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2024 DIGILAW 155 (JHR)

Paras Nath Mahto, son of Kageshwar Mahto v. State of Jharkhand

2024-02-15

ANIL KUMAR CHOUDHARY

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JUDGMENT : Anil Kumar Choudhary, J. 1. Heard the parties. 2. This writ petition has been filed under Article 226 of the Constitution of India with a prayer for issue if writ of Mandamus directing the respondent nos. 1 to 6 to correct the entry in Register-II with respect to the land in question and remove the names of the original respondent nos. 7 and 8 or their successor therefrom in view of earlier decision of this Court dated 23.04.1991, passed in CWJC No. 1117 of 1984 (R) and 20.05.2024, passed in CWJC No. 81 of 1996(R), the copies of which have been kept at annexure-2 and 3 respectively of this writ petition and further issuance of a writ of Mandamus directing the respondent nos. 1 to 6 to accept the rent and to issue rent receipts to the petitioners of their respective lands and consequential reliefs. 3. The case of the petitioners in brief is that the ancestors of the private respondent nos. 7 & 8 were originally recorded tenant of the land in question concerned of 3.78 acres. The father of the respondent nos. 7 & 8 namely Fekan Mahali surrendered the said land along with some other plots to the landlord vide registered sale deeds dated 03.02.1943 and 08.09.1942. The landlord made raiyati settlement of the said plots in favour of the ancestor of the petitioners vide two registered sale deeds dated 03.02.1943 and 02.11.1942 and the ancestors of the petitioners came in possession over the same and started cultivation over the same. After vesting of Zamindari in the State of Bihar under Provisions of the Bihar Land Reforms Act, the State of Bihar also recognized the raiyati status of the settlees and issued rent receipts after entering their names in revenue records. After taking settlement in the year 1942-43 the ancestors of the petitioners and after them the petitioners have been coming in continuous cultivating possession over the plots in question and exercising all acts of possession. The respondent no.8 –Jagdish Mahali filed an application on 20.02.1981 under Section 46(4)(a) of the Chhotanagpur Tenancy Act in the court of respondent no.5 against the ancestors of the petitioners and some others for restoration of the land which was registered as Case No. 110 of 1981 and the same was heard and dismissed on merit on 24.10.1981. No appeal or revision was filed by the respondent. No appeal or revision was filed by the respondent. The respondent nos. 7 & 8 instituted another proceeding before the respondent no. 5 under Section 46 of the Chota Nagpur Tenancy Act for restoration of said plots of land numbered as Case No. 136 of 1980 and the same was dismissed by the respondent no.5 on 14.12.1981. The respondent nos. 7 & 8 filed R.A. No. 7 of 1982 before the respondent no.4. The same was also dismissed on 07.06.1984 but with respect to the lands of the ancestors of the petitioners bearing plot nos. 1680, 133, 85, 763, 809, 810 and 811; the respondent no.4 allowed restoration of lands in the same proceeding vide order dated 07.06.1984 in favour of the respondent nos. 7 & 8 bearing plot no. 105 (area 19 decimals) and plot no. 1579 (area 69 decimals) of Khata No.5 of village –Kulhi. 4. Being aggrieved by the part of the said order dated 07.06.1984 in R.A. Case No. 7 of 1982, the ancestors of the petitioners filed CWJC No. 1117 of 1984(R) on 19.09.1984 which writ petition was allowed vide Judgment dated 23.04.1991 by a Bench of Patna High Court, Ranchi Bench quashing the order. The respondent nos. 7 & 8 being aggrieved by the said order dated 07.06.1984, passed in R.A. Case No. 7 of 1982 moved in revision before the Commissioner who remanded the matter to the respondent no.4. The respondent no.4 in turn vide order dated 16.12.1989 remanded the matter to the original court i.e. the respondent no.5. The respondent no.5 decided the matter in favour of respondent nos. 7 & 8 vide order dated 04.12.1991. The ancestors of the petitioners filed Appeal No. 2 of 1992 and the matter was remanded to the respondent no.5 for re-hearing but again the respondent no.5 decided the same in favour of the respondent nos.7 & 8 vide order dated 07.08.1992. Thereafter the ancestors of the petitioners filed Review Application before the respondent no.5 in view of the Judgment passed in CWJC No. 1117 of 1984(R). The respondent no.5 rejected the Review Application vide order dated 17.12.1993. The ancestors of petitioners directly came before the this Court in CWJC no. 725 of 1994(R) but the said writ petition was dismissed on 15.02.1995 on the ground of existence of alternative remedy of appeal. Two appeals were filed before the respondent no.4 being RAN 5/1995 and 9/1994. The respondent no.5 rejected the Review Application vide order dated 17.12.1993. The ancestors of petitioners directly came before the this Court in CWJC no. 725 of 1994(R) but the said writ petition was dismissed on 15.02.1995 on the ground of existence of alternative remedy of appeal. Two appeals were filed before the respondent no.4 being RAN 5/1995 and 9/1994. Thereafter, the ancestors of the petitioners came before this Court against the order dated 14.08.1995 passed by the respondent no.4 in RAN No. 5/1995 and 9/1994 vide CWJC No. 81 of 1996(R). The orders were set aside. The petitioners applied to the Anchal Adhikari, Dulmi Circle on 27.01.2017 for entering of their name on revenue records and to accept rent from them and issue rent receipts but the respondents refused to enter the name of the petitioners of CWJC No. 1117 of 1984(R) and CWJC No. 81 of 1996(R) on the ground that the Register-II of Government Records shows that the lands involved have been restored to the ancestor of the respondent nos. 7 & 8 being Sanichar Mahali, vide the following three cases; (i) Land Restoration Case No. 137 of 1990 and 6/91-92, (ii) Land Restoration Case No. 136 of 1990 and 6/91-92 & (iii) Land Restoration Case No. 136/90 and 6/91-92, the copies of which have been kept at Annexures -5, 5/A and 5/B to this application. 