Jharkhand High Court
Sudha Singh vs The State Of Jharkhand on 6 April, 2018
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 3173 of 2017
Sudha Singh
Wife of Late Sidheshwar Singh, resident of Tagore Path, Bijulia, PO
& PS- Ramgarh, District- Ramgarh ...... Petitioner
-V e r s u s-
1. The State of Jharkhand
2. Deputy Commissioner, Ramgarh
3. Land Reforms Deputy Collector, PO, PS & District- Ramgarh
4. Circle Officer, Ramgarh, PO, PS & District- Ramgarh
5. Laxmi Narayan Singh, son of late Bhim Singh, resident of village
Bankheta, PO, PS & District- Ramgarh ...... Respondents
CORAM: - HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner :- Mr. Amar Kumar Sinha, Advocate Mr. K. K. Ambastha, Advocate For Respondent nos. 1 to 4 :- Mr. Atanu Banerjee, G.A. Mr. Apurv, A.C. to G.A. For respondent no. 5 :- Mr. Vishal Tiwari, Advocate Mr. S.K.Chaturvedy, Advocate Order No.-08 Dated: 06.04.2018 The present writ petition has been filed for quashing the order dated 17.10.2015(Annexure-5 to the writ petition) passed by the Deputy Commissioner, Ramgarh (respondent no.2) in Mutation Revision No. 56 of 2010 whereby the Circle Officer, Ramgarh (respondent no.5) has been directed to stay the issuance of rent receipt with respect to the land in question.
2. The factual background of the case as stated in the writ petition is that the land under Khata No. 8 situated at village Bankheta, P.S Ramgarh, District - Ramgarh was recorded in the C.S record of right as "Jirat Malik" in the name of Kishun Singh and the land of Khata No. 9 of the said village was recorded as "Bakast Malik" in the name of Kishun Singh who remained in possession over the said land so long he was alive and after his death, his only son Dhiraj Nath Singh inherited the same and continued in possession thereof. Dhiraj Nath Singh died leaving behind his widow Janak Kunwari and his son Hemnath Singh who jointly inherited the land and after vesting, the demand was opened in the name of Janak Kunwari. Hemnath Singh was married to Pancham Kunwari. Pancham Kunwari adopted the husband of the petitioner namely Sidheshwar Singh according to the custom and executed and 2 registered a deed of adoption dated 13.04.1977. Pancham Kunwari @ Pancham Devi out of her love and affection made gift of the land measuring an area of 5.63 ½ acres out of plot nos. 1195, 1196, 948, 949, 1002, 1004, 1043, 1007, 1044, 1046, 1047, 1079, 1100, 1177, 1127, 1128, 1135, 1142, and 1144 of Khata No. 8 and 9 of the said village (hereinafter to be called the 'said land') to the husband of the petitioner namely Sidheshwar Singh by virtue of registered deed of gift dated 26.04.1994 and the donee came into possession over the same. The Circle Officer after making due enquiry on the factum of possession and semblance of title mutated the name of the husband of the petitioner in the revenue records with respect to the aforesaid land and the husband of the petitioner went on to make payment of the rent to the revenue authorities and rent receipts were issued in his favour acknowledging his possession over the said land. Aggrieved thereby, Pancham Kunwari filed Mutation Appeal No. 02 of 2008-09 before the Deputy Collector Land Reforms, Ramgarh, (respondent no.3), however the appeal was dismissed vide order dated 26.03.2010. Pancham Kuwari filed Mutation Revision No. 56 of 2010 before the respondent no.2 and during the pendency of the revision, she died and in her place, Laxmi Narayan Singh (respondent no.5) was substituted in the case. The respondent no.2 finally vide order dated 17.10.2015 directed the parties to move before the civil court of competent jurisdiction and in the meantime, the respondent no. 4 was directed to stay the issuance of rent receipt with respect to the land.
3. Mr. Amar Kumar Sinha, learned counsel for the petitioner submits that the petitioner being the wife and legal heir of the deceased Sidheshwar Singh is in physical possession over the land having acquired the same in a legal and valid manner and the respondent no. 5 being the stranger has no right, title, interest and possession over the aforesaid land. It is further submitted that the order passed by the respondent no. 2 directing the respondent no.4 to stop the issuance of rent receipts with respect to the said land without giving any cogent reason is void and without jurisdiction. It is also submitted that the respondent no. 2 has exceeded his jurisdiction by directing the respondent no.4 to stay issuance of rent 3 receipt without going into the merits of the case. The name of the husband of the petitioner namely Sidheshwar Singh (since deceased) was duly mutated by the respondent no. 4 after making due enquiry on the factum of possession and semblance of title and the same has been affirmed in appeal and thus the respondent no. 2 had no jurisdiction to pass order directing the respondent no.4 to stop issuance of rent receipt with respect to the said land. It is further submitted that in view of the settled position of law that mutating authority has only to find out the actual physical possession of the land on the date of filling application for mutation, the findings of the respondent no. 2 otherwise in this regard is wholly perverse and the same is against the mandate of law. In the recent survey operation, the survey authorities have found the possession of the husband of the petitioner over the said land and the preliminary parcha has also been granted in his name.
