Jharkhand High Court
Ramautar Mahto vs Khirdhari Mahto S/O Chintaman Mahto on 18 April, 2022
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 87 of 2013
1. Ramautar Mahto
2. Shrawan Mahto
3. Suresh Mahto
All sons of Late Pokhraj Mahto, All residents of village-Nipania, P.O.
Nipania, PS, Sub-division and District-Godda ..... Petitioners
Versus
1.Khirdhari Mahto S/o Chintaman Mahto
2.Harendra Mahto S/o Late Lakhon Mahto
3.Jaikant Mahto @ Ram Kishun Mahto S/o Narayan Mahto
4.Jai Krishna Mahato S/0 Narayan Mahto
5.Most. Mahasia widow of Khirdhari Mahto
6.Bimla Devi D/o Chintaman mahto
All residents of village & P.O. P.S. Nipania, Sub Division and District
Godda.
7.Ishwar Mahto
8.Bholi Mahto
9.Prem Mahto
All sons of late Dhankisto Mahto
10. Jiria Devi D/o Late Dhankisto Mahto W/o Late Janki Mahto
11. Champa Devi D/o Late Dhankisto Mahto W/o Lakhi Mahto
12.Jyotilal Mahto
13.Pawan Mahto
Both sons of late Tribhuwan Mahto
7 to 13 are resident of village-Koiripara, P.O. P.S. Barharwa, Distt-
Sahebganj.
14.Guddu Mahto.
15.Bhala Mahto,
Both sons of late Madan Mahto, Grand S/o Late Charan Mahto.
16. Mantu Mahto S/0 Late Charan Mahto
14 to 16 are resident of village Nipania, P.O. Sundmara, P.S & Dist-
Godda.
17.Jugeshwar Devi W/o Late Jadu @ Jidu Mahto
18.Bulaki Mahto
19.Prakash Mahto
20.Dilo Mahto
21.Bhudeo Mahto
Sons of late Jadu @ Jidu Mahto
17 to 21 are resident of village-Nipania, P.O. P.S. Nipania, District
Godda.
22. Sita Devi D/o Late Jidu Mahto @ Jadu W/o Ashok Mahto, Resident of
village-Dhungritola, P.O. P.S-Barharwa, Distt-Sahebganj.
23.Anku Devi D/o Late Jadu @ Jidu Mahto W/o Ramdeo Mahto Resident of
Village-Sundermore, P.O. P.S. & Dist-Godda.... Respondents
---------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
----------
For the Petitioners : Mr. Manjul Prasad, Sr. Advocate : Mr. Arbind Kumar Sinha, Advocate 2 For the Respondents : Mr. Rajeeva Sharma, Sr. Advocate : Mr. Om Prakash, Advocate
-----------
th 13/Dated: 18 April, 2022
1. At the outset, learned senior counsel appearing for the petitioners seeks leave of this Court to make necessary correction in the provision of law, under which, this petition has been filed, i.e., the writ petition has been filed under Article 226 and 227, therefore, submission has been made to delete Article 227 from the cause title.
Considering the submission, let necessary correction be made in the cause title during course of the day.
2. The instant writ petition is under Article 226 of the Constitution of India wherein following reliefs has been sought:
"That by way of instant writ application petitioners pray for issuance of a writ in the nature of certiorari for quashing the order dated 02.06.2012 passed by Commissioner, Santhal Pargana Division, Dumka in T.R. Case no.04 of 1988-89 (Annexure-3), order dated 05.12.87 passed by Charge Officer, Dumka in T.A. No.18 of 1986 (Annexure-2).
And orders dated 25.04.1986 and 27.04.1986 passed by ASO, Godda in T.(P) Suit No.3 of 83 (Annexure-1)."
3. It requires to refer herein that the original suit which was filed before the Settlement Officer was registered as title partition suit being Title Partition Suit No.31 of 1982. Subsequently the said title suit has been transferred by the Settlement Officer to the Court of Assistant Settlement Officer as would appear from the very first page of the order dated 25.04.1986 wherein it has been referred that the case which was filed in the Court of Settlement Officer was transferred to the Court of Assistant Settlement Officer as on 12.01.1983. The title suit being Title Partition Suit No.31 of 1982 which was registered before the Settlement Officer appears to 3 have been reinstituted before the Assistant Settlement Officer being Title Partition Suit No.3 of 1983.
