Tripura High Court
The Tripura Co-Operative Milk Producer ... vs Smt. Madhura Manjuri Singh Deo Alias ... on 3 March, 2020
Equivalent citations: AIRONLINE 2020 TRI 61
Bench: Akil Kureshi, Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
WA 28 OF 2016
The Tripura Co-operative Milk Producer Union Limited,
Indranagar, Agartala, P.O. Agartala, P.S. East Agartala,
District-West Tripura, PIN 799006.
....Appellant(s)
Vrs.
1. Smt. Madhura Manjuri Singh Deo alias Manika Rana,
Daughter of late Major Rajkumar Dahal Bahadur Rana,
a resident of Village-Gonda Town, Kanke Road, P.O. & P.S.
Bariatu, District-Ranchi, Jharkhand, PIN-834008.
2.Rana Janardhan Jungbahadur alias Shri Jagat Dipendra Rana,
S/o late Major Rajkumar Dahal Bahadur Rana,
a resident of Village-Gonda Town, Kanke Road, P.O. & P.S.
Bariatu, District-Ranchi, Jharkhand, PIN-834008.
3.Kumari Modita Rana, Daughter of late Major Rajkumar Dahal Bahadur
Rana, a resident of Ujjayant Palace, Agartala, P.O. Agartala, P.S. West
Agartala, District-West Tripura, PIN 799001.
....Respondent(s)
Present
For the appellant (s) : Mr. S. Deb, Senior Advocate.
Mr. S. Datta, Advocate.
For the respondent(s) : Mr. S. M. Chakrabory,
Senior Advocate.
Mr. S. Bhattacharjee, Advocate.
Mr. D. Sarma, Addl. G.A.
Whether fit for reporting : YES
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
HON'BLE MR.JUSTICE ARINDAM LODH
JUDGMENT & ORDER (ORAL)
03/03/2020 (A. Kureshi, CJ).
This appeal is filed by the Tripura Co-operative Milk Producer Union Limited to challenge the judgment dated 31.03.2016 passed by the learned Single Judge in Writ Petition (C) No.146 of 2013. Page 2 of 11
2. The writ petition was filed by the present respondents. They had challenged the order dated 31.12.2012, passed by the Settlement Officer, Government of Tripura in exercise of revisional powers under Section 95 of Tripura Land Revenue and Land Reforms Act, 1960 [TLR & LR Act, for short] directing mutation of a land comprising Khatian No.4438/1 of Mouja Indranagar against Plot No.3735 (new) admeasuring 2.63 acres which was a jote land of the petitioners and which was inherited by them as the legal heirs of deceased Smt. Jugal Kishori Devi.
3. From the record it appears that said Smt. Jugal Kishori Devi died in the year 1985 leaving behind the petitioners i.e. two daughters and one son as her legal heirs. According to the petitioners in the year 1999 they came to know that the Tripura Co-operative Milk Producer Union Limited, respondent No.2 had taken possession of the said land without their permission. They thereupon wrote a letter dated 10.11.1999 to the Managing Director of the Co-operative Union that the Union should vacate the land or pay the market price for acquisition of the same. The respondent No.2 thereupon filed an application before the Assistant Survey Officer, respondent No.4 under Section 43(1) of the TLR and LR Act which was entertained as an objection case. The respondent No.4 passed order dated 26.06.2002 and rejected the request of the Milk Producer Union on the ground that no supporting documents of the claim regarding ownership or possession of the land were produced by the Union. Respondent No.2 thereupon wrote to the revisional authority on 14.05.2003 and objected to the said order of the respondent No.4. This was treated as a revision petition in which the order was passed on 31.12.2012 allowing the revision and reversing the Page 3 of 11 order of the respondent No.4. Concluding portion of this order reads as under:
"In view of the above the case of the petitioner is allowed and ordered that the lands under hal plot No.3734 measuring 1.37 acre and hal Plot No.3735 measuring 2.63 acres of mouza Indranagar shall be recorded in the name of Animal Resource Development Department by deleting the same from the Khatian No.4/4 of the Department of Industries & Khatian No.4438/1 of Jugal Kishori Devi respectively.
All relevant records shall also be corrected accordingly.
Let a copy of the order be sent to the SDM, Sadar for necessary incorporation/correction of records.
Copy of the order also be communicated to the parties concerned for information."
