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2023 DIGILAW 150 (JHR)

Akhil Prasad Mandal v. State of Jharkhand

2023-02-10

ANUBHA RAWAT CHOUDHARY

body2023
JUDGMENT : Anubha Rawat Choudhary, J. Heard the learned counsel for the parties. 2. This writ petition has been filed for the following reliefs:— “For issuance of an appropriate writ (s)/order (s) and/or direction (s) for quashing the order dated 16.07.11 passed by Commissioner, Santhal Pargana, Division, Dumka in Rev. Misc. Appeal No. 101/1988-1989, whereby and whereunder the Learned Commissioner has purported to direct that the necessary correction in the Record of Right be made in the name of the Government. AND For issuance of further writ/order/direction that till the competent authority decide the heirship of Champa Baithain by the succession application filed on behalf of the respondents under Indian Succession Act. AND For issuance of further writ/order/direction to stay the operation of the impugned order dated 16.07.2011 (Annexure-3) till the disposal of the instant writ application. AND For issuance of further writ/order/direction that till the matter is decided by this Hon'ble Court, the respondents be restrained from interfering with the possession of the petitioner over Plot No. 49 of Khata No. 6, Thana No. 33 of Village Kurma, P.S. Saraiyahat, District Dumka.” Arguments of the Petitioners. 3. It is the specific case of the petitioners that Jamabandi No. 4 of Mouza Kurma, Kasba Kurma, was recorded in the name of Champa Baithain and Tetri Baithain in Ganzert's settlement. Under the provisions of Clause 12 of the Record of Rights, the Pradhan was authorized to make settlement of land of any raiyat who died without any issue. It is further case of the petitioners that under Clause 12 of the Record of Rights, as per the Santhal Pargana Tenancy Manual, 1911, there is no prohibition of settlement of land by Pradhan. 4. It is further case of the petitioners that Ganpati Mandal was the Pradhan of Mouza Kurma. The said Pradhan found that the recorded raiyat namely Champa Baithain and Tetri Baithain had died issueless and the land remained abandoned. Further, nobody was claiming to inherit the property after their death. The Pradhan Ganpati Mandal made a settlement in favour of Tetri Mandlain in the year 1941 who was his wife and also issued settlement paper. After the settlement, Tetri Mandlain came in possession and started cultivating the land. In support of the aforesaid submission, the petitioners have annexed a Photocopy of the record of rights as Annexure-1. 5. The Pradhan Ganpati Mandal made a settlement in favour of Tetri Mandlain in the year 1941 who was his wife and also issued settlement paper. After the settlement, Tetri Mandlain came in possession and started cultivating the land. In support of the aforesaid submission, the petitioners have annexed a Photocopy of the record of rights as Annexure-1. 5. Further facts are that on or about 1986, after more than 45 years of settlement in favour of Tetri Mandlain by the Pradhan of the village, an objection was filed by the private respondent claiming to be the successors of the original recorded tenant and thereby claiming the property involved in this case. The said objection was registered as Fauti Case No. 3 of 1986 in the court of Assistant Settlement Officer at Dumka and it was found that the property involved in this case was running in the record of rights in Jamabandi in the name of Tetri Mandlain, widow of Ganpati Mandal. Consequently, Tetri Mandlain was made opposite party. The Assistant Settlement Officer also issued notice to invite objection from 16 annas raiyat, Mukhiya and Anchal Adhikari of the said Mouza and upon notice, the 16 anna raiyat made statement and admitted before the Settlement Officer that original recorded raiyat, Champa Baithain and Tetri Baithain had died issueless and after death of recorded raiyat, the Pradhan had settled the land with Tetri Mandlain and since the date of raiyati settlement on 09.01.1941, she has been in possession of the land involved in this case. Upon appearance, Tetri Mandlain produced the patta and the Pradhani receipts issued by the then Pradhan as back as in the year 1941, 1945, 1949, 1953 and 1955. 6. Thereafter the case was transferred from the Assistant Settlement Officer to the court of Charge Officer, who passed an order dated 09.05.88 and dismissed the objection filed on behalf of the objector (private parties herein) and recorded a finding that they have not been able to prove the genealogy and establish their relationship with the deceased recorded raiyat Champa Baithain and Tetri Baithain. It was also recorded that nobody amongst the 16 anna raiyats had made any claim against the raiyati settlement and had asked for any settlement before the Sub Divisional Officer, or the Deputy Commissioner. It was also recorded that nobody amongst the 16 anna raiyats had made any claim against the raiyati settlement and had asked for any settlement before the Sub Divisional Officer, or the Deputy Commissioner. Upon rejecting the claim of the private respondent herein, the Charge Officer also affirmed the raiyati settlement made by Pradhan in favour of Tetri Mandlain, mother of the original petitioner. 