4. The brief facts of the case as per the pleading made in the writ petition, which requires to be enumerated, reads hereunder as:
It is the case of the writ petitioners that one title suit has been filed being Title Partition Suit No.3 of 1983 before the Settlement Officer, Dumka for partition of the suit lands of village Nipania appertaining to Jamabandi no.58 and 108 into half and half and allotting half share in the suit land with separate patti through Amin of the Court. It is the further case of the writ petitioners that suit properties are co-parcenary joint properties recorded in the name of Nirpat Mahto and Gopal Mahto, the father of the writ petitioner, in the last settlement parcha. The suit property was their ancestral property and was recorded in the name of Girdhari Mahto. The relationship between the petitioners and the opposite parties, interese with the said recorded tenant, has been furnished by way of genealogical table as under paragraph 5(v) of the writ petition. By taking aid of the said genealogical table, the four sons of Girdhari Mahto were separate in mess and property before the last settlement but Chhota Rangu Mahto and Dasrath Mahto reunited together and their share of land in the ancestral properties was jointly recorded in the name of Chhota Rangu Mahto and Dasrath Mahto in the last settlement Parcha of Mr. Gantzer's Settlement. Similarly one Kamal Mahto and his brother Tekan Mahto reunited and they began to live jointly and their share of land in the ancestral property was recorded in the name of Gopal Mahto and Nirpat Mahto son of Tekan Mahto as Tekan Mahto father of Nirpat Mahto died in jointness with his brother Gopal, in Mr. Grantzer's settlement record. There was no partition of the land recorded in Jamabandi no.106 and 4 58 of Mouza Nipania by metes and bound but in the remarks column of the parcha separate dakhal kiari was fraudulently recorded in some plots of land of the said Jamabandi though they were entitled to equal share in their ancestral land. The petitioner, therefore, filed the suit of his half share in the suit land of J.B. No.106 and J.B. No.58 of Mouza Nipania. The respondent, 1st party, are legal heirs of recorded tenant Nirpat Mahto who were main contestant. The respondents 2nd party were proforma defendants, no relief was claimed from them, but they were impleaded in the suit as they are also descendants of common ancestor Giridhari Mahto. The respondents 1 st party/defendants 1st party contested suit on the ground that by family arrangement, Kurfa and Danpatra, the predecessors in interest of the plaintiffs has transferred his half share in the said land to these defendants.
The said title suit was initially filed before the Settlement Officer and was numbered as Title Partition Suit No.31 of 1982 but subsequently was transferred before the Assistant Settlement Officer for its disposal, which was reinstituted as Title Partition Suit No.3 of 1983.
The defendant 1st party/respondent 1st party appeared and contested the suit and adduced documentary as also the oral evidence. The Assistant Settlement Officer, vide judgment dated 25.04.1986, held that Kurfa deed of 1948 whereby the defendants 1st party claimed the land of Jamabandi No.106 and 58 appertaining to Plot nos.329, 332, 409, 452, 453, 3024, 3026, 3036, 3040, 3045, 3438 and 3606 are illegal. It was also held that claim of defendant 1st party through Dan Patra (deed of gift) of land of Jamabandi No.58 on 03.02.1946 in respect of plot nos.2219, 2310, 2376 is also illegal. However, the Assistant Settlement Officer decreed suit to the extent of half shares with respect to land described in Schedule "A" and "B" except Plot nos.334, 335, 336 and 337 and rejected the claim of the plaintiffs with 5 respect to land described in Schedule "C" and "D" vide judgment dated 25.04.1986. The Assistant Settlement Officer, however, suo motu vide order dated 27.04.1986 corrected his judgment without noticing parties whereby indirectly reducing the claim of the writ petitioners. The plaintiffs had preferred appeal against the judgment/order dated 25.04.1986 and 27.04.1986 before Settlement Officer under Rule (viii) A of Sonthal Pargana Settlement Regulation 1872. The same was transferred to the Charge Officer for disposal. The Charge Officer upheld both the orders, i.e., order dated 25.04.1986 and 27.04.1986 vide judgment dated 05.12.1987 passed in T.A. No.18 of 1986. The plaintiffs, thereafter, being aggrieved with the judgment/order passed by Assistant Settlement Officer and Charge Officer has preferred revision before the Commissioner under the provision of Rule
(viii) B of Sonthal Pargana Settlement Regulation, 1872. The Commissioner has passed order by upholding the judgment/order passed by the Assistant Settlement Officer and Charge Officer vide judgment/order dated 02.06.2012 passed in Title Revision No.04 of 1988-89.
