Jharkhand High Court
Bajrang Lal Shroff @ Bajrang Shroff S/O ... vs Mishri Mahato on 9 May, 2018
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C) No. 4590 of 2012
1.Bajrang Lal Shroff @ Bajrang Shroff s/o Late Prahlad Shroff, resident of
Bampass Town, P.O. + P.S. + Sub division & District Deoghar
2.Meera Devi @ Meera Devi Shroff, w/o Bajrang Lal Shroff, resident of
Bampass Town P.O. + P.S. + Sub Division & District Deoghar
... ... Petitioners
Versus
1. Mishri Mahato, son of late Chhatru Mahato resident of village
Todradih, P.O. + P.S. + Sub division & District-Deoghar
2. Kamal Mahato son of late Babu Mahat resident of village Todradih,
P.O.+ P.S. + Sub division & District-Deoghar
... ... Respondents 1st Party
3. Ramu Mahato, son of late Tarni Mahato, resident of village Todradih,
P.O. + P.S.+ Sub division & District-Deoghar
4. Kusmi Devi, w/o late Sukhdeo Mahato resident of village Todradih,
P.O. + P.S.+ Sub division & District-Deoghar
5. Murti Devi, w/o Satyanarain Mahato, resident of village Todradih,
P.O. + P.S.+ Sub division & District-Deoghar
6. Shambhu Mahato, son of late Mangan Mahato, resident of village
Todradih, P.O. + P.S.+ Sub division & District-Deoghar
7. Devendra Mahato, son of late Mangan Mahato, resident of village
Todradih, P.O. + P.S.+ Sub division & District-Deoghar
...... Respondents 2nd Party
8. Shiv Kumar Shroff, son of late Mahrad Shroff, resident of Bampass
Town, P.O. + P.S. + Sub division & District-Deoghar
Proforma Respondent
9. State of Jharkhand through its Deputy Commissioner, having office at
P.O. + P.S. + District Deoghar ... ... ... Respondent
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioners : Mr. Prashant Pallav,
Mr. Sanjeet Nayak, Ms. Jyoti Nayan,
Advocates
For the Respondents : Mr. V.P. Singh, Sr. Advocate
Mr. A.K. Rashidi, Advocate
Ms. Usha Srivastava, Advocate
For the State Mr. Ashutosh Kumar Singh,
A.C. to S.C. Mines
---
14/09.05.2018
1. Heard Mr. Prashant Pallav, counsel appearing on behalf of the petitioners.
2. Heard Mr. V.P. Singh, Sr. Advocate appearing for the private respondents assisted by Mr. A.K. Rashidi, Advocate.
3. Heard Mr. Ashutosh Kumar Singh, A.C. to S.C. Mines appearing on behalf of respondents-state.
4. This writ petition has been filed for the following reliefs:-
2"(i) For quashing the order dated 15.06.2012 passed by the learned Commissioner, Santhal Paragana, Dumka in RM 2nd Appeal No. 50/2008-09 (Annexure-13) whereby the learned court confirmed the order dated 21.05.2008 passed by the Deputy Commissioner, Deoghar in R.M.A. No. 69/05-06 and R.M.A. No. 100/05-06 and petitioners further pray for quashing of the order dated 21.05.2008 (Annexure-11) passed by learned Deputy Commissioner, Deoghar in R.M.A. No. 69/05-06 and R.M.A. No. 100/05-06 wherein learned Deputy Commissioner, Deoghar, had set aside the order passed by learned SDM Deoghar, in Revenue Misc. Case No. 06/2005-06 dated 18.08.2005 and Revenue Misc. Case No. 52/2005-06 dated 22.12.2005."
