Jharkhand High Court
Md. Rustam Ansari vs The State Of Bihar (Now Jharkhand) ... on 1 September, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 298 of 2016
1. Md. Rustam Ansari, S/o Late Gofur Kaji,
2. Hamidan Bibi
3. Jahirun Bibi
Sl. No.2 & 3 both daughters of late Gofur Kaji
4. Residan Bibi, D/o Gofur Kaji
5. Jamaluddin Kaji, son of late Ledu Kaji
6. Usman Kaji
7. Muslim Kaji
Sl No.6 & 7 both sons of Late Tajmul Kaji
8. Habibuddin Kaji, @ Ayub Kaji, S/o Late Qurban Ali Kaji
All residents of Mayur Nachna, P.S. Barwadda (Govindpur),
P.O. Nagarkiary, District Dhanbad
... ... Plaintiffs/Appellants/appellants
Versus
1. The State of Bihar (Now Jharkhand) represented by Dy.
Commissioner, Dhanbad, D.C. Office at Dhanbad, P.O. P.S. &
District Dhanbad
2. Dy. Commissioner, Dhanbad, D.C. Office at Dhanbad, P.O.
P.S. & District Dhanbad
3. Addl. Collector, Dhanbad, Addl. Collector Office,
Samaharanalya Building, P.O. P.S. & District Dhanbad
4. Land Reforms Dy, Collector, Dhanbad, P.O. P.S. & District
Dhanbad
5. Circle Officer, Govindpur, P.O. & P.S. Govindpur, District
Dhanbad
6. District Fishery Office, Dhanbad, P.O. P.S. & District Dhanbad
7. Md. Idris Kaji, S/o Hanif Kaji (exempted from being
substituted vide order dated 17.01.2020)
All residents of Mayur Nachna, P.S. Barwadda (Govindpur)
P.O. Nagarkiary, District Dhanbad
... Defendants/Respondents/Respondents
8. Sahidan Bibi, W/o late Dalal Kaji
9. Khalil Kaji
10.Akhtar Kaji, S/o Late Dalal Kaji
11.Sajjad Kaji, S/o late Samser Kaji, grandson of late Dalal Kaji
12.Jubeda Khatoon
13.Sahida Khatoon
14.Halima Khatoon
1
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Sl. No.12 to 14 all daughters of Late Dalal Kaji, residents of
Mayur Nachna, P.S. Barwadda (Govindpur) P.O. Nagarkiary,
District Dhanbad
... Plaintiffs/Proforma Respondents/Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellants : Mr. Sudhir Kr. Sharma, Advocate For the Respondents : Mr. Sanjay Kr. Tiwari, SC I : Mr. Mihir Kunal Ekka, AC to SCI
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C.A.V. on 29.04.2025 Pronounced on :01.09.2025
1. This second appeal has been filed against the judgment dated 25th April 2016 (decree sealed and signed on 29th April 2016) passed by the learned Principal District Judge, Dhanbad in Title Appeal No.85 of 2012 whereby the title appeal has been dismissed affirming the judgment dated 18th July 2012 (decree sealed and signed on 30th July 2012) passed by the learned Civil Judge (Sr. Division)-VII, Dhanbad in Title Suit No. 148 of 2000. The suit was filed for a declaration of raiyati right of the plaintiff over the Schedule A property and that the defendant-State had no right to put the raiyati land/tank of the plaintiffs on auction and restrain the defendants from interfering with the raiyati rights of the plaintiffs with respect to Schedule A/small tanks. The learned trial court has dismissed the suit on contest without cost.
2. This 2nd appeal was admitted for final hearing vide order dated 31.03.2022 read with order dated 07.12.2023 and 23.04.2025, on the following substantial questions of law: -
"(i) Whether Courts below have failed to take into consideration the title of the appellant in view of Exhibits 4 and 5 read with findings of the first appellate Court that the Hukumnama which is issued in favour of the predecessor- in-
interest of the appellant was not forged?
(ii) Whether in view of the specific finding of the first appellate court that the land has been settled by the Ex-landlord in favour of predecessor-in-interest of these appellants by Hukumnama, impugned judgment could have been passed?
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(iii) Whether the learned first appellate court, in spite of holding that the Hukumnama was valid in the eyes of law, erred in not considering that the property covered under the Schedule-A(b) of the plaint did not vest upon coming into force of Bihar Land Reforms Act?"
3. During the course of argument, it revealed that the Schedule of the property consisted of two parts i.e. Schedule-A(a) and Schedule- A(b). So far as Schedule-A(a) is concerned, the same is relating to tank and so far as Schedule-A(b) is concerned, the same is relating to land. It also transpired that the Hukumnama on the basis of which the appellants are claiming the property, was also supported by the returns filed by the ex-zamindar. The properties consisted of tanks as well as land. So far as the tank is concerned, both the learned courts have taken consistent view that the tank stood vested in the State by virtue of Section 4 of the Bihar Land Reforms Act. So far as land is concerned, the learned 1st appellate court although held that the Hukumnama was genuine but did not return any finding with respect to the land covered under Schedule-A(b) relating to Khata No. 23 Plot No. 77 area 0.17 acres and Plot No. 103 area 0.08 acres total 0.25 acres-khet.
4. Case of the plaintiffs
(a) As per the plaint, the specific case of the plaintiffs is that on 05.01.1935, Gufoor Kazi, original plaintiff No.1 and Tajmul Kazi, father of plaintiff nos.4 and 5, by virtue of unregistered patta (hukumnana) took settlement of land along with other lands from the then ex-
landlord/khewatdar, namely, Sheikh Azim Kazi with respect to the following properties: -
I. Khewat No. 3/10 bearing plot Nos. 75, 76 and 102 consisting of agricultural land and small tank appertaining to khata No.28 measuring area 1.30 acres and two other tanks of plot nos. 223, 224 measuring an area of 1.62 acres, plot Nos.78 and 79 under khata No. 28.3
2025:JHHC:26755 II. Khata No. 23, plot No. 77 and 103 total area 0.25 acres.
Total area under both khatas was 4.52 acres situated under Mouza Mayur Nachna, P.S. Govindpur, District Dhanbad morefully described in Schedule-A of the plaint. The father of the plaintiffs came in possession of the said tanks and utilize usufruct by rearing fish therein and used to pay annual rent.
(b) The land mentioned in Schedule-A of the plaint did not vest in the State of Bihar under the Bihar Land Reforms Act, 1950. The ex-landlord submitted return in Form-M under the said Act including names of Tazmul Kazi and Gafoor Kazi with respect to scheduled land, and compensation was paid in Compensation Case No. 3365/1955-56 to the ex-landlord.
(c) The recorded raiyat continued to pay rent and possesses the tank mentioned in Schedule-A of the plaint, having perfected their right, title and interest. After death of original settlee, their heirs (the plaintiffs) came in possession of the said tank and have been paying rent to the State of Bihar since vesting of zamindari under Bihar Land Reforms Act, 1950. They have exercised various acts of possession over the tanks in question by rearing fish, cultivating the adjoining plots with the tank water, and also using the tank water for domestic purposes since 1935 till date without any hindrance by anybody. Thus, the parties have acquired indefeasible right by adverse possession over all three tanks.
(d) A B.P.L.E. Case bearing No.123/1964-65 was started with reference to Schedule-A land against Tazmul Kazi and Gafur Kazi. After enquiry, the said proceeding was finally dropped with the observation that the tank was not vested and was not a shairat land. Consequently, the Circle Officer, Govindpur, referred the matter to the 4 2025:JHHC:26755 Additional Collector for issuance of rent roll, and in pursuance of such order, the plaintiffs have been paying rent to the State of Bihar continuously up to the date.
(e) The plaintiffs stated that defendant no. 6, District Fisheries Officer, Dhanbad was illegally trying to settle the Schedule-A tank by auction to defendant no. 7 Md. Idrish Kazi only with a view to deprive the plaintiffs from enjoying the peaceful possession and rearing fish from the tank without any authority. Further, the District Fisheries Officer vide his order dated 01.07.1997 settled the tank to Jai Nagar Fishery Co-operative Society, to which some of the plaintiffs made an application before the Additional Collector, Dhanbad against the aforesaid illegal act with a prayer to delete the tank mentioned in the schedule from Shairat register and direct the District Fishery Officer not to settle the tank.