7. The private respondents filed appeal before the learned Commissioner, Santhal Pargana Division, Dumka which was registered as Rev. Misc. Appeal No. 101/1988-89 and during the pendency of the Misc. Appeal No. 101/1988-1989, Tetri Mandlain had expired and the original petitioner in the writ petition being the son, contested the appeal. At the appellate stage also, 16 anna raiyats who were parties had not filed any objection to the order passed by the Charge Officer, affirming the raiyati settlement in favour of Tetri Mandlain by the then village Pradhan. 8. Learned Commissioner vide impugned order dated 16.07.2011 held that private respondent herein have not been able to establish the relationship with the deceased recorded raiyat and had directed them to obtain a succession certificate by a competent Court and thus rejected the claim of the private respondent. However, at the same time, the learned Commissioner directed the original petitioner to obtain the validity of settlement in favour of Tetri Mandlain, the mother of the original petitioner. It was also directed that the land should stand recorded in the name of Government and a direction was also issued to the authority to make necessary correction in the record of rights. 9. The original petitioner challenged the order passed by the learned commissioner as the land which was running in the name of Tetri Mandlain, the mother of the original petitioner was directed to be deleted and entry was to be made in the name of the government and the original petitioner was directed to obtain the validity of settlement in favour of Tetri Mandlain, the mother of the original petitioner. 10. So far as the private respondents are concerned, they did not challenge the order of the learned commissioner but filed a title suit being Title Suit No. 79/2014 before the court of Civil Judge (Senior Division)- V, Dumka inter alia seeking declaration that they were legal heirs of recorded tenant Champa Baithain. 10. So far as the private respondents are concerned, they did not challenge the order of the learned commissioner but filed a title suit being Title Suit No. 79/2014 before the court of Civil Judge (Senior Division)- V, Dumka inter alia seeking declaration that they were legal heirs of recorded tenant Champa Baithain. The judgment passed in the title suit has been brought on record by filing a supplementary affidavit wherein it has been held that the plaintiff failed to prove that they were the heirs and successors of Champa Baithain, the recorded tenant. The judgment of the learned court below in the title suit was passed on 29th November, 2022. 11. Learned counsel for the petitioners submits that in view of the judgment passed in the Title Suit read with the direction issued by the learned Commissioner, private respondents having failed to obtain the succession certificate showing themselves as legal heirs and successors of Champa Baithain, original recorded tenant, the private respondents do not have any claim over the property. It has also been submitted that so far as present petitioners are concerned, it is not in dispute that they are descendants of Tetri Mandlain in whose favour, the settlement was made as back as in the year 1941, but the claim of the petitioners have been rejected and they have been directed to obtain validity of settlement in favour of Tetri Mandlain, the mother of the original petitioner. 12. It has been vehemently submitted by the learned counsel for the petitioners that the order of the learned Commissioner, Santhal Pargana Division, Dumka cancelling the settlement made by the Pradhan of the Mouza Kurma in favour of Tetri Mandlain as back as on 09.01.1941 and setting aside the order of Assistant Settlement Officer, Dumka is wholly perverse, illegal and wrong as the learned Commissioner, Santhal Pargana Division, Dumka has failed to record a finding stating as to how the Settlement Authorities viz, the learned Assistant Settlement Officer, Dumka and the Charge Officer (Settlement Officer), Dumka have committed material error in the records of Rights while confirming the settlement made by the Pradhan as far back as in the year 1941, name entered in the records of Rights followed by deposit of rent with the Pradhan in the year 1941 and thereafter 1943 for 2 years again 1945 for 2 years, 1949 for 4 years, 1955 for 6 years. Moreover, it appears that the judgment is more on conjecture and surmise and presumption of wrong facts and law as such exercise of revisional jurisdiction in terms of section 25 (4)(a) of Santhal Pargana Settlement Regulation 3 of 1872, is wholly illegal, incorrect and wrong as such it is fit to be set aside. In this regard, learned counsel has referred to Santhal Pargana Settlement Regulation and the provisions contained in Santhal Pargana Manual, 1911. 13. It is submitted that the Settlement Officer or Assistant Settlement Officer Dumka have to exercise the power of Civil Court and in the present case, the settlement authorities namely the learned Assistant Settlement Officer, Dumka and Settlement Officer have also exercised their power as Civil Court for all practical purposes and the learned Commissioner has exceeded his revisional jurisdiction, while setting aside the order of Assistant Settlement Officer, Dumka and directing to make necessary corrections in the record of rights. 14. It is submitted that the petitioners and their ancestors have been in physical cultivating possession of the landed property in question since in the year of 1941. 15. It is further submitted that the settlement made by the Pradhan as back as in the year of 1941 was legal and valid. The learned counsel has relied upon the judgment passed by this Court in the decision reported in J.C.R. 2004, volume 1, page 125 (Gokul Harijan v. State of Bihar), J.B.C.J. 2017 volume IV, page 286 (Upendar Das v. State Jharkhand) and (2008) 2 JLJR 574 , Asha Devi v. The State of Bihar (Now The State of Jharkhand). 