Jharkhand High Court
Kedar Nath Nayak And Ors vs Collectariate on 13 January, 2017
Author: Shree Chandrashekhar
Bench: Shree Chandrashekhar
1.
IN THE HIGH COURT OF JHARKHAND, RANCHI
W.P.(C) No. 6734 of 2013.
with
I.A. No.6340 of 2016
with
I.A. No.6289 of 2016
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1.Kedar Nath Nayak
2.Bisheshwar Nayak
3.Dineshwar Nayak
4.Paresh Nayak
5.Naresh Nayak
6.Nimai Nayak
All sons of Late Shiv Prasad Nayak
7.Ratan Kumar Nayak
8.Ravi Kumar Nayak
Both sons of Late Jagdish Nayak
9.Panchanand Nayak, son of Late Goving Ram Nayak
10.Subodh Chandra Nayak
11.Prabodh Nayak
Both sons of Late Chaturbhuj Ram Nayak
12.Satyadeo Nayak, son of Late Jaleshwar Ram Nayak
13.Samdeo Nayak, son of Late Gopal Ram Nayak
14.Krishna Kumar Nayak
15.Nand Kishore Nayak
Both sons of Late Devendra Ram Nayak
16.Prabhat Kumar Nayak, son of Late Jyotish Nayak
17.Santosh Nayak, son of Late Suresh Nayak
All resident of Village - Oberia, P.O. - Hatia, P. S. Jagarnathpur, District,
Ranchi ..... Petitioners
--Versus--
1.State of Jharkhand
2.Deputy Commissioner, Ranchi
3.Land Reforms Deputy Collector, Ranchi
4.Circle Officer, Namkum Anchal, Ranchi
5.Mohan Singh, son of Shiv Charan Singh,
Resident of Village-Hesag, P.S.-Jagarnathpur,District- Ranchi (Jharkhand)
6.Ashok Kumar Anand alias Kallu,
son of Late Mallick Pishaury Lal, resident of Lohardaga Road, Gumla,
P.O., P.S. and Dist.Gumla (Jharkhand) .... Respondents
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CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
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For Petitioner nos.1 to 8 : Mr. Bijay Jalan, Advocate
For Petitioner nos.9 to 14 : Mr. Ayush Aditya, Advocate
Mr. Shashank Shekhar, Advocate
Mr. Satya Narayan Prasad, Advocate
For Petitioner nos.15 to 17 : Mr. Kailash Kumar Ranjan, Advocate
Mr. Rahul Kumar Gupta, Advocate
For the State(Resp.nos.1-4): Mr. Manoj Kumar, S.C.(Mines)
Mr. Ashutosh Kr. Singh, JC to SC(Mines)
For Respondent no.5 : Mr. Rupesh Singh, Advocate
Mr. Suraj Verma, Advocate
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12/ 13.01.2017Aggrieved by order dated 28.09.2013 passed in Mutation Revision No.99R15/2012-13, the petitioners have approached this Court. 2.
2. One interlocutory application being I.A. No.6340 of 2016 has been filed by petitioner nos. 1 to 8 and another interlocutory application being I.A. No.6289 of 2016 has been filed by petitioner nos. 15, 16 and 17, for withdrawing the writ-petition. Mr. Bijay Jalan, the learned counsel for the applicants/petitioner nos. 1 to 8 and Mr. Rahul Kumar Gupta, the learned counsel for the applicants/petitioner nos. 15, 16 and 17 state that these applicants have instituted Title Suit No.525/2016 challenging the Sale Deed dated 05.12.2011 executed in favour of respondent no.5 namely, Mohan Singh and for declaration of their right, title and interest over 4.50 acres land comprised in Khata no.130 within Thana no.297 at Mauza-Oberia, Ranchi and for this reason they are withdrawing their challenge thrown to order dated 28.09.2013. This prayer is not opposed by the counsel for the respondents.
