Jharkhand High Court
Aadarsh Grih Nirman Samitee Ltd. ... vs Ram Charan Mahto on 25 July, 2018
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Second Appeal No. 533 of 2016
...
1. Aadarsh Grih Nirman Samitee Ltd. Arsandey, C/o Co-operative Society registered under Bihar and Orissa Co-operative Societies Act having its office at Arsandey, Kanke, Ranchi through its Secretary, Sri Pankaj Mishra
2. Dr. D. K. Jha
3. Dr. Krishna Prasad Singh
4. Smt. Chandrakala Sharma
5. Dr. Mahendra Prasad Singh
6. Dr. C. M. Sharma
7. Dr. S. S. P. Verma
8. Ravi Shankar @ Ravi Shankar Singh
9. Smt. Malti Devi
10. Smt. Madhubala Sahay ........ .....Appellants Vrs.
1. Ram Charan Mahto
2. Rambriksh Mahto
3. Sumitra Devi
4. Shyamsundar Mahto
5. Govind Mahto
6. Anand Ram Mahto
7. Baleshwar Mishra
8. Sibu Mahto
9. Raman Mahto
10. Dinesh Mahto
11. Tetri Devi
12. H. R. Mishra
13. B. B. Mishra @ Baikunth Mishra
14. Dr. Kishore Sinha
15. Sabita Sarkar
16. Kamlesh Kumar
17. Udai Shankar Sinha
18. Dr. Harendra Singh
19. Smt. Sneh Prabha Sahay ...... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR For the Appellants : M/s Amar Kr. Sinha, Adv.
For the Respondents :
....
04/25.07.2018 Heard learned counsel for the appellants.
The appellants are the original defendants.
The suit has been filed by the plaintiff for right, title and interest over the suit property, a decree for confirmation of possession be passed. It be declared that the sale deed dated 17.05.1956 annexed and registered by Nanka Mahto in favour of Manav Sewa Sangh Brindawan Branch, Arsandey PS- Kanke, Ranchi and sale deed dated 25.04.1984 executed and registered by aforesaid Manav Sewa Sangh in favour of defendant no. 1 and subsequent sale deeds executed and registered by defendant no. 1 through its secretary in favour of its members including the defendants with respect to the suit property are ab initio, collusive and inoperative never given effect to and are not binding upon the plaintiff and the member of the defendants society including the defendants -2- have not derived any right, title interest over the suit property and never came into possession over the same by the alleged sale deed. That the defendants including the members of defendant no. 1 be permanently restrained from causing disturbance in the peaceful possession of the plaintiffs over the suit property and from making construction work over the same or from alienating by sale or otherwise any portion of the suit property. That a decree for cost of the suit be passed.
The Trial Court has framed following issues:
"(i) Is the suit as framed maintainable?
(ii) Have the plaintiff's valid cause of action for the suit?
(iii) Is the suit barred by limitation, adverse possession and ouster?
(iv) Is the suit barred by the principles of waiver, estoppel and acquiescence ?
(v) Is the suit barred under Sec. 34 and 38 to 41 of the Specific Relief Act, 1963?
(vi) Is the suit bad for mis-joinder and non-joinder of parties?
(vii) Whether the suit has been properly valued and is the court fee paid sufficient?
(viii) Whether Bodhan Mahto was sons of the recorded raiyat Most. Pano Mahtoain?
(ix) Whether Kinu Mahto and Nanka Mahto inherited the land of R.S.plot no.
1490 area 1.07 acres under of Khata no. 252 and 0.61 acres under R.S. plot no. 1478 of Khata no. 340 situated at village Arsandey, P.S. Kanke, Dist. Ranchi as claimed by the plaintiffs?
(x) Whether in oral partition, the suit lands were allotted to Kinu Mahto, who came into separate exclusive possession of the same?
(xi) Whether Pano Koiri the recorded raiyat died leaving behind his only son Bodhan Mahto who also died leaving behind his two sons Nanka Mahto and Kinu Mahto?
