Jharkhand High Court
Halisha Khatoon vs State Of Bihar And Others" on 24 March, 2026
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
( 2008:JHHC:23 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3993 of 2008
1. Halisha Khatoon, wife of Hadwa Mian, resident of Khakshi Tola, Pundag,
P.O.and P.S. Jagarnathpur, District-Ranchi
2. Firoz Ansari
3. Sabir Ansari
4. Sajid Ansari
5. All sons of Hadwa Mian, resident of Khakshi Tola, Pundag, P.O.and P.S.
Jagarnathpur, District-Ranchi
...............Petitioners
1. The State of Jharkhand.
2. The Commissioner, South Chhotangpur Division, Ranchi
3. The Deputy Commissioner, Ranchi
4. The Sepcial Officer, Schedule Area Regulation, Ranchi.
5. Dukhawa Pahan
6.(i) Bablu Munda, son of Late Bhado Munda, grandson of Late Howa Pahan,
(ii) Sawan Munda, son of Late Bhado Munda, grandson of Late Howa Pahan,
(iii) Azadi Munda, son of Late Maku Munda, grandson of Late Howa Pahan,
(iv) Sawan Munda, son of Late Maku Munda, grandson of Late Howa Pahan,
(v) Bala Munda, son of Late Howa Pahan,
All are residents of Village-Dugdagia, Pundag PO & P.S- Jagarnathpur,
District-Ranchi.
7. (i) Fagu Munda, son of late Karam Munda,
(ii) Rusu Pahan, son of late Karam Munda,
Both resident of Village-Dugdagia, Pundag PO & P.S- Jagarnathpur,
District-Ranchi.
8.(i) Sanju Munda, son of Late Sanicharwa Pahan, residing of Village-
Dugdagia, Pundag P.O & P.S- Jagarnathpur, District-Ranchi.
9. Nesar Ansari
10. Nasim Ansari
Both are sons of late Najbul Ansari, resident of Khakshi Tola, Pundag,
, P.O. and P.S. Jagarnathpur, District-Ranchi
...... ... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioners :Mr. Saurav Arun, Advocate
Mr. Bhanu Kumar No.1, Advocate
For the State : Mr. Vineet Prakash, A.C. to S.C.-IV
For the Resp. Nos. 5 to 8 : Mr. Alok Lal, Advocate
20/ 24.03.2026: Heard Mr. Saurav Arun, learned counsel for the petitioners,
and Mr. Vineet Prakash, learned counsel for the respondent-State and Mr. Alok Lal, learned counsel for the respondent nos. 5 to 8.
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( 2008:JHHC:23 )
2. This petition has been filed for under Article 226 of the Constitution of India for quashing the order dated 15.4.2008 passed in S.A.R. Revision No. 061/07 by which the Revision application preferred by the petitioner has been rejected and also for quashing of order dated 16.5.2007 passed in Case No. 133 R-15/2002-03 by the Deputy Commissioner, Ranchi by which the appeal preferred by the respondent Nos. 5 to 8 has been allowed and order dated 15.7.2002 passed by SAR court has been set aside and direction has been given to SAR court to ensure the restoration/possession of lands in favour of private respondent nos. 5 to 8.
