Jharkhand High Court
Respondent/ vs Abhinaw Kumar on 2 July, 2025
Author: Rajesh Kumar
Bench: Rajesh Kumar
( 2025:JHHC:17674-DB )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.409 of 2018
Kamal Nath Karmali, aged about 71 year, son of Late
Haricharan Karmali, resident of Village-Chhotki Murram,
P.O. & P.S.-District-Ramgarh (Jharkhand)
...Respondent/Appellant
Versus
1.Abhinaw Kumar, son of Late Dr. K.P. Sinha, resident of
Village-Murram Kala, P.O. & P.S.-District-Ramgarh
(Jharkhand). ...Respondent 1ST/Petitioner
2.State of Jharkhand through the Secretary, Department
of Land and Revenue, Government of Jharkhand, Project
Building, Dhurwa, P.O. & P.S. -Dhurwa, District-Ranchi.
3.The Additional Collector, Ramgarh, P.O./P.S. & District-
Ramgarh.
4.The Sub Divisional Officer, Ramgarh, P.O./P.S. &
District-Ramgarh.
5.The Land Reforms Deputy Collector, Ramgarh, P.O./P.S.
& District-Ramgarh.
6.The Circle Officer, Ramgarh, P.O./P.S. & District-
Ramgarh.
... ...Respondents 2ND Set/Respondents
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CORAM: HON'BLEMR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Harendra Kumar Mahato, Adv.
Mr. Ahalya Mahato, Advocate
Ms. Jyotsna Mahato, Advocate
For the State : Mr. J.F. Toppo, G.A V.
Mr. Ajit Kumar, AC to GA V
For the Res. No. 1 : Mr. Anoop Kumar Mehta, Adv.
Mr. Atul Raj, Advocate.
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CAV/Reserved on 26.06.2025 Pronounced on 02/07/2025
Per Sujit Narayan Prasad, J.
Prayer:
1. The instant appeal, under Clause 10 of the Letters Appeal, is directed against order dated 3rd April, 2018 passed in W.P.(C) No. 5724 of 2015, whereby and whereunder the writ petition was allowed and order dated 21.01.2012 passed by the Sub Divisional Officer, Ramgarh, by which the 1 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) description of land from Khata No. 94 to Khata No. 77 was rectified, has been quashed and set aside; and it has been held that appellate order dated 15.10.2015 passed in Appeal Case No. 15/2011-12 is of no consequence as the same was not entertained by the appellate authority on the ground that the appeal against the order of restoration was dismissed vide order dated 14.12.2004 passed in Appeal Case No. 8 of 1997.
Brief facts of the case:
2. The brief facts of the case, as per the pleading available on record, needs to be referred herein, which reads as under:
3. The mother of writ petitioner-respondent no. 1, Smt. Uma Sinha, wife of Late K.P. Sinha, purchased a piece of land measuring an area of 0.22 acres out of 1.15 acres falling under Khata No. 77, Plot No. 188 in Village Murram Kala, P.S. Ramgarh, the then District-Hazaribagh [Now Ramgarh] from Haricharan Mistri and Shivcharan Mistri, sons of recorded tenant Hardayal Karmali, on payment of consideration amount of Rs. 6500/- vide registered sale deed dated 20.04.1982, who came in peaceful possession thereof.
The said land was mutated in the name of Smt. Uma Sinha vide Mutation Case No. 266/84-85 and accordingly rent receipt was issued.
4. On 19.01.1995, an application was filed by respondent no. 6, the appellant herein, before the Sub-Divisional Officer, 2 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) Ramgarh which was registered as Restoration Case No. 1/1995 for restoration of 55 decimals of land out of 1.15 acres falling under Mouza Muramkala Khata No. 94, Plot No. 188, which was alleged to be purchased by the father of the writ petitioner, namely, Dr. K.P. Sinha, on the ground that it was purchased in gross violation of the provisions of CNT Act. On being noticed, the father of the writ petitioner, namely, Dr. K.P. Sinha appeared and filed show cause stating that from the Khatian, it is evident that the recorded tenant Hardayal Karmali, Ghujwa Karmali and Shobhwa Karmali are „Lohar‟ by caste, which has been put under the Backward Class, as per law laid down by Hon‟ble Supreme Court in the case of Nityanand Sharma & Anr. Vs. State of Bihar& Ors. [(1996) 3 SCC 576]. Accordingly, prayer has been made that as per Section 46(4A) of the CNT Act since the applicant who is seeking restoration of land is not a member of Scheduled Tribe, the application for restoration is liable to be dismissed. Further ground has been taken that the application is liable to be dismissed on the ground of mis-rejoinder and non-joinder of necessary party since the land in question was not purchased by Dr. K.P. Sinha.
5. Thereafter, the SDO, Ramgarh passed the order dated 26.02.1997 in Land Restoration Case No. 1/1995 for restoration of the land of village Murramkala falling under Khata No. 94, Plot No. 188 measuring 55 decimals out of 3 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) 1.15 acres against Dr. K.P. Sinha recording the finding that merely because in Khatian i.e., the record of rights, the caste of the recorded tenant has been recorded as „Lohar‟ it cannot be accepted that the appellant falls under the Backward Caste Category.
