Jharkhand High Court
Haroon Oraon And Anr. vs State Of Bihar And Ors. on 8 February, 2001
Equivalent citations: 2001(49)BLJR1070, 2001 AIR - JHAR. H. C. R. 47, 2001 A I H C 1951 2001 BLJR 2 1070, 2001 BLJR 2 1070
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. In this writ application petitioners have challenged the order, dated. 28.7.1998 passed by Commissioner, South Chhotanagpur Division, Ranchi in S.A.R. No. 217/94, whereby, he has allowed the revision application and set-aside the order of restoration of land passed by Special Officer, Schedule Area Regulation, Ranchi in S.A.R. No. 116/92-93 and the order, dated 7.9.1994 passed by Additional Collector, Ranchi in the Regulation Appeals No. 2 R5/93-94 and S.A.R. appeal No. 89R 15/93-94.
2. The facts of case lie in a narrow campus.
3. The land pertaining to R.S. Plot No. 3126, Khata No. 232 area 43 decimals of village Argora, Ranchi stood recorded in the name of father of the writ petitioners, namely, Martin Oraon along with Samual Oraon, Haroon Oraon and Prabhudas Oraon. After the death of the recorded tenant, the petitioner inherited the aforesaid land and were exercising all right title interest and possession. Petitioners' case is that, in 1983-84, while petitioners were in peaceful possession of the aforesaid land, the respondent Nos. 6 to 8 illegally and forcefully dispossessed them and tried to construct a hut. Petitioners after having failed to evict the respondents from forceful possession moved the Special Officer in 1992 by filing application for restoration under Section 71-A of the Chhotanagpur Tenancy Act. The said application was registered as S.A.R. Case No. 116/92-93. The opposite-party Nos. 6 to 8 (in short, "private respondents") appeared and opposed the restoration application on the ground that they are in possession of the land in exchange of other land much before 50-60 years and they have made construction over it. The said respondents in support of their claim filed sada document of exchange allegedly signed by the father of the petitioners, namely, Martin Oraon. The Special Officer after considering the case of the parties held that petitioners were illegally dispossessed from the land in question and accordingly ordered for restoration of land in favour of the petitioners. The Special Officer, however, held that since the respondents have been found in possession of the land in question for more than 30 years, they are entitled to get compensation under the Proviso to Section 71-A of the said Act.
4. Aggrieved by the order, dated 2.2.1993 passed by the Special Officer, the respondents filed appeal before the Additional Collector being S.A.R. Appeal No. 2 R-15/93-94. The Petitioners also filed S.A.R. Appeal No. 89-R 15/93-94 against that part of the order of the Special Officer whereby he has directed for fixation of compensation. Both the appeals were heard together and disposed of by the Additional Collector in terms of order, dated 7.9.1994. The Appellate Authority after hearing the parties and after considering all the documents came to the conclusion that respondents failed to prove their possession over the land in question since before 1969. The Appellate Court further held that the document alleged to be of the year 1942 is not an important paper but an unregistered sada document and no legal validity attached to it. The Appellate Authority recorded a finding that the respondents are in illegal possession of the land for the last about ten years. Accordingly, the Appellate Authority dismissed the appeal filed by the respondents and allowed the appeal filed by the petitioners and set-aside that part of the order of the Special Officer whereby he has directed for restoration of land on payment of compensation. The respondents then filed Revision before the Commissioner, South Chhotanagpur Division, Ranchi against the orders passed by the Appellate Authority. The said revision application was registered as S.A.R. No. 270/1994. The Revisional Authority allowed the revision application and sot-aside the orders of restoration passed by the respondents authority by the impugned order holding that sada document of the year 1942 is a deed-of-exchange whereby respondents came in possession of the land in question, and the said deed-of-exchange is a valid document.
5. Mr. T.N. Jha, learned counsel appearing for the petitioners assailed the order of the Revisional Authority as being illegal and wholly without jurisdiction. Learned counsel firstly, submitted that the Commissioner has committed serious error of record in holding that the petitioners have not denied and disputed the deed-of-exchange as also the alleged possession of the land by the respondents before 1983-84. Learned counsel further submitted that the Commissioner, South Chhotanagpur Division, Ranchi while passing the impugned order completely over-looked the finding of the Appellate Court about the denial of deed-of-exchange by the petitioners. Learned counsel lastly, submitted that the order of restoration passed by the Appellate Authority is perfectly in accordance with law.
6. On the other hand, Mr. A.K. Sinha, learned counsel appearing for the respondents submitted that the Commissioner has passed the impugned order after correct appreciation of facts and law and therefore, this Court may not interfere in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution of India. On merit of the case, learned counsel submitted that by sada hukumnama, dated 23.7.1942, the father of the petitioners namely, Martin Oraon gave the land in question to the respondents in exchange of other land and since then respondents have been exercising their right title and possession. Learned counsel further submitted that the said document is legal and valid document and the Commissioner has rightly relied on the said document and dismissed the restoration application filed by the petitioners.