16. It has also been submitted that in the aforesaid decision, this Hon'ble Court, while dealing with the power of Pradhan to make settlement of any waste land, has held that Pradhan is not required to take permission of any authorities and he may send the information with regard to the Settlement of waste land to the authority, but same is not mandatory. This aspect has been dealt with categorically in the aforesaid decision. 17. In view of the aforesaid facts and circumstances as stated above, this Hon'ble Court may quash the order of learned Commissioner, Santhal Pargana Division, Dumka as contained in Annexure-3 of the main writ application. Arguments of the Respondents 18. This aspect has been dealt with categorically in the aforesaid decision. 17. In view of the aforesaid facts and circumstances as stated above, this Hon'ble Court may quash the order of learned Commissioner, Santhal Pargana Division, Dumka as contained in Annexure-3 of the main writ application. Arguments of the Respondents 18. Learned counsel appearing on behalf of the private respondents, on the other hand, does not dispute the fact that in the title suit, the private respondents have not been able to prove that they are the legal heirs and successors of the recorded tenant. The counsel is not aware as to whether any appeal has been filed against the judgment passed in the title suit. However, the learned counsel has opposed the prayer of the petitioners by insisting that the Pradhan, namely, Ganpati Mandal should not have settled the land with his wife and son and such action is clear violation of provisions of clause 12 of the Record of Rights and Duties as mentioned in the Santhal Pargana Manual. The learned counsel has further submitted that as per clause 12(d) of the Record of Rights and Duties of Santhal Pargana Manual, the raiyat dying without heir, his land should settle with Zamabandi Raiyat, who are residence of the same community and the then Pradhan having not done so, has violated the provisions of law. The learned counsel has also submitted that the Sada Patta granted in favour of the Tetri Mandlain by the Pradhan-Ganpati Mandal in favour of his wife was forged, fabricated and antedated. He submitted that the story that none of the villagers was ready to take settlement and pay rent are all concocted and false and that the Pradhan never gave rent receipts to the village raiyats and the lower court was wrong in holding that none of the relatives of Champa Baithain-the recorded raiyat or any other village raiyats of the same community came forward to take settlement when the recorded tenant died. Objection was also raised that Pradhan made settlement with persons belonging with different community for which confirmation of Sub-Divisional Officer was mandatory, which was not done. 19. Objection was also raised that Pradhan made settlement with persons belonging with different community for which confirmation of Sub-Divisional Officer was mandatory, which was not done. 19. Learned counsel appearing on behalf of the State has supported the arguments of the learned counsel for the private respondents and has further submitted that the impugned order passed by the learned Commissioner is a well-reasoned and detailed order, which does not call for any interference by this Court. Findings of this Court 20. From the records of this case, it appears that vide order dated 03.04.2012, the State counsel had accepted notice and a prayer was made for three weeks' time to file counter-affidavit. In spite of such order, no counter-affidavit has been filed on behalf of the State. 21. Further, no counter-affidavit has been filed on behalf of the private respondents also. 22. The foundational fact in connection with the property involved in this case which appears from the perusal of the writ petition as well as the orders annexed with the writ petition, are not in dispute. Admittedly, the property was recorded in the name of Champa Baithain and Tetri Baithain and Ganpati Mandal was the Pradhan of Mouza Kurma where the property is situated. Admittedly, settlement in favour of Tetri Mandalian - wife of the Pradhan i.e. Ganpati Mandal has been made as per the records of rights (Annexure-1). The original petitioner being son of Tetri Mandlain claimed that the settlement was made in favour of Tetri Mandalian in the year 1941 and also produced Pradhani receipt issued in her favour as back as in the year 1941 onwards. 23. In the instant case, the settlement claimed by the petitioners is of the year 1941. It would be useful to quote the relevant provision with regards to the rights of the headman (Pradhan) and duties of the raiyat, which are as follows:— 12 Rights of the headman *Note - To be added in village with more than one headman. During the currency of his lease, the headman is entitled- (a) To enjoy the official holding, where such exists, on payment of rent. (b) To receive one anna per rupee on the rent collected from the raiyats, in addition to the rent due from them. (c) To receive a deduction of one anna per rupee on the rent payable to the proprietor, if paid in due time. (b) To receive one anna per rupee on the rent collected from the raiyats, in addition to the rent due from them. (c) To receive a deduction of one anna per rupee on the rent payable to the proprietor, if paid in due time. (d) On a raiyat's