Jharkhand High Court
(1).Shashi Tiwari Aged About 55 Years ... vs M/S Tata Iron And Steel Company Limited on 23 February, 2021
Equivalent citations: AIRONLINE 2021 JHA 746
Author: Ravi Ranjan
Bench: Chief Justice, Sujit Narayan Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 05 of 2019
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(1).Shashi Tiwari aged about 55 years son of Late Ganesh Tiwari, residing at Beldih Naga Mandir, P.O. & P.S. Bistupur, Town Jamshedpur, District Singhbhum East. (2).Naga Mandir, Beldih, P.O & P.S. Bistupur, Town Jamshedpur, District Singhbhum East through Shashi Tiwari, aged about 55 years son of Late Ganesh Tiwari, residing at Beldih Naga Mandir, P.O. & P.S. Bistupur, Town Jamshedpur, District Singhbhum East.
..... Respondents/Appellants Versus
1.M/s Tata Iron and Steel Company Limited, a company incorporated under the Indian Companies Act having its office and factory at Jamshedpur, Town Jamshedpur, P.O & P.S. Jamshedpur, District Singhbhum East.
....... Petitioner/Respondent
2.State of Jharkhand
3.State of Bihar
4.Deputy Commissioner, Singhbhum East at Jamshedpur, P.O. and P.S. Jamshedpur.
5.Charge Officer, Jamshedpur, Town Jamshedpur, P.O and P.S. Jamshedpur, District Singhbhum East.
6.Assistant Settlement Officer, Jamshedpur, Town Jamshedpur, P.O and P.S. Jamshedpur, District Singhbhum East. ... Respondents/Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Appellant : Mr. P.K. Shahi, Sr. Advocate Mr. Kundan Kumar Ambastha, Adv.
For the Res. No. 1 : Mr. G.M. Mishra, Advocate
For the Res. Nos. 2, 4, 5 and 6
: Mr. R.K. Shahi, A.C to S.C. (L&C) I
For Res. No. 3 : Mr. S.P. Roy, G.A. Bihar.
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Oral Judgment
Order No. 14 : Dated 23rd February, 2021:
With consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality. 2 L.P.A. No. 5 of 2019
2. The instant intra-court appeal is preferred against the order/judgment dated 20.11.2018 passed by learned Single Judge in W.P. (C) No. 1978 of 2003, whereby and whereunder the writ Court while allowing the writ petition has quashed the order dated 13.03.2002 passed in Case No. 343 of 1999 by the Assistant Settlement Officer, Jamshedpur in purported exercise of power conferred under Section 90 of the Chota Nagpur Tenancy Act, 1908, (in short 'CNT Act, 1908') by which it was ordered for recording possession of Beldih Naga Mandir with respect to 0.17.00 hectares of land being new plot no. 225/3703 of khata no. 85 situated at village Beldih, P.S. Bistupur, district - Singhbhum East within Ward No. 3 of Jamshedpur Notified Area Committee in the remarks column of the last survey finally published record of rights.
3. The brief facts of the case, which are required to be enumerated herein for proper adjudication of the lis, are as under:
The lands of old plot no. 1861 of khata no. 3 situated at Mauza Beldih, P.S. Bistupur, district- Singhbhum East were recorded in the old survey record of rights in the year 1934-37 as Anabad Malik in the name of TISCO Limited, the writ petitioner.3
It is claimed by the writ petitioner that the petitioner-company has been in peaceful, continuous and uninterrupted possession of the aforementioned land since last 65 years. The portion of the aforesaid land was recorded during the current survey under khata no. 85, new plot no. 225/3703 situated at village Beldih, P.S. Bistupur, district - Singhbhum East within Ward No. 3 of Jamshedpur Notified Area Committee in the name of Anabad Bihar Sarkar in course of last survey proceeding.