The grievance of the writ petitioners is that all the courts failed to decide the properties detailed in Schedule "A", "B", "C" and "D" were recorded in joint names of Chira Rangu Mahto, Dasrath Mahto, Gopal Mahato and Nirpat Mahto. Two sons of Girdhari Mahato, namely, Kamal Mahto and Tekan Mahto reunited as such their joint share were recorded in joint possession of their sons Gopal Mahto and Nirpat Mahto and similarly the share of Chira Rangu Mahto and Dasrath Mahto stood recorded in their joint possession while the Hindu law provides partial partition with respect to the joint properties of parties.
The writ petitioners, therefore, have approached this Court by filing the instant writ petition invoking the jurisdiction conferred to this Court 6 under Article 226 of the Constitution of India assailing the order dated 02.06.2012 passed by Commissioner, Santhal Pargana Division, Dumka in T.R. case no.04 of 1988-89, order dated 05.12.1987 passed by Charge Officer, Dumka in T.A. No.18 of 1986 and order dated 25.04.1986 and 27.04.1986 passed by Assistant Settlement Officer, Godda in T.(P) Suit No.3 of 1983.
5. The matter was heard and accordingly notice was issued upon the contesting respondent, in pursuant thereto they appeared through their counsel.
6. Mr. Rajeeva Sharma, learned senior counsel assisted by Mr. Om Prakash, learned counsel, representing the private respondents has raised the preliminary objection about the maintainability of the writ petition on the ground that once the suit has been decreed by the judgment/order passed by Assistant Settlement Officer and the same has been affirmed by the Charge Officer by way of first appellate court and subsequently by the revisional authority, i.e., Commissioner and as such the writ petition cannot be held to be maintainable, reason being that the factual aspect of the given case pertains to declaration of right and title over the property in question and once the declaration of right of property is involved, it cannot be adjudicated in a summary proceeding like the writ jurisdiction.
7. While on the other hand, Mr. Manjul Prasad, learned senior counsel appearing for the petitioners assisted by Mr. Arbind Kumar Sinha, learned counsel, has submitted that the writ petition is well maintainable for the reason that the order passed by Assistant Settlement Officer since is the quasi-judicial authority as also the subsequent authority, i.e., Charge Officer and the Commissioner are the quasi-judicial authority, therefore, the writ petition is well maintainable for adjudication of the issue and thus the writ 7 petition has been filed. Therefore, submission has been made that the matter may be adjudicated on merit.
8. This Court has heard learned counsel for the parties, perused the materials available on record as also the impugned orders under challenge.
9. This Court on appreciation of rival submissions with respect to maintainability of the writ petition, deem it fit and proper to first adjudicate as to whether the writ petition is maintainable or not before entering into the merit of the issue?
