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2019 DIGILAW 1778 (JHR)

Sunil Kumar Jaiswal v. State of Jharkhand

2019-10-21

RAJESH SHANKAR

body2019
ORDER : The present writ petition has been filed for quashing the order dated 08.03.2010 passed by the respondent No.2 in S.A.R Revision No. 27 of 2009 (Annexure-5 to the writ petition) whereby the revisional Court has dismissed the revision filed by the petitioner affirming the order dated 30.01.2009 passed by the respondent No.3 in S.A.R Appeal No. 40R-15 of 2005-06 reversing the order dated 31.03.2005 passed by the Special Officer, Schedule Area Regulation, Ranchi in S.A.R Case No. 17 of 2002-03. Further prayer has been made for quashing the order dated 30.01.2009 (Annexure-3 to the writ petition) passed by the respondent No.3 in S.A.R Appeal No. 40R-15 of 2005-06 whereby the said appellate Court set aside the order dated 31.03.2005 (Annexure-2 to the writ petition) passed by the Special Officer, Schedule Area Regulation, Ranchi in S.A.R Case No. 17 of 2002-03 whereby the restoration application filed by the respondent Nos. 5 to 9 was rejected. 2. The factual background of the case, as stated in the present writ petition, is that the respondent Nos. 5 to 9 filed an application for restoration of the land appertaining to R.S Khata No. 136, Plot No. 720, measuring an area of 0.61 acre, Village-Gari, P.S-Sadar, District-Ranchi (hereinafter referred to as ‘the said land’) under section 71-A of the Chota Nagpur Tenancy Act (hereinafter referred to as ‘the C.N.T Act’). The petitioner and his three uncles appeared before the Special Officer, Schedule Area Regulation, Ranchi and raised the issue of maintainability of the said restoration case by filing a petition contending that previously also S.A.R Case No. 157 of 1992-93 was filed before the Special Officer, Schedule Area Regulation, Ranchi for the same land by one Pancham Oraon - grandson of the recorded raiyat Sanicharwa Oraon which was dismissed on 28.04.1998. As such, the next proceeding for restoration of the said land was hit by the principle of res-judicata. The said petition was heard by the Schedule Area Regulation Officer in S.A.R Case No. 17 of 2002-03 and the restoration application was dismissed vide order dated 31.03.2005 observing that the same was barred by the principle of res-judicata. The respondent Nos. 5 to 9 thereafter preferred S.A.R Appeal No. 40R15 of 2005-06 in the Court of the respondent No.3, who vide order dated 30.01.2009, set aside the order dated 31.03.2005 passed by the Schedule Area Regulation Officer. The respondent Nos. 5 to 9 thereafter preferred S.A.R Appeal No. 40R15 of 2005-06 in the Court of the respondent No.3, who vide order dated 30.01.2009, set aside the order dated 31.03.2005 passed by the Schedule Area Regulation Officer. Thereafter, the petitioner filed S.A.R Revision No. 27 of 2009 before the respondent No.2, who vide order dated 08.03.2010, dismissed the revision preferred by the petitioner by confirming the order passed by the respondent No.3. 3. Learned counsel for the petitioner submits that the learned appellate as well as the revisional Court failed to take into consideration the settled position of law that the principle of res-judicata is equally applicable in the proceeding under the C.N.T Act. The said Courts have gravely erred in holding that the principle of res-judicata is not attracted in this case as the earlier case was filed by Pancham Oraon whereas the present case was filed by Gopal Oraon, Bandhu Khalkho, Chuka Khalkho, Mithilesh Khalkho and Sanicharwa Khalkho. In fact, the learned appellate Court failed to consider that the applicant in the previous restoration case and the applicants of the present restoration case are the heirs of the recorded tenant Sanicharwa Oraon. The inter-se relationship of the previous applicant Pancham Oraon and one of the applicants in the present proceeding i.e. Gopal Oraon with the recorded raiyat is established and proved from the genealogical chart. It is further submitted that the previous applicant and the present applicants are in fact, the descendants of the recorded raiyat of Khata No. 136 and as such the principle of res-judicata is fully applicable in this case. The learned appellate as well as the revisional Court failed to take into consideration that the petitioner’s predecessors-in-interest had been in possession of the said land since 1947 which is apparently beyond 60 years and therefore the present restoration case i.e. S.A.R. Case No. 17/2002-03 is barred by the law of limitation as has been settled by several judicial pronouncements that the application under Section 71A of the C.N.T Act for restoration of a land is not maintainable after such a huge delay and on this score also, the impugned orders passed by the learned appellate as well as the revisional Court are fit to be quashed. Learned counsel for the petitioner also submits that the claim of the petitioner over the said land is based upon his effective possession over the same which has duly been accepted and recognized under the decree passed in Title Suit No. 131 of 1960 by the Special Sub-Judge, Ranchi wherein the sons of the recorded raiyat Sanicharwa Oraon, namely, Sadho Oraon and Khudia Oraon as well as Most. Parvatia, wife of another recorded raiyat Sukra Oraon, were made defendants. The petitioner as well as his predecessors-in-interest have been in possession of the said land since 1947 whereupon a substantial structure has also been made. The learned appellate Court committed serious error in holding that since Pancham Oraon was the only party in the earlier case i.e. S.A.R Case No. 157 of 1992-93, the principle of res-judicata would not apply without taking into consideration the genealogical chart from where it would clearly appear that the other descendents had not been made party in the earlier proceeding. 