The writ petitioner had challenged the entries made in the record of rights recording the name of Anabad Bihar Sarkar before the Hon'ble Supreme Court on the ground that the proprietary interest of the writ petitioner with respect to the aforementioned land besides others have not vested in the State of Bihar by promulgation of the Bihar Land Reforms Act, 1950. Subsequently, there was an amendment in Bihar Land Reforms Act, 1950 by Amendment Act of 1982, according to which aforesaid land besides others have been given on lease by the State of Bihar to the writ petitioner for a period of 40 years commencing from 01.01.1956 with right to the writ petitioner to obtain successive renewal of lease at an interval of every 30 years and the said lease has been granted by the Governor of Bihar in favour of the writ 4 petitioner by virtue of registered indenture of lease dated 01.01.1985.
It is case of the writ petitioner that the terms of the said registered indenture of lease provides that the lessee/petitioner would be entitled to continue in peaceful possession of the leasehold premises and shall also be entitled to make construction thereon and also to grant sub-leases besides various other powers as mentioned in the said deed.
The petitioner-company has already exercised its option of further renewal of lease for a period of 30 years w.e.f. 01.01.1996. Thus, by virtue of lease deed the petitioner-company has acquired valid right, title and interest as statutory lessee under the State with respect to the entire lease hold lands including the aforementioned lands.
During the current survey, the aforesaid lands were recorded during Khanapuri in the name of Anabad Bihar Sarkar, upon which, the writ petitioner filed objection under Section 83 of the CNT Act, 1908 with a prayer to record its name as lessee under the State of Bihar in column number 6 of the record of rights with respect to the aforementioned land before the Assistant Settlement officer, Jamshedpur which was registered as Objection No. 947 of 1986-87.
5
The Assistant Settlement Officer vide order dated 08.09.1989 though passed order to record the name of the writ petitioner as lessee under the State of Bihar but recorded illegal possession of respondent no. 6 (appellant no. 1 herein) in respect of the land in question.
The writ petitioner, being aggrieved with the order passed by the Assistant Settlement Officer preferred revision being Case No. 122 of 1990-91, under Section 89 of the CNT Act, 1908 before the Charge Officer, Jamshedpur, who after being satisfied about the genuine claim of the writ petitioner, passed final order on 21.08.1991 directing to delete the name of respondent no. 6 from the remarks column of the record of rights. Pursuant thereto, necessary correction in the record was made by deleting the name of respondent no. 6 from the record of rights.
It is further case of the writ petitioner that no appeal against the order passed under Section 89 of the CNT Act, 1908 was filed, as such the same became final and conclusive. But, the respondent no. 6, after expiry of eight years from the date of passing of revisional order, filed an application purported to be under Section 90 of the CNT Act, 1908 claiming that his grand father is in possession of 0.17.00 hectares of land out of the said plot and had constructed residential house and further there 6 is Mandir in other plot as also name of respondent no. 6 be recorded in remarks column of Khatian before the Assistant Settlement Officer, Jamshedpur which was registered as Case No. 343 of 1999. The Assistant Settlement Officer disposed of the said application vide order dated 13.03.2002 holding inter alia that the lands measuring 0.17.00 hectares out of the disputed plot are in position of Beldih Naga Mandir and ordered to record the name of Beldih Naga Mandir in the remarks column of finally published record of rights.
The writ petitioner being aggrieved with order 13.03.2002 approached this Court by filing writ petition being W.P.(C) No. 1978 of 2003, taking inter alia the plea that provision of Section 90 of the CNT Act has wrongly been entertained without taking into consideration the delay in filing said application since under the provision of Section 90 of the CNT Act, application has to be filed within a period of five years from the date of draft publication as under sub-section (2) of Section 83 and further on the ground that the disputed right, title and possession does not come within the purview of Section 90 the CNT Act, 1908 and as such the concerned authority had no jurisdiction to entertain the petition filed by the respondent no. 6.