(f) On 18.08.1998, the plaintiffs made representation before the Deputy Commissioner, Dhanbad, with a similar prayer as made before the Additional Collector and the said application was registered as Misc. Case No.22/1998, whereby the Circle Officer, Govindpur, was directed to make enquiry into the matter and submit a report. Thereafter, the Circle Officer submitted a report on 19.09.1998 mentioning therein that the aforesaid lands containing tank were entered into the Shairat and as such the plaintiffs prayed for deleting the land and tank from Shairat register.
(g) The District Fishery Officer, Dhanbad (defendant no. 6) again illegally attempted to settle the aforesaid Raiyati tank detailed in Schedule-A of the plaint to defendant No.7 Md. Idrish Kazi in the year 2000-2001 by auction and therefore the plaintiffs prayed that the District Fishery Officer may be restrained from making any such 5 2025:JHHC:26755 auction or settlement to defendant No.7 or any other person over the Raiyati land/tank of the plaintiffs.
(h) Again on 31.8.2000, a representation was filed by Gafur Kazi and Zamaluddin Kazi before the Circle Officer, Govindpur with a prayer to stay the auction, but no auction was taken by the authority concerned and defendant nos. 1 to 6 issued further notice No. 237 dated 30.04.2001 to settle the tank shown in Schedule-A in public auction, although the State has no right to do so.
(i) The District Fisheries Officer, Dhanbad was acting illegally to auction the tank in question of the plaintiffs in the garb of Shairat settlement and District Fisheries Officer cast a cloud upon the title of the plaintiffs whereas the plaintiffs were in continuous possession of the tank and they perfected their right, title and interest over the tank in question.
(j) Rustom Ansari (plaintiff No.1A) in order to save the tank filed a writ petition before the Hon'ble Patna High Court, Ranchi Bench which was numbered as C.W.J.C. No. 2967/2000(R) and the aforesaid writ petition was disposed of with an observation that in the writ application, the petitioners seeks declaration in respect of Raiyati right over the land in question and the law is well-settled by the Hon'ble Apex Court that the adjudication of the right, title and interest in respect of immovable property, writ petition cannot be appropriate remedy. Further, the petitioners (the plaintiffs) were so advised that they may get their title adjudicated by a Civil Court of competent jurisdiction.
(k) Thereafter, the plaintiffs filed the suit for declaration of title regarding only plot nos. 75, 76 and 102 under Khata No.28 area 1.30 acres under Mouza Mayur Nachna and in course of trial Schedule-A has been amended and rest land have been included vide order 6 2025:JHHC:26755 dated 21.07.2003. The suit property as amended consisted of two parts Schedule A(a) and Schedule A(b). In course of trial, original plaintiff No.1 Gafur Kazi died and his sons were substituted in his place.
5. Before the learned trial court, defendant nos.1 to 6 were Government officials, who filed their written statement on 21.11.2000 and defendant No.7 had not filed written statement and was debarred from filing written statement. The plaintiffs had filed their amended plaint, but the defendants did not file any additional written statement and the right to file additional written statement was closed vide order dated 19.07.2004. Consequently, there is no denial of claim of the plaintiffs with regard to the land included by way of amendment of the plaint.
6. The Schedule A of the amended plaint is as under:-
Schedule A of the amended plaint Schedule A (a) Khata Plot No.75 Area 0.20 acres No.28 Plot No.76 Area 0.97 acres Plot No.102 Area 0.13 acres 1.30 acres... Kazi bandh Plot No.223 0.49 acres Plot No.224 1.13 acres 1.62 acres ... Nutan Bandh Plot No.78 0.14 acres Plot No.79 1.21 acres 1.35 acres... Goria Air Schedule A (b) Khata Plot No.77 0.17 acres No.23 Plot No.103 0.08 acres 0.25 acres... Khet 7. Case of the defendant Nos. 1 to 6
(i) The suit was not maintainable and it was barred by under Section 9 of Code of Civil Procedure (CPC). It has further been stated that the suit was also barred under the provisions of Section 80 C.P.C. as no notice has been served upon the defendants as required under law and it was barred by principles and provisions under Chota Nagpur Tenancy Act and law of limitation, waiver and acquiescence.7
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(ii) It was further stated by the defendants that the statement made in paragraph 1 of the plaint was not correct, rather the tank and lands situated under plot nos. 75, 76 and 102 of khata no. 28 were recorded as "gair-abad-malik" land and it was government land. It was also stated that no transfer of any immovable property could be made without the deed of transfer being registered under Indian Registration Act and unregistered Hukumnama was fabricated document which cannot be relied upon.
(iii) It was admitted that the aforesaid land vested in the State of Bihar after vesting of Zamindari after coming into force of Bihar Land Reforms Act, 1950. The aforesaid tank is recorded in the Sharait register of the Government of Bihar and it is a public tank. The tank appearing in Khata No.28, Plot Nos.75, 76 have been transferred by the Circle Officer to Fisheries Department Government of Bihar vide its letter No. 16 and 2/92-39(M) dated 16.7.92 and tank was settled to various persons right from the year 1994. It was settled with Fisheries Co-Operative Society by the Government for the year 1994-95, 1995-96 and 1996-97 namely Jai Nagar Kiyari Fishery Society, Nagar Kiyari for the year 1997-98. Further, it was settled for the year 1998-1999 and 1999-2000 with Khairat Ali of village Mayur Nachna and was settled by open bid with Sri Idrish Kazi, defendant No.7, for the year 2000-2001.
(iv) The tank, being a public tank, required settlement with different persons, and the plaintiffs have no right, title and interest over the tank. The Jamabandi was opened illegally by Halka Karamchari, and therefore, by the order of the Additional Collector, Dhanbad, thẻ Thoka that was opened illegally by the Halka Karamchari was stopped, and action was taken against Halka Karamchari.
(v) The tank and aile situated in plot Nos.75, 76 and 102 of Khata No.28 are gair-abad-malik land, and therefore, the 8 2025:JHHC:26755 same have been settled by the Fisheries Department in an open bid, and the plaintiffs have no possession over the tank. It is stated that the plaintiffs filed a number of petitions in futile attempts to grab the government land, but all those petitions were dismissed.
(vi) In the year 1964-65, no settlement of any land vide unauthorized occupation (Zabar Dhakal) Case No.123/64-65 was made. The plaintiffs filed writ petition before the Hon'ble Court for declaration of title to the tank, but the aforesaid writ petition was dismissed. Therefore, the present title suit has been filed, alleging illegal and futile claim over the public tank. The tank is a public tank, recorded in the Shairat register of the Government of Bihar and it is settled by the department by auction, right from the year 1994. The plaintiffs failed to get relief through writ petition and filed the present title suit on flimsy and fabricated grounds of possession based on an unregistered Hukumnama. The plaintiffs have no cause of action for the present suit.
8. On the basis of the pleadings of the parties, the learned trial court has framed the following issues for consideration: -
I. Is the suit barred Under Section 9 C.P.C.? II. Is the suit barred under section 80 C.P.C.? III. Is the suit barred under Limitation Act?
IV. Is the suit barred under C.N.T. Act?
V. Have the plaintiffs acquired any right, title
and interest over the suit property by virtue of Hukumnama which is unregistered?
VI. Is the suit property a Govt. land simply by entry in the record of rights as Anabad Malik Land as claimed by the State of Bihar?
VII. Are the plaintiffs entitled to the reliefs claimed and if so to what extent?9
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9. The plaintiffs led five witnesses and exhibited as many as ten exhibits, while the defendant nos.1 to 6 led three witnesses and exhibited documents from Exhibit-A to Exhibit- D/1. Oral evidence of the plaintiffs:-
P.W. 1 Gafur Kazi (plaintiff) P.W. 2 Sabrati Mian P.W. 3 Surendra Dhibar P.W. 4 Badal Dhibar P.W. 5 Arun Ch. Kumbhakar Documentary evidence of the plaintiffs:- Ext. 1 to 1/b Rent receipts Ext. 2 Certified copy of letter no. 34 dated 15.1.2000
Ext. 2/a to Certified copy of order dated 18.4.2002, 20.4.2002, 2/d 19.9.1999 and 14.8.1999 by Addl. Collector, Dhanbad. Ext. 3 to Certified copy of order sheets in Misc. Case No. 22/98 3/K Ext. 4 & 5 Certified copy of rent role of compensation case no.
