Jharkhand High Court
Thakur Ghansham Singh Munda vs Commission S.C. Division And Ors. on 2 July, 2002
Equivalent citations: 2002(50)BLJR1551
Author: M.Y. Eqbal
Bench: M.Y. Eqbal, H.S. Prasad
JUDGMENT M.Y. Eqbal, J.
1. This appeal under clause 10 of the Letters Patent is directed against the judgment dated 19.1.1998 passed in CVVJC No. 2143/1990 (R) whereby the learned single Judge dismissed the writ application and affirmed the order passed by the Commissioner, South Chotanagpur Division, Ranchi in Revenue Revision No. 117/86.
2. The facts of the case He in a narrow compass.
3. The writ petitioner who is appellant here filed an application under Section 242 of the Chotanagpur Tenancy Act (in short, 'CNT Act') claiming restoration of land of plot No. 262, 253 and 289 of khata No. 1 of village Chayadih measuring an area of 5.40 acres. The restoration application was filed against Nuru Mahtp and Gora Mahto who were respondent Nos. 4 and 5 alleging, inter alia, that he had Mundari Khutkatti rights over the land in question and in pursuant to the judgment passed in F.A. No. 257/1945 possession of the same had been delivered in his favour but subsequently the said respondents created false and fabricated documents and fraudulently dispossessed him from the land. The said restoration application was registered as case No. 13 of 1983-84. respondent No. 4 Nuru Mahto contested the application by filing show cause stating, inter alia, that Kalipado Mahto and Durga Charan Mahto, who are respondent Nos. 7 and 8 here were actually in possession of the land under the proceeding. It was stated that the petitioner was Mundari Khutkattidar of village Mardhan and not of village Chayadih; and that the land is not Mundari Khutkatti tenancy and, therefore, the land cannot be restored. It was further contended by the respondents that after delivery of possession in pursuance of decree passed in F.A. No. 257/1945, the petitioner himself had settled the land with Ram Gopal Sahu and his wife Malti Devi, who remained in possession till 1970-71 and later on sold the same to respondent Nos. 7 and 8 by registered deeds dated 13.3.1970 and 21.6.1971. The said purchaser also contested the application stating that the land in question was never entered as Mundari Khutkatti in the records of right and, therefore, provisions of Section 242 of the Act has no application.
4. The restoration application was heard by the Sub-divisional Officer, Khunti who after recording finding that the lands were Bakast and not Mundari Khutkatti, rejected the restoration application. The petitioner-appellant then filed appeal before the Additional Collector who set aside the order of the Sub-divisional Officer holding that the land was Mundari Khutkatti belonging to the petitioner and he was entitled to restoration under Section 242 of the said Act, respondent No. 4 then preferred revision application before respondent No. 1, Commissioner South Chota-nagpur Division, Ranchi which was registered as Ranchi Revenue Revision No. 117/86. The Commissioner after reappreciating the entire evidence came to the conclusion that the land was not Mundari Khutkatti belonging to the petitioner and consequently the appellate order was set aside and the restoration application was dismissed. The petitioner then challenged the said order passed by the Commissioner before this Court in the writ petition. Learned single Judge by the impugned judgment dismissed the writ petition and affirmed the order passed by the Commissioner in revision. Hence this letters patent appeal.
5. Mr. N.K. Prasad, learned senior counsel appearing for the appellant assailed the impugned judgment as being illegal and contrary to the finding recorded by this Court in F.A. No. 257/1945. Learned counsel fully relied upon the finding recorded by this Court in the aforesaid appeal and submitted that according to the finding the learned single Judge erred in law in holding that the land is not Mundari Khutkatti. Learned counsel drawn our attention to Annexure 5 to the writ application which is the copy of the judgment passed in F.A. No. 257/1945. Learned counsel further submitted that once it was held that the land is Mundari Khutkatti then on such transfer made by the petitioner is void and illegal under Section 240 of the C.N.T. Act.