4. Vide impugned judgment the learned Single Judge allowed the writ petition in part and set aside a portion of the revisional order. Relevant portion of this judgment reads as under:
"[9] It is not in dispute that in Khatian No.4438/1 (from the Khatian No.722 jer 1929) which was opened on 13.04.2004, the plots No.1719, 1708 and 1707/8254 part are covered. But those plots are converged to the new plot No.3735. The name of Jugal Kishori Devi has been recorded there as rayat. In terms of Section 99 of the TLR & LR Act the rights of a rayat in his land shall be permanent, heritable and transferable. The ordinary meaning of the rayat is a tenant under the Government having those rights as stated. Section 46 of the TLR & LR Act has provided that any person on acquiring by succession, survivorship, inheritance, partition, purchase, gift, mortgage, lease or otherwise any right in the land shall make an application for mutation and on due inquiry the mutation can be permitted. In this case on inquiry it was found by the Amin that the land measuring 2.63 acre comprised in plot No.3735 and recorded in Khatian No.4438/1, is the land of Jugal Kishori Devi in possession of the respondent No.2 without any valid transfer or acquisition. What Mr. Deb, learned senior counsel has stated that by declaration dated 08.12.1958 the land in the plot No.1708/p was acquired. But it has been recorded by the respondent No.3 in the impugned order that from the memorandum dated Page 4 of 11 28.09.1973 issued by the Joint Secretary, Government of Tripura it is apparent that transfer/handing over of 4.64 acre of land by the Department of Industries to the Department of Animal Husbandry had taken place for setting up of a dairy at Agartala and since those are official documents and those documents clearly show that the land measuring 2.80 acre (after withdrawal of 4.80 acres) was acquired by the department of Industries for extension of ITI from the old jote No.645 owned by Jugal Kishori Devi, it has to be inferred that the land in question was acquired. No record to support acquisition of the land as recorded under Khatian No.4438/1 has been produced either before the Asstt. Settlement Officer or before the Settlement Officer. Merely on the basis of some communication it has been assumed by the Settlement Officer that acquisition of new plot No.3735 (corresponding to old plot No.3709, 3708, 1707/8254) had taken place but no notification in this regard had been placed, even not before this court. The respondent No.2 has filed a separate counter affidavit and they also could not produce any such record and by virtue of the declaration dated 02.11.1961, Annexure-R/2 of the counter affidavit filed by the respondent No.2, it has surfaced that the following plots were covered by the said declaration: Survey plot Nos.1041/p, 1044/p, 1048/p, 1051, 1805/p, 1050/p, 1052, 1047 from the niskar jatuk mahal owned by Bhanu Prava Devi. But the Settlement Officer, the respondent No.3 herein nor the Asstt. Settlement Officer did not notice the notification No.F.17(2)- Acq/Rev/65 dated 10.03.1965 part of Annexure-R/2 whereby out of the said land covered by the said declaration dated 02.01.1961, 4.48 acre of land was withdrawn from the acquisition. In the schedule the land as withdrawn has been shown. The land is comprised in the survey plots No.1051, 1048/p, 1044/p, 1041/p, 1052 measuring 12 kanis 12 gandas i.e. 4.84 acre. On comparison it appears that the plot No.1708/p was not withdrawn from the acquisition. But if the plot No.1708 is partly acquired the remaining part might be with Jugal Kishori Devi. Therefore, on the basis of the declaration dated 08.12.1958 it cannot be stated that the original rayat Jugal Kishori Devi did not have the title over the plot No.1708/p comprised in Khatian No.4438/1 of mouja- Indranagar. Hence this court is of the view that the Settlement Officer while passing the impugned order dated 31.12.2012 has committed patent illegality on assuming acquisition and directing Page 5 of 11 deletion in the name of Jugal Kishori Devi against the plot No.3735 measuring 2.63 acre recorded in the Khatian No.4438/1 of Mouja-Indranagar and recording the same in the name of the Animal Resources Department. As such, that part of the observation and direction are interfered with and set aside. However, the order in respect of hal plot No.3734 is liable to be not interfered with. That part of the impugned order be duly acted upon.
[10] This court however cannot direct the respondent No.2 for vacating the possession for obvious reason that the Settlement Officer did not examine any other aspect expect the ownership of the land. The petitioner shall be at liberty to take appropriate recourse for recovery or vacation of the land in accordance with law."
