Patna High Court
Jhalku Ahir vs State Of Bihar And Ors. on 9 October, 1991
Equivalent citations: 1993(1)BLJR328
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. This application is directed against the order dated 14-2-1986 passed by respondent No. 3 and as contained in Annexure 3 to the writ application and the order dated 18-10-1986 passed by respondent No. 2 as contained in Annexure 4 to the writ application.
2. The fact of the matter lies in a very narrow compass.
3. The land in dispute stood recorded in the name of respondent No. 5 and Jhari Kharia in respect of Khata No. 31 plot No. 344 measuring 64 decimals; plot No. 331 measuring 71 decimals and plot No. 336 measuring 1.50 acres--total area being 2.85 acres of land. The recorded tenants by registered deed of surrender dated 28-2-1944 surrendered 2.85 acres of land in favour of ex-lanlord namely Baralal Kandarp Nath Sahdeo. By a Hukumnama dated 16-3-1946, the ex-landlord settled the lands in question in favour of the grand father of the petitioner and came in possession thereof.
4. According to the petitioner, the said lands had all along been in possession of his grand father and upon his death by his father and thereafter by him and they had all along been paying rent to the ex-landlord and upon vesting of his estate in the State of Bihar to the office of the State of Bihar also. In the year 1977, respondent No. 5 filed an application before the Special Officer, Regulation, Gumla for restoration of the land which was tegistered as S. A. R 1235/1976-77. The said application was rejected by the Special Officer, Gumla, by his order dated 30-6-1977. No appeal was preferred by respondent No. 5 as against the said order.
However, in 1979, another application for restoration was filed by respondent No. 5 before respondent No. 4 purported to be in terms of Section 71-A of the Chotanagpur Tenancy Act which was registered as SAR case No. 428/1979-80. By an order dated 28-3-1991 as contained in Annexure 2 to the writ application, respondent No. 4 rejected the said application.
5. Respondent No. 5 preferred an appeal before respondent No. 3 which was registered as Revenue Appeal No. 35 of 15/1981-82 and by an order dated 14-2-1986, the said appeal was allowed and the lands in-question were directed to be restored in favour of respondent No. 5. The said order dated 14-2-1986 is contained in Annexure 3 to the writ application.
6. The petitioner preferred a revision application against the said appellate order before the respondent No. 2 which was registered as Ranchi Revenue Revision Case No. 156 of 1986 and by an order dated 18-10-1986, the said revision application was rejected in limine which is contained in Annexure 4 to the writ application.
7. Respondent Nos. 2 and 3 in their orders which are contained in Annexure 4 and 3 to the writ application respectively purported to have held that the surrender of the land by the recorded tenant contravenes the provision of Section 72 of the Chotanagpur Tenancy Act and, thus, respondent No. 5 was entitled to an order of restoration.
8. It is now well settled that prior to coming into force of Chotanagpur Tenancy (Amendment) Act, 1947, the recorded tenants were not required to obtain prior permission of the Deputy Commissioner before effecting surrender of their raiyati holdings. It is also not a case where respondent No. 5 has contended that the surrender made by the recorded tenants to the ex-landlord and the consequent settlement made by the ex-landlord in favour of grand father of the petitioner being part of the same transaction, the same contravenes provision of Section 46 of the Chotanagpur Tenancy Act.
9. In this view of the matter, evidently, the impugned orders as contained in Annexures 3 and 4 to the writ application cannot be sustained.
10. Mr. Laxmi Narayan learned Counsel appearing for respondent No. 5, however, submitted that admittedly 2,85 acres of land were surrendered out of total 35 acres of land and in that view of the matter, the said surrender contravences the provisions of Sub-Section (4) of Section 72 of the Chotanagpur Tenancy Act.
11. learned Counsel in this connection has relied upon a decision of this Court in Timan Sheikh v. Salabat and Ors. reported in AIR 1932 Patna 7 and in unreported decision of mine in Ram Lakhan Ram v. Commissioner South C. N. Division in C.W.J.C. No. 963 of 1986 (R).
In Timan's case (supra), this Court held as follows:
In my opinion there is a good deal of difference between the surrender of an entire holding and the surrender of a portion of the holding without the consent of the landlord is a statutory right given to a raiyat and, therefore, the statutory consequences will follow and one of them is this: that the occupancy right comes to an end and the landlord is entitled to re-enter upon the land disregarding ail the facts done by the late raiyat. The surrender of a part of the holding is a matter of contract between the landlord and they raiyat, it cannot be done except by mutual agreement and when this is so, it is obvious that the landlord and tenant by coming into an agreement among themselves cannot defeat or destroy the right of a third person and the equitable doctrine that a person cannot be allowed to derogate from his own grant applied in this case.
12. In view of the aforementioned decision of this Court there cannot be any doubt that in view of Sub-Section (5) of Section 72, such an arrangement can be entered into whereby the recorded tenant can surrender a part of raiyati holding in favour of the landlord.
13. In view of the aforementioned decision itself, it is evident that surrender of a part of the holding by itself will not render the same wholly illegal and void ab initio nor such an arrangement contravenes the provisions of Section 72 of the said Act.
14. In my opinion, in a case whether surrender has been effected by virtue of a registered deed and necessary averments in that regard are stipulated in the deed itself, such an arrangement has to be presumed inasmuch as a registered deed has its own sanctity.
15. In this view of the matter, the submission of Mr. Laxmi Narayan cannot be accepted. Mr. Laxmi Narayan, however, submitted that this case should be remanded back to respondent No. 4 to find out as to whether an arrangement was entered into by and between the recorded tenants and the ex-landlord in terms of Sub-Section (5) of Section 72 of the said Act or not.
16. n this case, such a direction is not necessary in view of the fact that admittedly respondent No. 5 filed an application for restoration' of his land earlier which was dismissed by the Special Officer, Gumla, by an order dated 30-6-1977 as contained in Annexure 1 to the writ application. The aforemention ed order shall operate as res judicata as against respondent No. 5.
17. In this view of the matter, this application is allowed and the impugned orders as contained in Annexures 3 and 4 are set aside. However there will be no order as to costs.