3364/55-56;
Ext. 6 General notice issued by Anchal Adhikary, Govindpur Ext. 8 Certified copy of Hukumnama Ext. 9 Certified copy of another petition of Misc. Petition no. 22/98 Ext. 9/a Certified copy of another petition of Misc. Petition No. 22/98 Ext. 10 Certified copy of Khatiyan of Khata No. 28 Oral evidence of the Defendants: - D.W. 1 Kaleshwar Singh D.W. 2 Halka Karmachari of Govindpur Anchal D.W. 3 Shital Pd. Ghosh, Fishery Extension Supervisor Documentary evidence of the Defendants:- Ext. A Letter no. 16-2/92-93 dated 16.7.1992 Ext. A/1 List of government tanks. Ext. B Shariat register Ext. C to Three bid sheets of different years 10 2025:JHHC:26755 C/2
Ext. D to Certified copy of continuous Khatiyan of old khata no. 98, D/1 rent khata no. 28.
10. The issue Nos. I to IV were decided in favour of the plaintiffs, which this Court is not concerned in the light of the scope of the substantial question of law involved in this case.
11. So far as issue nos.V and VI are concerned, the learned trial court took up these issues together and decided them in favour of the defendants and against the plaintiffs. The learned trial court held that the plaintiffs have not acquired any right, title or interest over the suit property by virtue of unregistered Hukumnama dated 05.01.1935. It also held that land has been is non-agricultural since the beginning, being a tank which was recorded as tank (Bandh) even in cadastral survey record of rights. Therefore, it was not agricultural land and automatically vested in the State of Bihar under Section 4(h) of the Bihar Land Reforms Act. Any rights of the plaintiffs regarding the scheduled land coming from prior to the vesting with respect of the land in question were automatically extinguished.
12. The findings of the learned trial court in connection with issue Nos.V and VI are recorded in paragraph 11 and 12 as under: -
"11. It is admitted fact of the parties that the plaintiffs claiming the land on the basis of unregistered Hukumnama granted by Ex.land lord in respect of scheduled land which are admittedly a non-agriculturable land. So if for a moment admits the story of Hukumnama even then since the settled land was not agriculturable land in such a situation even occupying the land after granting Hukumnama in 1935 till 1950 coming into force of Bihar land Reforms Act the plaintiffs did not acquire the status of Raiyat. Therefore every right they had in the scheduled property became vested in the State in the moment when the Land Reforms Act come into force, because unregistered Hukumnama cannot be used to form the basis of settlement in respect of the property is covered by it for want of registration. Inspite of that one more thing is also important which has been mentioned in the last line of Hukumnama that it was sent for confirmation to the Dy. Collector but whether it was 11 2025:JHHC:26755 actually sent or not or whether it was confirmed by the Dy. Collector or not? The plaintiff totally failed to bring this fact on the record that it was confirmed by the Dy. Collector. So considering all the aspect of the case, this Court is of definite view that the plaintiffs has not acquired any right, title and interest over the suit property by virtue of unregistered Hukumnama dated 05.01.1935.
12. So far the other issues are concerned the question is before this Court to decide as to whether the State Govt. are entitled to claim the land only on the basis of entry in record of rights as Anabad Malik land? On this point oral and documentary evidence brought on the record on behalf of the plaintiff that the land in question never vested in the State, but he failed to prove the fact as to how the land is not vested in the State, because land was since beginning is non agricultureble land and it is a tank which was even in cadastral Survey record of rights recorded as tank (Bandh) so it was not agriculturable land and it has been automatically vested in the State of Bihar U/S 4(h) of Bihar Land Reforms Act and any right of the plaintiffs regarding the scheduled land coming from prior to the vesting with respect of the land in question are automatically extinguished and since after vesting though no document has been brought by the State to show that he is auctioned the tank since after vesting, but Shairat register and auction bid has been brought on the record on behalf of the State which is sufficiently proves the possession of the State over the tank in question, so considering the material available on record this Court has also of the view that the State Govt. is the owner of the scheduled tank. So both the issues No. V and VI have been decided against the plaintiffs and in favour of the State."
13. So far as learned 1st appellate court is concerned, this Court finds that though the learned 1st appellate court has not framed any point for determination, but decided the issues as framed by the learned trial court.
14. Before the learned 1st appellate court, it was the specific case of the plaintiffs that Khewatdar had settled the land in the name of predecessor-in-interest. At the time of abolition of zamindari, khewatdar had filed M-form showing that the land was settled in the name of predecessor-in-interest of the plaintiffs as such the 12 2025:JHHC:26755 Hukumnama cannot be said to be a forged one. It was further submitted that after opening the Jamabandi, the plaintiffs have been continuously paying rent with respect to the suit property and as such the defendants could not take the plea that the land had vested in the State. On the other hand, it was the case of the defendant-State that the plaintiffs in connivance with the revenue staff of the circle office had managed to enter his name in the record of rights resulting in opening of Jamabandi, which does not create any right, title and interest. It was also submitted that the land in question vested to the State Government after abolition of zamindari. Reliance was placed on Section 4 of Bihar Land Reforms Act and it was submitted that the tanks in question were settled over year to different persons and societies for farming seeds of fish by way of auction and the plaintiffs were in possession of the suit property. The learned 1 st appellate court took up all the issues, which were framed by the learned trial court and so far as issue nos.V and VI are concerned, they were taken up together.
"From perusal of the documentary evidence, it appears that plaintiffs have filed the rent receipt along with the order passed in B.P.L.E. Case by C.O. Govindpur, showing that land in question has not been vested in the State government as such the name of the plaintiffs can be entered into the revenue records. They have also filed the Hukumnama.
Learned court below has not relied upon the Hukumnama filed by the plaintiffs and has come to finding that since the Hukumnama was not registered, it cannot be relied upon. The state government has not specifically denied the fact that khewatdar, who had intermediary right to settle the land in the name of the predecessor-in-interest.
From Ext. 3 series, which is order passed in Compensation Case No.3365/1955-56 in granting possession to the landlord. It is mentioned that land in question was settled to the predecessor-in-interest of the plaintiffs.
Thus, I differ with the finding of the learned court below. I come to finding that land in question was 13 2025:JHHC:26755 actually settled by ex-landlord in favour of the predecessor-in-interest by Hukumnama. However, the witnesses of the plaintiffs have admitted that state government auctioned the suit property. Both oral and documentary evidence to this effect has also been adduced by the defendants.
Arun Ch. Kumbhakar. (P.W. 5) has admitted that plaintiffs allowed him to fawn fish in the suit property for which he pays them Rs.3,000/-. It is a case of the plaintiff that they are collecting rent through fishery right also. Thus, being the case as per the provision of section 4 of the Land Reforms Act the entire tenure of the suit property with regard to the interest of the plaintiffs vested to the state. It cannot be said that state has waived its right by collecting rent from the plaintiffs as the rights of the plaintiff's vested by the provision of statue and not be execution order and any order passed by any authority declaring the right of the plaintiffs over the suit property was void and ab-initio.
Accordingly, I come to finding that though the plaintiffs had acquired, right, title, interest by virtue of Hukumnama. Their right, title and interest ceased to exist after coming in force of Bihar Land Reforms Act, 1950 and the entire made in the revenue survey record of right as being "Gair Abad Mallick land" and same has been vested to the state government. The decision relied upon by the plaintiffs is mainly related to the creation of Jamabandi and facts is mainly related to the creation of Jamabandi and facts is also different and not applicable in the present case."
15. Thus, the learned 1st appellate court in spite of holding that the plaintiffs had acquired right, title and interest by virtue of hukumnama, held that their right, title and interest cease to exist after coming into force of Bihar Land Reforms Act, 1950 and the entry made in the revenue survey of record rights, as being "gair abad malik" land and the same vested in the State Government. It has also been held that the witnesses of the plaintiffs have admitted that State government auctioned the suit property. The learned 1st appellate court concurred with the findings of the learned trial court while deciding issue nos.II and IV; issue nos.I and III were not pressed and while 14 2025:JHHC:26755 deciding issue no.VII held that the plaintiffs were not entitled to any relief and dismissed the suit.
Gist of Arguments as recorded in previous orders of this Court.
16. So far as the 1st substantial question of law is concerned, the learned counsel for the appellants has referred to the judgments passed by this Court in the Case of Dwarka Gorhi vs. State of Bihar reported in 1964 BLJR 66 to submit that the term "encumbrance" has not been defined under the provision of Bihar Land Reforms Act and therefore the definition of term "encumbrance" from Bihar Tenancy Act can be taken into consideration. He has submitted that the property involved in this case was used for the purposes of irrigation of the agricultural land of the appellants, therefore, there was no encumbrance on the property and consequently three tanks involved in this case covered under Schedule-A(a) did not vest with the State.