3. I.A. No.6340 of 2016 and I.A. No.6289 of 2016 stand allowed.
4. Mr. Ayush Aditya, the learned counsel for petitioner nos.9 to 14 submits that without issuing notice, to the person in whose name the Jamabandi was running or to his legal heirs and successors, the Circle Officer ordered mutation in respect of 4.50 acres land comprised in Plot nos.617, 640, 713 in Khata no.130 within Thana no.297 in the name of respondent no.5, which is in gross violation of the mandatory provisions under the Bihar Tenants Holding (Maintenance of Records) Act, 1973. Referring to the findings recorded by the revisional authority, the learned counsel contends that a finding on title of the parties has been returned by the revisional authority on mere ipse-dixit. It is contended that the revenue authorities are not expected to adjudicate the complicated questions of fact particularly, dispute of title.
5. Per contra, Mr. Rupesh Singh, the learned counsel appearing for respondent no.5 contends that after the mutation order dated 30.12.2011 was passed, the land in question was transferred to different persons who were not made parties before the appellate authority or in the present 3. proceeding and on this ground alone the writ-petition is liable to be dismissed. It is contended that on the basis of the report of Halka karamchari and the materials brought on record, the revisional authority has recorded a finding that the land sold in auction-sale was not exclusively purchased from the fund provided by Ram Pratap Ram Nayak rather, others had also contributed and that is the reason name of Harkhu Ram Nayak and Gopi Ram Nayak are duly reflected in Register-II and while so, the revisional authority has rightly recorded a finding that the land in question was jointly acquired by Ram Pratap Ram Nayak, Harkhu Ram Nayak and Gopi Ram Nayak.
6. Pursuant to order dated 01.09.2015 record of Mutation Case No.3152-R-27/2011-12 has been received in the Court. I have perused the proceeding in the said mutation case.
7. Out of 14.01 acres land comprised in Khewat No.13/1, Thana No.297 at Mauza-Oberia, 4.50 acres is in question. Originally, the entire property comprising 14.01 acres land belonged to the khewatdar namely, Manua Pahan, which was sold in auction-sale on 10.12.1935. The predecessor-in-interest of the petitioners namely, Ram Pratap Ram Nayak was the auction-purchaser. It is pleaded that he came into exclusive possession of 14.01 acres land and paid rent to the ex-landlord. After vesting of jamindari, jamabandi was opened in his name and he continued to pay rent to the State. The record of Mutation Case No.3152-R-27/2011- 12 discloses that on the application of respondent no.5 filed on 15.12.2011, the Circle Officer ordered Aam Ishtihar (public notice) and a report from the Halka karamchari was called for. The next date fixed was 30.12.2011, when in view of the report of the Halka karamchari mutation in the name of respondent no.5 was ordered. Before the Circle Officer no objection was made by any of the petitioners. The petitioners have pleaded that no notice was issued to them. This is corroborated from the record of the mutation case. It needs to be indicated that "Aam Ishtihar" is not 4. published in the newspaper rather, it is in the form of a notice put on notice-board in the office of the Circle Officer.
8. The petitioners preferred Mutation Appeal No.49-R-15/2012-13 challenging the order of mutation in the name of respondent no.5. Before the appellate authority status of Harkhu Nayak as one of the legal heirs of Ram Pratap Ram Nayak or Govind Ram Nayak or Devendra Ram Nayak was disputed and he was labelled as a stranger. It was alleged that the opposite party (respondent no.5 herein) is a property dealer who deceitfully got a power of attorney executed from Lakhi Ram Nayak, Ram Sevak Nayak, Jaleshwar Nayak and Dev Narayan Nayak in favour of one Chandra Shekhar Sharma and through the said power of attorney holder the Sale Deed was executed on 05.12.2011. The respondent no.5 has relied on a document of family partition dated 15.11.1936 which was denied by the petitioners. The petitioners further alleged that the order of mutation has been obtained in connivance of the Halka Karamchari and the Circle Officer. The appellate authority interfered with order dated 30.12.2011 passed by the Circle Officer.