10. But, before answering the issue, it requires to refer herein some undisputed fact as it transpires from the pleading made in the writ petition that a suit was filed for declaration of right and title over the land in question. The plaintiff has filed a title suit by approaching Settlement Officer for partition of the property in question, which was registered as Title Partition Suit No.31 of 1982, but the same was transferred by the Settlement Officer, Dumka to the court of Assistant Settlement Officer, for its disposal, which was renumbered as Title Partition Suit No.3 of 1983 for partition of the suit land of village Nipania appertaining to Jamabandi no.58 and 108 into half and half and allotting half share in the suit land with separate patti through Amin of the Court. The plaintiff has filed such suit on the ground that the suit properties are co-parcenary joint properties recorded in the name of one Nirpat Mahto and Gopal Mahto, father of the writ petitioner in the last settlement parcha and as such they claim the suit property as the ancestral property which was recorded in the name of Girdhari Mahto, the common ancestor of the parties. The relationship between the petitioners and the opposite parties interese with the said recorded tenant, as has been referred at paragraph 5(v) of the writ petition, is that the four sons of Girdhari Mahto namely Chhota Rangu Mahto, Dasrath 8 Mahto, Kamal Mahto and Tekan Mahto were separate in mess and property before the last settlement but Chhota Rangu Mahto and Dasrath Mahto reunited together and their share of land in the ancestral properties were jointly recorded in the name of Chhota Rangu Mahto and Dasrath Mahto in the last settlement Parcha of Mr. Gantzer's Settlement. Similarly Kamal Mahto and his brother Tekan Mahto reunited and they began to live jointly and their share of land in the ancestral property was recorded in the name of Gopal Mahto and Nirpat Mahto son of Tekan Mahto as Tekan Mahto died in jointness with his brother Gopal, in Mr. Grantzer's settlement record. There was no partition of the land recorded in Jamabandi nos.106 and 58 of Mouza Nipania by metes and bound but in the remarks column of the parcha separate dakhal kiari was fraudulently recorded in some plot of land of the said Jamabandi though they were entitled to equal share in their ancestral land. The plaintiff, therefore, filed the aforesaid suit for partition of the half share in the suit land of Jamabandi No.106 and Jamabandi No.58 of Mouza Nipania.
While on the other hand, the respondent 1st party claims to be legal heirs of recorded tenant Nirpat Mahto who were main contestant. The respondents 2nd party were proforma defendants and as such no relief was claimed from them but they were impleaded in the suit as they are also descendants of common ancestors of Giridhari Mahto.
The suit was contested in between the plaintiffs and the respondents 1st party/defendants 1st party on the ground that by family arrangement, Kurfa and Danpatra, the predecessors in interest of the plaintiffs has transferred his half share in the said land to these defendants.
Accordingly the Title Partition Suit No.3 of 1983 which was filed before the Settlement Officer, invoking the jurisdiction conferred under Rule 9 (XXV) A of Sonthal Parganas Settlement Regulation, 1872, but was transferred to Assistant Settlement Officer for disposal. Thereafter, the Assistant Settlement Officer vide judgment dated 25.04.1986 held that Kurfa deed of 1948 whereby the defendants 1st party claimed the land of Jamabandi No.106 and 58 appertaining to Plot nos.329, 332, 409, 452, 453, 3024, 3026, 3036, 3040, 3045, 3438 and 3606 are illegal as also it was held that the claim of defendant 1st party through Dan Patra (deed of gift) of land of Jamabandi No.58 on 03.02.1946 in respect of plot nos.2219, 2310, 2376 is also illegal. However, the Assistant Settlement Officer decreed suit to the extent of half shares with respect to land described in Schedule "A" and "B" except Plot nos.334, 335, 336 and 337 and rejected the claim of the plaintiffs with respect to land described in Schedule "C" and "D" vide judgment dated 25.04.1986. Subsequently, the judgment dated 25.04.1986 was modified vide order dated 27.04.1986.
Both the orders i.e. 25.04.1986 and 27.04.1986 have been challenged before the Settlement Officer under the provision of Rule (viii) A of Sonthal Pargana Settlement Regulation 1872, but, the same was transferred to the Charge Officer, who, vide judgment, dated 05.12.1987 passed in T.A. No.18 of 1986, has upheld the judgment dated 25.04.1986 and 27.04.1986 passed in Title Partition Suit No.3 of 1983. Subsequent thereto, the revision has been preferred before the Commissioner under the provision of Rule (viii) B of Sonthal Pargana Settlement Regulation, 1872, but, the Commissioner has also upheld the judgment/order dated 25.04.1986 and 27.04.1986 passed in Title Partition Suit No.3 of 1983 by the Assistant Settlement Officer and the judgment/order dated 05.12.1987 passed by the Charge Officer, Dumka in T.A. No.18 of 1986.