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The respondent no. 6 has appeared and contested the case and filed counter affidavit taking inter alia the plea that the order passed by the concerned authority under Section 90 of the CNT Act suffers from no infirmity as the application filed under the aforesaid provision was along with the petition filed under Section 5 of the Limitation Act. It has been contended therein that respondent no. 6 is in peaceful possession of the land since 80 years and after taking into consideration the possession over the land since long the order has been passed under Section 90 of the CNT Act, therefore, the same cannot be said to be unjustified The writ Court, after taking into consideration the rival submissions of the parties has allowed the writ petition vide order dated 20.11.2018 by quashing and setting aside order dated 13.03.2002 on the ground that the concerned authority in exercise of power conferred under Section 90 of the CNT Act is not competent enough to decide the established question of title, which is the subject matter of present intra-court appeal.
4. Mr. P.K. Shahi, learned senior counsel being assisted by Mr. K.K. Ambastha, learned counsel for the appellants has assailed the impugned order on the ground that the learned Single Judge has not appreciated the fact that the land in question is in peaceful 8 possession of since last 80 years and, therefore, the appellants have obtained title over the land in question by virtue of adverse possession. It has further been contended that plot no. 226 is having a temple surrounded by plot no. 225 and since public sentiments is attached to the said temple, the concerned authority while adjudicating the application under Section 90 of the Act has taken into consideration this aspect of the matter and ordered for making entries in the column part of the record of rights by inserting the name of respondent no. 6, the appellant no. 1 herein, which cannot be said to suffer from infirmity but the learned Single Judge, without appreciating the aforesaid factual aspect, has allowed the writ petition, which is not sustainable in law.
5. Per contra, Mr. G.M. Mishra, learned counsel for the respondents-company has submitted that under Section 90 of the CNT Act, 1908 the concerned authority has got no jurisdiction to decide the issue of title on the basis of adverse possession. Further by referring to impugned order dated 13.02.2002 passed under Section 90 of the CNT Act, 1908 whereby and whereunder the concerned authority has considered the fact about public sentiment and taking into consideration the adverse possession, had passed the order for inserting the name of respondent no. 6 in column no. 6 of the record of 9 rights, which according to learned counsel is beyond the jurisdiction of power conferred under Section 90 of the CNT Act, 1908 and after taking into consideration the implication of the provisions of Section 90 of the CNT Act, 1908, the impugned order was quashed and set aside, which cannot be said to suffer from an error and accordingly, the appeal may be dismissed.
6. We, after having heard learned counsel for the parties and on perusal of the documents available on record as also the finding recorded by the learned Single Judge, deem it fit and proper first to refer the relevant provisions of CNT Act, 1908, in particular Sections 83, 84, 89 and 90 of the CNT Act, 1908, before going into the factual aspect of the matter.
Sections 83, 84, 87, 89 and 90 of the CNT Act, 1908 read under as:
83.Preliminary publication, amendment and final publication of record-of-rights. -
(1) When a draft record-of-rights has been prepared under this Chapter, the Revenue Officer shall publish the draft in the prescribed manner and for the prescribed period and shall receive and consider any objections which may be made to any entry therein, or to any omissions therefrom, during the period of publication.
(2) When such objections have been considered and disposed of in the prescribed manner, the Revenue Officer shall finally frame the record, and shall cause it to be finally published in the prescribed manner, and the publication shall be conclusive evidence that the record has been duly made under this Chapter.10
(3) Separate draft or final records may be published under sub-section (1) or subsection (2) for different local areas, estates, tenures or parts thereof.
84.Presumptions as to final publication and correctness of record-of-rights - (1) In any suit or other proceedings in which a record-of-rights prepared and published under this Chapter or a duly certified copy thereof or extract therefrom is produced, such record-of-rights shall be presumed to have been finally published unless such publication is expressly denied and a certificate, signed by the Revenue Officer, or by the Deputy Commissioner of any district in which its local area, estate or tenure or part thereof to which the record-of- rights relates is wholly or partly situate, stating that the record-of-rights has been finally published, under this Chapter shall be conclusive evidence of such publication. (2) The [State] Government may, by notification, declare with regard to any specified area, that a record-of-rights has been finally published for every village included in that area; and such notification shall be conclusive evidence of such publication.
