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2021 DIGILAW 1035 (JHR)

Krishna Lal Rungta v. State of Jharkhand

2021-12-14

RAJESH SHANKAR

body2021
JUDGMENT : The present writ petition has been filed for quashing the notice as contained in memo No. 620 dated 19.05.2017 (Annexure-3 to the writ petition) issued by the respondent No.3 at the instance of the private respondent No.5 whereby the notice has been issued to the petitioner fixing the date of measurement of the land on 20.05.2017, which is the subject matter of Original Suit No. 200 of 2017. Further prayer has been made for quashing the notice as contained in memo No. 974 dated 17.08.2017 (Annexure-7 to the writ petition) again issued by the respondent No.3 to the petitioner informing fixation of the date of measurement of the suit land on 24.08.2017 and deputing three Anchal Amins for the said purpose. The petitioner has also prayed for issuance of direction upon the respondent Nos. 2 & 3 not to interfere with and disturb the peaceful possession of the petitioner over the suit land during pendency of Original Suit No. 200 of 2017. 2. The factual background of the case, as stated in the writ petition, is that the ancestors of the petitioner, namely, Late Ram Richpal Marwari and Late Anandi Ram Marwari had purchased 2 Bighas 15 Katthas land appertaining to Khata Nos. 58 & 136 of Mouza-Chirkunda from Late Umesh Chandra Dutta-the grandfather of the private respondents in the year 1923 by virtue of registered sale-deed No. 731 dated 09.04.1923 and had come in possession of the said land. The said sale has also been mentioned in the remarks column of Cadastral Survey Settlement Record of Rights of Khata No. 136, however, on the basis of the alleged wrong entry of the name of Late Umesh Chandra Dutta in the Record of Rights relating to the land of Khata No. 58, the private respondents fraudulently got their father’s name (Gopal Chandra Dutta) entered in the Register-II in connivance with the officials of the Circle Office, Nirsa, Dhanbad and started making claim over the suit land in the year 2013. Thereafter, the ‘Karta’ of the petitioner’s family filed Title Suit No. 83 of 2013, however, the same was subsequently withdrawn with a liberty to file a fresh suit. Thereafter, the ‘Karta’ of the petitioner’s family filed a petition before the Land Reforms Deputy Collector, Dhanbad for cancellation of Jamabandi Nos. 42 & 58 wrongly running in the name of Gopal Chandra Dutta. Thereafter, the ‘Karta’ of the petitioner’s family filed a petition before the Land Reforms Deputy Collector, Dhanbad for cancellation of Jamabandi Nos. 42 & 58 wrongly running in the name of Gopal Chandra Dutta. The Land Reforms Deputy Collector, Dhanbad called for a report from the respondent No.3 and thereafter the respondent No.3 made spot verification and reported that the said land of Khata No. 58 was in possession of the Hindu Undivided Family of the petitioner and the ground for creation of Jamabandi in the name of Gopal Chandra Dutta was not mentioned in Register-II. The said petition for cancellation of Jamabandi is still pending before the Land Reforms Deputy Collector, Dhanbad. In the meantime, the private respondents again tried to disturb the possession of the petitioner and a proceeding under Section 144 Cr.P.C was initiated vide M. P. Case No. 1664 of 2016 which was later on dropped vide order dated 20.01.2017 with an observation that the dispute of the land in question was relating to the title and hence the parties were at liberty to file suit before the competent Court of law. Thereafter, the petitioner filed Original Suit No. 200 of 2017 against the private respondents for declaration of his right, title and interest over the land in question and for confirmation of his possession over the same. In the meantime, the respondent No.5 filed an application dated 17.05.2017 before the respondent No.3 for measurement of the suit land and to appoint Amin for the said purpose. The respondent No.3 issued the impugned notice dated 19.05.2017 to the petitioner initiating Land Measurement Case No. 01/2017-18 and fixing the date of measurement of the suit land on 20.05.2017 appointing two Anchal Amins to do the same. However, the said Anchal Amins, Nirsa, Dhanbad submitted the report dated 20.05.2017 stating therein that the land in question was in possession of the petitioner and since title suit was pending before the Civil Court for deciding title in respect of the suit land, they could not make measurement of the same due to apprehension of breach of peace. Again on 22.07.2017, the respondent No.3 issued notice to the petitioner asking him to produce all the relevant documents regarding the land in question on 28.07.2017. Again on 22.07.2017, the respondent No.3 issued notice to the petitioner asking him to produce all the relevant documents regarding the land in question on 28.07.2017. In pursuance of the said notice, the petitioner produced all the documents before the respondent No.3 on 28.07.2017 and also informed about pendency of the title suit in the Civil Court in respect of the said land. However, the respondent No.3 again served the impugned notice dated 17.08.2017 to the petitioner appointing three Anchal Amins for measurement of the suit land fixing the date of the measurement on 24.08.2017. However, the Anchal Amins could not make measurement of the land in question on the said date on account of private dispute between the parties. Meanwhile, the petitioner filed a petition on 19.08.2017 in Original Suit No. 200 of 2017 stating the fact of issuance of notice dated 17.08.2017 to him by the respondent No.3, however, no order was passed on the said application. The petitioner also filed a petition on 15.06.2017 under Order XXXIX Rule 1 & 2 read with Section 151 of CPC for granting temporary injunction. However, the Court of Civil Judge (Sr. Division)-II, Dhanbad dismissed the said petition vide order dated 30.08.2017. Thereafter, the petitioner issued notice through his Advocate to the respondent Nos. 1 to 3 stating that the Revenue Court did not have any jurisdiction to decide the question of title during pendency of Original Suit No. 200 of 2017 and the action of the respondent No.3 would amount to interference with the trial of the suit. The petitioner also represented the respondent No.2 to set aside the impugned notice dated 17.08.2017 issued by the respondent No.3 for measurement of the land in question. 