10
It is evident that the matter pertains to adjudication of title of one or the other party and the writ petitioners being aggrieved with the judgment passed by the concurrent authority are before this Court by invoking the extraordinary jurisdiction conferred to this Court under Article 226 of the Constitution of India.
11. It requires to refer herein the Sonthal Parganas Settlement Regulation, 1872 which contains a provision as under Regulation 11 whereby and whereunder it has been provided that no suit lie in any Civil Court regarding any matter decided by any Settlement Court under these rules; but the decisions and orders of the Settlement Courts made under these rules, regarding the interests and rights above mentioned, shall have the force of a decree of Court. The Regulation 11 reads hereunder as:
"11. Bar to jurisdiction of Civil Courts.- Except as provided in [Section 25-A], no suit shall lie in any Civil Court regarding any matter decided by any Settlement Court under these rules; but the decisions and orders of the Settlement Courts made under these rules, regarding the interests and rights above mentioned, shall have the force of a decree of Court."
It is evident from bare reading of the provision of Regulation 11 that except provided in Section 25-A, no suit lie in any Civil Court regarding any matter decided by any Settlement Officer under these rules but decision taken by the Settlement Officer regarding the interests and rights above mentioned, shall have the force of a decree of Court, meaning thereby, if any order is being passed for declaration of right and title by the Settlement Officer/Assistant Settlement Officer, no suit will lie before the Civil Court and further such adjudication by way of judgment/order will have the force of a decree of court.
11
It also requires to refer herein Appendix-3 of the Sonthal Parganas Settlement Regulation, 1872 which contains a provision as under Rule (viii) (A) and (B), which reads hereunder as:
" (viii)(A) When an Assistant Settlement Officer decide case or suit there shall be an appeal to the Settlement Officer, who may either hear the appeal himself or transfer it to the Charge Officer or to an Assistant Settlement Officer, specially empowered by the local Government to hear such appeals. When the Settlement Officer and Charge Officer or such specially empowered Assistant Settlement Officer decides a case or suit there shall be an appeal to the Commissioner or such a Special Officer as the local Government may appoint in this behalf. When the Settlement Officer or Charge Officer or the Assistant Settlement Officer specially empowered to hear appeals differs on appeal from the decision of Assistant Settlement Officer, who decided the original case there shall be second appeal to the Commissioner or to such Special Officer as the local Government may appoint in this behalf;"
(B) In other cases the order of the Appellate Court shall not be subject to further appeal but the Commissioner or the Special Officer aforesaid or the Settlement Officer, may of his own motion otherwise, call for the record of any case decided by a Court under his control, in which an appeal does not lie, or in which for cause shown to his satisfaction, an appeal has not been preferred within the time-limit prescribed in Clause C of this rule and may pass such order, or orders as he thinks fit. Such Special Officer aforesaid may dispose of any pending cases for the records of which the Commissioner may have called before the appointment of the said Special Officer.
It appears from the provision of Rule (viii) (A) of Sonthal Parganas Settlement Regulation, 1872 (Appendix-3) wherein three provisions have been made out:
(i) The appeal will lie against an order passed by Assistant Settlement Officer, who may either hear the appeal himself or transfer it to the Charge Officer or to an 12 Assistant Settlement Officer, specially empowered by the local Government to hear such appeals.
(ii) When the Settlement Officer and Charge Officer or such specially empowered Assistant Settlement Officer decides a case or suit there shall be an appeal to the Commissioner or such a Special Officer as the local Government may appoint in this behalf.
(iii) When the Settlement Officer or Charge Officer or the Assistant Settlement Officer specially empowered to hear appeals differs on appeal from the decision of Assistant Settlement Officer, who decided the original case there shall be second appeal to the Commissioner or to such Special Officer as the local Government may appoint in this behalf.
Further as would appear from the provision as contained under Rule
(viii) (B) of the Regulation, 1872 (Appendix-3):
In other cases the order of the Appellate Court shall not be subject to further appeal but the Commissioner or the Special Officer aforesaid or the Settlement Officer, may of his own motion or otherwise, call for the record of any case decided by a Court under his control, in which an appeal does not lie, or in which for cause shown to his satisfaction, an appeal has not been preferred within the time-limit prescribed in Clause-C of this rule and may pass such order, or orders as he thinks fit. Such Special Officer aforesaid may dispose of any pending cases for the records of which 13 the Commissioner may have called before the appointment of the said Special Officer.