(3) Every entry in a record-of-rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved, .by evidence, to be incorrect.
87.Institution of suits before Revenue Officer - (1) In proceedings under this Chapter a suit may be instituted before a Revenue Officer, at any time within three months from the date of the certificate for the final publication of the record-of-rights under sub-section (2) of Section 83 of the decision of any dispute regarding any entry which a Revenue Officer has made in, or any omission which he has made from the record [except an entry of a fair rent settled under the provisions of Section 85 before the final publication of the record-of-rights] whether such dispute be,-
(a) between the landlord and tenant, or
(b) between landlords of the same or of neighbouring estate, or
(c)between tenant and tenant, or 11
(d) as to whether the relationship of landlord and tenant exists, or
(e) as to whether land held rent-free is properly so held, or [(ee) as to any question relating to the title in land or to any interest in land as between the parties to the suit; or]
(f) as to any other matter; and the Revenue Officer shall hear and decide the dispute : Provided that the Revenue Officer may, subject to such rules as may be made in this behalf under Section 264, transfer any particular case or class of cases to a competent Civil Court for trial: Provided also that in any suit under this Section, the Revenue Officer shall not try any issue which has been, or is already, directly and substantially in issue between the same parties or between parties under whom they or any of them claim, in proceedings for the settlement of rent under this Chapter, where such issue has been tried and decided, or is already being tried, by a Revenue Officer under Section 86 in proceedings instituted after the final publication of the record-of-rights. (2) An appeal shall lie, in the prescribed manner and to the prescribed Officer from decisions under sub-section (1) [and a second appeal to the High Court shall lie from any decision on appeal of such Officer as if such decision were an appellate-decree passed by the Judicial Commissioner under Chapter XVI.]
89.Revision by Revenue Officer - (1) Any Revenue Officer specially empowered by the [State] Government in this behalf may on application or on his own motion within twelve months from the making of any [entry in the draft record-of- rights or of any] order or decision under Section 83, Section 85 or Section 86, revise the same, whether it was made by himself or by any other Revenue Officer, but not so as to affect any order passed under Section 87 or any order passed in appeal under Section 85, sub-section (4):
Provided that no such order or decision shall be so revised if a suit or an appeal in respect thereof is pending under Section 85, sub-section (4) of Section 87 until reasonable notice has been given to the parties concerned to appear and be heard in the matter. (2) An appeal shall lie, in the 12 prescribed manner and to the prescribed Officer, from any order passed under sub-section (1).
[90. Correction by Deputy Commissioner or Revenue Officer of mistake in record of-rights. - in case of discovery of bona fide or material error in record-of-rights within five years from the date of the certificate of its final publication under sub-section (2) of Section 83, the Deputy Commissioner or any Revenue Officer specially empowered by the State Government in this behalf may, on his own motion, or on application made to him within the said period, after holding an inquiry in the prescribed manner, by order in writing, direct that such error shall be corrected in the mariner specified in the order:
Provided that no such correction shall be made,-
(i)until reasonable notice has been given to the parties concerned to appear and be heard in the matter;
(ii)if a suit under Section 87, clause (8) of Section 111 or Section 252, or, an appeal under clause (10) of Section 111 or Section 253, affecting such an entry is pending.] Section 83 stipulates that when a draft record-of-
rights has been prepared under this Chapter, the Revenue Officer shall publish the draft in the prescribed manner and for the prescribed period and shall receive and consider any objection which may be made to any entry therein, or to any omissions therefrom, during the period of publication. However, doing that the objection has to be considered and disposed of.