6. On the other hand, Mr. Devi Prasad, learned senior counsel appearing for the respondents submitted that in the F.A. No. 257/1945 the question involved was as to whether the suit land was resumable or not and no other relief whatsoever was sought in the said suit, i.e. whether the land in question was Mundari Khutkatti or not. Learned counsel then submitted that admittedly the land in question was not recorded as Mundari Khutkatti in the records of right and, therefore, no evidence can be adduced to show that the land is Mundari Khutkatti. Learned counsel further submitted that after the decree passed in the aforesaid appeal possession was taken by the petitioner and thereafter he himself settled the land with the respondents. The petitioner, therefore, cannot be allowed to say that the settlement was bad. Learned counsel relied upon the decisions of the Patna High Court in the case of Jeo Lal Singh & Ors. v. Wazir Narain Singh, AIR 1921 Pat 426, in the case of Degan Mahto & Ors. v. Kamakhya Narayan Singh & Ors., AIR 1933 Pat 504, and in the case of Mt. Babui Radhika Devi v. Ramasray Prasad Choudhary, AIR 1931 Pat 137.
7. The undisputed facts are that petitioner/appellant-Thakur Ghansham Singh Munda is the successor in interest of Thakur Ramjivan Singh Munda of village Mardan. Thakur Ramjivan Singh Munda was grand father of Thakur Loknath Singh Mundai son of padam Lochan Singh Munda. Madan Lochan Singh Munda died in the life time of his father Ramjivan Singh Munda. The petitioner/appellant is the son of Thakur Loknath Singh Munda and in this way, he is direct male descendent of late Thakur Ramjivan Sigh Munda, who was recorded tenure holder of Khewat No. 3 of village Chayadih. Sri Madhusudan Singh Munda was the younger brother of Thakur Ramjivan Singh Munda and the family was governed by the rule of male lineal primogeniture in the matter of succession. So Madhusudan Singh Munda being the youngest son was given the land in question of Mauza Chayadih as fchorposh by his eldest brother Thakur Ramjivan Singh Munda. It appears that Madhusudan Singh Munda contracted debts with Jagarnath Sahu, who in a money suit got the entire C.S. Khewat No. 3 of Mauza Chayadih in auction purchase. In revisional survey operations which took place in 1930, Jagarnath Sahu was recorded as rent receiver for the said Khewat No. 3 of Chayadih and non-resumable thus the same C.S. Khewat No. 3 of Thakur Ramjivan Singh Munda was recorded in R.S. in the name of Jagarnath Sahu and others as R.S. Khewat No. 3 with entry in the remarks column that Jagarnath Sahu got it by auction purchase on 23.11.1916 and that the land is Khuntkatti, Since R.S. Khewat No. 3 in the name of Jagarnath Sahu and others was recorded in the Manager of the Encumbered Estate Tamar, so Title Suit No. 26 of 1932 was filed by Thakur Loknath Singh (sic) for declaration that Jagarnath Sahu arid others who were record (sic) Khewatdar of R.S. Khewat No. 3 cannot pay revenue direct to Tamar Estate. It further appears that when Madhusudan Singh Munda of Chayadih died issueless in 1938, the petitioner/appellant filed Title Suit No. 67 of 1943 for restoration of khorposh tenure from Gopal Sahu son of Jagarnath Sahu and four other defendants in the Court of Sub-Judge. Ranchi. The plaintiffs lost the case on the ground that the entries of R.S. Khewat No. 3 was not resumable and these entries were conclusive proof of the facts stated in the record of right, The petitioner/appellant then preferred appeal before the Hon'ble High Court being F.A. No. 257 of 1945. The appeal was decided in favour of the petitioner/appellant.