9. Admittedly, sale certificate was issued in the name of Ram Pratap Ram Nayak, who is the auction-sale purchaser in respect of 14.01 acres land, out of which 4.50 acres land is in question. It is not in dispute that after a sale certificate was issued on 21.05.1936 possession of 14.01 acres land was delivered to Ram Pratap Ram Nayak in Execution Case No.916/1935-36. It is also a matter of record that mutation in respect of 14.01 acres land is in the name of Ram Pratap Ram Nayak through whom the present petitioners are claiming their right, title and interest over the disputed land. In its report, the Halka karamchari has recorded that for payment of Rs.150/- which was the consideration amount for sale of 14.01 acres land in Certificate Case No.916/1935-36, Ram Pratap Ram Nayak had contributed Rs.80/-, Harku Ram Nayak Rs.49/- and Gopi Ram Nayak Rs.21/-. Neither in the report of Halka karamchari nor in any of the orders passed 5. by the authorities, it has been disclosed how the Halka karamchari recorded the aforesaid facts in its report, about 75 years after the purchase in auction-sale. The vendors of respondent no.5 are, Lakhi Narayan Nayak, Ram Sevak Nayak, Jaleshwar Nayak and Deo Narayan Nayak. Recitals in the Sale-Deed dated 05.12.2011 would disclose that they are claiming right, title and interest over the land in question through Harkhu Ram Nayak. Records produced in the present proceeding do not disclose that mutation in respect of 4.50 acres land comprised in Plot nos.617, 640 and 713 in Khata no.130, within Thana no.297 at Mauza-Oberia, Ranchi was running in the name of Harkhu Ram Nayak and while so, the Circle Officer could not have entertained the application for mutation without verifying the validity of Sale-Deed dated 05.12.2011 from the persons in whose name Jamabandi was running. Section 14 of the Bihar Tenants Holdings (Maintenance of Records) Act, 1973 mandates notice to the parties concerned for filling objection and a reasonable opportunity of hearing to the parties. This procedure was not followed by the Circle Officer.
10. The findings recorded by the revisional authority are not supported by the order passed by the Circle Officer in Mutation Case No.3152-R-27-2011-12 and the facts recorded by the revisional authority are not based on indisputable documents. Since there is no order of a competent authority for mutation in the name of Harkhu Ram Nayak, and neither by an order of a competent court nor through an amicable settlement the disputed 4.50 acres land was alloted to Harkhu Ram Nayak, the revisional authority committed serious error in law and exceeded its jurisdiction in holding that 4.50 acres land belonged to Harkhu Ram Nayak. Reliance on an oral settlement-deed dated 15.11.1936 was wholly unwarranted. The revisional authority could not have adjudicated the disputed questions of fact for deciding title over the disputed property. The objection raised by the respondent no.5 that subsequent purchasers were 6. not made parties before the appellate authority or before this Court must be rejected, for the reason that before the revisional authority he had also failed to implead the purchasers. Moreover, a subsequent purchaser can only plead bona-fide of his own purchase and his presence before the revenue authorities, when the order of mutation is challenged, is not necessary. Interestingly, the alleged owners, who could have asserted their title over the disputed property, were not made party by the respondent no.5.
11. In the light of the aforesaid facts, impugned order dated 28.09.2013 passed in Mutation Revision No.99R15/2012-13 becomes unsustainable and accordingly, it is hereby quashed. Order passed by the Land Reforms Deputy Collector, Ranchi, in Mutation Appeal No.49R15/2012-13 is restored. However, considering the fact that some of the petitioners have instituted Title Suit No.525/ 2016 challenging the Sale Deed dated 05.12.2011 executed in favour of respondent no.5, for avoiding multiplicity of litigation it is hereby ordered that till the pendency of the title suit, the land comprised in Sale Deed dated 05.12.2011 shall not be alienated /transferred by any of the parties, and the parties shall co-operate for speedy disposal of Title Suit No.525 of 2016.
12. Original record shall be transmitted to the court concerned.
13. In the light of the above order, I.A. No.3529 of 2016, I.A. No.4469 of 2016 , I.A. No.4797 of 2016 and I.A. No.5149 of 2016 stand disposed of.
(Shree Chandrashekhar, J.) SI/,,