17. However, during the course of argument, it is not in dispute that the property involved in this case is covered by Chhota Nagpur Tenancy Act and as per the provisions of Section 2(t) of Bihar Land Reforms Act, the terms not defined under the Bihar Land Reforms Act with respect to areas covered by Chhota Nagpur Tenancy Act and Bihar Tenancy Act are to be derived from the aforesaid Act respectively as per applicability of the Act to the area.
18. The learned counsel has also relied upon the judgment in the case reported in 1957 BLJR 689 (Bhola Mian vs. Sri S. M. Islam) and submitted that this judgment has been relied upon and referred to in the case of Dwarka Gorhi (supra).
19. The learned counsel for the appellants has relied upon the judgement reported in 1979 BBCJ 37 (Sardamoni Devi Vs. The State of Bihar and Ors.) paragraphs 12, 13, 17, 25, and 26 and the judgement passed by Hon'ble Patna High Court reported in 1959 BLJR 310 (Musammat Husanbano Vs. The State of Bihar and Anr.) paragraph 3. The learned counsel has also relied upon the judgement reported in AIR 1994 Patna 111 (K.N. Farms Industries (Pvt.) Ltd. Vs. State of Bihar and Ors.) paragraphs 18 and 25, which has been 15 2025:JHHC:26755 decided in the context of Section 2 (f) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act.
20. The learned counsel for the appellants has also submitted that so far as the property relating to Khata No.23, Plot Nos.77 and 103 are concerned, they are apparently agricultural land and not pond, and therefore, under any circumstances they cannot be said to have vested in the State.
21. The learned counsel appearing on behalf of the respondents while opposing the prayer has submitted that merely because the tank was used for the purposes of irrigation of the agricultural land of the appellants, the same by itself is not sufficient to hold that it did not vest with the State of Bihar under Bihar Land Reforms Act. The learned counsel has referred to the judgment passed by the Hon'ble Supreme Court reported in (1994) Supp (3) SCC 725 (Labanya Bala Devi vs. State of Bihar) to submit that the land which was actually used for growing agricultural crops/horticultural items were only prevented from being vesting and so far as the tanks are concerned, they stood vested as they were not specifically saved by any other provision under the Bihar Land Reforms Act. He submits that so far as the 1st substantial question of law is concerned, it is fully covered by the aforesaid judgment.
22. In response, the learned counsel for the appellants has relied upon the judgement reported in (2008) 1 JLJR SC 113 paragraph 11 to 14.
23. Pursuant to the order passed by this Court, the parties have submitted synopsis of their arguments.
24. Arguments of the appellants as per synopsis of arguments.
(a) The learned 1st appellate court while considering Issue Nos.V & VI held that land in question had actually been settled by the ex- landlord in favour of the predecessors-in-interest of the appellants by way of Hukumnama (Ext 8). Learned appellate court has also held that plaintiffs have acquired right, title and interest by virtue of Hukumnama. Despite holding that plaintiffs acquired right, title and interest in the land in question, the 16 2025:JHHC:26755 learned 1st appellate court held that after coming into force of the Bihar Land Reforms Act, 1950, their right ceased to exist in land in question, as it vested in the Government. The learned 1st appellate court while passing impugned judgement and decree failed to take into consideration Section 4 (a) of the Bihar Land Reforms Act, 1950 which reads as:
Section 4. Consequences of the vesting of an estate or tenure in the State. - [Notwithstanding anything contained in any other law for the time being in force or any contract and notwithstanding any non compliance or irregular compliance of the provisions of Sections 3, 3A and 3B except the provisions of sub-section (1) of Section 3 and sub-section (1) of Section 3A, on the publication of the notification under sub-section (1), of Section 3 or sub-
section (1) or sub-section (2) of Section 3A, the following consequences shall ensue and shall be deemed always to have ensued, namely:]
(a) [xxx] Such estate or tenure including the interests of the proprietor or tenure-holder in any building or part of a building comprised in such estate or tenure and used primarily as office or cutchery for the collection of rent of such estate or tenure, and his interests in trees, forests, fisheries, jalkars, hats, bazars, [mela] and ferries and all other sairati interests, as also his interest in all subsoil including any rights in mines and minerals whether discovered or undiscovered, or whether been worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure (other than the interests of raiyats or under raiyats) shall, with effect from the date of vesting, vest absolutely in the State free from all incumbrances and such proprietor or tenure-holder shall cease to have any interest in such estate or other than the interests expressly saved by or under the provisions of this Act.
(b) From bare perusal of aforesaid provisions, it is very much apparent that right of raiyats/under raiyats has been saved and it did not vest in the Government after enactment of the Bihar Land Reforms Act, 1950 Act. In case at hand the Ex-landlord had filed return in the name of Tazmul Kazi and Gafoor Kazi, (predecessors-in-interest of the Plaintiffs/appellants) showing them as Raiyat and Khewatdar received compensation vide 17 2025:JHHC:26755 Compensation Case No. 3365/1955-56 (Ext 4 & Ext 5). The names of the Plaintiff were entered in revenue records.
(c) One B.P.L.E case 123/1964-65 (Ext 3/d) was instituted against Tazmul Kazi and Gafoor Kazi and same was finally dropped after enquiry wherein, it was found that land /tank did not vest in state. Rent receipts were also issued in favour of the plaintiffs (Ext 1 to1/b). The Jamabandi, which was opened in the name of Gafoor Kazi and Tazmul Kazi has not been cancelled but merely been stayed as specifically pleaded in ground no. VIII of Memo of Second Appeal.
(d) From perusal of pleading made in para - 3 of the plaint and also from the schedule of the amended plaint, it would appear that suit land includes agricultural land, Small tank and embankment.
(e) The plaintiffs /Appellants have brought on record continuous khatiyan (Ext 6) of Khata no. 28 from which it would transpire that Khata no. 28 is a "Gair Abad Malik" Land, comprising of all together 15 plots out of which plots which is the suit land, description of which along with the nature of Suit land, is being provided in the table below:
Khata No. Plot No. Area (in Nature of Local
Acres) Land name
Khata Plot no.75 0.20 Band Aad Kazi
no.28 Bandh
Plot No.76 0.97 Bandh Kazi
Bandh
Plot No.102 0.13 Band aad Nutan Aad
Plot No.223 0.49 Bandh Aad Bandh Aad
Plot No.224 1.13 Bandh Bandh
Plot No.78 0.14 Gordia Aad
Plot No.79 1.21 Bandh Bandh
(f) It is stated that Khata No. 23, Plot no. 77, 103 is also part of the suit land more fully described in schedule -A (b). Plaintiffs/Appellants have brought on - record the certified 18 2025:JHHC:26755 copy of Comp. Case. No. 3365/1956 showing the name of Tazmul Kazi and Gafoor Kazi (Predecessors - in - interest) as Raiyat for the suit land appertaining to Khata no. 28 and 23 under Khewat no. 3/10. Description and nature of the aforesaid land which is part of the suit land are given hereunder:
Khata No. Plot No. Area (in Nature of
Acres) land
Khata no.23 Plot No.77 0.17 Bahal
Plot No.103 0.8 Gordiya III
Total area of 0.25
khet
(Agricultural
land)
(g) From perusal of aforementioned table and Schedule A (a) it would appear that only under Khata no. 28, plot no. 76, 224 and 79, measuring 0.97 Acres 1.13 Acres and 1.21 Acres respectively are Bandh and rest are Band Aad (ब ांधआड़) as reflected in (Ext 5) and (Ext 6).
(h) From the bare perusal of description mentioned in charts, which finds mention in Khatiyan (Ext 6) as well as in the compensation case no. 3365/55-56 (Ext 5), it is amply clear that land of Khata No. 23, Plot no. 77, 103 as described in the Schedule- A and the chart above are agricultural land.
(i) It is stated and submitted the plaintiff has specifically pleaded in Para 3 of the plaint that plaintiff cultivates adjoining land with water of tank and same is also used for "homestead" purpose. P.W 1 Gafoor Kazi (Original Plaintiff no. 1) in Para 6 of Examination- in- Chief, has deposed that water of Pond is being used for agricultural purpose and Pond is not for public usage and it never vested in the State. Other witnesses examined on behalf of the plaintiffs has also supported that tank is a private Tank and has not vested in the State.
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(j) It is submitted that tank is not exclusively used for fish rearing and in view of same it cannot be said to be an "encumbrance" and hence has not vested in the Government.