5. Counsel for the petitioners submits as under:-
a. Plot nos. 191 and 176 of Mouza Todradih Deoghar belonged to the ancestors of the respondents herein.
b. During the relevant period, before the enactment of Santhal Pargana Tenancy ( Supplementary provisions) Act, 1949 , under Section 25A of Regulation II of 1886 , there was a specific provision for acquisition of land for building and other purposes under Section 25A of the said Regulation.
c. He refers to the provision of section 25A of Regulation II of 1886 and submits that it reads as follows:-
"Acquisition of land for buildings and other purposes 25A-(1) The Zamindar or other proprietor of a village, who is desirous of acquiring the holding or part of the holding of any raiyat in such village, or any land over which the inhabitants of such village have any common right for any reasonable purpose having relation to the good of the holding, village or estate, or for the erection of buildings or for any religious, educational or charitable purpose, may apply to the Deputy Commissioner for authority to acquire the same.
(2) on being satisfied that the purpose stated in the application made under sub section (1) is reasonable and sufficient, and that the objections, if any, taken to the application are such that they may fairly be disregarded, the Deputy Commissioner may authorize the applicant to take possession of the land on such terms and on payment to the raiyat or other person interested (if any) of such compensation as he thinks fair and reasonable."3
d. Counsel for the petitioners submits that Section 3 read with Schedule of the Santhal Pargana Tenancy (Suppl. Provisions) Act, 1949 repealed Section 25 and 25A of the Regulation II of 1886 and new Section 53 was substituted. He submits that section 53 of Santhal Pargana Tenancy (Suppl. Provisions) Act, 1949 reads as under:
"53. Acquisition of land by landlord for building and other purposes-
(1) (a) The landlord of village who is desirous of acquiring the holding or part of the holding or any raiyat in such village or any land over which the inhabitants of such village have any common right for any reasonable and sufficient purpose having relation to the good of the holding, village or estate, or for the erection of building or for any religious, educational or charitable purpose, or irrigation, or effecting any agricultural or horticultural improvement or giving effect to any national policy of the Govt may apply to the Deputy Commissioner for sanction to acquire the same.
(b) The Deputy Commissioner may, on the application of a village headman, mulraiyat or raiyat of the Village or of his own motion, sanction, acquisition proceedings to be started with respect to such land as is referred to in clause (a), if he is satisfied after due enquiry that the acquisition is to be made for any of the purposes specified in the said clause.
(c) On receipt of such application as is referred to in clauses (a) and (b) the Deputy Commissioner shall scrutinize it with a view to see that it satisfies the conditions of acquisition prescribed by the Government in this behalf.
If on such scrutiny of Deputy Commissioner considers the application to be not maintainable on the face of it, he may reject the application summarily.
(2) If the application is not rejected summarily under clause (c) of sub section (1) the Deputy Commissioner shall issue notice to the raiyats and other persons interested to appear before him and to file objections, if any. If after due enquiry the Deputy Commissioner is satisfied that the purpose stated in the application is as specified in clause (a) of sub section (1) and that the objections, if any taken to the application are such that they may fairly be disregarded, the Deputy Commissioner may by order sanction acquisition proceedings to be started.
(3) On the passing of an order under sub section (2) the Deputy Commissioner, shall after issuing notice to the raiyats and other persons 4 interested, decide claims and objections as to compensation, and may authorize the landlord, village headman, mulraiyat or raiyat, as the case may be, to take possession of the land on such terms and on payment to the raiyats whose land is acquired or other persons interested of such compensation as he thinks fit and reasonable. :
(4) If the applicant landlord, village headman, mulraiyat or raiyat, as the case may be, tenders to the raiyat whose land is acquired or other interested persons such sum as the Deputy Commissioner has approved under sub section (3) as compensation and the latter refuses to receive the same, the Deputy Commissioner may, on the land lord, village headman, mulraiyat or raiyat, as the case may be, depositing the said sum with the Deputy Commissioner, give possession of the land to him in the prescribed manner and may execute a lease in the prescribed form in his favour. (5) The raiyat whose land is so acquired shall be entitled to receive proportionate reduction of rent in addition to compensation. (6) If the land so acquired is not utilized for the purpose for which it was required within five years of taking possession, the Deputy Commissioner may pass an order restoring the land to the original raiyat or his heirs or to the persons interested on such terms as he thinks fair and reasonable and, on the failure of such persons to take back the land, the Deputy Commissioner may settle the land as if it were village waste land."