(xii) Whether the plaintiffs are descendants of Kinu Mahto?
(xiii)Whether Kinu Mahto and Nanka mahto inherited the land of R.S. Plot no. 1490, area 1.07 acres under Khata no. 252 and 0.61 acres under R.S. Plot no. 1478 of Khata no. 340 and came in joint possession of the same?
(xiv) Whether Nanka and Kinu Mahto orally partitioned the above property and the suit property was allotted to Kinu Mahto ancestor of the plaintiff?
(xv) Whether the sale deed dated 17.5.1956 and 25.4.1984 are only paper transaction are never acted upon?
(xvi) Whether the plaintiffs have right, title and interest over the suit land? (xvii) Are the plaintiffs entitled to a decree as claimed?"
The Trial Court has dismissed the suit on the ground that the same is barred by limitation and not maintainable under Specific Relief Act and also on merits.
Being aggrieved, plaintiffs have filed an appeal. The First Appellate Court has reversed the decree by giving finding that defendants are trespassers. No findings have been recorded regarding sale deed.
Learned counsel for the appellants submits that issue of limitation has not been considered by the First Appellate Court.
In above circumstances, the present case is admitted on the following substantial question of law:
"(i) Whether in a case where the defendants are in possession of the suit property, the suit filed by the plaintiffs for declaration of title without seeking any relief for recovery of possession is -3- barred by Proviso to Section 34 of the Specific Relief Act?
(ii) Whether the findings of the learned Court of appeal below that the defendants are trespassers ignoring Exts. F, F/1 and G are at all sustainable?
(iii) Whether the suit filed by the plaintiffs is barred by limitation?
(iv) Whether the learned Court of Appeal below has misconstrued the provision contained in Article 65 of the Limitation Act while deciding the issue of adverse possession against the defendants?"
Issue notices upon the respondents under ordinary process for which requisites etc. must be filed within two weeks.
From bare perusal of the name of the plaintiff, prima facie, it appears that the suit land belongs to backward class.
Section 46 of the CNT Act is quoted hereinbelow:
"46. Restrictions on transfer of their rights by raiyats. - (1) No transfer by a raiyat of his right in his holding or any portion thereof -
(a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement,shall be valid to any extent :
Provided that a raiyat may enter into a 'bhugut bundha' mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B.& O. Act VI of 1935) for any period not exceeding fifteen years :
Provided further that -
(a) an occupancy-raiyat who is a member of the Scheduled Tribes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person who is a member of the Scheduled Tribes and who is a resident within the local limits of the area of the police-station within which the holding is situate;
(b) an occupancy-raiyat who is a member of the Scheduled Castes or Backward Classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale exchange, gift, will or lease to another person who is a member of the Scheduled Castes or, as the case may be, Backward Classes and who is a resident within the local limits of the district within which the holding is situate.
(c) any occupancy-raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government, and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and
(d) any occupancy-raiyat who is not a member of the Scheduled Tribes, Scheduled Castes or backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange gift, will, mortgage or otherwise to any other person.
(2) A transfer by a raiyat of his right in his holding or any portion thereof under sub-section (1) shall be binding on the landlord. (3) No transfer in contravention of sub-section (1) shall be registered or shall be in any way recognised as valid by any Court, whatever in exercise of civil, criminal or revenue jurisdiction.
[(3A) Notwithstanding anything contained in any other law for the time -4- being in force, the Deputy Commissioner shall be a necessary party in all suits of a civil nature relating to any holding or portion thereof in which one of the parties to the suit is a member of the Scheduled Tribes and the other party is not a member of the Scheduled Tribes.] (4) At any time within three years after the expiration of the period for which a raiyat has, under clause (a) of sub-section (1) transferred his right in his holding or any portion thereof, the Deputy Commissioner shall on the application of the raiyat put the raiyat into possession of such holding or portion in the prescribed manner. [(4A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by occupancy-raiyat who is a member of the Scheduled Tribe, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made, in contravention of clause (a) of the second proviso to sub-section (1): Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof: Provided further that before passing any order under clause (b) or clause (c) of this sub- section, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter.