Thus, it is evident that the provision of Section 83 of the CNT Act, 1908 provides for preliminary publication, amendment and final publication of record-of-rights. 13
Section 84 of the CNT Act, 1908 stipulates that in any suit or other proceedings in which a record-of-rights prepared and published under this Chapter or a duly certified copy thereof or extract therefrom is produced, such record-of-rights shall be presumed to have been finally published unless such publication is expressly denied and a certificate, signed by the Revenue Officer, or by the Deputy Commissioner of any district in which its local area, estate or tenure or part thereof to which the record-of-rights relates is wholly or partly situate, stating that the record-of-rights has been finally published, under this Chapter shall be conclusive evidence of such publication.
Thus, the provision of Section 84 envisages about presumptions as to final publication and correctness of record-of-rights.
Section 87 of the CNT Act stipulates about institution of suits before Revenue Officer wherein it has been provided that in proceedings under this Chapter a suit may be instituted before a Revenue Officer, at any time within three months from the date of the certificate for the final publication of the record-of-rights under sub- section (2) of Section 83 of the decision of any dispute regarding any entry which a Revenue Officer has made in, or any omission which he has made from the record. 14
Section 89 of the CNT Act, 1908 stipulates that any Revenue Officer on application or on his own motion within twelve months from the making of any order or decision under Section 83, Section 85 or Section 86, revise the same.
Section 90 of the CNT Act, 1908 stipulates that in case of discovery of bona fide or material error in record- of-rights within five years from the date of the certificate of its final publication under sub-section (2) of Section 83, the Deputy Commissioner or any Revenue Officer specially empowered by the State Government in this behalf may, on his own motion, or on application made to him within the said period, after holding an inquiry in the prescribed manner, by order in writing, direct that such error shall be corrected in the mariner specified in the order, provided that no such correction shall be made,- (i) until reasonable notice has been given to the parties concerned to appear and be heard in the matter; (ii) if a suit under Section 87, clause (8) of Section 111 or Section 252, or, an appeal under clause (10) of Section 111 or Section 253, affecting such an entry is pending.
Thus, Section 90 of the CNT Act, 1908 provides provision for correction by Deputy Commissioner or Revenue Officer of mistake in record of-rights is case of discovery of bona fide or material error in record-of-rights 15 within five years from the date of the certificate of its final publication.
7. Applicability of Section 90 of the CNT Act, 1908 has elaborately been dealt with by Patna High Court in N. Subramanian @ Shri Mani Iyer Vs. The State of Bihar & Ors [(1990) 1 PLJR 577] wherein while dealing with the jurisdiction of Deputy Commissioner or the Revenue Officer, while exercising power under Section 90 of the CNT Act, it has held that a disputed question of title cannot be said to be a bona fide mistake or a material error. Such bona fide mistake or material error, must be found out on the basis of the records of the case itself and while doing so he cannot adjudicate upon a dispute involving serious question of title or possession in respect whereof.
The relevant paragraph 15 of the said judgment is quoted hereunder as:
"In this view of the matter, in my opinion, it cannot be said that the jurisdiction of the respondent no. 3 while exercising his power conferred upon him under Section 90 of the Chotanagpur Tenancy Act was extended to decide disputed question of title based on adverse possession. A disputed question of title cannot be said to be a bonafide mistake or a material error. Such bonafide mistake or material error, must be found out on the basis of the records of the case itself and while doing so he cannot adjudicate upon a dispute involving serious question of title or possession in respect whereof, as indicated in Mewalal's case as also Sisir Kumar Sarkar's case the remedies have been provided for in the Chotanagpur Tenancy Act."16
Thus, it is evident that under the provisions of Section 90 of the CNT Act, 1908, the disputed question of fact cannot be adjudicated by the Revenue Officer in exercise of power conferred under Section 90 of the CNT Act, 1908.
8. We have proceeded to examine the factual aspect in order to examine the legality and propriety of the impugned order, for which, we have gone across the admitted factual facts, as per the pleadings made by the parties.
Admittedly, the land in question was recorded in the old survey record of rights in the year 1934-37 as Anabad Malik in the name of TISCO Ltd and by virtue of that the petitioner-company has been in peaceful, continuous and uninterrupted possession of the land for the last 65 years.