5. It is submitted by the learned senior counsel for the petitioners that the action of the respondent nos. 1 to 6 are arbitrary, illegal and malafide and is not sustainable in law or on facts; so far as it relates to making re-entry or continuance of the name of the respondent no.7 & 8 in Register-II of Government Revenue Record in relation to the plots. Hence, it is submitted by the learned senior counsel for the petitioners that the prayer as made in this writ petition be allowed. 6. The learned counsel for the respondent nos. 7 & 8 on the other hand vehemently opposes the prayer of the petitioners made in this writ petition. It is submitted by the learned counsel for the respondent nos. 7 & 8 that there is serious dispute of right, title, interest and possession of the concerned land and the said land in total 3.78 acres have already been restored to the respondent nos. It is submitted by the learned counsel for the respondent nos. 7 & 8 that there is serious dispute of right, title, interest and possession of the concerned land and the said land in total 3.78 acres have already been restored to the respondent nos. 7 & 8 on 19.02.1992 by the order dated 15.02.1992, passed by the Land Reforms Deputy Collector, Hazaribagh in Land Restoration Case No. 136 of 1980 and since then the respondent nos. 7 & 8 are exercising all acts of possession thereupon. It is next submitted by the learned counsel for the respondent nos. 7 & 8 that after the possession of the land was restored to them by the respondent no.5, the respondent nos. 7 & 8 applied for their names to be mutated before the Circle Officer, Dulmi which was allowed and the names of the respondent nos. 7 & 8 were mutated and found place in the Register-II of the Revenue Records. Even after restoration of the land, the petitioners tried to disturb the possession of the respondent nos. 7 & 8 over the concerned land which resulted in a proceeding under Section 144 Cr.P.C. vide Misc Case No. 86 of 2016 being registered in the Court of Sub Divisional Magistrate, Ramgarh. Vide final order dated 24.08.2016, the Rule was vacated in favour of the respondent no.8 who was the first party in the said proceeding under Section 144 Cr.P.C. and was made absolute against the petitioners. It is also submitted that in the said proceeding under Section 144 Cr.P.C., police reported that the petitioners were attempting to dispossess the respondent nos. 7 & 8 from the land in question. It is further submitted by the learned counsel for the respondents that the petitioners suppressed that in the CWJC No. 81 of 1996 vide the order of the respondent no.5 dated 19.02.1992; possession was restored to the ancestor of the respondent nos. 7 & 8 namely Sanichar Mahali and the said order dated 19.02.1992 still stands and till date the respondent nos. 7 & 8 have not been dispossessed from the land in question. It is next submitted that as mutation can only be granted to the person in possession over the land, there is no way, the same can be made in favour of the petitioner who is not in possession of the land in question. 7. 7 & 8 have not been dispossessed from the land in question. It is next submitted that as mutation can only be granted to the person in possession over the land, there is no way, the same can be made in favour of the petitioner who is not in possession of the land in question. 7. In support of its case, the learned counsel for the respondent no. 7 & 8 relied upon the Judgment of a Coordinate Bench of this Court in the case of Pradeep Kumar Rai & Anr. Vs. State of Jharkhand and Ors., reported in (2014) SCC Online Jhar 2906, para -14 of which reads as under:- “14. In a matter of mutation, the revenue officer are not competent to decide any claim related to title, share and right of possession.” Wherein it has been reiterated by the Coordinate Bench that in case of mutation factum of possession is important and revenue officers are not competent to decide any claim related to the title, share and right of possession. 8. The learned counsel for the respondent nos. 7 & 8 also relied upon the Judgment of a Division Bench of this Court in the case of Bishwanath Singh Vs. State of Jharkhand & Ors., reported in (2007) SCC Online Jhar 289 para -13 of which reads as under:- “13. It is well settled that the order of mutation has to be passed on the basis of the possession only. Whereas on enquiry possession of the petitioner was not found by the Deputy Commissioner. However, though the petitioner disputed the said finding regarding possession but the facts remains that there is serious dispute not only with regard to the possession of the petitioner but with regard to his title also. It is also well settled principle of law that in a proceeding for mutation disputed or complicated question of title cannot be gone into. The ex-parte decree obtained by the petitioner against his own vendors is also of no help to the petitioner because the same is not binding upon State or TISCO since they were not party in the Suit, filed by the petitioner.” (Emphasis supplied) 9. The ex-parte decree obtained by the petitioner against his own vendors is also of no help to the petitioner because the same is not binding upon State or TISCO since they were not party in the Suit, filed by the petitioner.” (Emphasis supplied) 9. It is next submitted that Udit Mahto was not landlord, but he was simply a mortgagee, having no power to get the land surrendered and it is apparent from the Khatiyan that Chaman Lal Singh was the landlord but he has not received the surrender from the raiyat nor settled it in favour of the ancestors of the petitioners. Hence, it is submitted that this writ petition being without any merit be dismissed. 