are in possession of the property since 12 years prior to 1.11.1949. h. The judgment reported in 1985 PLJR 1 (Full Bench); 1998(2) PLJR 3 (SC) and 2000 (1) PLJR 488 does not help the petitioners in any manner whatsoever due to the reason that the for claiming adverse possession the petitioners had to prove that they were in possession of the property 12 years prior to 1.11.1969, which they have miserably failed to prove. i. The authorities have invoked the provisions of section 42 of the Act read with section 64 of the Act which reads as follows:- “42. Ejectment of a person in unauthorised possession of agricultural land. – The Deputy Commissioner may at any time either of his own motion or on an application made to him pass an order for ejectment of any person who has encroached upon, reclaimed, acquired or come into possession of agricultural land in contravention of the provisions of this Act or any law or anything having the force of law in the Santal Parganas. Section 64. General rule of limitation. – All applications made under this Act, for which no period of limitation is provided elsewhere in this Act, shall be made within one year from the date of the accruing of the cause of action: Provided that there shall be no period of limitation for an application under section 42.” j. This Court further finds that the eviction of the petitioner under section 42 of the Act is not hit by section 64 of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949. There is a clear provision under Section 64 of the aforesaid act that there shall be no period of limitation for an application under Section 42 of the said Act. There is a clear provision under Section 64 of the aforesaid act that there shall be no period of limitation for an application under Section 42 of the said Act. Since the said Act came into force w.e.f. 01.11.1949 the petitioners could have an arguable case on the point of perfecting the title by adverse possession prior to 01.11.1949 and for this possession 12 years prior to 01.11.1949 was required to be proved apart from other ingredients of adverse possession. k. Both the parties herein joined issue on the point of that the writ petitioners would be entitled to retain the property only if they are able to prove that they are in possession of the property for 12 years from the period prior to 1.11.1949 and the writ petitioners have failed to prove this as already held above. 11. Under the facts and circumstances of this case, this court finds no merits in the writ petition which is hereby dismissed. This court finds that the learned commissioner has rightly held that the writ petitioners are rank outsiders had come in for business purpose and their possession over the property, in question, is in gross violation of the provisions of section 20(1) of the Santhal Pargana Tenancy (supplementary provisions) Act, 1949 and accordingly, they have been rightly directed to be evicted from the property under section 42 of the Santhal Pargana Tenancy ( Supplementary Provisions) Act, 1949. 12. This writ petition is accordingly dismissed.