3. Mr. Saurav Arun, learned counsel for the petitioners submits that the ancestor of private respondent nos. 5 to 8 on 03.05.1950 have surrendered the land of Mouza Pundag being Khata No. 249, Plot No. 682, 683, 622, 668, 685, measuring an area 0.03+0.23+0.95+0.19+0.55= 1.85 Acres by way of registered deed to the ex-landlord namely, Baralal Kanderp Nath Shahdeo and after surrernder of land which was accepted by the ex-landlord by registered deed of Kaubliat dated 11.01.1951 contained in annexure 2, 2/1 and 3 respectively of the writ petition. He further submits that on 27.02.1951 the petitioner's ancestor came in possession of the land in question and by virtue of said Hukumnama, the land was settled in favour of father of the petitioner namely Sheikh Elahi and thereafter the petitioner came in cultivating possession of the land and used to pay rent to the ex-landlord against grant of receipt and after vesting Zamindari, the state government recognized father of the petitioner as tenant and issued rent receipt in lieu of rent paid by him. He submits that the ancestor of the petitioner came in possession over the land since the date of settlement made by Ex-landlord and continuously paying rent. He submits that the said Hukumnama is annexed as Annexure 4 and 5 series respectively to the writ petition. He further submits that the private respondent no. 5 to 8 for the first time in the year, 2002 preferred an application for restoration of the land before the Special Officer, Schedule Area Regulation, Ranchi under Section 71-A of the Chhotanagpur Tenancy Act registered as SAR Case No. 164/2000-01. The said SAR case initiated at the instance of private 2 ( 2008:JHHC:23 ) respondent nos. 5 to 8 was rejected vide order dated 15.7.2002 by the Special Officer, Scheduled Area Regulation, Ranchi holding that the land in question was in the possession of the petitioner since last 50 years and the land was surrendered by way of registered deed and petitioner came in possession by registered deed of Kabuliat and thereafter rent was being paid by the father of the petitioner earlier to the Ex-land lord and thereafter to the State Government. He submits that the learned SAR Court has also considered the judgment of the Patna High Court in the case of "Card Bond Products & Others Vs. State of Bihar and others"
reported in 1994 (1) PLJR 99 and held the said restoration case was barred by time as the limitation is said to be 30 years in view of said judgment. He further submits that the learned SAR Court has taken into consideration three witnesses examined by the respondent nos. 5 to 8 and found that they have admitted the possession of the petitioners. He submits that four witnesses have also been examined by the petitioners who have supported the case. He further submits that thereafter the respondent no. 5 to 8 preferred an appeal being case No. 133-R- 15/2002-03 before the Deputy Commissioner, Ranchi and the Deputy Commissioner, Ranchi vide his order dated 16.5.2007 set aside the order dated 15.7.2002 contained in Annexrue-1 to the writ petition and allowed the appeal preferred by private respondent No. 5 to 8 with direction to ensure restoration of land in question in favour of respondent No. 5 to 8. He then submits that the Deputy Commissioner has allowed the appeal only on the ground that provision of Section 46 of CNT Act has not been followed. He further submit that the petitioners herein above preferred Revision being S.A.R. Revision No. 061/07 before the Commissioner, South Chotanagpur Division, Ranchi and vide order dated 15.4.2008 the revision preferred by the petitioner has been rejected upholding the order of the Deputy Commissioner. In this background, he submits that the learned appellate court as well as learned revisional court have erred in allowing the appeal and rejecting the revision without considering the period of limitation wherein the SAR Court has considered that aspect of the matter and has rightly passed the said 3 ( 2008:JHHC:23 ) order. He further submits that since last 50 years the petitioners are in cultivating possession of the said land in the light of judgment relied by learned SAR Court as well as in the case of "Situ Sahu & others Vs. The State of Jharkhand and others" reported in AIR 2004 SC 4918 limitation is 30 years. He further submits that in the light of sub-section 2 of Section 83 of CNT Act, final publication of record of right has already been made. He also submits that fraudulent aspect has not been taken into consideration and by two of the courts only on the ground of section 46 of C.N.T Act the order of the SAR Court has been reversed. He submits that fraudulent aspect has been considered by the Hon'ble Supreme Court with regard to Chhotanagpur Tenancy Act in the case of "Jai Mangal Oraon Vs. Smt. Mira Nayak and others" reported in AIR 2000 (SC) 2276 and the relevant paragraph of the said judgment is quoted below:-
"A perusal of the decision reported in 1992 suppl (2) SCC 77 (supra) would show that it did not deal with a case of surrender prior to 1947, as in this case and during the relevant point of time when surrender was made in this case there was no statutory provision in the CNT Act which envisaged the obtaining of prior permission of the Deputy Commissioner before surrender of the tenancy rights. Though no factual details are available in the judgment this is obvious from the fact that what was considered therein was only the scope of Section 71A added by the Amendment in the year 1969. So far as the decision reported in 1996 (9) SCC 545 (supra) is concerned also the date of surrender in that case is not stated specifically. Even otherwise, in para 9 of the judgment it is stated, thus- In this case an application under Section 46 (4) (a) has been made. It is, therefore, not at all necessary whether Section 71A incorporated by amendment is applicable in respect of the land in question. Section 46 (4) (a) considered in this decision which envisaged a prior sanction of the Deputy Commissioner before effecting transfer in any of the modes stated therein was introduced only in the year 1947 with effect from 5.1.1948 and no such provision existed during the relevant point of time of surrender made in this case on 15.1.1942. For all these reasons, we are of the view that the two decisions relied upon for the appellant does not either apply to the present cases or support the contentions raised before us.