It is thus evident by bare reading of the provision of Rule (viii) (A) and (B) that in a situation when there is concurrent finding passed by the Assistant Settlement Officer, in the capacity of the original authority confirmed by the Settlement Officer, in the capacity of the first appellate authority and in that circumstances there will be no second appeal to be filed before the Commissioner, rather, the second appeal can only be allowed to be filed if the order passed by Assistant Settlement Officer differs on appeal from the decision of Assistant Settlement Officer, who decided the original case. Further, in a situation where there is concurrent finding passed by Assistant Settlement Officer in the capacity of original authority and having been upheld by the Settlement Officer in the capacity of second appellate authority, in that circumstances, there shall not be further appeal but the Commissioner or the Special Officer aforesaid or the Settlement Officer, may on his own motion or otherwise, call for the record of any case decided by a court under his control, in which an appeal does not lie, or in which for cause shown to his satisfaction, an appeal has not been preferred within the time-limit prescribed in Clause-C of this rule, and may pass such order, or orders as he thinks fit.
12. Here, in the given facts of this case, admittedly the judgment has been passed by the Assistant Settlement Officer in Title Partition Suit No.3 of 1983 vide judgment dated 25.04.1986 and 27.04.1986. The aforesaid judgments have been affirmed by the Settlement Officer in exercise of power conferred under Rule (viii) (A) of (Appendix-3) of the Regulation, 1872 and therefore, the Commissioner has entertained the revision being 14 T.R. Case no.04 of 1988-89 and has upheld the order dated 25.04.1986 and 27.04.1986 passed by the original authority, Assistant Settlement Officer in Title Partition Suit No.3 of 1983 and the order dated 05.12.1987 passed by the Charge Officer in the capacity of first appellant authority in T.A. No.18 of 1986.
13. The instant petition has been filed under Article 226 of the Constitution of India wherein a dispute between the two parties regarding declaration of right and title of property is raised.
It is well settled that a writ petition is the remedy in a public law which may be filed by any person but the main respondent would be either the Government, Governmental agencies or State or instrumentalities of the State within the meaning of Article 12. Private individual cannot be equated with the State or instrumentalities of the State. All the respondents in a writ petition cannot be private parties. But private parties acting in collusion with the State can be respondent in a writ petition. Under the phraseology of Article 226, High Court can issue writ to any person, but the person against whom it will issue must have some statutory or public duty to perform, reference in this connection may be made to the Constitution Bench decision of the Hon'ble Apex Court rendered in the case of Shri Sohan Lal vs. Union of India and another reported in (S) AIR 1957 SC 529. The facts in the Sohan Lal are that Jagan Nath, a refugee from Pakistan, filed a writ petition in the High Court of Punjab against the Union of India and Sohan Lal alleging unauthorized eviction from his residence and praying for a direction for restoration of possession. The High Court directed Sohan Lal to restore possession to Jagan Nath. Challenging that order, Sohan Lal approached the Hon'ble Apex Court. The Constitution Bench of the Hon'ble 15 Supreme Court accepted the plea and overturn the verdict of the High Court, laying down the proposition at Paragraph 7 thereof, which reads under as:
"7. The eviction of Jagan Nath was in contravention of the express provisions of Section 3 of the Public Premises (Eviction) Act. His eviction, therefore, was illegal. He was entitled to be evicted in due course of law and a writ of mandamus could issue to or an order in the nature of mandamus could be made against the Union of India to restore possession of the property to Jagan Nath from which he had been evicted if the property was still in possession of the Union of India. The property in dispute, however, is in possession of the appellant. There is no evidence and no finding of the High Court that the appellant was in collusion with the Union of India or that he had knowledge that the eviction of Jagan Nath was illegal. Normally, a writ of mandamus does not issue to or an order in the nature of mandamus is not made against a private individual. Such an order is made against a person directing him to do some particular thing, specified in the order, which appertains to his office and is in the nature of a public duty (Halsbury's Laws of England Vol. 11, Lord Simonds Edn. p. 84). If it had been proved that the Union of India and the appellant had colluded, and the transaction between them was merely colourable, entered into with a view to deprive Jagan Nath of his