4. Learned counsel for the petitioner has put reliance on a judgment rendered by the Hon'ble Supreme Court in the case of Chattar Pal Vs. Mandir Thakurji & Ors. reported in (2003) 10 SCC 360. Further reliance has been placed on a judgment dated 15.01.2018 rendered by this Court in W.P.(C) No. 2167 of 2013 (Ram Kumar Singh & Ors. Vs. The State of Jharkhand & Ors.).
5. Mr. Atanu Banerjee, learned G.A, appearing on behalf of the respondent-State submits that the dispute between the parties can only be adjudicated by the civil court, thus the revisional court has rightly directed the respondent no. 5 to move before the civil court of competent jurisdiction. It is further submitted that the order for stay of issuance of rent receipt of the said land is justified to prevent the blood shed due to serious apprehension of the breach of peace prevailing over the land in question.
6. Mr. Vishal Tiwary, learned counsel for the respondent no. 5 (private respondent) submits that the said land has been recorded in the survey Khatian in the name of Vishun Singh who died leaving behind Dhirajnath Singh. Dhirajnath Singh also died leaving behind his wife Mosmat Janak Kunwari and son Hemnath Singh. Hemnath Singh married to Pancham Kunwari. After coming into force of the 4 Bihar Land Reforms Act, 1950, the jamabandi was opened in the name of Mosmat Janak Kunwari. Hemnath Singh died leaving behind Mosmat Janak Kunwari, who adopted the husband of the petitioner namely Sidheshwar Singh. Further contention of the learned counsel for the respondent no. 5 is that the husband of the petitioner claimed his right upon the said land by way of forged and fabricated document and as such Mosmat Pancham Kunwari and the respondent no.5 filed objection. It is further submitted that the revisional authority rightly directed the respondent no. 4 to stay the issuance of rent receipt in the favour of the petitioner. It is also submitted that Pancham Kunwari had published a general notice in the daily newspaper stating that Sidheshwar Singh was not looking after her and as such she deprived him of her property. The property was as coparcenary property, hence Pancham Kunwari could not have gifted the property in favour of the husband of the petitioner. Learned counsel for the respondent no. 5 has put reliance on the following judgments:
(i) Nand Kishor Dubey Vs. The State of Jharkhand & Ors.
reported in 2017 (4) JLJR 645 and
(ii) Thamma Venkata Subbamma (dead) by L.R.
Versus Thamma Rattamma and others reported in
(1987) 3 SCC 294.
7. Heard learned counsel for the parties and perused the materials available on record. On perusal of the order dated 17.10.2015 passed by the respondent no.2 in Mutation Revision Case no. 56 of 2010, it appears that after hearing both the sides, the respondent no. 2 directed the parties to move the civil court of competent jurisdiction for getting the dispute decided, however in the meantime, the respondent no.4 was directed to stay the issuance of rent receipt in favour of the parties. The petitioner has challenged herein the part of the order whereby the respondent no.4 has been directed to stay the issuance of rent receipt.
8. I have perused the judgment rendered by the Hon'ble Supreme Court in the case of Chattar Pal (supra.) as has been cited by the learned counsel for the petitioner. In the said case, the Hon'ble Supreme court held as under:-
5"---The mutating authority is required to find out who was in lawful possession of the property on the date of his considering the application and that being the position and the said mutating authority not having applied his mind to the materials on record, the impugned order of the Assistant collector dated 26-7- 1994 cannot be sustained. ----"
9. The learned counsel appearing on behalf of the petitioner has also relied upon a judgment of this court in the case of W.P. (C) No. 2167 of 2013 wherein para 6 to 8, it has been held as under:-
"6. In the case of Municipal Corporation, Aurangabad Vs. State of Maharashtra & Ors., reported in (2015) 16 SCC 689, the Hon'ble Supreme Court has held as under:
"13. It is settled that mutation does not confer any right and title in favour of any one or other, nor cancellation of mutation extinguishes the right and title of the rightful owner. Normally, the mutation is recorded on the basis of the possession of the land for the purposes of collecting revenue."
7. In the case of Mahabir Mahto & Ors. Vs. State of Jharkhand & Ors. reported in 2012 (4) JLJR 210, learned Division Bench of this Court has held as under:
"26. In sum and substance, the mutation proceedings have limited scope so far as its effect is concerned and the purpose of mutation proceeding is very clear from the Act of 1973 itself which substantially suggests that these are proceedings to safeguard the interest of the State and the revenue authorities primarily so that the State may know the persons' right over the agricultural land and once the names are entered in the revenue record they can be altered only because of the reasons mentioned in Sections 3 to 13 of the Act of 1973. The provisions referred above are not meant for getting a declaration in serious dispute cases with respect to the entitlement and, therefore, it has been specifically provided by Section 5 of the Act of 1973 that when under the Code of Civil Procedure, possession of a holding or part thereof has been delivered in execution of a decree to the decree holder or to a purchase at Court auction sale or when a final decree for partition or for foreclosure of a mortgage has been passed the Court executing the decree or the Court passing the final decree for partition or foreclosure, as the case may be, shall also give notice of the fact in the prescribed form to the AnchalAdhikari of the area. The AnchalAdhikari has no jurisdiction to alter or modify or disobey the court's decree and consequential effect of the possession under the Act of 1973 or otherwise. Looking to the nature of the proceeding and limited jurisdiction of the AnchalAdhikari of making correction in the revenue record, the AnchalAdhikari has no power and jurisdiction to pass a decree or order of declaration of a right, title or interest in the 6 property or has right to declare about legality and validity of an instrument of transfer or a settlement or decide the issue of contentious succession cases which power vest under the provisions of the Indian Succession Act, in civil courts.