(k) From Perusal of the description of the suit land, it would transpire vide Hukumnama dated 5.1.35 (Ext 8) agricultural land including tank and embankment was settled by the Ex- landlord in favour of the Predecessors- in- interest of the plaintiffs. The Purpose of settlement was agricultural, as apparent from the Hukumnama. Evidence has come that plaintiffs make use of water of the pond for irrigation of the adjoining land. The Khata No. 23 which is part and parcel of the suit land is Khet (agricultural land), as apparent from the description of the suit land (Amended Plaint).
(l) It is stated that it is well settled that if settlement is for agricultural purpose, then it would not be an "Encumbrances" and would not vest in the government by operation of Bihar Land Reforms Act, 1950. In case at hand settlement was made by the Ex-landlord in favour of (Predecessors in interest) of the plaintiffs by Hukumnama (Ext-8) for agricultural purpose. Suit land includes Bandh, Bandh Aad as well as (Khet) agricultural land. Purpose of settlement was agricultural which has been specifically pleaded by the plaintiff and evidence to that effect has also been led. The Pond has never vested in the Government. Jamabandi for the land in question was created in favour of the predecessors interest of the plaintiffs and they have paid rent to the government in lieu of the rent receipts (Ext 1, 1/B). Jamabandi has merely been stayed and still exists in the name of the Predecessors in interest of the Plaintiffs and has not been cancelled. (Ground VIII of memo of appeal).
(m) Relevant judgments which appellants would rely regarding "encumbrance" and vesting are 1957 B.L.J.R 689 (Bhola Mian Vs Sri S.M.Islam & Ors.) & 1964 B.L.J.R 66 (Dwarka Gorhi Vs State of Bihar & Ors). At case in hand, land in question which includes pond will not vest in the 20 2025:JHHC:26755 Government as settlement was primarily for agricultural purpose.
(n) The Hon'ble Division Bench of High Court of Patna in judgement reported in 1979 BBCJ 37 (Sardamoni Devi vrs. State of Bihar and Ors) has examined law regarding settlement of lease for agricultural purpose comprising embankment and tank. The Hon'ble Court after examining authority and provisions contained in Bihar Land Reforms Act, 1950 and Bihar Tenancy Act, 1885 has concluded that agricultural lease comprising embankment and Tank could be Granted.
(o) The Hon'ble Division Bench of High Court of Patna in Judgement reported in 1959 BLJR 310 (Musammat Husan Bano v. State of Bihar and another) has held:
"That where it is clear from the terms of Hukumnama, that the settlement relied upon by the settlee is a raiyati settlement and not a mere right for collecting Singhara, which would be in the nature of an "encumbrance", and that he has been in a continuous possession of the land as a raiyat , paying rent to the landlord, from the year 1941 to the year 1956, when the estate vested in the State of Bihar under the provisions of the Bihar Land Reforms Act, the settlee's title over the land is established as a raiyat, subject of course to the customary rights of the villagers, if any, which they may have over the land; and his interest is saved by Sec 4(a), of the Bihar Land Reforms Act on the vesting of the Bihar under the Provisions of that Act( Para 3)".
(p) It is stated that the term "land" has not been defined in Bihar Land Reforms Act, 1950. "Land" has been defined under Section 2(f) of Bihar land reforms (Fixation of Ceiling area and surplus land) 1961. Hon'ble Patna High Court in the judgement reported in AIR 1994 PATNA 111 (K.N Farms Industries Pvt. Ltd v. state of Bihar) has examined the term "Land" in paragraphs 18, 19, 20 and has held that "Tank with its ridges and agricultural lands surrounding the same can be taken settlement of and used for agricultural purposes"
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(q) It is stated and submitted that learned State Counsel in support of his contended during course of arguments that tanks will vest in the Government by operation of Bihar Land Reforms Act, 1950 and has relied upon judgement reported in (1994) Suppl 3 SCC 725 Labanya Bala Devi v. State of Bihar.
(r) It is submitted that, case relied upon by the State counsel is concerned with Tank and Tanktail, whereas, case at hand pertains to Bandh, Bandh Aad (ब ांधआड़) and Agricultural land.
The very purpose of settlement in the case at hand was agriculture, which has been specifically pleaded in the plaint and evidence to that effect has also been laid out.
(s) It is well settled that "a decision is a precedent on its own facts.
Each case presents its own features. In a Decision what is binding is the principle upon which the case is decided. A Decision is an Authority for what it actually decides. What is of essence in a decision is its ratio and not every observation found therein, not what logically flows from various observations made in the judgement". Reference in this regard is invited in Judgement reported in 2008 JLJR (SC) 113 (Oriental Insurance Co. ltd. Vs. Smt. Raj Kumari & Ors).
(t) It is well settled that illegal entry in the name of any person will not create any title or will extinguish title of the person. The Revisional survey entry in the name of "Gair Abad Bihar Sarkar" will not divest the right, title and possession of the plaintiffs over the suit land. Reference is invited in this regard. [(2007) 6 SCC 186 (Suraj Bhan vs Financial Commissioner] (u) It is well settled that Khatiyan is not a document of title, reference is invited in this regard to the judgement reported in (2007) 11 SCC 736 (Narayan Prasad Agrawal (D) by L. Rs vs. State of Madhya Pradesh).
25. Arguments of the State as per synopsis of arguments
(i) The defendant nos. 1 to 6 appeared and opposed the suit raising mainly on the plea that the suit being not maintainable barred 22 2025:JHHC:26755 under Section 9 of the C.P.C. and also barred under section 80 of the C.P.C. The tank and land situated on plot no. 75, 76 and 102 under Khata No. 28 are recorded as "Gair Abad Malik" and it is a government land. Unregistered Hukunmana is a fabricated document which cannot be relied upon. The Schedule-A property vested into the State of Bihar after vesting of zamindari after coming into force the B.L.R. Act, 1950. The tank is recorded in the Sairat Register of the Government of Bihar and is a public tank, which has been transferred by the Circle Officer, Govindpur to Fisheries Department, Government of Bihar, vide letter dated 16.7.1992. Jamabandi was stopped.
(ii) The learned trial court dealt the issue nos. (v) and (vi) in Paragraph nos. 10 to 12 and observed that since the scheduled tank was non-agricultural land and it was recorded as "Gair Abad land" in the record of rights, so it has been vested into the State after coming into force the B.L.R. Act. It is admitted fact of the parties that the plaintiffs claiming the land on the basis of unregistered Hukumnama granted by the ex-landlord in respect of Scheduled land, which are admittedly non-agricultural. Therefore, every right they had in the scheduled property became vested in the moment when the Land Reforms Act came into force because unregistered Hukumnama cannot be used to form as basis of settlement for a tank. In the hukumnama, it has been mentioned that it was sent for confirmation by the Collector but the plaintiffs failed to bring this fact on record that it was confirmed by the Collector. Since beginning land is non-agricultural land and it is tank which even was recorded in the cadastral survey Record of Right as tank which automatically vested into the State of Bihar. Any right of the plaintiff prior to vesting in respect to land in question are automatically extinguished. Sairat Register and Auction bid brought on record by the State sufficiently proved the possession of the State over the tank in question. Both the issues decided against the plaintiffs.
232025:JHHC:26755
(iii) The 1st appellate court did not formulate the points for determination but while deciding issue nos.(v) and (vi) has held that though the plaintiffs had acquired right, title and interest by virtue of Hukumnama, their right, title and interest ceased to exist after coming into force the Bihar Land Reforms Act, 1950 and the entry was made in the revenue record of right as being "Gair Abad Malik land" and the same vested in the State Government.
(iv) Both the learned courts have taken consistent view that the tank stood vested in the State by virtue of Section 4 of the Land Reforms Act. So far as the land is concerned, the learned 1st appellate court held that the Hukumnama was genuine but it did not return any finding with respect to the land covered under Schedule-A (b) relating to Khata no. 23 plot no. 77 area 0.17 acres and plot no. 103 area 0.08 acres total 0.25 acres- Khet. Thus, the additional question of law, which is the 3rd substantial question of law was formulated.
