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2022 DIGILAW 1435 (JHR)

Nawal Chandra Ghose v. State of Jharkhand

2022-12-22

RAJESH SHANKAR

body2022
ORDER : 1. The present writ petition has been filed for quashing the order dated 12.11.2021 passed by the Divisional Commissioner, Santhal Pargana Division, Dumka-respondent no. 2 in R.M.A. Case No. 4/2020-21, whereby the revision preferred by the petitioner against the order dated 6.2.2020 passed by the Deputy Commissioner, Godda-respondent no. 3 in Revenue Miscellaneous Appeal No. 25/2018-19 has been dismissed. Further prayer has been made for quashing the order dated 6.2.2020 passed by respondent no. 3 in Revenue Miscellaneous Appeal No. 25/2018-19, whereby the said respondent while passing the order of eviction of the Respondent Nos. 7 to 16 has directed restoration of the land in question in favour of the respondent nos. 5 and 6. 2. Learned counsel for the petitioner submits that the land appertaining to Jamabandi No. 9, Dag No. 22, Mouja - Sarthu No. 479 in Mahagama police station, District Godda (hereinafter referred as the said land) was recorded jointly in the names of Upendra Nath Ghosh, Mosomat Jogmaya Dasi and Mosomat Rampati Dasi. The said land is non-transferable, as the same is agricultural land under the record of rights, which is governed by the provisions of sections 20, 42 and 59 of the Santhal Parganas Tenancy (Supplementary Provision) Act, 1949 (hereinafter to be referred as ‘the Act, 1949’). 3. It is further submitted that the petitioner is grandson of one of the recorded tenants- Upendra Nath Ghosh and respondent nos. 5 and 6 are the heirs of one of the recorded tenants-Jogmaya Dasi. The partition of the said land has not yet taken place among heirs of the recorded tenants. The respondent nos. 5 and 6 transferred the said land in favour of the respondent nos. 7 to 16 contrary to the provisions of the Act, 1949. It is also submitted that the respondent nos. 5 and 6 in connivance with the staff of record room, Godda managed to obtain a forged and fabricated ‘Parcha’ of last settlement with respect to Jamabandi No. 9, in which name of Upendra Nath Ghosh was omitted. Having come to know about the said fact, the petitioner filed Revenue Misc. Case No. 03/2017 before the Circle Officer, Mahagama, which was decided vide order dated 08.05.2017, holding that Upendra Nath Ghosh is one of the recorded raiyats and also directing the office to send the matter to the respondent no. Having come to know about the said fact, the petitioner filed Revenue Misc. Case No. 03/2017 before the Circle Officer, Mahagama, which was decided vide order dated 08.05.2017, holding that Upendra Nath Ghosh is one of the recorded raiyats and also directing the office to send the matter to the respondent no. 4 for eviction of the respondent No. 7 to 16. Thereafter, the matter was placed before the respondent no. 4 and accordingly R.E.R. Case No. 16/2017-18 was initiated. The respondent no. 4, however, dropped the said proceeding holding that there being a dispute with regard to valid succession and title, it was beyond his jurisdiction to decide the same. Against the said order, the petitioner filed a petition before the respondent no. 3 seeking eviction of the Respondent Nos. 7 to 16 and restoration of the said land in his favour. The respondent no. 3 though passed the order dated 06.02.2020 for eviction of the respondent Nos. 7 to 16, however, despite specific report of the Circle Officer, Mahagama, the said respondent directed the respondent nos. 7 to 16 to hand over possession of the said land in favour of respondent Nos. 5 and 6 only on the ground that they had got the land mutated in their favour. Aggrieved therewith, the petitioner moved the Court of Commissioner, Santhal Pargana Division, Dumka by filing an appeal being R.M.A No. 04 of 2020-21, however, the same was also dismissed vide impugned order dated 12.11.2021. 4. According to the learned counsel for the petitioner, the respondent no. 2 failed to appreciate that the petitioner had preferred R.M.A. No. 04 of 2020-21 only to the extent that the respondent no. 3 ought to have ordered for restoration of the said land in his favour but the respondent no. 2 has erroneously held that the land cannot be restored in favour of the petitioner stating that on perusal of the documents available on record, it transpired that there was a partition among ancestors of the parties according to which the land appertaining to Moiuja Koyla and Sarthu got recorded in the name of ancestor of the respondent nos. 5 and 6 whereas the land appertaining to Mouja Bisanpur got recorded in the name of ancestor of the petitioner. It is further submitted that no