29. From the scheme of the above provisions it is clear that the application for mutation, obviously for alteration of the entries in the Continuous Khatian and Tenants' Ledger Register cannot be claimed by a person having totally adverse interest to the person whose name is entered in the revenue record and, therefore, the application filed for the entry of the names of the appellants with a claim that their source of right is independent and is adverse to the respondents / writ petitioners itself, was not maintainable. It appears that by passage of time, the mutation proceedings which has limited scope and which gives limited jurisdiction to the AnchalAdhikari under the Act of 1973 expanded to beyond its scope and in practice may have become an adversary litigation in a proceeding for entering the names of the person who is claiming right through the person whose name is recorded in the revenue record and, claiming the right by virtue of either death of original recorded person and being successor of the recorded persons or by virtue of transfer, exchange, agreement, settlement, lease, mortgage, gift, or by any other means or by virtue of the court's decree or by virtue of grant of land by the BhoodanYagna Committee or by virtue of consequence of the acquisition of the land under the Land Acquisition Act or other statutes, but legaly, AnchalAdhikari has no jurisdiction to decide adverse claims, other than provided under Sections 3 to 13 of the Act."
8. On perusal of the aforesaid judgments, it would be evident that the order of mutation neither confers nor extinguishes any right of the parties. The purpose of mutation is only to collect government revenue from a person who is in possession of the land. While deciding the mutation case, the revenue authorities are not supposed to look into the right and title of a person upon the said land. Once the mutation of the land is allowed and the rent receipts are being issued for long, the same cannot be stopped without any order passed in accordance with law. The revenue authority dealing with the mutation proceeding does not have power to decide the intricate question of title of any person over a particular land.
10. On perusal of the record of the present case, it appears that the Circle Officer, Ramgarh had opened the jamabandi of the said land in favour of the husband of the petitioner after going through the report of the Halka Karamchari and Circle Inspector who had reported that the husband of the petitioner was adopted by Mosmat Pancham Kunwari and the said land was gifted to him by Deed 7 No. 1206 dated 26.04.1994. They further reported that the property is in possession of the husband of the petitioner upon which the respondent no. 5 is growing crops on 'Adhbatai'. Thereafter, the circle officer passed the order of opening of jamabandi in the name of the husband of the petitioner. In the appeal as well as revision filed by Mosmat Pancham Kunwari and the respondent no. 5, the learned courts below observed that the matter relates to the adjudication of title and as such the same cannot be adjudicated by the revenue authorities. However, the revisional authority directed the Circle Officer for not issuing rent receipt till the adjudication of title of the parties over the said land by the civil court.
11. I have also perused the judgments cited by the learned counsel for the respondent no 5. In the case of Nand Kishor Dubey (Supra.), a Bench of this court held that the revenue authorities have no jurisdiction to decide the complicated legal disputes including adverse claim of the parties. In the case of Thamma Venkata Subbamma (Supra.), the Hon'ble Supreme Court has held that a gift to another coparcener or to a stranger may be given with the prior consent of all other coparceners. The said judgments will have no application in the present fact and circumstance where the revisional authority on the one hand was of the opinion that the dispute raised pertains to the title over the said land and thus directed the parties to move before the civil court, on the other hand, he directed the Circle Officer, Ramgarh (the respondent no.4) for staying the issuance of rent receipt. Since the purpose of creation of jamabandi is the collection of land revenue from the person who is in possession of the land and the respondent no. 4 was of the firm view that the husband of the petitioner is in possession of the said land, the issuance of rent receipt in favour of the petitioner cannot be stopped till any contrary order by a civil court of competent jurisdiction is passed.
12. In view of the aforesaid legal as well as the factual position of the present case, I am of the opinion that the direction of the respondent no.2 for not issuing the rent receipt to the parties till the final adjudication of the matter by the civil court of competent jurisdiction is not proper and as such the order dated 17.10.2015 8 passed by the respondent no.2 in Mutation Revision Case No. 56 of 2010 to the extent the Circle Officer, Ramgarh (respondent no. 4) has been directed to stay the issuance of rent receipt, is quashed.
13. The present writ petition is disposed of with a direction to the Circle Officer, Ramgarh (respondent no.4) to resume issuance of rent receipt in favour of the petitioner till any contrary order is passed by a civil court of competent jurisdiction.
14. Consequently I.A. No. 659 of 2018 also stands disposed of.
(Rajesh Shankar, J.) Ritesh/ A.F.R