(v) To answer the 3rd substantial of law, the provisions of Section 4 of the B.L.R. Act has been referred. The interest which is expressly saved under the provisions of this Act is envisaged in Section 6 (1)(b) of the B.L.R. Act which is quoted as under:-
"On and from the date of vesting all lands used for agricultural or horticultural purposes which were in khas possession of an intermediary on the date of such vesting, including lands used for agricultural.... and held in the direct possession of a temporary lessee of an estatge or tenure and cultivated by himself with his own stock or by his oun servants or by hired labour or with hired stock... shall, subject to the provisions of Section 7-A and 7-B be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner".24
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(vi) The undisputed facts as emerges from the pleadings of the plaintiffs being their admission is that there are three tanks mentioned in Schedule-A (a) of the plaint which is situated over the land of plot no. 75, 76 and 102 area 1.30 acre (Kazi bandh), plot no. 223 area 0.49 acre, plot no. 224 area 1.13 acre total 1.62 acre (Nutan Bandh), plot no. 78 area 0.14 acres plot no. 79 area 1.21 acres total 1.35 acres (Goria Air) situated at Mauza Mayoor Nachna. The plaintiffs have stated in Para 3 of the plaint to have acquired title by adverse possession by way of adverse possession. The plaintiffs cannot be allowed to take inconsistent pleas as in one hand the case of the plaintiffs rest through unregistered Hukumnama P.W-1 plaintiff No 1 (recorded in para 8 of the trial court judgment page 9) has stated that during recent survey kistwari khanpuri was made and parcha was issued in his favour regarding the other raiyati land But since scheduled land was recorded as Gair Abad, so nо parcha was issued in favour of him regarding the scheduled tank also admitted that initially suit was filed in respect of one tank, but later on two other tank also included in the plaint. P.W-3 Surendra Dhibar admitted in para 15 that disputed tanks are Govt. Tanks. Thus, in such situation as per section 4(a) of the B.L.R. Act 1950, the Tanks already been vested to the State and no declaration of raiyati right can be made over the same. Tank cannot be the subject matter of agricultural lease The claim of the plaintiffs of their raiyati rights over the tanks mentioned scheduled A-(a) of plaint cannot be sustainable. There are concurrent findings of both the courts that the Schedule tank vested to the State which finding cannot be interfered with. The decision rendered in the case of Labanya Bala Devi (Smt) versus State of Bihar Patna secretariat Patna and anothers reported in 1994 Supp(3) Supreme court cases 725, is fully applicable in this case where in has clearly been held that the tank is said to be settled by the land holder in favour of the appellant there by the tank was not saved Thus 25 2025:JHHC:26755 tank stands vested in the state absolutely free free-from all encumbrances and that there, the contract, even if any, was nullified by non obstante clause in clause -4 There by the pre- existing rights, if any have been extinguished and stood divested. The case of 'Sardamoni Devi' vs state of Bihar &ors reported in 1979 BBCJ 37 mainly relied by the appellants, which is not applicable and the same is distinguishable in view that the facts of that case are totally different from fact of this case as in that case over embankment she grows vegetables, has planted some trees and has exercised other rights of permanent raiyat and building has been constructed on the embankment after obtaining due sanction from the Authorities, which is not the case in present appeal. In that case it has taken that area of embankment was bigger than tank, which is not the facts pleaded in the Suit from which this Appeal. The Area is also not bigger. Thus, substantial questions of law No (I) and (II) are fit to be answered against the plaintiffs / Appellants.
(vii) With respect to the 3rd substantial question of law, it is submitted that so far the land of Schedule A(b) of the plaint is concerned, there is no Specific pleadings of the plaintiffs regarding the mode of acquisition and reference of khata no. 23 is not mentioned in the body of the plaint save and except the land of khata 23 has been included in the schedule A(b) of the plaint incorporated by the amendment in the plaint. Thus, in absence of pleading, the evidence cannot be looked into. A party cannot make out a case on the basis of evidence for which he has no laid no foundation in the pleadings. It is well settled that no amount of evidence can prove a case for party who has not set up the same in his pleadings. The basis of claim of the plaintiff is unregistered Hukumnama (Ext -8) which is inadmissible. Hukumnama cannot be relied upon as the same is not followed with payment of rent prior to vesting as no zamindari receipt has been got exhibited by the plaintiffs. None of the witnesses of plaintiffs have stated about khata no.23 to be 26 2025:JHHC:26755 their own and in cultivating possession as the judgment under appeal nowhere reflects the same. Thus, the Substantial question of law No (III) is also not liable to decide in favour of the appellants.
Findings of this Court Substantial question of law no. I and II.
26. As per Exhibit - 5, (total area has been shown as 5.56 acres), numerous properties in Khata Nos.28 and 23 have been recorded in the name of Tazmul kazi and Gafoor Kazi, the predecessor - in - interest of the appellants, and as per the Khatian, the raiyats were in possession of the property. Exhibit - 5 was arising out of Compensation Case No.3365 of 1955-56. So far as Exhibit 4 is concerned, which is the rent role, even as per Exhibit - 4, the rent has been assessed and as per rent schedule, the total area of 5.56 decimals has been shown, and it also makes reference to encroachment case no.123 of 1964-65, which as per the Exhibit 3/D was ultimately dropped. The learned 1st appellate court has clearly held that the plaintiffs had acquired right, title and interest by virtue of hukumnama. In view of Exhibits 4 and 5, the entire property was claimed by the plaintiffs on the basis of hukumnama and the hukumnama has not been held to be forged as per the findings of the learned 1st appellate court. However, the learned 1st appellate court while recording the finding has held as under:
"Thus, I differ with the finding of the learned court below. I come to finding that land in question was actually settled by ex-landlord in favour of the predecessor-in-interest by Hukumnama. However, the witnesses of the plaintiffs have admitted that state government auctioned the suit property. Both oral and documentary evidence to this effect has also been adduced by the defendants.
....
...
Accordingly, I come to finding that though the plaintiffs had acquired, right, title, interest by virtue of Hukumnama. Their right, title and interest ceased to exist after coming in 27 2025:JHHC:26755 force of Bihar Land Reforms Act, 1950 and the entire made in the revenue survey record of right as being "Gair Abad Mallick land" and same has been vested to the state government. The decision relied upon by the plaintiffs is mainly related to the creation of Jamabandi and facts is mainly related to the creation of Jamabandi and facts is also different and not applicable in the present case."
27. This Court finds that in view of Exhibits 4 and 5, in the Compensation Case No.3365 of 1955-56, the property was found in possession of the predecessor-in-interest of the plaintiffs and the rent was also fixed. The specific case of the defendants was the tank was present in khata no.28, plot nos.75 and 76 which was transferred by the Circle Officer to Fishery Department, Government of Bihar vide letter dated 16.07.1992 and tank was settled from the year 1994 by the Fishery Department with the Fishery cooperative society by the government right from the year 1994-1995 onwards.
28. With respect to plot no.102 of Khata no.28, it was the specific case of the defendant-State that the same was recorded as "gair abad malik" land and was accordingly government land. Even the District Fishery Officer, who was examined as a witness claimed that the land of Khata No.28, plot no.75/76 measuring an area of 1.17 acres was recorded as "gair abad" and it was transferred to him by the Circle officer vide letter dated 16.07.1992 and admitted that the tank vested in the State under Section 4 (h) of the Bihar Land Reforms Act.
29. The learned trial court has recorded that as per hukumnama, 3 tanks namely Kazi Bandh, Nutan bandh and Goria including aile of different plots of khata no.28, and plot no.77 area 17 decimals and plot no.103 area 8 decimals appertaining to khata no.23, total area 4.52 acres, was settled by paying one time salami of Rs.95 with the settlee after fixing the rent by the ex-landlord, but the court was of the view that the same was subject to confirmation by Additional Collector and there was nothing to show that the Additional Collector had confirmed the settlement.
30. It was the case of the plaintiffs that plot nos.75, 76 and 102 consisted of agriculture land and small tanks pertaining to khata no.28 28 2025:JHHC:26755 measuring 1.30 acres and 2 tanks in plot nos.223, 224 measuring 1.62 acres and plot nos.78 and 79 under khata no.28 total area 1.35 acres, and under khata no.23 plot no.77 and 103 total area 0.25 acres of land total area of both khatas being 4.52 acres. The respondents had claimed three tanks namely Kazi Bandh, Nutan Bandh and Goria Bandh in plot no.77 area 17 decimals plot no.103 area 8 decimals.