e. Counsel for the petitioners submits that during the relevant period, before enactment of Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949, zamindar had a right to get the raiyati land acquired under Section 25A of the said regulation of 1886 for creating Basouri Tenancy after making payment of compensation to the raiyat. f. Counsel submits that Todradih within Deoghar was under the management of Rohini Estate and Rohini Estate through its receiver had got acquired plot no. 191 and 176 with other plots under Section 25 A of the Regulation II of 1886 prior to Gantzer's settlement for settlement of the same for Basouri purposes with one Guru Aditya Narayan Mehra and thereafter plots were renumbered as Basouri Plot no. 191, 176/253, 176/254, 176/255, 176/258, 176/257 and 172 measuring area in all 2.20 acres. He further submits that plot no. 189,190,192,193 were also acquired and later on these plots were numbered as Deoghar Town Plot No. 1245 A and 1246A. g. Counsel for the petitioners further submits that in absence of Guru 5 Aditya Narayan Mehra and due to the engagement of the receiver of the Rohini Estate in other works, the ancestors of the respondents wrongly got purcha prepared in their name with respect to the aforesaid plots no 189,190,191,192,193 and 176 . Consequently Rohini Estate filed Record Revision Case No. 229 of 1933 praying for cancellation of purcha prepared in the name of ancestors of the recorded tenant and to issue purcha in the name of the settlee. This Revision case tagged with the records of other record revision case no. 221, 223 and 305 of 1933 and the prayer of the Rohini Estate was allowed on 18.03.1934 by the Settlement Authority. h. Thereafter Basouri Purcha being parcha number 15/4 was issued in the name of Guru Aditya Narayan Mehra being Bausori plot number 191,176/253,176/254,176/255, 176/256, 176/257 and 172 . i. He submits that as the property was changed as Basouri property prior to coming into force of Santhal Pargana Tenancy (Supplementary Provisions) Act 1949 under Section 25A of Regulation II of 1886 and the said property had become transferable, the provision of Section 20 or Section 42 of the Santhal Pargana Tenancy (Supplementary Provisions) Act 1949 had no application.
j. Further the Zamindar himself has taken steps for correction of the purcha.
k. A certificate proceeding was initiated by the Zamindar against the son of the settlee namely Bishveshwar Das Mehra and others which was numbered as Rohini Settlement Case No. 95/1943-44 and finally vide order dated 25.01.1945 the said Basouri plot settled with Guru Aditya Narayan Mehra was auctioned and was purchased by the highest bidder being Shiv Shankar Jha. The said sale was subsequently set aside by the appellate authority and ultimately the order setting aside the sale was also set aside by the Member, Board of Revenue and direction was issued for issuance of sale certificate to the purchaser and vide order dated 08.01.1948, the sale certificate was issued to the auction purchaser Shiv Shankar Jha with respect to the Deoghar Town Plot No. 1246 A. l. Later on Nageshwar Mishra had applied for settlement of the remaining land which remained over and above and which remained settled with Guru Aditya Narayan Mehra after said auction of the 6 property.
m. Under the said circumstance, remaining portion of the plots was settled with said Nageshwar Mishra which was corresponding to plot no. 1245-A. n. He submits that these plots were acquired by Shiv Shankar Jha and Nageshwar Mishra as Basouri Raiyat.
o. Nageshwar Mishra and Shiv Shankar Jha sold their land through registered sale deed to Sudha Verma who again sold the same by registered sale deed to one Madina Bibi and Madina Bibi by two registered sale deeds vide 2709 and 2710 sold the lands to the petitioners. Thereafter the petitioners got their names mutated in the year 1986-87 in the court of Circle Officer, Deoghar. p. Counsel further submits that the private respondents had filed Title Suit No. 10 of 2003 for declaration of their right, title and interest in connection with the property involved in this case. But during the period from 2004-2010 all the plaintiffs of the Title Suit No. 10 of 2003 who are some of the respondents herein have withdrawn the Title Suit. Accordingly, Title Suit No. 10/2003 ceased to be pending w.e.f. 21.01.2010.