material was brought before the respondent nos. 5 and 6 whereas the land appertaining to Mouja Bisanpur got recorded in the name of ancestor of the petitioner. It is further submitted that no material was brought before the respondent nos. 2 and 3 to substantiate the fact of partition and hence, such finding of the respondent nos. 2 and 3 is unjust and unsustainable in the eye of law. The respondent nos. 2 and 3 undermined the fact that the petitioner was also entitled to his share of land. 5. The learned counsel for the respondent-State submits that the nature of the dispute raised by the petitioner cannot be entertained under writ jurisdiction. The respondent no. 2 while exercising revisional jurisdiction, having limited scope, has rightly not interfered with the order passed by the respondent no. 3. It is further submitted that a property can be restored to the person who has been in possession of the same immediately before the dispossession and, thus, there is no infirmity in the order passed by the respondent no. 3. 6. Heard the learned counsel for the parties and perused the materials available on record. It appears that the respondent no. 3, while deciding R.M.A. No. 25 of 2018-19, called for a report from the Circle Officer, Mahagama, who, in his turn, submitted the same vide letter dated 28.01.2019, mentioning that Jamabandi of the said land had been running in the names of Jogmaya Dasi W/o Ayodhya Prasad Ghosh and Sampat Mani Dasi W/o Badan Chandra Ghosh, which was mutated in the name of Neelkanth Dutta- father of the respondent nos. 5 and 6 pursuant to the order dated 03.05.1975 passed in Mutation Case No. 01/1975-76. On the basis of the said report, the respondent no. 3 passed the order of restoration of the said land in favour of the respondent nos. 5 and 6. The respondent no. 2 also did not interfere with the order passed by the respondent no. 3, observing that the respondent no. 3 had rightly not evicted the respondent nos. 5 and 6, as they were the heirs of Neelkanth Dutta the grandson of Jogmaya Dasi. 7. 5 and 6. The respondent no. 2 also did not interfere with the order passed by the respondent no. 3, observing that the respondent no. 3 had rightly not evicted the respondent nos. 5 and 6, as they were the heirs of Neelkanth Dutta the grandson of Jogmaya Dasi. 7. Thrust of the argument of the learned counsel for the petitioner is that the petitioner is entitled for possession of the said land being heir of one of the recorded tenants, namely, Upendra Nath Ghosh, since the partition has not taken place between the heirs of the recorded tenants. 8. It is well settled principle of law that mutation suggests possession of a person upon any land. If it is found that a person is in illegal possession of land, then the possession is required to be restored in favour of the person who was in possession of the same immediately before dispossession. The petitioner has failed to controvert the factual observation made by the respondent no. 3 with respect to the aspect of Jamabandi of the said land running in favour of the ancestors of the respondent nos. 5 and 6. Moreover, the petitioner himself has admitted that the respondent nos. 5 and 6 are also the heirs of one of the recorded raiyats and they are also entitled for possession of the said land jointly with the petitioner since no partition has taken place. 9. Even if the claim of the petitioner is accepted to the extent that he is one of the co-sharers of the said land and is entitled for share in the property, then also the respondent no. 3 has not committed any mistake in delivering possession of the said land in favour of the respondent nos. 5 and 6 on the basis of the Jamabandi running in the name of their father. If the petitioner has any claim of possession over the said land, he is required to seek appropriate remedy before the competent civil court. Though the claim of the petitioner is that the respondent nos. 5 and 6 managed to obtain forged ‘Parcha’ yet the said claim cannot be adjudicated by this court under writ jurisdiction and such nature of the dispute may be agitated before a competent court of civil jurisdiction. 10. The writ petition is, accordingly, dismissed. 11. Though the claim of the petitioner is that the respondent nos. 5 and 6 managed to obtain forged ‘Parcha’ yet the said claim cannot be adjudicated by this court under writ jurisdiction and such nature of the dispute may be agitated before a competent court of civil jurisdiction. 10. The writ petition is, accordingly, dismissed. 11. The petitioner is, however, at liberty to take recourse before the competent court of civil jurisdiction claiming right, title, interest and possession over the said land.