4. Per-contra, learned counsel for the respondent Nos. 5 to 9 submits that the petitioner/his predecessor-in-interest by suppressing the real facts, succeeded in obtaining collusive decree in Title Suit No. 131 of 1960 against the predecessor-in-interest of the private respondents and dispossessed them from the said land by fraudulent means and as such there has been violation of the provisions contained in Section 46 of the C.N.T Act. It is further submitted that in the earlier restoration case i.e. S.A.R Case No. 157 of 1992-93, the respondent Nos. 5 to 9 were not the parties as they had no knowledge about the earlier S.A.R case. Moreover, the earlier S.A.R case was also not between the same parties and as such the present S.A.R case being S.A.R Case No. 17 of 2002-03 filed by the respondent Nos. 5 to 9 against the father of the petitioner claiming restoration of the said land is well maintainable and is not barred by the principle of res-judicata. It is further submitted that there is no substantial structure over the said land before coming into force of the Scheduled Area Regulation, 1969. On bare perusal of R.S Khatiyan, it would appear that Sadho Oraon was not the recorded raiyat with respect to the land of Khata No. 136 as alleged, rather the name of the recorded raiyat was Sanicharwa Oraon and Sukra Oraon. On bare perusal of R.S Khatiyan, it would appear that Sadho Oraon was not the recorded raiyat with respect to the land of Khata No. 136 as alleged, rather the name of the recorded raiyat was Sanicharwa Oraon and Sukra Oraon. As such, the petitioner’s claim of possession over the said land since 1947 is absolutely false. 5. Heard learned counsel for the parties and perused the materials available on record. The main submission of learned counsel for the petitioner is that the application for restoration of the said land filed by the respondent Nos. 5 to 9 is barred by the principle of res-judicata as the earlier restoration application filed by Pancham Oraon for the same land was rejected by the Schedule Area Regulation Officer against which no appeal was preferred and thus the order of the Schedule Area Regulation Officer, Ranchi dated 28.04.1998 passed in S.A.R Case No. 157 of 1992-93 attained its finality. The said fact has not been controverted by learned counsel for the respondent Nos. 5 to 9. However, it has been contended that the rest of the descendants of the recorded raiyat were not made party in the earlier restoration case. It is also not in dispute that Pancham Oraon is one of the heirs of the recorded tenant. Moreover, though in the present restoration proceeding, Pancham Oraon was not initially made the applicant, yet subsequently he was also added as the co-applicant. 6. Now the question falls for consideration of this Court is as to whether the principle of res-judicata is applicable upon the rest heirs of the recorded tenant when earlier restoration case was contested by one of the heirs. 7. A Division Bench of this Court while considering the said issue in the case of Smt. Satyabati Devi Vs. State of Bihar & Ors. reported in 1996(2) PLJR 719 , has held as under: “5. So far as the second question is concerned, in the light of the decision of the Supreme Court, the answer goes in favour of the respondents. The petitioner has failed to show that the respondents are not Scheduled Tribe. However, with respect of first question it appears that the argument advanced by the counsel for the petitioner is attractive. Admittedly, the sale took place with respect of the disputed land by registered sale deed dated 19th May, 1947 and 24th of June, 1947. The petitioner has failed to show that the respondents are not Scheduled Tribe. However, with respect of first question it appears that the argument advanced by the counsel for the petitioner is attractive. Admittedly, the sale took place with respect of the disputed land by registered sale deed dated 19th May, 1947 and 24th of June, 1947. The petition, which was filed by the Respondent No. 6, Shivshwar Patar for such restoration of 2 acres of land out of the very disputed plot was rejected as time barred as back as on 16th of September, 1978. Such being the position how it can be stated that the subsequent petition for restoration, which was filed in the year 1979-80, i.e. after about 32 to 33 years of the execution of sale deed was within the prescribed time. However, this Court is not giving any opinion with respect to this question raised by the appellant. So far as third question if concerned, admittedly when the application was filed for restoration by one of the members of the family, namely Shiveshwar Patar; the same was rejected on 16th of September, 1978 and no claim was made therein with respect to 0, 66 acres of land, which plea was also available at that point of time to them. According to this Court, subsequently, the other members of the same family could not have filed similar petition for restoration with respect to total 2.66 acres of land in favour of their family. If the principles of res-judicata are applicable with respect to 2 acres of land, the same principles are also applicable for whole of the piece of land, as earlier no claim relating to restoration was made by the respondents though a petition was filed.” 