7. As noticed above, the original Court, namely, the Special Officer, Schedule Area Regulation recorded a finding that the alleged transfer of disputed land by so-called sada document of exchange is in contravention of the provisions of Chhotanagpur Tenancy Act and therefore, the land is fit to be restored in favour of the petitioners. However, the Special Officer, held that since the respondents have been in possession of the land for more than 30 years, they are entitled to get compensation. The Appellate Authority, namely, the Additional Collector, Ranchi has gone in details of the entire facts of the case and the documentary evidence adduced by the parties. The Appellate Authority disbelieved the genuineness of the alleged sada document of the year 1942 and held that in any view of the matter the deed-
of-exchange being unregistered document, no transfer could be affected by such document. The Appellate Authority further recorded a finding that the petitioners were dispossessed only ten years before and therefore, they are not entitled to get compensation for the restoration of the land in favour of the petitioners.
8. The Commissioner proceeded to decide the issue on the basis that the so-called deed-of-exchange has not been denied by the petitioner. For better appreciation para 3 of the impugned order passed by the Commissioner is reproduced herein-below :
"3. Heard the learned Advocates of both the parties and perused the lower Court records and the orders passed by the learned lower Courts. The petitioners are claiming the lands in question on the basis of deed-of-exchange executed in 1942. The petitioners had filed the deed-of-exchange signed on 23.7.1942 by Martin Oraon on the one hand and Shanti Prakash Oraon along with Bhikha and Jaimasih Oraon on the other hand. The deed-of-exchange produced by the petitioners had not been denied by the OPs. They have also not denied about the possession over 461/2 decimals of land of Plot No. 2735 of Khata No. 88 of village Argora. No permission of the Deputy Commissioner was required in the year 1942 for the exchange of land between the members of scheduled tribes. The learned lower Court has held that no value can be attached to the sada deed-of-exchange and has mentioned the provision of Section 118 and Section 54 of the TP Act. The learned Advocate on behalf of the petitioners has very clearly mentioned that the valuation of the land at the time of exchange was less than Rs. 100/- and, therefore, according to TP Act, the deed need not be registered. Even unregistered deed-of-exchange followed by delivery of possession confers absolute right title and interest as has been held by Hon'ble High Court in a decision (AIR 1990 Punjab 89) and by the Supreme Court in AIR 1987 SC 841. There is nothing on record to prove that the valuation of land in question was more than Rs. 100/- in 1942. The theory of exchange is substantiated by the fact that the OPs have not denied their possession over the ex-
changed land. Thus, there has been no contravention either of the provision of Section 46 or any other provision of CNT Act and, therefore, the land cannot be restored to the OPs."
9. Curiously enough in the body of the order while discussing the case of the parties, the Commissioner took notice of the fact that alleged deed-of-exchange was denied by the petitioner but in subsequent para of the order the Commissioner on appraisal of the evidence held that the petitioner has not denied the said document. The Commissioner also held that no permission of Deputy Commissioner is required for exchange of land between the members of Scheduled Tribes. The Commissioner further held that even an unregistered deed-of-exchange followed by delivery of possession confers absolute right, title and interest in the property.
10. The entire approach of Commissioner is absolutely erroneous and unsustainable in law. He has neither correctly appreciated the fact nor the law on this subject. The respondents in their show-cause filed before the Special Officer took the defence that the land in question came in their possession for more than 50-60 years by virtue of mutual transfer by sada patta. A copy of the show-cause has been filed by the petitioner and annexed as Annexure 6 to the writ petition. Para 2 of the show-cause reads as under :--
"That the first party mutually transferred the said land by sada patta about 50-60 years before after that they are in peace full possession over the same land since 50-60 years. Because they are the members of schedule tribe hence, registered transfer was not made."
11. Curiously enough even the date, month and year when sada patta was executed has not been disclosed in the show-cause. In the counter-affidavit filed before this Court the respondents have made out a different case. Para 9 of the counter-affidavit is worth to be quoted hereinbelow :--
"That with regard to the statements made in paragraph 5 to the writ application, it is stated that on 23.7.1942, by a sada hukumnama Martin Oraon gave 43 decimals of the land out of Plot No. 2126, Khata No. 232 village-Argora in exchange and in lieu of that, Bhikha Oraon and Shanti Prakash Oraon son of Kajru Oraon and Jai Masih Oraon son of Gemtha Oraon gave 461/2 decimal of land out of Plot No. 2735, Khata No. 89, village-Argora to Martin Oraon and since then Shanti Prakash Oraon the father of the answering respondents came into the possession of the said land and Martin Oraon came into possession of 461/2 decimal of land out of Plot No. 2735 of Khata No. 89 of the said village."
Copy of the so-called hukumnama which is the basis of the claim of the respondents has been annexed as Annexure-A to the counter-affidavit. The nature of this document has been shown as "patta badlain (deed-of-exchange). From the contents of this document it appears that the land in question has been transferred to the respondents in exchange of their land claiming themselves to be the raiyat of their respective land. In view of this admitted facts, the defence taken by the respondents in their counter-affidavit that the land was transferred in favour of the respondents is false and fabricated. At no stretch of imagination, the alleged transfer of land could have been done by virtue of hukumnama. There is vast difference between hukumnama and a deed-of-exchange.