rights, jurisdiction to issue a writ to or make an order in the nature of mandamus against the appellant might be said to exist in a Court. We have not been able to find a direct authority to cover a case like the one before us, but it would appear that so far as election to an office is concerned, a mandamus to restore, admit, or elect to an office will not be granted unless the office is vacant. If the office is in fact full, proceedings must be taken by way of injunction or election petition to oust the party in possession and that a mandamus will go only on the supposition that there is nobody holding the office in question. In R. v. Chester Corporation it was held that it is an inflexible rule of law that where a person has been de facto elected to a corporate office, and has accepted and acted in the office, the validity of the election and the title to the office can only be tried by proceeding on a quo warranto information. A mandamus will not lie unless the election can be shown to be merely colourable. We cannot see why in principle there should be a distinction made between such a case and the case of a person, who has, apparently, entered into bona fide possession of a property without knowledge that any person had been illegally evicted therefrom."16
The principle laid down by the Constitution Bench in Sohan Lal (supra) is still a good law.
Subsequently in Engineering Mazdoor Sabha and another vs. Hind Cycles Ltd. reported in AIR 1963 SC 874 wherein it was held that an Arbitrator appointed under Section 10-A of the Industrial Disputes Act is not a private Arbitrator even though he cannot be equated with a Tribunal to be amenable under Article 136 of the Constitution of India. The Hon'ble Apex Court has held that in discharging his duties as an Arbitrator, the Arbitrator is clothes with some traffing's of a Court and a writ of certiorari would be maintainable against him. So even though an Arbitrator, acting under Section 10-A of the Industrial Disputes Act, is a private individual, he discharges public function.
Further it has been held in the case of Md. Hanif vs. State of Assam reported in (1969) 2 SCC 782 a three Judges Bench of Hon'ble Apex Court, explaining the general principles governing his jurisdiction under Article 226, held that this jurisdiction is extraordinary in nature and is not meant for declaring the private rights of the parties, relevant at paragraph-5 reads hereunder as:
"5. It is true that the jurisdiction of the High Court under Article 226 is an extraordinary jurisdiction vested in the High Court not for the purpose of declaring the private rights of the parties but for the purpose of ensuring that the law of the land is implicitly obeyed and that the various tribunals and public authorities are kept within the limits of their jurisdiction. In other words, the jurisdiction of the High Court under Article 226 is a supervisory jurisdiction, a jurisdiction meant to supervise the work of the tribunals and public authorities and to see that they act within the limits of their respective jurisdiction. In a proceeding under Article 226 the High Court is not concerned merely with the determination of the private rights of the parties; the only object to such a proceeding under Article 226 is to ensure that the law of the land is implicitly obeyed and that various authorities and tribunals act within the limits of their respective jurisdiction.17
Article 226 states that the High Court shall have power to issue to any person or authority, including in appropriate cases any Government, directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition quo warranto and certiorari. All these writs are known in English law as prerogative writs, the reason being that they are specially associated with the King's name. These writs were always granted for the protection of public interest and primarily by the Court of the King's Bench. As a matter of history the Court of the King's Bench was held to be coram rego inso and was required to perform quasi-governmental functions. The theory of the English Law is that the King himself superintends the due course of justice through his own Court preventing cases of usurpation of jurisdiction and insisting on vindication of public rights and protecting the liberty of the subjects by speedy and summary interposition. That is the theory of the English law and as pointed out by this Court in Basappa v. Nagappa our Constitution-makers have borrowed the conception of prerogative writs from the English Law and the essential principles relating to such prerogative writs are applicable in Indian law. It is obvious that the remedy provided under Article 226 is a remedy against the violation of the rights of a citizen by the State or statutory authority. In other words, it is a remedy in public law. But as already pointed out the appellant in the present case is not merely attempting to enforce his contractual right but important constitutional issues have been raised on behalf of the appellant."