8. Since the relief claimed by the petitioner-appellant is based on he judgment passed in F.A. No. 257/1945,1 would first like to discuss the findings recorded by the High Court in the said appeal. F.A. No. 257/45 arose out of decree passed in T.S. No. 67 of 1943. From the decree it appears that the aforesaid suit was filed by the appellant for a declaration that village Chayadih, Thana No. 163 Tamar was granted as resumable fchorposh tenure to Madhusudan Singh by the then Malik of the Mardhan Estate and the defendants hold the village as purchasers of the right title and interest of the said Madhusudan Singh and further for a declaration that after the death of Madhusudan Singh, the defendants are in wrongful possession of the land. The plaintiff also sought consequential relief of khas possession of the said village to be given to him after evicting the victim therefrom. The said suit was dismissed by the trial Court holding that the plaintiffs failed to prove that fchorposh granted to Madhusudan Singh could be resumed by the plaintiff. The appellant then preferred aforementioned appeal before the Patna High Court. The High Court, recorded a finding that the defendants had purchased only right, title and interest of Madhusudan Singh which was, in effect, a life estate hence the land is liable to be resumed by the grantors. On the question of entry of the land as non-resumable in the records of right, High Court observed :--
"It is true that the entries in the record of rights have a presumptive value, but the judgment in the title suit of 1932 had the effect of wiping out the entry in favour of the defendants as against Khewat No. 3 in revisional survey records of right, hence, there is no presumption that the tenure was not resumable. If these entries had remained unchallenged, and if it had not been found that it was a khorposh grant, certainly it was for the plaintiff to establish by very strong and cogent evidence that the entires in the record of rights were incorrect. But that burden is no more on the plaintiff after the decision of the title suit of 1932."
9. From perusal of the judgment it is clear that neither there was any issue whether the land in question is Mundari Khutkatti nor any finding was recorded to that effect either in the judgment passed by the trial Court or by the High Court. Admittedly in the revisional survey of records of right the land in question was recorded as Khutkatti in the name of Jagarnath Sahu and others on the basis of auction purchase, in the cadastral survey the said land was recorded as fchorposh of Thakur Ramjivan Singh Munda.
10. Curiously enough after taking possession of the land pursuant to the decree passed in F.A. No, 257 of 1945, the appellant settled the land in favour of Gopal Sahu and his wife, Malti Devi by two registered deeds dated 13.2.1954. In turn Gopal Sahu and Malti Devi sold the land in question to the respondents Nuru Mahto and others in 1970 and 1971 by registered deed. In other words the appellant, Ghanshyam Munda treated the land as Khutkatti land and not Mundari Khutkatti land and settled the same with Gopal Sahu and his wife. In 1983-84, i.e. after 30 years the appellant filed restoration application for restoration of same land which was settled by him on the ground that the land is Mundari Khutkatti and the settlement was. In violation of Section 240 of the C.N.T. Act. We are, therefore, of the view that restoration application filed by the appellant was itself mala fide.
11. As noticed above in the C.S. and R.S. records of rights the land in question was recorded as Khutkatti land and not Mundari Khutkatti land. The appellant also treated the land as Khutkatti land and settled the same with the predecessor of the respondents in 1954. Considering these admitted facts we are further of the view that the appellant cannot be allowed to lead evidence and prove that the land in question is Mundari Khutkatti land. Such evidence is also not permissible under Section 256 of the CNT Act. For better appreciation Section 256 of the Act reads as under :--"Record of rights to be conclusive evidence on the question when a tenancy is a 'Mundari-khunt-kattidari' tenancy.--(1) Where a record of rights has been finally published under Section 83 of this Act or under Sub-section (2) of Section 103-A of the Bengal Tenancy Act, 1885 (8 of 1885) or amended under Section 254 of this Act; the entries therein relating to 'Mundari-khunt-kattidari' tenancies shall be conclusive evidence of the nature and incidence of such tenancies and of all particulars recorded in such entries;
and, if any tenancy in the area, estate or tenure for which the record of rights was prepared has not been recorded therein as a 'Mundari-khunt-kattidari' tenancy, no evidence shall be received in any Court to show that such tenancy is a 'Mundari- khunt-kattidari' tenancy.
(2) Where in the records of rights finally published under Sub-section (2) of Section 103-A of the Bengal Tenancy Act, 1885 (8 of 1885) for a village in the State of Porahat in the district of Singhbhum a tenant of the village has been recorded as a 'Mundari-khunt-kattidari', all land which he held at the date of final publication, shall be deemed to have been recorded in the records of rights as his 'Mundari-khunt-kattidari' tenancy."