31. In the judgement passed by Hon'ble Patna High Court reported in 1959 BLJR 310 (Musammat Husanbano Vs. The State of Bihar and Anr.), a writ petition was filed seeking a relief restraining the respondents from interfering with the possession of the petitioner by stating that the petitioner had taken settlement in the year 1941 from the outgoing proprietor on the basis of hukumnama, and since the date of settlement, she was in continuous possession of the plot. It was alleged that on a portion of the plot, the petitioner had grown singhara every year in the month of Asarh. In a portion of plot where the water was shallow, paddy crop was grown and appropriated by the petitioner. On 01.01.1956, the estate of the proprietor vested in the State of Bihar by virtue of the notification issued under Bihar Land Reforms Act. It was alleged that the respondent-State have been attempting to settle the sairati right in the disputed plot to various settlees, who however had not taken possession by virtue of their alleged settlement. Reliance was placed by the respondents upon Section 4 (a) of Bihar Land Reforms Act by stating that it was a mere encumbrance which automatically stood cancelled on the date of vesting by virtue of notification issued under Section 3 of the Bihar Land Reforms Act. The learned court was of the opinion that upon perusal of the hukumnama, it recorded that it was not a mere right for collecting singhara, which would be in the nature of encumbrance. Rather the plot was recorded as "gair mazurwa aam" in the record of rights. In the said case, it stood admitted that singhara was planted in watery bed in the low line land and in portions where the water was shallow, paddy crop was grown and fishes reared in natural course were also appropriated by the petitioner. The respondent - State did not dispute that the petitioner was in continuous possession from the 29 2025:JHHC:26755 year 1941 to the year 1956, when the estate vested in the State of Bihar. In the aforesaid circumstances, the court held that the petitioner was able to establish title of a raiyat over the disputed plot subject of course to the customary rights of the villagers either to bathe in the water stored in the disputed plot or any other right the public may have over the land.
32. This Court is of the view that the aforesaid judgement Musammat Husanbano (supra) does not apply to the facts and circumstances of the case inasmuch as the status of land recorded in the said case was "gair mazurwa aam" in the record of right. It was not recorded as sairati or pond and singhara was only grown in low lying land where the water got accumulated. In the present case, the property in Schedule A (a) are recorded as tanks and the plaintiffs vide Exhibit 9 had themselves requested to delete the property under Schedule A(a) from the Sariyat register of the State claiming them to be their private property.
33. In the judgment passed by Hon'ble Patna High Court reported in 1964 BLJR 66 (Dwarka Gorhi Vs. State of Bihar and Ors.), the High Court was dealing with the 1st appeal wherein the 16 annas proprietors settled Jalkar rights to the plaintiff under registered deed of the year 1938. The estate of these proprietors vested in the State of Bihar under Bihar Land Reforms Act w.e.f. 01.01.1956. Thereafter, rent receipt was issued by the State of Bihar without prejudice. The State of Bihar attempted to settle the Jalkar right by public auction and the plaintiff objected but the objection was rejected on the ground that the settlement of the fishery right with the plaintiff was an encumbrance and therefore it was not binding on the State. The learned trial court held that Jalkar rights was an encumbrance within the meaning of Clause (a) of Section 4 of Bihar Land Reforms Act, and therefore, the State was entitled to take possession thereof from 01.01.1956. The learned court held that upon plain language of Section 4 (a), the right of fishery amounts to encumbrance within the meaning of Section 4 (a) and it extinguished as soon as the estate of the ex-proprietor vest in the State of Bihar. The court also held that the 30 2025:JHHC:26755 settlement of right of fishery in the case was obviously a settlement for non-agricultural purpose and was an encumbrance within the meaning of Section 4 (a) and it vested in the State.
34. In the judgement passed by Hon'ble Patna High Court reported in 1957 SCC OnLine Pat 3 (Full Bench) (Sheo Narayan Chaudhury and Ors. Vs. State of Bihar and Others), it has been held in paragraphs 22 and 29 as under:
"22. It will be apparent from S. 3(1) of the Act that the. "estate" of a proprietor as such passes and not the right, title or interest of the proprietor. The only limitation is that, by virtue of S. 4(a) of the Act, the interests of raiyats or under-raiyats are excluded, and when the estate vests, it vests "free from all incumbrances", and the proprietor ceases "to have any interests in such estate" other than the interests expressly saved by or under the provisions of the Act.
29. Thus, in so far as the decision in the case of ILR 35 Pat 119 : (AIR 1956 Pat 233) (A) to the effect that only such sairati interests as are derived from the lands in direct possession or control of the proprietor or tenure-holder vest in the State is concerned, it must be held to have been wrongly decided. It is the estate excluding the interests of raiyats or under-raiyats that vests and not only the interests of the proprietor."
35. In the judgement reported in 1957 BLJR 689 (Bhola Mian Vs. Sri S.M. Islam and Ors.), it was held that settlement of orchard or bakast land by outgoing landlord in November 1951 for holding bazar thereon would amount to be an encumbrance within the meaning of Section 4 (a) of Bihar Land Reforms Act. The words and expression used under Bihar Tenancy Act under Section 2 (d) has been applied to take the meaning of encumbrance. It was held that under the Bihar Tenancy Act, Section 161 defines the meaning of the term "encumbrance" with reference to tenancy. The section states that the term "encumbrance" used with reference to a tenancy means any lien, sub-tenancy, easement or other right or interest created by the tenant on his tenure or holding or in limitation of his own interest therein. It was held that the word "encumbrance" in general sense would include 31 2025:JHHC:26755 any burden on the property, any right or interest created by the owner in limitation of his own and that was the sense in which the terms was used in Section 161 of Bihar Tenancy Act.
36. This Court finds that the core of the arguments of the appellants is that since the property was given through hukumnama for agriculture purpose, therefore, the same cannot be said to be an encumbrance over the property and consequently, the agricultural land given to the plaintiff by the ex-zamindar through hukumnama did not vest in the State. Rather, raiyati right was created in favour of the plaintiffs. On the other hand, the specific case of the respondents is that in view of Section 4 (a) and Section 6 (1) (b), the entire property is vested in the State particularly the properties relating to pond.
37. The learned trial court while deciding issue nos.V and VI disbelieved the claim of the plaintiffs on the basis of un-registered hukumnama for want of registration and held that un-registered hukumnama cannot be used to form the basis of settlement. It was also observed that as per the hukumnama, it was to be sent for confirmation by the Deputy Collector, but there was nothing on record to show that it was confirmed. The learned trial court thereafter examined as to whether the State government was entitled to claim land only on the basis of entry in record of right as "anabad malik" land and held that land was recorded as tank in cadastral survey record of right, so it was not agricultural land and it automatically vested in the State of Bihar under Section 4 of Bihar Land Reforms Act,1950 and the right of plaintiffs extinguished upon vesting. The court also observed that though the State did not bring on record auction of the tank after vesting, but sairiyat register auction bid was brought on record on behalf of the State, which sufficiently proved the possession of the State over the tank in question and held that the State Government was the owner of the schedule tank, and therefore, both the issue nos.V and VI were decided against the plaintiffs.
38. This Court finds that the perusal of Exhibit 5, which matches with the schedule of the property, reveals that there was tank only in connection with Schedule A (a) of the suit property, which consisted 32 2025:JHHC:26755 of Kazi bandh (plot nos.75,76 and 102) total area 1.30 acres of khata no.28, Nutan Bandh (plot no.223 and 224) Khata No.28 total area 1.62 acres and Goria Air (plot no.78 and 79) Khata No.28 total area 1.35 acres.
39. It is also important to note that the plaintiffs themselves have brough on record Exhibit-9, which is the petition filed before the Additional Collector, Dhanbad being Misc. Case Petition No.22 of 1998 with a prayer to remove the tanks allegedly belonging to the plaintiffs from the shairat list of the State and the Schedule of the property to the aforesaid petition revealed that plot nos.75, 76 and 102 total area 1.30 acres, plot nos.223 and 224 total area 1.62 acres, and plot no.78 and 79 total area 1.35 acres of all of Khata No.28 were tanks and the petition was filed to remove these tanks from the list of shairat.