q. Counsel for the petitioner submits that the private respondents herein had filed two applications bearing Revenue Misc. Case No. 6 of 2005- 06 and Revenue Misc. Case No. 52 of 2005-06 for restoration of land under Section 42 read with Section 20 of the Santhal Pargana Tenancy (Supplementary Provisions) Act 1949.
r. By referring to the order passed in Revenue Misc. Case No. 6 of 2005- 06 counsel submits that same is related to plot nos. 176/253, 176/254, 176/258 and 172 wherein the allegation was made that the petitioners herein are trying to dispossess the respondents. s. Thereafter another case being Revenue Misc. Case No. 52 of 2005-06 was instituted by the respondents herein in connection with the aforesaid property and the same property including plot no. 176/255, 176/257, 176/256 wherein the allegation was made that the petitioners of this case have dispossess the respondents of this case from the entire property involved in this case.
t. Counsel for the petitioners submits that the case was transferred to the court of Sub Divisional Officer and large number of documents 7 were filed before the Sub Divisional Officer narrating the entire facts supported by the documents including the Basouri Jamabandi No. 15/04 which related to the purcha issued in the name of Guru Aditya Narayan Mehra which has been filed along with the writ petition as contained in Annexure-2 to the writ petition.
u. He has laid stress on these documents particularly in view of the fact that from the records of the case it appears that issuance of this purcha is an admitted fact. He submits that Revenue Misc. Case No. 6 of 2005- 06 and Misc. Case No. 2 of 2005-06 both were rejected and were decided in favour of the writ petitioners and it was held that the applications filed by the respondents herein under Section 20 and 42 of the Santhal Pargana Tenancy (Supplementary Provisions) Act 1949 have no merit.
v. Against this, private respondents filed their appeal which was numbered as R.M.A. No. 69 of 2005-06 and R.M.A. 100/2005-06 which was ultimately decided vide order dated 21.05.2008 which is contained in Annexure-11 to the writ petition.
w. Counsel submits that from perusal of the order passed by the Appellate Authority it appears that the appellate authority has taken note that the pendency of the civil suit before the Civil Court particularly in view of the fact that the respondents herein had specifically mentioned in their memo of appeal about the pendency of civil suit .
x. It is also necessary to mention here that Title Suit No. 10 of 2003 was also pending in the court of Subordinate Judge, Deoghar being Title (Declaration) Suit No. 10 of 2003 filed by the present respondents for declaration of their right, title and interest over the suit property and the appellate authority while passing the order dated 21.05.2008 clearly mentioned and recorded the finding which reads as follows:-
"...........It is also worth mentioning that a civil suit in this regard is pending and adjudication by a civil court will attain finality on the right, title and interest of the parties."
y. However, the appellate authority after having recorded this finding, directed that the petitioners should be evicted in accordance with Section 20 read with Section 42 of the Santhal Pargana Tenancy (Supplementary Provisions) Act 1949. Counsel for the petitioners submits that the appellate authority had clearly recorded that the order 8 which may be passed by the Civil Court in connection with right, title, interest and possession of the parties will ultimately decide the rights of the parties inter-se. Thus, there was no conclusive order which was passed by the appellate authority.