6. Against order dated 26.02.1997 passed in Land Restoration Case No. 1/1995, Dr. K.P. Sinha preferred appeal being Appeal Case No. RAN-8/1997 before the appellate authority, which was dismissed vide order dated 14.12.2004. It is alleged that appeal was heard on 22.08.2002 and the matter was posted for pronouncement of judgment on 18.09.2002 but the judgment was pronouncement on 14.12.2004, as such said Dr. K.P. Sinha could not have information of the order passed in appeal.
7. Thereafter, in the year 2011, the appellant-original applicant, namely, Kamalnath Karmali filed an application on 28.03.2011 before the Sub-Divisional Officer, Ramgarh stating therein that the description of the property in the application for restoration [Restoration Case No. 01 of 1995] was incorrect, as such in the proceeding for restoration of land, an application for rectification in the description of property was filed on 15.11.1995 but the same was never pressed by his counsel, therefore, prayer has been made for modification of the final order dated 26.02.1997 by making necessary correction of description of the land from Khata 4 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) No. 94 to Khata No. 77 so that the possession of Khata No. 77 instead of Khata No. 94 be given to the applicant, the appellant herein. The said application was allowed vide order dated 21.01.2012 by which correction, as sought for, was allowed to be carried out and direction was passed for delivery of possession of the land in question in favour of original applicant, the appellant herein
8. Against the order dated 21.01.2012 passed by the SDO, Ramgarh, the writ petitioner-respondent no. 1 herein preferred appeal being Land Restoration Appeal Case No. 15/2011-12 before the appellate-authority, the Additional Collector, Ramgarh, which was disposed of vide dated 15.10.2015 refusing to interfere with the order passed by the original authority stating that Appeal Case No. 8/1997 has already been decided against the Dr. K.P. Sinha vide order dated 14.12.2004.
9. After passing of the order dated 14.12.2004, the father of the writ petitioner died, however, being aggrieved with the order dated 21.01.2012 passed by the SDO, Ramgarh as also appellate order dated 15.10.2015, the writ petitioner, the respondent no. 1 herein, has approached this Court by filing writ petition being W.P.(C) No. 5724 of 2015, which was allowed vide order dated 3rd April, 2018 whereby and whereunder order dated 21.01.2012 passed by the Sub Divisional Officer, Ramgarh, by which the description of land 5 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) from Khata No. 94 to Khata No. 77 was rectified, has been quashed and set aside; and it was held that appellate order dated 15.10.2015 passed in Appeal Case No. 15/2011-12 is of no consequence as the same was not entertained by the appellate authority on the ground that the appeal against the order of restoration was dismissed vide order dated 14.12.2004 passed in Case No. RAN- 8 of 1997.
10. Being aggrieved by the order passed by the learned Single Judge, the respondent no. 6, the appellant herein has preferred the instant intra-court appeal. Submission of learned counsel for the appellant-respondent no. 6:
11. Mr. H.K. Mahato, learned counsel for the appellant has taken the following grounds in assailing the order passed by the learned Single Judge.
12. Submission has been made that the learned Single Judge has not appreciated the fact that the appellant is actually a member of Scheduled Tribe belonging to the Karmali Caste, which is scheduled tribe as notified in the Constitution (Schedule Tribe) Order, 1950 and also according to the list of Schedule Tribe appearing in Appx. Bihar Schedule Area Regulation and as such initially the application was filed for restoration of the land since the land in question was transferred without necessary permission of the Deputy 6 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) Commissioner of the concerned district, as required under Section 46(4A) of the CNT Act, 2008.
13. It has further been contended that the learned SDO has taken into consideration the fact about actual caste of the writ petitioner to be „Karmali‟ on the basis of report submitted by the Circle Officer, negating the claim of the opposite party, the writ petitioner, that the appellant herein and his ancestral belongs to „Lohar‟ Caste and accordingly passed the order for restoration of land, which was affirmed by the appellate authority also, however, due to wrong reference of khata no. i.e. for Khata No. 94 to Khata No. 77, the appellant again approached the competent authority i.e., SDO, Ramgarh, who after appreciating the matter has rectified the same and ordered for restoration of land but the said order has been quashed by learned Single Judge on the ground that the concerned respondent(s) has failed to show any provision of law under which the application has been filed and any provision of law under which the Sub- Divisional Officer, Ramgarh has rectified the description of the land after the disposal of the case.
14. The learned counsel for the appellant has further taken the ground that the application for restoration was filed within s period of 12 years since the land was mutated in the year 1984-85 and the application for restoration was filed in the year 1995 and as such it is a fit case for restoration of land. 7 LPA No. 409 of 2018
( 2025:JHHC:17674-DB )
15. Submission has been made that the sale deed executed in the name of Smt. Uma Sinha wife of Dr. K.P. Sinha was obtained by playing fraud by changing the name of the executants, Haricharan Karmali and Shivcharan Karmali and by omitting the title „Karmali‟ and introducing the title „Mistri‟ against their names in order to conceal the true identity of the vendors, who were members of the schedule tribe community.