40. The description of the property in Exhibit 9 is identical to the description of property in Schedule A (a) of the plaint. Meaning thereby the description of the property in Exhibit 5 showed the Schedule A (a) of the suit property of Khata No.28 as 3 distinct tanks, which was entered in the shairat register of the State and the plaintiffs filed the petition to delete it from the shairat register. Even though the rent was fixed in connection with this property in Schedule A (a) of the plaint, but the same is not enough to hold that the plaintiffs acquired raiyati interest over the tank situated on the land. This is in view of the judgment passed by Hon'ble Supreme Court reported in the case of Labanya Bala Devi (supra) wherein the plaintiffs sought a declaration of raiyati right over the tank and tanktails and also sought for confirmation of possession. In the said case, the suit was decreed but the learned 1st appellate court held that the suit property stood vested by virtue of Section 4 of the Bihar Land Reforms Act. The specific case of the plaintiffs before the Hon'ble Supreme Court was that the suit property was for agriculture purpose, and therefore, it was raiyati land. The Hon'ble Supreme Court held that under Section 3 (1) of the Bihar Land Reforms Act, the State Government has been vested with the power to declare and get a notification published in the State 33 2025:JHHC:26755 gazette that the estates or tenures of a proprietor or tenure-holder specified in the notification, have ceased to and become vested in the State. On the basis of notification, so published the consequence has been specified in paragraph 2 thereof. The Hon'ble Supreme Court further held that by the operation of Section 4, such estates or tenures including the interest of the proprietor or tenure holder in such estate or tenure and his interest in trees, forests, fisheries, jalkars, hats, bazars (mela) and ferries and all other sairati interests as also his interest in all sub-soil including any rights in mines and minerals etc., other than the interests of raiyats or under-raiyats shall vest w.e.f. the date of vesting. Thereafter, the Hon'ble Supreme Court referred to Section 6 (1) (b) of the Bihar Land Reforms Act and emphasized on the consequence of vesting with respect to all land used for agriculture or horticulture purpose which was in khas possession of intermediary on the date of vesting and held that the saving by Section 6 (1) (b) is only of the land actually used for agriculture purpose in a State or a tenure of a lessee or a temporary lessee and directly in his possession and cultivated by him with his own stock or by his own servants. It was held that the tanks which is said to be settled by land holder in favour of the plaintiffs was not saved and that the land stood vested in the State absolutely free from all encumbrance and the pre-existing right, if any, have been extinguished and stood divested.
41. This Court finds that the provision of Section 4 read with Section (6) (1) (b) of the Bihar Land Reforms Act,1950 has been duly interpreted by the Hon'ble Supreme Court wherein it has been held that the tank which is settled by the landlord in favour of the plaintiffs of the said case was not saved from vesting and rather pre-existing right stood extinguished and land stood divested. Here in this case, even if the hukumnama was held to be valid by the learned 1st appellate court, the three tanks which were covered by Schedule A (a) of the plaint and which was admittedly recorded as shairat in the shairat register, stood vested with the State by virtue of Section 4 read with Section 6 (1) (b) of the Bihar Land Reforms Act.
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42. Accordingly, this Court is of the considered view that merely because hukumnama was held to be valid, the same has to be read along with the provisions of Section 4 and Section 6 (1) (b) of the Bihar Land Reforms Act, 1950 and in view of the judgment passed by the Hon'ble Supreme Court, in the case of Labanya Bala Devi (supra), all the three tanks stood vested, which are covered under Schedule A (a) of the plaint, and therefore, the plaintiffs cannot claim any right, title or interest over the three tanks which were admittedly not in possession of the plaintiffs.
43. This Court finds that the courts below have not failed to take into consideration the title of the appellants in view of Exhibits 4 and 5 read with findings of the 1st appellate Court that the Hukumnama which is issued in favour of the predecessor-in-interest of the appellants was not forged while holding that the schedule A (a) property vested in the State as the Schedule A(a) property consisted of three tanks which vested in the State by virtue of Section 4 of the Bihar Land Reforms Act, 1950. This Court is also of the considered view that in-spite of finding by the 1st appellate court that the land was settled by the Ex-landlord in favour of predecessor-in-interest of the plaintiffs by Hukumnama, the impugned judgement holding that the property vested in the State by virtue of Section 4 of the Bihar Land Reforms Act, 1950 was justified so far as it relates to the property covered under Schedule A (a) of the plaint which consisted of three tanks. The substantial question of law no. (i) and (ii) is accordingly answered against the plaintiffs-appellants and in favour of the defendant-State with respect to schedule A (a) property of the plaint. The position of schedule A (b) of the plaint is different and is dealt with while answering substantial question of law no. (iii). Substantial question no. (iii)
44. So far as substantial question no. (iii) is concerned, this Court finds that it is nobody's case that the property under Schedule A (b) of the plaint had any shairat/tank. The Schedule A (b) property was interalia, introduced through amendment in the plaint and the defendants did not file any additional written statement to the 35 2025:JHHC:26755 amended plaint. However, the only argument of the respondent-State in connection with Schedule A(b) property is that there is no foundational pleading with respect to the Schedule A(b). This Court finds that in the plaint itself, it has been stated that the entire property, interalia, covered by Schedule A(a) and Schedule A(b) was covered by the hukumnama. The learned 1st appellate court held that though the plaintiffs had acquired right, title and interest by virtue of hukumnama but their right, title and interest ceased to exist upon coming into force of the Bihar Land Reforms Act, 1950 and entry was made in the revenue survey record of rights as being 'gair -majurwa- malik' land and the same vested in the State. This Court finds that so far as Schedule A(a) of the property is concerned, the same vested in the State by virtue of Section 4 of the Bihar Land Reforms Act, 1950 as three tanks (shairat) are situated on Schedule A(a) as discussed above but so far as Schedule A(b) property is concerned, it is not the case of the respondent-State that the same vested in the State by virtue of Section 4 of Bihar Land Reforms Act, 1950 and it is not their case that there was any tanks (shairat) over Schedule A(b) property. The learned 1st appellate court has completely failed to make distinction between Schedule A(a) and Schedule A(b), though both were covered by the same hukumnama, in as much as Schedule A(a) had tanks (shairat) but Schedule A(b) had no tanks (shairat). Even as per the written statement tanks were situated only in Schedule A (a) property. This Court also finds that the raiyati rights of the plaintiffs was duly recognised by the State with respect to Schedule A(b) property over which the plaintiffs have also been paying rent and their raiyati interest over the property in connection with Schedule A (b) did not vest with the State by virtue of Section 4 read with Section 6 (b) of the Bihar Land Reforms Act, 1950. The learned 1st appellate court in spite of holding that hukumnama was valid in the eyes of law, has failed to consider that the shairat/ tank as claimed by the defendant-State was falling only under Schedule A (a) property of the plaint and it did not cover the property under Schedule A (b) of the plaint.
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45. Consequently, with respect to the property under Schedule A (b) of the plaint, whose compensation was assessed and further whose rent was also fixed related to raiyati interest of the plaintiffs, the defendants have not been able to prove as to how and under what circumstances, Schedule A (b) of the plaint was recorded as "gair abad bihar sarkar" in the record of rights. Merely because the plaintiffs did not take any steps for rectification in the record of rights, the same itself was not a bar to claim right, title and interest with respect to the suit property which included Schedule A (b) as held by both the courts. There is presumption in connection with correctness of entries made in record of rights until it is proved by evidence to be incorrect as provided under Section 84 of Chota Nagpur Tenancy Act, 1908 but the plaintiffs have sufficiently proved their raiyati right, title and interest with respect to Schedule A (b). The hukumnama having been held to be valid by the learned 1 st appellate court and the State having recognized the plaintiffs as raiyat, the plaintiffs have sufficiently proved their raiyati interest over the property in Schedule A (b) being agricultural land. The State has failed to prove that Schedule A (b) vested in the State by virtue of Section 4 or any provision of the Bihar Land Reforms Act, 1950. It is not even the case of the defendants either in the written statement or even in the evidence that Schedule A (b) property vested in the State under Section 4 of the Bihar Land Reforms Act, 1950 being tank/trees /forests /fisheries / jalkars/ hats/ bazars (mela) / ferries etc. Accordingly, the substantial question of law no.(iii) is answered in favour of the plaintiffs and against the defendants and raiyati right, title and interest over the property covered by Schedule A (b) of the plaint is declared in favour of the plaintiffs.
46. The substantial question of law nos.(i) and (ii) are decided against the plaintiffs-appellants in connection with Schedule A (a) of the plaint and the impugned judgement is upheld with respect to Schedule A (a) of the plaint.
Substantial question of law no.(iii) relating to Schedule A (b) of the plaint is decided in favour of the plaintiffs-appellants and it is held that 37 2025:JHHC:26755 the Schedule A (b) of the plaint did not vest with the State and the plaintiffs-appellants has raiyati rights over Schedule A (b) of the plaint. Accordingly, the suit is partly decreed in favour of the plaintiffs only with respect to Schedule A (b) of the plaint.
47. Consequently, the appeal is partly allowed.
48. Pending, interlocutory application, if any, is dismissed as not pressed.
49. Let this judgement be communicated to the courts concerned through FAX/e-mail.
Saurav/ (Anubha Rawat Choudhary, J.)
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