Research › Search › Judgment

Jharkhand High Court · body

2018 DIGILAW 493 (JHR)

Niman Toppo v. State of Jharkhand

2018-02-26

ANUBHA RAWAT CHOUDHARY

body2018
JUDGMENT : 1. Heard Mr. Vishal Kr. Tiwari, counsel appearing for the petitioners. 2. Heard Mr. Amar Kr. Sinha, Senior counsel assisted by Mr. Kundan Kr. Ambastha counsel appearing for the respondent nos. 6 to 10. 3. Heard Mr. Ashish Kr. Thakur, J.C. to S.C. (L&C) counsel appearing for the respondent nos. 1 to 5. 4. Counsel for the parties submits that service of notice in this writ petition is complete and there is no impediment in final disposal of the case. 5. This writ petition has been filed for the following reliefs:- “For quashing the order dated 7.8.81 as contained in Annexure-5 and order dated 25.7.96 as contained in Annexure-7 passed by the Respondent No. 2 amd 5 as the orders are wholly illegal, without jurisdiction and against the mandatory provisions of law.” 6. The counsel for the petitioner submits as under:- a. The maternal grandfather of the petitioner was the recorded tenant in Khata No. 90 and 91 Village Chalho P.S. Bhandra District Lohardaga . b. The father of the petitioner became a ghar damad after marrying their mother namely Mangoli Devi @ Mangali Devi daughter of Lorentu Lakra. c. The mother of the petitioners was illegally and forcibly dispossessed from the property by Chhota Mangal Das Lakra father of the respondent nos. 6 to 10. d. The mother of the petitioners had filed a case u/s 71 A of the Chotanagpur Tenancy Act,1908 for restoration of the land and the case was registered as SAR Case No. 269 of 79-80 which was dismissed by the Respondent no 2 vide impugned order dated 07.08.1981 by erroneously holding that the father of respondent nos. 6 to 10 was adopted son of the recorded tenant and was entitled to inherit and possess the land of the recorded tenant. e. Against the order dated 07.08.1981 an appeal was filed being S.A.R. Appeal No. 190 R-15 of 81-82 which was allowed vide order dated 21.2.1989. f. Thereafter, father of the respondent nos. 6 to 10 filed a revision before the Commissioner, South Chhotanagpur Division, Ranchi which was registered as Lohardaga Revision No. 60/1989 and the learned Commissioner held that the father of the respondent nos. 6 to 10 being adopted son of the recorded tenant inherited the land in dispute and allowed the revision vide order impugned order dated 25.07.1996 by setting aside the appellate order. 6 to 10 being adopted son of the recorded tenant inherited the land in dispute and allowed the revision vide order impugned order dated 25.07.1996 by setting aside the appellate order. g. Counsel for the petitioners while assailing the impugned order in SAR Case No. 269/79-80 as well as the order passed in revision submitted that the mother of the petitioners was dispossessed from the property though the deed of adoption though registered but not accompanied by an actual delivery and the same was in contravention of Section 46 of the Chotanagpur Tenancy Act, 1908. Counsel for the petitioner submits that since the deed of adoption in the name of the father of the respondent nos. 6 to 10 was a method of transfer of property, therefore, the permission of the Deputy Commissioner was required to be taken before executing the adoption deed. 7. Counsel for the respondent nos. 6 to 10, on the other hand, submits that the father of the respondent nos. 6 to 10 was duly adopted by virtue of the deed of adoption and after the death of the father the respondent nos. 6 to 10 they have inherited the property and they are in possession of the property and they are paying rent to the State Government. Counsel for the respondent submits that even if the widest possible meaning is given to the term of transfer as mentioned u/s 71A of the Chotanagpur Tenancy Act, 1908 the deed of adoption cannot be said to be an act of the transfer of the property. Further, the counsel for the respondents submits that the deed of adoption being a registered document cannot be disputed by the petitioners. Counsel for the respondents submits that such deed of adoption does not amount to transfer of land, therefore, no permission is required to be taken by the Deputy Commissioner and therefore, there is no illegality in the impugned orders passed by Original Authority as well as by the Revisional Authority . 8. After hearing the counsel for the parties and after going through the records of the case, this court finds that the impugned orders have been rightly passed which requires no interference by this Court. On the basis of the materials on record this court is of the considered view that the deed of adoption in favour of the father of the respondents nos. On the basis of the materials on record this court is of the considered view that the deed of adoption in favour of the father of the respondents nos. 6 to 10 was a registered document and admittedly the respondent no 6 to 10 are in possession of the property. Further, this court is not inclined to accept the argument of the petitioners that for the purpose of executing the deed of adoption the permission of the Deputy Commissioner was required to be taken from the Deputy Commissioner u/s 46 of the Chotanagpur Tenancy Act, 1908, as this court is of the considered view that by no stretch of imagination the deed of adoption can be said to be a document of transfer of property even if the widest possible meaning of the word “transfer” is taken into consideration while interpreting the word “transfer” within the meaning of section 46 or section 71A of Chotanagpur Tenancy Act, 1908. 9. Accordingly, the impugned orders do not call for any interference and this writ petition is dismissed. So far as the legality and validity of the deed of adoption is concerned the parties are free to take recourse to law as available to them.