12. Hukumnama is a document by which raiyati settlement is made by the landlord in favour of raiyat and such document also requires registration. An unregistered hukumnama is inadmissible in evidence but if a person claims to have obtained raiyati interest by virtue of unregistered hukumnama and further asserts that he came into actual possession of the land and continued in such possession and that his payment of rent has been accepted by the landlord, then his title to raiyati interest may be recognised. On the other hand, a deed-of-exchange is altogether a different transaction by which two persons mutually transfer ownership of one thing for the ownership of another. Such transaction must be made only by a registered document as required in case of transfer of property by sale.
13. Curiously enough the Commissioner has neither even applied his mind nor correctly understood the decisions referred in the order while holding that an unregistered deed-of-exchange followed by delivery of possession confers absolute right, title and interest in respect of the land in question. How the Com-missioner has relied upon the decision of the Supreme Court (AIR 1987 SC 841) in which the ratio decided is that an award given by the arbitrator under the Arbitration Act, if creates, declares, assigns, limits or extinguishes any right, title and interest, should be registered. Similarly in the case of Bhagwan Kaur v. Ranjit Singh, 1990 Punjab 89, the question came for consideration before the Punjab High Court was whether unregistered deed-of exchange made in 1951 can be relied upon when it was followed by delivery of possession. Their Lordship took notice of the fact that Sections 54, 107 and 123 of the Transfer of Property Act were made applicable to the erstwhile State of Punjab in 1955. On these facts, the Punjab and Haryana High Court held that exchange could be made orally followed by delivery of possession and an entry to that effect in the mutation register.
14. Besides the above, in the so-called deed-of-exchange (Annexure A), there is no mention of valuation of the land allegedly transferred. It is worth to notice here that the area of the land in question is 33 decimals situated at village Argora in the city of Ranchi. At no stretch of imagination even in 1942, the valuation of the entire 33 decimals of land was below Rs. 100/-. It is also not the case of the respondents that since the valuation of the iand was Rs. 100/-, the transfer was made by unregistered document. In spite of all these facts, the Commissioner has illegally and erroneously assumed that in absence of any evidence of the valuation of the land for more than Rs. 100/- the question of registration of the document does not arise.
15. As noticed above, the alleged document is in the nature of deed-of-ex-change. No transfer of immovable property could be effected without registration. Section 118 of TP Act specially provides that a transfer of property in completion of an exchange can be made only in the manner provided for the transfer of such property by sale. Section 45 of the Act defines the Sale and provides as under :--
"Sale" defined.--"Sale" is a transfer of ownership in exchange for a price or promised or port-paid and part-promised.
Sale how made.--Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
In the case of tangible immovable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property."
16. From perusal of the above provision, it is clear that in case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by registered instrument or by delivery of the property. There can be no doubt, therefore, that irrespective of the valuation of the property if the sale of tangible immovable property is effected in writing by a document then it requires registration. Same principle will apply if transfer of property in exchange is made by an instrument.
17. The Special Officer rightly came to the conclusion that it was only after 13.1.1984, the respondents obtained some chaukidari receipt and municipal receipts showing their possession over the land, It is, therefore, clear that the petitioners were dispossessed from the land in question in the year 1983-84 and not before that. It is well-settled that if a member of Schedule Tribe is dispossessed by any means then the provision of Section 71-A of the Act is attracted and such member of the scheduled tribe becomes entitled to get restoration of possession of the land.
18. In the case of Pandey Oraon v. Ram Chander Sahu, AIR 1992 SC 195, the apex Court while considering the scope of Section 71- A of the Act held as under:--
"6. In Section 71-A in the absence of a definition of transfer and considering the situation in which exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of transfer-to-transfer under the Transfer of Property Act or a situation where transfer has a statutory definition. What exactly is contemplated in the provision is where possession has passed from one to another and as a special physical fact the member of the scheduled tribe, who is entitled to hold possession and a non-member has come into possession would be covered by transfer and a situation of that type would be amenable to exercise of jurisdiction within the ambit of Section 71-A of the Act."
Their Lordships further observed that :--
"The provision is beneficial and the legislative intention is to extend protection to a class of citizens, who are not in a position to keep their property to themselves in the absence of protection. Therefore, when the legislature is extending special protection to the named category, the Court has to give a liberal construction to the protective mechanism which would work out the protection and enable the sphere of protection to be effective than limit by the scope."
19. Having regard to the entire facts and circumstances of the case and the law discussed hereinbefore, I have come to the conclusion that the petitioners were illegally dispossessed from the land in question and no reliable and admissible evidence have been produced by the respondents to show their title and possession for more than 30 years. The impugned order, therefore, passed by the Commissioner cannot be sustained in law.
20. In the result, this application is allowed and the impugned order passed by the Commissioner is quashed and the order of restoration passed by the Appellate Authority is restored.
21. Petition allowed.