12. From reading of the aforesaid provision It Is clear that if any tenancy has not been recorded as Mundari-khunt-kattidari tenancy then no evidence shall be received in any Court to show that such tenancy is a Mundari-khunt-kattidari tenancy. It was not the case of the appellant either In the suit or in the appeal or in the writ petition that the nature of the land as Khutkatti entered in the C.S. records of rights or R.S. records of rights was made fraudulently or surruptiously or that it was a forged and fraudulent entry. Nor the appellant ever challenged the correctness of the entry after the records of right was finally published in accordance with the provisions of the Act. In that view of he matter the genuineness of the entry and the correctness of the records of rights shall also be presumed. In a case of Chamru Saha v. Kanak Singh Mundu, AIR 1931 Pat 136, a similar question arose for consideration before the Patna High Court. The facts of the case was that in a execution proceeding the judgment-debtor raised objection under Section 47 of the CPC regarding the sale of his holding which was described in the record of rights as "Maurusi Khuntkatti" and it was contended that that was not transferable under Section 240 of CNT Act. Learned Munsif decided against the objection on the ground that according to the settlement report of the District of Ranchi, 1902-1910, Khuntkatti tenure in Thana Silly was transferable. Learned Judicial Commissioner, Ranchi allowing the appeal against the decision of the Munsif came to the conclusion that although the tenure was described as Maurisi-khunt-katti the fact that the judgment debtor was a Munda established In its turn the fact that this was Mundari-khunt-katti and, therefore, he allowed the objection. The matter came in appeal before the Patna High Court. Their Lordships taking into consideration Section 256 of the CNT Act allowed the appeal and set aside the order of the Judicial Commissioner. Delivering the judgment His Lordship Wort, J. observed :--
"It is contended on behalf of the respondents that the procedure adopted by the Judicial Commissioner is not contrary to Section 256. The evidence which was received by the Judicial Commissioner was merely evidence to explain an ambiguous entry in the record; that in the absence of an entry to the effect that the judgment debtor was a raiyat, it was necessary to adduce evidence which was adduced in this case in order to show whether it was a Khuntkatti tenure under Section 7 or a Mundari-khunt-katti tenure under Section 8 of the Act. In my judgment the mere fact that this holding was not recorded as a Mundari-khunt-katti is in itself a sufficient answer to the argument advanced on behalf of the respondents. That entry being what it was, it cannot be held under the circumstances that it was a Mundari-khunt-katti and in consequence judgment of the learned Judicial Commissioner, in my judgment, was wrong and must be reversed. The appeal is allowed with costs."
13. The submission of Mr. N.K. Prasad that Chayadih village being part and parcel of Mardhan Estate and Mardhan Estate being the Mundari-khunt-katti it shall be presumed that Chayadih becomes Mundari Khuntkatti and not a Khuntkatti alone cannot be accepted in view of the provisions of Section 256 of the C.N.T. Act and the ratio decided by the Division Bench in the decisions quoted hereinabove. The learned single Judge rightly held that although in the previous suit the record of right of non- resumability and by the judgment passed in first appeal, the non-resumable character has been held to be bad, but the fact remains that the land was never recorded as Mundari Khuntkatti.
14. Be that as it may, as noticed above the appellant recovered the possession of the land after judgment was passed in the first appeal but never moved the Revenue Authority for correction of record of right, rather, the appellant treated the land as Khuntkatti and settled it with the predecessor-in-interest of the respondents. In that view of the matter, we are of the opinion that the appellant cannot be allowed to invoke the provisions of Section 242 of the C.N.T. Act for restoration of land on the ground that such settlement was in violation of the provisions of Section 242 of the said Act, inasmuch as the land is Mundari Khuntkatti and transfer by way of settlement or otherwise as prescribed under Section 242 of the said Act. We, therefore, do not find any error of law or fact in the judgment passed by the learned single Judge and in the detailed order passed by the Commissioner, South Chotanagpur Division, Ranchi.
15. For the aforesaid reasons, we find no merit in this appeal, which is accordingly dismissed.