z. Against this appellate order, the petitioners filed revision before the Revisional Authority which was numbered as R.M. Second Appeal No. 15/2008-09 wherein the revisional authority confirmed the order passed by the appellate authority but has not recorded clear finding, rather held that certain questions are still un-answered. Counsel for the petitioners submits that the order passed by the appellate authority was passed on 21.05.2008 and at that point of time, the Title Suit was pending, but the order of the revisional authority which was passed in Second Appeal No. 15 of 2008 was passed on 15.06.2012 and by this time the plaintiffs of Title Suit No. 10 of 2003 had already withdrawn the Title Suit as back as in the year 2010 only during the pendency of the aforesaid second appeal before the Commissioner, Santhal Pargana, Dumka. However, it appears from the record that withdrawal of the suit was not brought to the notice of the Commissioner, Santhal Pargana Division, Dumka who ultimately confirmed the order passed by the appellate authority.
aa. Counsel for the petitioners submits that as the order passed by the appellate authority clearly indicates that right, title and interest in connection with the property will be governed by the pending Title Suit, private respondents herein having withdrawn the Title Suit , nothing is left in favour of the private respondents and accordingly the respondents have failed to get their right, title and interest determined in the Title Suit. He submits that therefore the impugned orders of eviction are otherwise also fit to be set aside.
bb. Finding of the appellate authority that the parties would be governed by the final outcome of the title suit was never challenged by the private respondents herein and accordingly the same is binding on them.
cc. The counsel for the petitioner has relied upon judgement reported in 2003(3) JCR 230 (Jhr.) and 2008(1) JLJR 506(Jhr) to submit that section 20 of the Santhal Pargana Tenancy (Supplementary Provisions) Act,1949 has no applicability in connection with properties which 9 covered under basauri settlements and such settled properties are transferrable.
6. Counsel for the respondents on the other hand submits that the claim of the 'Basouri' settlement which has been claimed by the petitioners vide Annexure-1 series of this writ petition has no basis in this case. He submits that from perusal of the orders contained therein it is not clear as to against whom the said orders have been passed. It is also not clear as to which property the said orders are related to. He further submits that from perusal of these orders it is not clear as to whether any notice was issued to the recorded raiyat and in fact private respondents claim that no notice were issued to the recorded tenant prior to passing of the orders as contained in Annexure-1 series to the writ petition. However, during the course of the argument, counsel for the respondents have found that name of the recorded raiyat appears in some of the orders which are contained in Annexure-1 series to the writ petition. But the counsel still disputes the order passed by the authority which is contained in Annexure-1 series as the same does not give description of the property. The counsel for the private respondents have referred to para 9 of the counter affidavit which reads as under :-
" That the statement made in paragraph no. 3 of the writ petition it is stated that the writ petition being wholly misconceived, no protection and enforcement of fundamental or other legal rights is available to the petitioner. The claim and contention of petitioners are hereby denied. It is significant to mention that from perusal of order passed in Revenue Miscellaneous case no. 52/2005-06 passed by the Sub- Divisional Officer, Deoghar, it appears that Bajrang Lal Sheroff has filed various documents including Jamabandi no. 15/4 and it is admitted that a Purcha stand in the name of Guru Aditya Mehra. But when Bhola Prasad Yadav had filed an application for obtaining Jamabandi no. 15/4K the revenue authority has not issued required certified copies and had made remarks that "particular is wrong, not clear where is J.B. no. 15/4 K is in the 'B' misc record". S/D A.N. Tiwari dated 15.10.2006 Xerox copy of order passed in Revenue Miscellaneous case no. 54/2006 and extract of application of certified copy is 10 and herewith marked as Annexure-A series for identification. By referring to this paragraph the counsel submits that the parcha claimed by the petitioner is itself non existing as per annexure A series to the counter affidavit.
7. Counsel for the respondents also submitted that so far as Title Suit is concerned, there is specific bar under Section 63 of the Santhal Pargana Tenancy (Supplementary Provisions) Act 1949 which clearly provides that no suit shall be entertained in any court to vary, modify or set aside either directly or indirectly any order of the Deputy Commissioner in any application which is cognizable by the Deputy Commissioner under the said Act and by referring to section 63 of the said Act , counsel for the respondents submits that filing of the Title Suit by the private parties is meaningless and has no consequences in the facts and circumstances of the case. He further submits that withdrawal of the title suit was itself collusive and accordingly the same cannot be taken into consideration while deciding the instant case. He also submits that this case is governed by the provisions of Section 20 read with Section 42 of the Santhal Pargana Tenancy (Supplementary Provisions) Act 1949 and the Title Suit has no bearing in the matter.