No doubt, the understanding of the High Court about the scope of Section 71A as interpreted by the earlier decisions of that Court noticed therein may not be good or correct in view of the later declaration of law by this Court but, the High Court did not proceed to rest its conclusion to uphold the claims of the contesting respondents who were writ petitioners before the High Court, only on that ground. The High Court has considered, at length, the further question as to whether Section 71A, introduced in 1969, was attracted to this case of surrender effected by a registered deed, on 15.1.1942, in the light of the then existing statutory provisions contained in Section 46 and 72 of the CNT Act. The nature of consideration and the other reasons assigned in support of the order made in CWJC No.118 of 1986 (R) makes it clear that the statutory provisions as they stood in force on 15.1.1942 neither envisaged the obtaining of a prior sanction of the Deputy Commissioner before a surrender by a tenant could be made of his interest in favour of the landlord nor could such surrender be held bad merely because it was not at the end of the Agricultural Year but immediately before. Those issues seem to have been considered and decided, even dehors the controversy 4 ( 2008:JHHC:23 ) raised with reference to the character of the land, proceeding on an assumption of the basis that it involved a surrender of raiyati interest. We find nothing illegal or wrong in the said reasoning and the conclusions arrived at by the learned Judges in the High Court appear to be well merited and quite accordance with the statutory provisions in force, at the relevant point. Therefore, in our view, no interference is called for with the orders of the High Court, in this regard."
4. On this ground he submits that the impugned orders may kindly be set aside and SAR case may kindly be restored.
5. Learned counsel for the State submits that the learned Deputy Commissioner has found that surrender itself was in violation of Section 46 of CNT Act and in view of that he has rightly passed the order which has been affirmed by the learned revisional court.
6. Mr. Alok Lal, learned counsel for the respondent nos. 5 to 8 vehemently opposes the prayer and submits that surrender as alleged was made on 11.01.1951 and the settlement in favour of the petitioners fore-father have been made on 27.02.1951 itself in such a short period which clearly suggests fraudulent transaction. He submits that section 46 of CNT Act clearly suggests that for transfer or surrender the sanction of the Deputy Commissioner is necessary which has not been done in view of that the learned appellate court well as revisional court have rightly passed the order. He refers in the case of "Bina Rani Ghosh Vs. Commissioner, South Chota Nagpur Division" reported in 1985 Supreme (Pat) 195. According to Mr. Lal, Section 46 of CNT Act was already in existence in view of that was mandatory provision which was required to be followed. Relying on the said judgment he submits that surrender was made in that case and within a short period it was further settled in favour of other persons, the Full Bench of Patna High Court has held that was fraudulent and in view of that section 46 of the CNT Act has not been followed. Relying on the said judgment he submits that both the Courts have rightly passed the order and in view of that the writ petition may kindly be dismissed.
7. The documents of the record clearly suggest that the land in 5 ( 2008:JHHC:23 ) question has been surrendered by the forefather of the respondent nos. 5 to 8 on 03.05.1950 by the registered deed dated 11.01.1951 contained in Annexure-2. By annexure 2/1 which is registered Hukumnama in favour of the forefather of the petitioners was made on 27.02.1951. Thereafter the said land was mutated in the name of forefathers of the petitioners. Annexure 4 and 5 are Hukumnama and rent receipts in favour of the forefather of the petitioners. These documents clearly suggest that the petitioners have possessed the land after the settlement through Hukumnama which was further mutated and in the light of sub-section 2 of section 83 of CNT Act, final publication of record of right has been made.