absconding or dying without heirs, to settle his holding with one or other of the following, giving preference in the order mentioned below:— (1) With a resident jamabandi raiyat of the same community. (2) With himself, if resident, or with a resident jamabandi raiyat of a different community. (3) With himself, if non-resident, or with a non-resident jamabandi raiyat. (4) With a non-jamabandi raiyat. Whenever he settles other than with a resident jamabandi raiyat of the same community, he will report the settlement to Subdivisional Officer, who, after hearing the objection of the proprietor and raiyats, will confirm or modify the settlement provided that no non-jamabandi raiyat may get settlement without the consent of the proprietor. [Jamabandi raiyat in this section and throughout the record includes the children and heirs of jamabandi raiyats. It does not include a raiyat who has acquired land in the village by purchase since the last settlement, and has been recorded as “jamabandi khariddar.” The word “community” is intended to draw distinction between dikkus and non-dikkus. A “dikku” is a person who does not belong to an aboriginal or semi-aboriginal tribe or caste] (e) During the term of the settlement, to enjoy rent-free such of the village waste as he reclaims himself, and to recover rents at half the settlement rates for so much of the waste as raiyats reclaim. (f) To give orders to the village chaukidar the performance of his police duties. *[The above noted rights and duties are the joint rights and duties of the recorded headmen. No binding division of the rental, the waste land, or any other common property of the village can be made by them.] 24. In the year 1986 i.e. after 45 years of settlement in favour of Tetri Mandalian, the private respondents claimed that they were the raiyats of the land and claimed to be descendants of Champa Baithain - one of the recorded tenants. In the year 1986 i.e. after 45 years of settlement in favour of Tetri Mandalian, the private respondents claimed that they were the raiyats of the land and claimed to be descendants of Champa Baithain - one of the recorded tenants. The same was registered as Fouti Case No. 3 of 1986 and since the record of rights had shown that a portion of Plot No. 49/34 was running in the name of Tetri Mandalian - widow of Ganpati Mandal, therefore, she was also made party in the proceedings. Notices were issued to 16 annas Raiyat who had also stated that Champa Baithain and Tetri Baithain (both the recorded tenants) had died issueless and after their death, Tetri Mandalian was given the property by way of raiyati settlement and that she has been in possession of the land by settlement on 09.01.1941 and certain Pradhani receipts of the year 1941 onwards were also produced by Tetri Mandalian before the court. 25. The petition filed by the private respondents herein was dismissed on the ground that they have not been able to prove their relationship with the originally recorded tenant and the charge officer to whom the proceeding was later transferred, also affirmed the raiyati settlement made by the Pradhan in favour of wife of the pradhan i.e. Tetri Mandalian - the mother of the original petitioner of this case. 26. However, on appeal by the private respondents before the Commissioner registered as R.M.R. No. 101 of 1988-1989, the learned Commissioner has framed three questions and answered the aforesaid three questions as follows: “1. Whether Champa Baithain died without any legal heir or not? 2. Whether it is mandatory that settlement of land made by the Pradhan is to be done within same caste or community? 3. Whether there is any proof that any efforts was made for settlement of disputed fouti land with J.B. raiyat of the same community before settling the land with himself? Answer to issues raised above are as follows:— 1. Disputed. 2. Within same community. 3. No record.” 27. With regard to each of the questions, the learned Commissioner has given reasoning in three different paragraphs. 28. The finding with regards to the question no. 1 is not under challenge in the present proceedings. Answer to issues raised above are as follows:— 1. Disputed. 2. Within same community. 3. No record.” 27. With regard to each of the questions, the learned Commissioner has given reasoning in three different paragraphs. 28. The finding with regards to the question no. 1 is not under challenge in the present proceedings. The private respondents having not been able to prove in the title suit that they were the heirs and successors of the recorded tenants, have lost their claim as of now irrespective of the claim of the petitioners. 29. The finding with regards to the question no. 2 is not under challenge in the present proceedings. None of the parties are aggrieved by the said finding of the learned commissioner that the transfer by the Pradhan was within the same community. 30. The finding with regard to the question no. 3 is under challenge. The learned commissioner has recorded that there is no record to show that the Pradhan of the village had made any effort to settle the land in favour of the resident jamabandi raiyat of the same community before settling the land with his wife. Therefore, the exercise of first preference being offered to the jamabandi raiyats of the same community was not established. The learned commissioner further made general observation that it was common phenomena that bogus ante-dated patta was being granted by Pradhan either to usurp government land or to make money by settling government land and it was hard to believe that headman tried to settle the said land to Jamabandi raiyat of the same community and none came forward, as a result, he settled the land with his wife and son which raised a doubt regarding the validity and settlement of jote land in the year 1942. 