5. Appearing for the appellant learned senior counsel Sri Deb submitted that the revisional authority had examined all aspects of the matter and come to a correct conclusion. The learned Single Judge ought not to have reversed such order. In the proceedings for entries in the records minute examination of rights and titles is not permissible. The questions of title and ownership can be decided only by a competent civil court. The original petitioners ought to have instituted a civil suit in which the present appellant would have all the defences available. In any case the learned Single Judge ought not to have entered into minute examination of the documents with the focus on the question of title and ownership of the property in question. The petitioner did not dispute that the Union was in possession of the land since long and had also put up construction thereon.
6. On the other hand, learned senior counsel Sri Chakraborty opposed the appeal contending that the learned Single Judge has properly examined all aspects of the matter. In terms of Section 188 of TLR and LR Act jurisdiction of the civil court is barred. The appellant could not produce any document of ownership or title. Acquisition if any, Page 6 of 11 done by the Government of the land in question has not been brought on record.
7. To consolidate and amend the law relating to land revenue in the State of Tripura and to provide for acquisition of estates and for other measures of land reform, the TLR and LR Act was enacted. The provisions contained in the Act would show that the same encompass the questions of land revenue as well as of settlement of certain rights in the lands such as tenancy. In the erstwhile State of Bombay, the legislature had enacted two separate laws. Bombay Land Revenue Code for revenue matters and Bombay Tenancy and Agricultural Lands Act for dealing with the questions of agriculture land tenancies and for land reforms. This hybrid enactment in the State of Tripura was necessary because of peculiar background of the State which happened to be a princely State and in theory all estates vesting in the crown.
8. Chapter V of the TLR & LR Act pertains to land records. Section 42 contained in the said chapter pertains to preparation of record of rights and provides that it shall be the duty of the survey officer to prepare a record of rights for each village showing the area of each survey number and other particulars and any other record or register, in accordance with the rules made under the said Act.
9. Section 43 pertains to publication of the record of rights and reads as under:-
"(1) When a record of rights has been prepared, the survey officer shall publish a draft of the record in such manner and for such period as may be prescribed and shall receive and consider any objections which may be made during the period of such publication, to any entry therein or to any omission therefrom.Page 7 of 11
(2) When all objections have been considered and disposed of in accordance with the rules made in this behalf, the survey officer shall cause the record to be finally published in the prescribed manner. (3) Every entry in the record of rights as finally published shall, until, the contrary is proved, be presumed to be correct."
10. Section 44 pertains to jurisdiction of Civil Court to decide disputes and reads as under:
"(1) When a notification under section 26 directing the revenue survey of any local area with a view to settlement of the land revenue and to the preparation of a record of rights connected therewith or the revision of any existing settlement or record of rights in any local area has been published after the enforcement of the Tripura Land Revenue and Land Reforms (Fifth Amendment) Act,1979, no civil court shall entertain any suit or application for the settlement or determination of land revenue or the incidence of any tenancy to which the record of rights relates, and if any suit or application, in which any of the aforesaid matters is in issue, is pending before a civil court on the date of publication of the notification in the Official Gazette, it shall be stayed and it shall, on the expiry of the period for filing application for revision under section 45, or when such application has been filed within time on expiry of the period prescribed under section 94 for filing an appeal under section 93 against the order disposing of such application or when an appeal has been filed under the section within time, as the case may be, on disposal of such appeal, abate so far as it relates to any of the aforesaid matters.
(2) No civil court shall entertain any suit or application concerning any land if it relates to alteration of any entry in the record of rights finally published, revised, corrected or modified under any of the provisions of this Chapter or Chapter VIII of this Act consequent upon the notification issued under section 26 after the enforcement of the Tripura Land Revenue and Land Reforms (Fifth Amendment) Act, 1979."
11. Sub-Section (1) of Section 46 provides that there shall be maintained for every village a register of mutations in such form as may be prescribed. Section 95 is the revisional power vested in the State Government or the Collector who at any time, either on his own motion Page 8 of 11 or on application by any party, call for the records of any proceedings before any revenue officer subordinate to him for the purpose of satisfying as to the legality or the propriety of any order passed by such revenue officer. The revenue authority may pass such order in reference thereto as he thinks fit.
12. Last of the Sections to be noticed is Section 188 which reads as under:
"188. Jurisdiction of civil courts excluded.- No suit or other proceeding shall, unless otherwise expressly provided in this Act, lie or be instituted in any civil court with respect to any matter arising under and provided for by this Act."