8. Admittedly, after 50 years of the said possession, the said restoration case was filed in the year, 2000 and limitation aspect was considered by the Hon'ble Supreme Court in the case of Situ Sahu & others Vs. The State of Jharkhand and others" reported in AIR 2004 SC 4918, the relevant paragraph of which is given below:-
"We will assume that the surrender of tenancy on 7.2.1938 and the settlement of the lands on the present appellant on 25.2.1938 were in quick succession and could be viewed as parts of the same transaction within the meaning of the term 'transfer' as contemplated by the Act. Nonetheless, it has not been established before us that the transfer was contrary to any other provisions of the Act. We shall now examine the last argument of Shri Narasimha that the transfer was fraudulent. Even on this, we are afraid that the appellants are entitled to succeed. We need not go into the details of the transaction for we may even assume that the transfer was fraudulent. Even then, as held in Ibrahimpatnam (supra), the power under Section 71A could have been exercised only within a reasonable time. Looking to the facts and circumstances of the present appeal, we are not satisfied that the Special officer exercised his powers under Section 71A within a reasonable period of time. The lapse of 40 years is certainly not a reasonable time for exercise of power, even if it is not hedged in by a period of limitation. We derive support to our view from the observations made by this Court in Jai Mangal Oraon case (supra) which was also a case which arose under the very same provision of law. There this Court took the view that Section 46(4)(a), which envisaged a prior sanction of the Deputy Commissioner before effecting the transfer in any of the modes stated therein, was introduced only in the year 1947 (with effect from 5.1.1948) and no such provision existed during the relevant point of time when the surrender was made in that case (15.1.1942). Obviously, therefore, no such provision existed in 1938, and the same reasoning applies."
9. In the said judgment in para 13 it has been held that the successor was in quick succession is part of the same transaction. In paras 6 and 10 of the said judgment the limitation aspect has been dealt with. In that case after 40 years the 6 ( 2008:JHHC:23 ) said petition was filed wherein the present case after 50 years the said restoration petition has been filed. The learned SAR Court has rightly considered this aspect of the matter wherein the learned Deputy Commissioner and the Revisional Court have not touched this aspect of the matter.
10. Admittedly the land in question was in favour of the forefather of the petitioners through Hukumnama of the year, 1951 and fraudulent aspect was further decided by the Hon'ble Supreme Court in para 14 of Situ Sahu (supra) case. The limitation part and fraudulent aspect have not been dealt with by the Deputy Commissioner and the Revisional Court wherein the SAR Court has dealt with the admitted documents as well as limitation point. So far as the judgment relied by the Mr. Alok Lal in the case of "Bina Rani Ghosh(supra) is concerned, in that case there were concurrent finding of three courts on the issue which was considered by the High Court. In that case the fraudulent aspect and the limitation aspect have not been considered.
11. In Situ Sahu (supra) and in Jai Mangal Oraon (supra) cases, the law point has been dealt with elaborately by the Hon'ble Supreme Court and it has been held that in the light of Article 65 of the Schedule of Limitation Act of 1963 read with section 230 of CNT Act, the limitation will be of 30 years for filing such restoration.
12. Even if Section 46 of CNT Act was not complied with in surrender that aspect is not open to argue after 50 years of possession. Those documents have not been disputed in the SAR Court as well in appellate court and revisional court.
13. In view of above facts, reasons and analysis the Court finds that the judgments of the learned appellate court as well as the learned revisional court are not sustainable in the eye of law as such order dated 15.4.2008 passed in S.A.R. Revision No. 061/07 and order dated 16.5.2007 passed in Case No. 133 R-15/2002- 03 are hereby set aside and the judgment of SAR Court dated 15.7.2002 is restored.
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( 2008:JHHC:23 )
14. This writ petition is allowed and disposed of. Pending I.A, if any, stands disposed of.
Dt.24.03.2026 ( Sanjay Kumar Dwivedi, J.)
Satyarthi/A.F.R
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