8. Inspite of the order passed by this Court, the respondent state has not filed any counter affidavit in this matter. However during the course of arguments the counsel appearing for the respondent state has supported the case of the respondents and submits that the impugned orders have been rightly passed.
9. After hearing counsel for the parties and going through the materials available on record, this court is inclined to allow the writ petition on account of following facts and reasons:-
i. From perusal of the record of the case this court finds that the petitioners had claimed that the property in question was acquired for Basouri settlement under Section 25-A of Regulation II of the Santhal Pargana Tenancy Regulation 1886 as back as in the year 1912-13.
ii. From perusal of the orders of the year 1912-13 as contained in Annexure-1 series it is not clear as to which property the same related to and as to who were the actual persons involved in those cases although in some of those cases the names of predecessor in interest of the private respondents 11 appear in the ordersheet.
iii. Thus this court finds that from the perusal of Annexure 1 series which are ordersheets of the year 1912-13 it cannot be said that the same related to the persons and properties involved in this case.
iv. Further case of the petitioner is that after the acquisition under Section 25-A of Regulation II of the Santhal Pargana Tenancy Regulation 1886 as back as in the year 1912-13, plots were renumbered as Basouri Plot no. 191, 176/253, 176/254, 176/255, 176/258, 176/257 and 172 and that plot no. 189,190,192,193 were also acquired and later on these plots were numbered as Deoghar Town Plot No. 1245 A and 1246A. It is the specific case of the petitioner that these plots were settled in favour of Guru Aditya Narayan Mehra by way of Basouri settlement . It is further case of the petitioner that the ancestors of the respondents wrongly got purcha prepared in their name with respect to the aforesaid plots nos. 189,190,191,192,193 and 176 and subsequently the land lord Rohini Estate filed Record Revision Case No. 229 of 1933 praying for cancellation of purcha prepared in the name of ancestors of the recorded tenant and to issue purcha in the name of the settlee. This Revision case tagged with the records of other record revision case nos. 221, 223 and 305 of 1933 and the prayer of the Rohini Estate was allowed on 18.03.1934 by the Settlement Authority.
v. From the records of the case this court finds that the fact remains that Purcha bearing no. 15/4 being Basouri Settlement Purcha was issued in the name of Guru Aditya Narayan Mehra . This is apparent from the order passed by the sub-divisional officer. The factum of issuance of purcha in the name of Guru Aditya Narayan Mehra is not disputed even by the appellate authority but the said authority has questioned it by saying that when the record revision case for cancellation of purcha issued in the name of recorded tenant was filed by Rohini Estate , then how after record revision case purcha was issued in the name of Guru Aditya Narayan 12 Mehra. On this basis, the appellate authority raised suspicion and on the one hand observed that it was apparently clear that land was never settled with Guru Aditya Narayan Mehra and simultaneously held that civil suit is pending between the parties and adjudication of the civil suit will attain finality on the right , title and interest of the parties. The revision against this appellate order was dismissed. vi. This court further finds that as per the records of this case and as recorded in the orders passed by all the three authorities , the claim of the petitioners is based on Purcha bearing no. 15/4 being Basouri Settlement Purcha issued in the name of Guru Aditya Narayan Mehra but in para 9 of the counter affidavit filed by the private respondents as quoted above, they had applied for certified copy of purcha no. 15/ 4Ka and not 15/4 which they could not get as the same was declined with a note that it was not available.