13. From the materials of the records it would emerge that the issues in the present litigation were concerning the entries in the revenue record. The Milk Producer Union had urged the Assistant Survey Officer to carry out mutations in the records showing the name of the Union as the occupant. The said authority having rejected the request, the revisional authority had interfered. It is well settled through series of judgments that revenue entries are meant only for fiscal purpose, have only presumptive value on the question of possession and do not decide right or title of the parties in any immoveable property.
14. In case of Guru Amarjit Singh v. Rattan Chand & Ors., reported in AIR 1994 SC 227, it was observed that the entries in 'jamabandi' are not proof of title, they are only statements for revenue purpose. It is for the parties to establish the relationship or title to the property unless there is unequivocal admission.
15. In case of Rajinder Singh v. State of Jammu & Kashmir & Ors., reported in (2008) 9 SCC 368, it was observed that the Page 9 of 11 revenue records are only for fiscal purpose. Substantive rights of title and ownership of contesting claimants can be decided only by a competent civil court in proper proceedings. It was further observed that the entries in the 'jamabandi' do not confer title. Similar observations were made in case of Suraj Bhan & Ors. v. Financial Commissioner & Ors., reported in (2007) 6 SCC 186.
16. Even in the context of TLR and LR Act, in case of Narendra Chandra Deb & Ors. v. Kamini Mohan Deb, reported in AIR 1979 NOC 169 (Gauhati), it was emphasised that the presumption referred to in Sub-Section (3) of Section 43 as to the correctness of the entries is only until the contrary is proved.
17. In our opinion, instead of interfering with the revision order, the parties ought to have been left to the remedies before civil court to establish rights and titles. If the original petitioners wanted a declaration of ownership or desired that the Milk Producer Union should vacate the land which according to them the Union was occupying without authority of law, they had to institute and should be left to institute civil proceedings before the competent court. Minute examination and interference with the revisional order in a writ jurisdiction would not be called for. As noted, the issues pertain to the entries in the revenue records which were meant only for fiscal purpose and a presumptive value of possession but not indicative of title to the land in question. The petitioners do no dispute the possession of the Milk Union over the land.
18. Reference to Section 188 of the TLR and LR Act is of no avail. We have noticed that Sections 42 and 43 fall in Chapter V which pertains to land records. The essential issue before the revenue authorities was of entries in the land records and not of vesting of Page 10 of 11 rights. The bar under Sub-Section (1) of Section 44 is to entertain a suit or application for settlement or determination of land revenue or incidence of any tenancy to which the record of rights relates. Likewise under Sub-Section (2) of Section 44, the jurisdiction of civil court is ousted concerning any land if it relates to alteration of any entry in the record of rights finally published revised, corrected or modified under any of the provisions of Chapter V or VIII of the Act consequent upon the notification issued under Section 26. Analysis of Section 44 of the TLR & LR Act would show that this Section has two sub-sections. As per sub-section (1), when any notification under section 26 directing revenue survey with a view to land revenue and preparation of record of rights or revision of existing settlement in record of rights has been published, no civil court would entertain any suit or application for the settlement or determination of land revenue or incident of tenancy to which the record of right relates. As per sub-section (2) of Section 44, no civil court would entertain any suit or application concerning any land if it relates to alteration of any entry in the record of rights finally published, revised, corrected or modified under any of the provisions of Chapter V or VIII of the said Act consequent upon notification issued under Section 26. Thus, ouster of the jurisdiction of the civil court under Section 44 is limited to issues referred in sub-section (1) and (2) of the said section. Jurisdiction of the civil courts to decide titles is certainly not taken away.
19. Section 188 further provides that no suit or other proceeding shall, unless otherwise expressly provided in the Act would lie or be instituted in any civil court with respect to any matter arising under and provided for by the said Act. Such restriction or ouster of jurisdiction of civil court certainly would not extend to a title suit or a suit for Page 11 of 11 declaration or for injunction or eviction. These are purely civil disputes and can be judged only by a civil court. What the civil court cannot judge is the correctness of the revenue settlements in the orders passed by the competent authorities under the said Act. However, the civil court would certainly enjoy widest possible jurisdiction to decide questions of title and if decided in favour of a particular party, the revenue records would yield to such a decision of the civil court.
20. Under the circumstances, impugned judgment is set aside. Revision order is restored. Parties are left to pursue their remedies in law. All contentions of the Union are also kept open.
The appeal is disposed of accordingly.
(ARINDAM LODH), J (AKIL KURESHI),CJ.