Further admitted fact is that the land in question was recorded during the current survey under new Khata No. 85 plot no. 225/3703 in the name of Anabad Bihar Sarkar, which entry has been challenged before the Hon'ble Supreme Court on the ground inter alia that the proprietary interest of the writ petitioner with respect to the aforementioned land besides others have not vested in the State of Bihar by promulgation of the Bihar Land Reforms Act, 1950. Subsequently, there was an 17 amendment in Bihar Land Reforms Act, 1950 by Amendment Act of 1982, according to which aforesaid land besides others have been given on lease by the State of Bihar to the writ petitioner for a period of 40 years commencing from 01.01.1956 with right to the writ petitioner to obtain successive renewal of lease at an interval of every 30 years and the said lease has been granted by the Governor of Bihar in favour of the writ petitioner by virtue of registered indenture of lease dated 01.01.1985.
The petitioner-company has also exercised its option for further renewal of lease w.e.f. 01.01.1996 but being aggrieved by the entry made in the current survey of the land in question in name of Anabad Bihar Sarkar, a petition under Section 83 of the CNT Act, 1908 was filed with a prayer to record its name as lessee under the State of Bihar in column number 6 of the record of right of the aforesaid land before the Assistant Settlement Officer, being Objection No. 947 of 1986-87, who vide order dated 08.09.1989 has found the petitioner lessee under the State of Bihar but also recorded illegal possession of respondent no. 6 in respect of the land in question which led the writ petitioner-company to file revision under Section 89 of the CNT Act, 1908 before the Charge Officer being Revision No. 122/1990-91 and the Charge Officer, 18 being satisfied with the contention of the writ petitioner, has passed the order on 21.08.1991 by deleting the name of respondent no. 6 from the remarks column of the record of rights.
The respondent no. 6, after eight years of passing of order in revision, filed an application purportedly under Section 90 of the CNT Act, 1908 claiming that his grandfather is in possession of 0.17.00 hectares of land out of the said plot and had constructed residential house and there is Mandir in other plot and further name of respondent no. 6 be recorded in remarks column of Khatian before the Assistant Settlement Officer which was registered as case no. 343 of 1999 wherein order was passed on 13.03.2002 by reversing the order passed by the Assistant Settlement Officer holding inter alia therein that the land measuring area 0.17.00 hectares within the disputed plots are in possession of Beldih Naga Mandir and directed to record the name of Beldih Naga Mandir in the remarks column of finally published record of rights, which was challenged before this Court, in which, the writ Court has quashed and set aside the order dated 13.03.2002, which is the subject matter of present intra- court appeal.
9. This Court, after considering the factual aspect as also the legal position as discussed herein above, deem it 19 fit and proper to answer as to whether the authority concerned in exercise of power conferred under section 90 of the CNT Act, 1908, can pass order declaring the writ petitioner in possession of the land on the basis of so-called claim of long possession of the land in question merely on the ground that the land is being utilized for the devotees?
10. We have discussed herein above by making reference of Section 90 of the CNT Act, 1908 whereby and whereunder the provision stipulates for making necessary correction of error in case of discovery of bona fide or material error in the record of rights within five years from the date of its final publication under sub-section (2) of Section 83, meaning thereby the error must be bona fide or material error in the record of rights.
11. We have further gone across the order passed under Section 83 of the CNT Act, 1908 wherein the order has been passed on 08.09.1989 with a direction to enter the name of the writ petitioner-company in column no. 6 of the Khatian by making reference of the possession over the land for last 40 years by virtue of lease deed dated 01.01.1956 and further stipulation was directed to be made in the 6th column about adverse possession of the predecessor-in-interest of the appellants since 1986. The said order has been reversed by the revisional authority 20 in exercise of power conferred under Section 89 of the CNT Act, 1908 vide order dated 21.08.1991 and thereafter no proceeding has been initiated for assailing the said order for almost eight years and after that an application under Section 90 of the CNT Act, 1908 was filed in the year 1999.