Further in the case of Hindustan Steel Ltd. v. Kalyani Banerjee reported in (1973) 1 SCC 273 it has been held that serious questions about title and possession of land cannot be dealt with by writ Court, relevant at paragraph 16, reads hereunder as:
"16. It was argued that since the appellant has raised a serious question as to the validity of the petitioners title and since it has proved its present possession of the disputed lands, the appellant should not be disturbed without adjudication of the question of title in a proper action. The learned Solicitor-General relied strongly on the decision of this Court in Sohan Lal v. Union of India. In that case where a serious dispute on questions of face between the parties was raised and in particular the question arose as to whether one of the parties had acquired any title to the property in dispute, this Court held that proceedings by way of a writ were not appropriate in a case where the decision of the court 18 would amount to a decree declaring a party's title and ordering restoration of possession. This Court further held that the proper remedy in such a case is by way of a title suit in a civil court and the alternative remedy of obtaining relief by a writ of mandamus or an order in the nature of mandamus could only be had if the facts were not in dispute and the title of the property in dispute was clear."
In the case of State of Rajsthan vs. Bhawani Singh, reported in 1993 Supp (1) SCC 306 it has been held by Hon'ble Apex Court that a writ petition is not the appropriate forum to declare a person's title to property, relevant at paragraph- 7 reads hereunder as:
"7. Having heard the counsel for the parties, we are of the opinion, that the writ petition was misconceived insofar as it asked for, in effect, a declaration of writ petitioner's title to the said plot. It is evident from the facts stated hereinabove that the title of the writ petitioner is very much in dispute. Disputed question relating to title cannot be satisfactorily gone into or adjudicated in a writ petition."
In the case of Shalini Shyam Shetty vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329 the principle as has been laid down in the case referred hereinabove has been reiterated, as would appear from paragraphs- 64 and 65, which read hereunder as:
"64. However, this Court unfortunately discerns that of late there is a growing trend amongst several High Courts to entertain writ petition in cases of pure property disputes. Disputes relating to partition suits, matters relating to execution of a decree, in cases of dispute between landlord and tenant and also in a case of money decree and in various other cases where disputed questions of property are involved, writ courts are entertaining such disputes. In some cases the High Courts, in a routine manner, entertain petitions under Article 227 over such disputes and such petitions are treated as writ petitions.
65. We would like to make it clear that in view of the law referred to above in cases of property rights and in disputes between private individuals writ court should not interfere unless there is any infraction of statute or it can be shown that a private individual is acting in collusion with a statutory authority."19
Therefore, from the proposition laid down by the Hon'ble Apex Court in the judgment referred hereinabove it is evident that a private person becomes amenable to writ jurisdiction only if he is connected with a statutory authority or only he/she discharges any official duty.
14. In the instant case, none of the above features are present, rather, the writ petition has been filed for declaration of right and title over the properties in question in between the private parties. Therefore, it would not be appropriate for this Court to entertain the writ petition since the declaration has been sought for by way of instant writ petition about the title over the landed property in question. Further since the provision of Regulation 11 of the Regulation 1872 clearly speaks that although once the judgment/order passed by the Assistant Settlement Officer/Settlement Officer takes the shape of the decree, the same cannot be questioned in any civil court as per the provision of Regulation '11' of the Regulation, 1872, as referred and quoted above . Thus, it also cannot be questioned by invoking the writ jurisdiction conferred to this Court under Article 226 of the Constitution of India, reason being that the legality and propriety of a decree passed by the concerned court/authority cannot be scrutinized by the High Court sitting under the summary proceeding like the writ jurisdiction, wherein, in order to look into the legality and propriety of the said decree the occasion may arise to look into the evidences etc. which cannot be allowed to be looked into by the High Court in exercise of power conferred under Article 226 of the Constitution of India.
15. This Court considering the fact in entirety as per the discussions made hereinabove, is of the considered view that the writ petition cannot be held to 20 be maintainable for adjudication of right and title over the property in question.
16. Accordingly, the writ petition stands dismissed as non- maintainability.
17. The petitioners are at liberty to search out remedy for redressal of the grievance.
(Sujit Narayan Prasad, J.) Saket/-