(b) If after holding the inquiry referred to in clause (a) of this sub- section, the Deputy Commissioner finds that there was no contravention of clause (a) of the second proviso to sub-section (1) in making such transfer, he shall reject the application and may award such costs to the transferee to be paid by the transferor as he may in the circumstances of the case deem fit.
(c) If after holding the inquiry referred to in clause (a) of this subsection, the Deputy Commissioner finds that such transfer was made in contravention of clause (a) of the second proviso to subsection (1), he shall annul the transfer and eject the transferee from such holding or portion thereof, as the case may be, and put the transferor in possession thereof:
Provided that if the transferee has constructed any building or structure, such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow failing which the Deputy Commissioner may get such building or structure removed:
Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before the commencement of the Chotanagpur Tenancy (Amendment) Act, 1969 (President's Act 4 of 1969) he may, notwithstanding any other provisions of this Act, validate such a transfer made in contravention of clause (a) of the second proviso to sub-section (1), if the transferee either makes available to the transferor an alternative holding or portion of a holding, as the case may be, of the equivalent value, in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor.
Explanation.- In this section 'substantial structure or building' means the structure or building of the value exceeding five thousand rupees on the date of holding enquiry, but it does not include such structure or building of any value the material of which cannot be removed without incurring substantial depreciation in its value. (5) Nothing in this section shall affect the validity of any transfer (not otherwise invalid) of a raiyat's right in his holding or any portion thereof made bonafide before the first day of January 1903 in the Chota Nagpur Division except the district of Manbhum, or before the first day of January, 1909, in the district of Manbhum. [(6) In this section [and in section 47]-
-5-(a)"Scheduled Castes" means such castes, races or tribes as are specified in Part II of the Schedule to the Constitution (Scheduled Castes) Order,1950 ;
(b)"Scheduled Tribes" means such or tribal communities or parts of or groups within such tribes or tribal communities as are specified in Part II of the Schedule to the Constitution (Scheduled Tribes) Order, 1950 ; and
(c)"backward classes" means such tribes, classes of citizens as may be declared by the State Government, by notification in the Official Gazette, to be socially and educationally backward.]"
As per the mandate of Section 46 of the CNT Act, land belonging to backward class cannot be transferred to non-backward class. Further Section 46(3) of the CNT Act commands that such transfer cannot be taken into consideration as same is invalid.
In view of the provision contained in Section 46(3) of the CNT Act that no transfer in contravention of Sub-Section (1) shall be registered or shall be in any way recognized as valid by any court whatever in exercise of civil, criminal or revenue jurisdiction and as such in view of the above circumstances, it will be proper to remand this appeal under Order XLI Rule 25 of the Code of Civil Procedure to the Lower Appellate Court for giving his finding and thus, issue is being formulated for determination after remand as under:
"Whether the plaintiffs/respondents are member of backward class community or not ? and whether land is regulated by Section 46 of the CNT Act or not?"
The Lower Appellate Court is directed to decide the above issue after taking evidence of both the parties and return the evidence together with finding thereon to this Court within six months.
Learned counsel for the appellants is directed to appear before the Court below on 17.08.2018. Plaintiffs shall be noticed for participation.
I.A. No. 6549 of 2018The present Interlocutory Application has been filed for stay for which prayer has been made in para-8 of the instant I.A., which is quoted hereinbelow:
"(8) That it is stated that the appellants are in physical possession over the lands and they have constructed pucca building, boundary wall and other structures over the suit lands and are residing there with their family members and all the constructions have been made much prior to the institution of the suit to the full notice and knowledge of the plaintiffs."
In view of the above submission, status quo as of today shall be maintained by both the parties till the appearance of the respondents.
I.A. No. 6549 of 2018 stands disposed of.
(Rajesh Kumar, J.) Kamlesh/