10. The learned counsel for the respondent nos. 2 to 6 submits that since the land in question is recorded in the Survey Khatiyan in the name of Karma Mahali who is a member of Scheduled Tribe and undisputedly the respondent nos. 7 & 8 are the descendants of the Khatiyani Raiyat, so the writ petition though filed with a prayer for issuance of rent receipt but in fact it is a case of establishing right, title, interest and possession over the land in question and the same cannot be decided by the Revenue Court. Thus the petitioner ought to have moved before the competent Civil Court for deciding the title of the property in his favour. The DCLR has restored the land in question in favour of the descendants of Khatiyani Raiyats namely Sanichar Mahali and Jagdish Mahali and the possession of the said land has also been delivered to them. Hence, it is submitted by the learned counsel for the respondent nos. 2 to 6 that the petitioners are not entitled to the reliefs as prayed for and this writ petition being without any merit be dismissed. 11. By way of reply, the learned senior counsel for the petitioners submits that the Land Restoration Case No. 137 of 1990 and 6/91-92, Land Restoration Case No. 136 of 1990 and 6/91-92 & Land Restoration Case No. 136/90 and 6/91-92 were valid restorations in view of the Judgment passed by this Court in C.W.J.C. No. 1117 of 1984(R) and C.W.J.C. No. 81 of 1996(R). It is also clarified by the learned senior counsel for the petitioners that proceeding under Section 144 Cr.P.C. before the Sub Divisional Magistrate, Ramgarh was only in respect of one out of the several plots consisting of 3.78 acres of land. 12. Having head the rival submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that the order of mutation has to be passed on the basis of possession only. It is also a settled principle of law that the entry in the revenue record by way of mutation or otherwise is for the purpose of collection of revenue and neither creates any title nor extinguishes any title. The undisputed fact remains, as has even been averred in para-30 of the writ petition itself that the possession of the lands in question have been restored in favour of the ancestor of the respondent no.7 Sanichar Mahali by land restoration case no. 137/90 and 136/90. Of course, it was contended by the learned senior counsel for the petitioners that the petitioners are not very much sure as to whether the names of the petitioners were re-entered in the revenue records or their names continued as averred in para-32 of the writ application. The annexure-A/1 at page no. 21 of the counter-affidavit, the veracity of which has not been questioned by the petitioners in no uncertain manner shows that the land in question has been restored to Sanichar Mahali, the ancestor of the respondent nos. 7 & 8. The same being a undisputed revenue record, prima facie, it shows that the contents of the same is true more so when the veracity of the same has not been challenged. The petitioner has not anywhere in the writ petition has categorically challenged the veracity of the annexure-A/1 of the counter affidavit. Nowhere, it has been contended by the petitioner that the respondent nos. 7 & 8 have not been restored possession; as is evident from the annexure-A/1 of the counter affidavit. The petitioners have not stated anywhere in the writ petition as to from when and in what manner they have been continuing in possession. So since prima facie the annexure-A/1 at page no. 7 & 8 have not been restored possession; as is evident from the annexure-A/1 of the counter affidavit. The petitioners have not stated anywhere in the writ petition as to from when and in what manner they have been continuing in possession. So since prima facie the annexure-A/1 at page no. 21 of the counter affidavit shows that the possession of the land in question was restored to the ancestor of the respondent nos. 7 & 8 and there is no averment to the effect that after such restoration of the possession of the land in question to Sanichar Mahali, the ancestor of the respondent nos. 7 & 8; by any due process of law, the respondent nos. 7 & 8 or their ancestor have been evicted from the land in question and coupled with the fact that in a proceeding under Section 144 Cr.P.C. in respect of part of the land involved in this writ petition, the police has reported to the Sub Divisional Magistrate, Ramgarh that the respondent nos. 7 & 8 are in possession of at least one of the several plots of lands consisting of the disputed property of 3.78 acres involved in this writ petition; goes to show that no wrong has been committed by the respondent nos. 2 to 6 in making the entry in the Register –II with respect to the land in question and no case could be made out by the petitioners to remove the names of the respondent nos. 7 & 8 when the prima facie material in the record goes to show that they are in possession of the land in question. Under such, circumstances, this Court is of the considered view that there is no merit in this writ petition. 13. Accordingly, this writ petition being without any merit is dismissed.