31. This Court finds that the year of settlement made in favour of the mother of the original petitioner has been wrongly recorded as 1942 in the impugned order passed by the learned commissioner, rather the settlement was claimed to have been made in the year 1941 in favour of the wife of the Pradhan (mother of the original petitioner) followed by Pradhani receipt of the year 1941 and subsequent years and such Pradhani receipts were also produced before the authorities below as is apparent from their order which was under challenge before the learned commissioner. While recording the aforesaid finding, the learned commissioner totally ignored the fact that even as per the record of rights, the settlement in connection with the property involved in this case stood recorded in the name of the wife of the Pradhan-Ganpati Mandal i.e. mother of the original petitioner. 32. The learned commissioner further observed that the settlement was required to be corroborated with register-II and any person who gets the land through settlement, will try to get his land mutated, but there was no such finding by order impugned before the learned commissioner. However, while recording this finding and thereby doubting the legality and validity of the settlement, the learned commissioner has totally overlooked the entry in the record of rights and the Pradhani receipt issued way back in the year 1941 and onwards. This Court is of the considered view that merely because there has been no mutation in the register-II in favour of Tetri Mandlain - mother of the original petitioner, the same by itself will not invalidate the settlement made in the year 1941 particularly when such settlement has been recorded in the record of rights itself as contained in annexure-1. Asking the petitioner to prove that at the time of settlement way back in the year 1941, attempt was made to settle the land in favour of the jamabandi raiyat of the same community to justify the settlement made by Pradhan in favour of his wife amounts to questioning the concluded transactions way back in the year 1941 and certainly there would be no records or evidence to prove the efforts made by the Pradhan to settle the land in favour of the jamabandi raiyat of the same community. Moreover, there was no objection from the side of the 16 anna raiyats also who had duly participated in the proceedings. 33. It is also important to note that the entire proceeding commenced on account of the application filed by the private respondents who claimed to be the legal heirs of the recorded tenant Champa Baithain, but they have not been able to establish so far that they were the legal heirs of the recorded tenant. 33. It is also important to note that the entire proceeding commenced on account of the application filed by the private respondents who claimed to be the legal heirs of the recorded tenant Champa Baithain, but they have not been able to establish so far that they were the legal heirs of the recorded tenant. The proceeding was neither for cancellation of settlement made in favour of Tetri Mandalian nor there was any objection from the side of the 16 annas raiyats, rather they specifically corroborated and supported the settlement made in favour of Tetri Mandalian. 34. As per the record of rights, Clause 12 as it then stood i.e. in Santhal Pargana Mannual 1911, there was no legal bar in settling the land in favour of the family member though such settlement was below in the priority list. The 1st priority was to be given to the settlement with Jamabandi raiyats of the same community and if they do not come forward for settlement, then only the land could have been settled by the Pradhan in favour of himself/his family member. The Pradhan was to give information of such settlement to the subdivisional officer, who upon hearing any objection could confirm/modify the settlement. The impugned order asking the original petitioner to obtain the validity of settlement in favour of Tetri Mandalain, upon questioning the validity of settlement on the ground that there was no proof that any effort was made to settle the land with the Jamabandi raiyat of the same community as back as in the year 1941-1942 and further questioning the validity of settlement on the ground that there was no mutation application, cannot be sustained in the eyes of law on the face of Annexure-1 (record of rights), which admittedly recorded entry regarding settlement in favour of Tetri Mandalian - wife of Ganpati Mandal and mother of the original petitioner of this case. 35. Thus, the part of the impugned order passed by the learned commissioner, to the extent it questions the legality and validity of the settlement made in the name of mother of the original petitioner as back as in the year 1941 and also recorded in the record of rights (annexure-1), is not sustainable in the eyes of law and is accordingly set-aside to that extent. Consequently, the order of the learned charge court, whereby the settlement in favour of Tetri Mandalian-the mother of the original petitioner has been confirmed, is hereby upheld. 36. This writ petition is accordingly, disposed of. 37. Pending interlocutory application, if any, is closed.