8. Further, in the case of Bibi Makho Vs. State of Bihar reported in 2004 (1) JLJR 515 , a Bench of this Court has held as under: “11. Further, in the case of Bibi Makho Vs. State of Bihar reported in 2004 (1) JLJR 515 , a Bench of this Court has held as under: “11. Having heard the learned counsel for the parties and on perusal of the orders under challenge, relying on the decisions in the case of Smt. Satyabati Devi and SohanMahto and Others (supra), I hold that the second application for restoration under Section 71-A of the Chotanagpur Tenancy Act, which was registered as SAR Case No. 5 of 1993-94 was not maintainable as the same was barred by res judicata, in view of the fact that earlier a proceeding under Section 71-A of the Chotanagpur Tenancy Act had already been decided by the LRDC in respect to the same very land.” 9. Thus, it is well settled that if earlier application filed under Section 46 of the C.N.T Act has already been decided for the same land filed by any of the heirs of the recorded tenant, subsequent restoration application filed by the rest of the heirs is not maintainable as the same is hit by the principle of res-judicata. Otherwise also, if that practice is allowed, no proceeding under Section 71A of the C.N.T Act will come to an end as one or the other heir of the recorded raiyat would keep on preferring such application. 10. Next contention of the learned counsel for the petitioner is that the present restoration application has been preferred by the respondent Nos. 5 to 9 after more than 30 years from the date of dispossession and there is a substantial structure over the said land and therefore the appellate Court as well as the revisional Court should not have allowed such restoration application being barred by limitation. 11. Learned counsel for the petitioner, in support of the aforesaid argument, puts reliance upon a judgment of the Hon’ble Supreme Court rendered in the case of Situ Sahu & Ors. Vs. The State of Jharkhand & Ors. reported in (2004) 8 SCC 340 wherein it has been held as under: “14. We shall now examine the last argument of Shri Narasimha that the transfer was fraudulent. Even on this, we are afraid that the appellants are entitled to succeed. We need not go into the details of the transaction for we may even assume that the transfer was fraudulent. We shall now examine the last argument of Shri Narasimha that the transfer was fraudulent. Even on this, we are afraid that the appellants are entitled to succeed. We need not go into the details of the transaction for we may even assume that the transfer was fraudulent. Even then, as held in Ibrahimpatnam (supra), the power under Section 71A could have been exercised only within a reasonable time. Looking to the facts and circumstances of the present appeal, we are not satisfied that the Special officer exercised his powers under Section 71A within a reasonable period of time. The lapse of 40 years is certainly not a reasonable time for exercise of power, even if it is not hedged in by a period of limitation. We derive support to our view from the observations made by this Court in Jai Mangal Oraon case (supra) which was also a case which arose under the very same provision of law. There this Court took the view that Section 46(4)(a), which envisaged a prior sanction of the Deputy Commissioner before effecting the transfer in any of the modes stated therein, was introduced only in the year 1947 (with effect from 5.1.1948) and no such provision existed during the relevant point of time when the surrender was made in that case (15.1.1942). Obviously, therefore, no such provision existed in 1938, and the same reasoning applies.” 12. Hon’ble Supreme Court in the case of Situ Sahu (Supra) has categorically held that any restoration application filed after unreasonable delay should not be allowed. 13. In the present case, the restoration application was preferred in the year 2002 and if the possession of the petitioner over the said land is accepted at least from the year 1960 when the title suit was filed, then also it can be said that the present restoration application was filed after more than 42 years. 14. In the case of Situ Sahu (Supra), the Hon’ble Supreme Court has held that a delay of 40 years cannot be said to be a reasonable time for exercising power to order restoration of a land under Section 71A of the C.N.T Act. 15. In the factual context of the present case, it was claimed in the title suit itself that the petitioner’s predecessors-in-interest were in occupation of the said land by constructing a substantial structure over the same. 15. In the factual context of the present case, it was claimed in the title suit itself that the petitioner’s predecessors-in-interest were in occupation of the said land by constructing a substantial structure over the same. As such, I find force in the submission of learned counsel for the petitioner that there was a substantial structure over the said land before 1969. Even assuming that the order passed in the said title suit should be treated to be collusive in nature and the title did not pass on the petitioner by such order, the long possession of the petitioner over the said land cannot be denied and in such a situation, the present restoration application can be said to have been filed after unreasonable delay. 16. In the aforesaid facts and circumstances, I am of the considered view that the learned appellate Court as well as the revisional Court failed to take into consideration that the restoration application preferred by the respondent Nos. 5 to 9 was barred by limitation as well as the principle of res-judicata. Hence, the impugned order dated 08.03.2010 passed by the respondent No.2 in S.A.R Revision No. 27 of 2009 (Annexure-5 to the writ petition) as well as the order dated 30.01.2009 (Annexure-3 to the writ petition) passed by the respondent No.3 in S.A.R Appeal No. 40R-15 of 2005-06 are hereby set aside. The order dated 31.03.2005 passed by the Special Officer, Schedule Area Regulation, Ranchi in S.A.R Case No. 17 of 2002-03 is restored. 17. The present writ petition is accordingly allowed.