The provision as contained under Section 90 of the CNT Act, 1908 stipulates about resorting to the said provision within a period of 5 years from the date of certificate of its final publication under sub-section (2) of Section 83 of the CNT Act, 1908, but admittedly herein order has been passed on 08.09.1989 however, the revisonal order is dated 21.08.1991 but even from the date of revisonal order, application under section 90 of the CNT Act, 1908 has been filed in the year 1999 i.e. after lapse of about eight years from the date of passing of the order by the revisional authority and almost about 11 years from the date of order passed by the original authority under sub-section Section 83 of the CNT Act, 1908.
11. This Court has perused the petition filed under Section 90 of the Act, 1908 but no document for condonation of delay has been filed showing sufficient reason as to why such application could not be filed within the prescribed time i.e. within five years, as 21 provided under Section 90 of the Act, 1908, however reference has been made at paragraph 7 of the said application that appropriate petition under Section 5 of the Limitation Act has been filed.
12. We after going through the order passed by the revenue authority under Section 90 of the CNT Act, 1908 has found therefrom that no finding has been recorded with respect to delay, therefore, we are of the view that the authority exercising power under Section 90 of the CNT Act, 1908 without passing any appropriate order on limitation petition has passed the order on merit under Section 90 of the CNT Act, 1908.
Further, it appears from the order passed under Section 90 of the CNT Act, 1908 that there is reference of two plots, being plot no. 225 and 226. According to the appellants there is a temple in the adjacent plot no. 226, which has been recorded as Mandir in the revisional survey and on its peripheral plot no. 225 is situated and further all the entry and exit of the temples are through plot no. 225, which is being used by the devotes for worship and taking into consideration the religious sentiment of the people, the revenue authority had passed order showing the appellants in the adverse possession of the land in question and accordingly 22 ordered to make necessary correction in the record of rights.
One relevant fact that is required to be referred herein is that the writ petitioner has filed an affidavit on 14.01.2021 wherein it has been stated that the temple is situated on plot no. 226 and in the record of rights the only plot which is recorded in the name of Ganesh Tiwari, father of the appellants is plot no. 226. Accordingly, the respondents company confirms that it has absolutely no dispute or claim over the claim of plot.
For ready reference, paragraph 4 of the affidavit dated 14.01.2021 is reproduced hereunder as:
"4.That it is stated and submitted that the Temple is situated on Plot No. 226 and in the RECORD OF RIGHT the only plot which is recorded is in the name of Ganesh Tiwari father of the Appellant is plot no. 226. The Respondent company confirms and reiterates that it has absolutely no dispute and or claim over the said plot."
13. Be that as it may, we are looking into the legality and propriety of the impugned order dated 13.03.2002 and as has been held by the Patna High Court in N. Subramanian @ Shri Mani Iyer (supra) that in purported exercise of power conferred under Section 90 of the Act, there cannot be declaration of the right, title and interest of adverse possession, as has been done by the authority vide impugned order, therefore, the said order 23 in exercise of power conferred under section 90 of the CNT Act, 1908 is not sustainable.
14. The learned Single Judge after taking into consideration the facts, as indicated herein above as also taking into consideration the implication and scope of the provision of section 90 of the CNT Act, 1908 quashed the impugned order dated 13.03.2002 and which according to us suffers from no error.
15. Learned Single Judge has further observed while allowing the writ petition that the aggrieved party may approach to the appropriate forum for declaration of right and title on the basis of pleading of adverse possession, which according to us cannot be said to suffer from any infirmity.
Therefore, we are of the view that no interference is required in the order passed by the learned Single Judge.
16. Accordingly, the present intra-court appeal fails and, is dismissed.
(Dr. Ravi Ranjan, C.J.) (Sujit Narayan Prasad, J.) Alankar/ -
A.F.R