3. Mr. R. S. Majumdar, learned Sr. counsel appearing on behalf of the petitioner, submits that the revenue/administrative authorities cannot interfere with the suit land particularly when the matter is sub-judice before the Civil Court which is the only competent Court to decide the question of title. It is further submitted that appointment of Amins to measure the suit land would amount to interference with the possession of the petitioner over the suit land and it can change the nature and character of the same. The respondent No.3 is arbitrarily trying to disturb the possession of the petitioner during pendency of the suit which is not permissible in law. The respondent No.3 is arbitrarily trying to disturb the possession of the petitioner during pendency of the suit which is not permissible in law. The respondent No.3 has no authority to issue notice for measurement of the suit land, rather the Court may appoint any Pleader Commissioner under Order XXVI CPC Rule 9 & 10 for elucidating the real truth by making local inspection of the suit land as well as by taking measurement of the same and submitting the report on the point required by the Court in the pending civil suit. 4. Learned counsel for the respondent-State submits that the respondent No.3 took steps for measurement of the land in question on an application filed by the respondent No.5 along with requisite fee in which a date was fixed for measurement of the plots in question intimating the parties including the petitioner and when it was objected by him, he was asked to submit his papers relating to the said land. The petitioner had raised all the points by filing application under Order XXXIX Rule 1 & 2 of CPC in Original Suit No. 200 of 2017 seeking temporary injunction against the measurement process initiated vide Land Measurement Case No. 01/2017-18 which was already dismissed on 30.08.2017 and the same attained finality since the petitioner did not wish to challenge the said order before any superior Court. Hence, no interference of this Court is required with the impugned action of the respondents. 5. Learned counsel appearing on behalf of the private respondents submits that the land appertaining to different plots under Khata No. 58, Khewat No. 16 of Mouza-Chirkunda was recorded in the name of Umesh Chandra Dutta in the Record of Rights published on 11.06.1924. Similarly, the land of Plot No. 1230 under Khata No. 136, Khewat No. 10 was recorded in the said Record of Rights as Gair Abad Malik. The petitioner had filed an application on 10.06.2016 for mutating the said land measuring an area of 2 Bighas 15 Katthas in his name on the basis of sale-deed dated 09.04.1923 vide Camp Mutation Case No. 485(XI) of 2016-17 which was rejected by the respondent No.3 vide order dated 11.07.2016. Thereafter, the petitioner filed Mutation Appeal No. 15 of 2017-18 before the Land Reforms Deputy Collector, Dhanbad which is still pending. Thereafter, the petitioner filed Mutation Appeal No. 15 of 2017-18 before the Land Reforms Deputy Collector, Dhanbad which is still pending. The claim regarding sale of some part of the land appertaining to C.S. Khata No. 58, Plot Nos. 641, 642, 643, 644, 645 & 1231, measuring an area of 82 Decimals and the land appertaining to Khata No. 136, Plot No. 1230, measuring an area of 04 Decimals (total 86 Decimals) vide registered sale-deed dated 09.04.1923 by Umesh Chandra Dutta is illegal as the remarks noted in Record of Rights with respect to C.S. Khata No. 136 clearly shows that Haripad Dutta, son of Umesh Chandra Dutta had executed the sale-deed of Plot No. 1230. However, the said land is recorded as Gair Abad Malik in Cadastral Survey Khatian and Haripad Dutta had no right to sell the same. The said entry in the Record of Rights having not been challenged by the petitioner or his ancestors at any point of time, his claim is not sustainable. It is further submitted that the land appertaining to Khata No. 58, measuring an area of 82 Decimals was recorded in Cadastral Survey Khatian in the name of Umesh Chandra Dutta and he remained in actual physical possession of the said land. The entry made therein was never challenged by Ram Richpal Marwai or Anandi Ram Marwari or their successors. Umesh Chandra Dutta was in possession of the said land through Dar-raiyat, namely, Baikuntha Sen as would be evident from the remarks column of Khatiyan and after death of said Dar-raiyat, the land was reverted back to the original Raiyat (Umesh Chandra Dutta). Further, after the death of the said original Raiayt, his legal heirs succeeded and jointly inherited the said property. 