vii. From perusal of paragraph no. 9 of the counter affidavit filed by the private parties it has been specifically mentioned that a purcha referring to Jamabandi No. 15/04 stands in the name of Guru Aditya Narayan Mehra. Thus this court finds that issuance of parcha number 15/4 in the name of Guru Aditya Narayan Mehra is not disputed but the authorities could not resolve as to how the purcha was issued in his name pursuant to the revision case instituted by Rohini Estate in the year 1933 and the appellate authority found that a title suit is pending between the parties and left the issue regarding right, title and interest to be decided by the civil court in the title suit against which the private respondents herein had no grievance. Rather it was the case of the private respondents before the authorities that title suit between the parties in connection with the same property is pending before the competent court of civil jurisdiction. This order of the appellate authority was confirmed by the revisional authority.
viii. Considering the fact that the Basauri purcha has been issued in the name of Guru Aditya Narayan Mehra in view of the 13 judgment passed by this Court reported in 2003(3) JCR 230 (Jhr.), Basouri settlements are transferable and therefore it is out of the purview of Section 20 of the Santhal Pargana Tenancy (Supplementary Provisions) Act,1949. This view has also been taken by this court in judgement reported in 2008(1) JLJR 506(Jhr) and in para 7 and 8 of the said judgement it has been held as under:-
"7. I have heard learned counsel for the parties and perused the facts and materials on record. In the instant case it is almost admitted that the said land is not a Raiyati land. Section 20 of the Santhal parganas Tenancy Act, 1949 does not put any restriction on the transfer of Basauri (homestead) land. The case of Shyam Sunder Barnwal, supra, wasdifferent and regarding the transfer of a Raiyati land for which there is a statutory' bar under Section 20 of the Santhal parganas Tenancy Act. The said decision of this Court is not applicable to the facts of this case, as the land in question is a 'Basauri' land. The instruction of the Deputy Commissioner was issued in view of the provisions contained in Section 20 of the Santhal Parganas Tenancy Act, read with Bihar Stamp (Prevention of Under Valuation of Instruments) Rules, 1995. The said instruction as contained in Annexure-4 has got no application in the matter of transfer of a Basauri land. The very opening line of Annexure-6 which is the Order No. 1/07 of the Deputy Commissioner clarifies that the said instruction has been issued for the purpose of protecting the transfer of land which is otherwise restricted by the provisions of Section 20 of the Santhal Parganas Tenancy Act. The said instructions cannot be applied in the instant case in which a Basauri land has been sought to be transferred. The registering authority had erroneously asked for such verification in view of the said instruction of the Deputy Commissioner being the Office Order No. 10 dated 14.1.04 and Order No. 1/07 dated 4.1.07. It has been fairly conceded by learned J.C. to S.C. (L&C) that the Basauri land does not come within the ambit of Section 20 of the Santhal Parganas Tenancy Act and the said instructions of the Deputy Commissioner cannot be made applicable in the cases of transfer, execution and registration of the sale deed. 8. In view of the above discussion, it is held that in the instant case of transfer d 14 Basauri land, the registering authority has no ground for asking for no objection certificate from the Circle Officer. Refusal of the Circle Officer to grant such certificate by the impugned order contained in Annexure-5 series is mechanical and the same appear to be issued without any application of mind. The petitioner's land, sought to be transferred, being not a Raiyati land, there was no application of the said instructions as contained in Annexures-4 & 6 of the Deputy Commissioner. The order of the Circle Officer (Annexure-5 series) thus being unfounded is, hereby, quashed. The registering authority is directed to accept the sale deed for registration, if there is no other legal impediment, without compelling the petitioner to produce no objection certificate on the basis of the said instruction or the administrative order of the Deputy Commissioner as contained in Annexures-4 & 6."
ix. Further in the instant case , it is not the case of any of the respondents that basauri settlements are also covered by Section 20 of the Santhal Pargana Tenancy (Supplementary Provisions) Act,1949.
x. This court further finds that vide appellate order dated 21.05.2008 the appellate court has instead of giving clear cut conclusive finding in connection with the right, title and interest of the parties in connection with the property and has categorically recorded that civil suit in this regard is pending and adjudication by the Civil Court will give finality. Thereafter the revision was filed before the revisional authority and during the pendency of the matter before the revisional authority in Rev. Second Appeal No. 15/2008-09, being Title Suit No. 10/2003 which was filed by the private respondents herein itself was withdrawn by all the plaintiffs, meaning thereby the plaintiffs have either abandoned their claim of right title and interest over the property and thereby failed to establish their right, title and interest over the property. This aspect of the matter about withdrawal of the suit by the private respondents as back as in the year 2010 was not brought to the notice of the Commissioner, Santhal Paragana, Division, Dumka who had confirmed the order passed by the appellate authority.
15xi. Thus this court finds that as per the appellate order, which has been confirmed by the revisional authority , the right title and interest over the property will be governed by the decision in the title suit between the parties and the suit having been withdrawn by the private parties subsequent to the order passed by the appellate authority , this writ petition has to be allowed and no relief can be granted to the private parties and the order of eviction of the petitioners passed by the appellate authority and confirmed by the revisional authority has to be set-aside.
xii. The contention of the counsel for the respondents that the suit is barred under Section 63 of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 does not help the respondents in any manner because from perusal of plaint of the suit it appears that the suit was filed for declaration of right, title and interest on the same property and was rightly filed because of the fact that the petitioners and the respondents herein were claiming title over the property independent of each other. The petitioners were claiming right over the property by virtue of Basouri settlement under the provisions of Section 25 A of Santhal Pargana Tenancy Regulation II of 1886 and the respondents herein were claiming title over the property by virtue of being a recorded tenant. Therefore this court is of the considered view that the Title Suit was rightly filed by the respondents which was ultimately withdrawn by the respondents. Section 63 of the Santhal Pargana Tenancy (Supplementary Provisions) Act,1949 reads as follows:-
63. Bar to suits.- No suit shall be entertained in any Court to vary, modify or set aside, either directly or indirectly, any order of the Deputy Commissioner in any application which is cognizable by the Deputy Commissioner under this Act and every such order shall, subject to the provisions of this Act relating to appeal and revision, be final:
Provided that nothing contained in this section shall bar the jurisdiction of a Civil Court in matters in which it had jurisdiction immediately before the commencement of this Act.
Section 63 of the Santhal Pargana Tenancy (Supplementary 16 Provisions) Act, 1949 provides that no suit shall be entertained in any court to vary, modify or set aside either directly or indirectly any order of the Deputy Commissioner in any application which is cognizable by the Deputy Commissioner under the said Act. From perusal of the plaint of the title suit it appears that in the said suit, no prayer was made to annul any of the orders passed under the provisions of Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949. Accordingly this contention of the private respondent that filing of suit by the private respondents had no consequence in view of specific bar under section 63 of Santhal Pargana Tenancy (Supplementary Provisions) Act,1949, is hereby rejected being devoid of any merits. Moreover this court also finds that the appellate order where it was held that right title and interest will be ultimately governed by the decision in the title suit being Title Suit No. 10/2003 was never challenged by the private parties and now it is not open to them to contend that filing of suit itself was inconsequential.
xiii. The contention of the respondents that the withdrawal of the suit was itself collusive cannot be entertained in this writ petition particularly in view of the fact that this aspect of the matter was not subject matter of dispute before the authorities below.
10. As a cumulative effect to the aforesaid reasons and findings this writ petition is allowed and the impugned orders dated 15.06.2012, passed by the learned Commissioner, Santhal Paragana, Dumka in RM 2nd Appeal No. 50/2008-09 (Annexure-13) and order dated 21.05.2008 (Annexure-11) passed by learned Deputy Commissioner, Deoghar in R.M.A. No. 69/05- 06 and R.M.A. No. 100/05-06 are hereby quashed and set aside to the extent it directs the eviction of the petitioners from the property involved in this case.
11. The writ petition is accordingly allowed.
(Anubha Rawat Choudhary, J.) Binit/A.F.R. 17