6. Heard learned counsel for the parties and perused the relevant materials available on record. The petitioner seeks interference of this Court with the impugned notices dated 19.05.2017 & 17.08.2017 issued to him by the respondent No.3 on an application filed by the private respondent No.5 for measurement of the land in question. 7. The thrust of the argument of learned Sr. counsel for the petitioner is that the title suit filed by the petitioner for declaration of his right, title and interest over the suit land is still pending before the Civil Judge (Sr. 7. The thrust of the argument of learned Sr. counsel for the petitioner is that the title suit filed by the petitioner for declaration of his right, title and interest over the suit land is still pending before the Civil Judge (Sr. Division)-II, Dhanbad and as such the revenue/administrative official i.e. the respondent No.3 cannot be allowed to disturb the possession of the petitioner on an application filed by the private respondent No.5 for measurement of the said land. 8. Learned counsel appearing on behalf of the private respondents as well as the respondent-State have opposed the said argument made on behalf of the petitioner and have vehemently contended that the petition for temporary injunction filed by the petitioner under Order XXXIX Rule 1 & 2 read with Section 151 of the CPC in Original Suit No. 200 of 2017 was already dismissed by the Civil Judge (Sr. Division)-II, Dhanbad on 30.08.2017 and the said order has attained finality since the petitioner did not wish to challenge the same. It has further been submitted that the respondent No.3 is the competent authority to measure a land on deposit of the requisite fee for the same by any person that too, when no order of injunction has been passed by the Civil Court for the said land. 9. Be that as it may. 10. The aforesaid contentions of the parties suggest that both are claiming right, title and interest over the suit land. On the one hand, the petitioner is claiming his right, title and interest over the suit land by virtue of registered sale-deed dated 09.04.1923 executed by Umesh Chandra Dutta and on the other hand, the private respondents are claiming their right over the suit land on the basis of the entry of the name of Umesh Chandra Dutta in the Record of Rights. Earlier a proceeding under Section 144 Cr.P.C was instituted before the Sub-Divisional Officer, Dhanbad on an application of the petitioner and looking to the nature of the dispute, the said proceeding was dropped vide order dated 20.01.2017 with a liberty to the parties to approach the Civil Court. Thereafter, the petitioner filed suit being Original Suit No. 200 of 2017 for declaration of his right, title and interest as well as confirmation of his possession over the suit land. Thereafter, the petitioner filed suit being Original Suit No. 200 of 2017 for declaration of his right, title and interest as well as confirmation of his possession over the suit land. It transpires from the ‘Presence Report’ prepared by the persons, who had visited the land to measure the same by the order of the Circle Officer, Nirsa, Dhanbad (Annexure-4 of the writ petition) that a boundary wall of 2’ to 3’ was erected around the disputed land. Two wells, one bath-room and one septic tank were also constructed on the disputed land and the local persons told that the same belonged to the petitioner. It was also reported that the measurement of the land could not be done as there was apprehension of breach of peace. 11. It is true that an application filed by the petitioner for grant of temporary injunction was dismissed and the same attained finality, however, the same does not give any premium to the revenue/administrative authorities to proceed for determining a dispute which is purely civil in nature in the garb of the land demarcation case instituted on an application of the respondent No.5. The revenue authorities are though empowered to demarcate a land when there exists certain doubt and dispute in respect of any boundary, yet in the present case, the dispute is not about the boundary, rather the same is with respect to the right, title and interest over the suit land. As such, in my view, the respondent No.3 has exceeded his jurisdiction in issuing the impugned notices dated 19.05.2017 & 17.08.2017 for measurement of the said land. An application for interim injunction is granted or refused looking to the prima facie case, balance of convenience and irreparable loss of the applicant. However, refusal of the same does not permit the respondent No.3, who is a revenue/administrative authority to disturb the possession of the petitioner by initiating a land demarcation case. 12. In view of the aforesaid discussions, the impugned notices as contained in memo No. 620 dated 19.05.2017 (Annexure-3 to the writ petition) and memo No. 974 dated 17.08.2017 (Annexure-7 to the writ petition) issued by the respondent No.3 cannot be sustained in law and the same are hereby quashed. The respondent Nos. 12. In view of the aforesaid discussions, the impugned notices as contained in memo No. 620 dated 19.05.2017 (Annexure-3 to the writ petition) and memo No. 974 dated 17.08.2017 (Annexure-7 to the writ petition) issued by the respondent No.3 cannot be sustained in law and the same are hereby quashed. The respondent Nos. 4 to 7 are at liberty to contest Original Suit No. 200 of 2017 raising all the grounds available with them and the learned Court below shall decide the said suit in accordance with law without being influenced by the present order of this Court which is confined to the jurisdiction of the respondent No.3 in entertaining the application for demarcation of the land in question. 13. The present writ petition is, accordingly, allowed.