16. Further submission has been made that fresh application for correction of khata no. was made on 28.03.2011 and before that during pendency of the very first proceeding pending before the SDO, Ramgarh application for rectification was made on 15.11.1995, which could not be appreciated, as a result of which though order of restoration of land was passed but there was wrong reference of khata number. Therefore, for the rectification of the same, the appellant has filed application before the SDO, Ramgarh the original authority who rectified the Khata by allowing the application filed by the appellant. But the learned Single Judge did not consider these aspects of the matter.
17. Learned counsel for the appellant, based upon the aforesaid ground, has submitted that the impugned order passed by the learned Single Judge, requires interference on the grounds as agitated above.
8 LPA No. 409 of 2018
( 2025:JHHC:17674-DB ) Submission on behalf of respondent no.1-writ petitioner:
18. While on the other hand, Mr. Anoop Kumar Mehta, learned counsel appearing for the respondent No. 1, the writ petitioner has defended the order passed by learned Single Judge on the following grounds and submission has been made that whatever order has been passed by the learned Single Judge needs no interference by this Court.
19. Submission has been made that the application for rectification was not proper to be entertained/allowed after much delay of 14 years and further due to change in khata number, the name of the khatiani raiyats also changes and on that ground alone, the restoration application ought to have been rejected. Furthermore, it is not the case where only wrong khata number is said to be there rather in the original application i.e., Land Restoration Case No. 01/1995 was filed against Dr. K.P. Sinha, whereas the land in question after even rectification has been registered in the name of Smt. Uma Sinha, wife of Dr. K.P. Sinha, therefore, that application is liable is to be dismissed on the ground of mis-joinder and non-joinder of necessary party. The learned Single Judge has taken into consideration these aspects of the matter, which led the learned Single Judge to allow the writ petition filed by the writ petitioner-respondent no.1 and it requires no interference by this Court.
9 LPA No. 409 of 2018
( 2025:JHHC:17674-DB )
20. Submission has been made that the learned SDO, Ramgarh has erred in passing the order of restoration even though the appellant is by caste „Lohar‟ as mentioned in Khatain, wherein the Caste of the appellant has been mentioned as „Lohar‟, which falls under the category of Backward Class and not the Scheduled Tribe and as per law laid down by Hon‟ble Apex Court in the case of Nityanand Sharma Vs. State of Bihar (supra), wherein it has been held that the „Lohar‟ caste falls under the category of Backward Class. Therefore, otherwise also, the orders passed by the original authority and appellate authority is fit to be quashed and set aside and as such the order passed by the learned Single Judge requires no interference.
21. Further ground has been taken that the learned SDO, Ramgarh on its own has come to the conclusion that „Karmali‟ caste falls under Schedule Tribe Category and based upon the aforesaid ground the land in question was erroneously directed to be restored.
22. Further ground has been taken that the issue of limitation has also not been taken into consideration by the authorities since after 14 years from the date of order of restoration passed by the learned SDO, Ramgarh on 26.02.1997, the appellant had filed application on 28.03.2011 for review of order by rectifying the khata number, even though there is no provision of review under the CNT Act but without having 10 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) such jurisdiction, the SDO, Ramgarh has reviewed original order dated 26.02.1997 by making correction order in khata number and also directed for delivery of possession, in utter violation of law that the power of review can only be exercised by the Statutory Authority if the statute provides such power, as has been held by Hon‟ble Apex Court in the case of Kalabharti Advertising Vs. Heman Vimalnath Narichaniya & Ors. [(2010) 9 SCC 437].
23. Learned counsel for the respondent no. 1 further submitted that as a matter of fact, the appellant has described himself as Kamalnath Mistry, son of Haricharan Mistry in the affidavit dated 29.04.1982 wherein he has clearly stated that he belongs to Backward Class and by caste is „Lohar‟, Bishwarkarma and not an Adivashi. In paragraph 2 of the affidavit, he has further stated on oath that he has sold 22 decimals of land falling under plot no. 188 Khata No. 77 of village Murramkala to Smt. Uma Sinha wife of K.P. Sinha.
24. Learned counsel further submitted that descendants of the recorded tenants describing themselves as the members of Backward Class community have sold out major part of Khata No. 77 vide registered sale deeds to the persons who are not the members of Schedule Tribe community and accordingly mutation has been done in the name of purchaser. In support of his claim he has filed copy of 11 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) Register-II, which has been marked as Annexure 13 series to the writ petition.
25. Learned counsel for the respondent no. 1 based upon the aforesaid ground has submitted that the order passed by the learned Single Judge requires no interference by this Court Analysis:
26. We have heard learned counsel for the parties and gone through the pleading available on record as also the finding recorded by learned Single Judge as also the finding so recorded by the revenue authorities, as appended with the paper book and gone through the relevant provisions of law.
27. Admitted case herein is that a piece of land measuring an area of 0.22 acres out of 1.15 acres falling under Khata No. 77, Plot No. 188 in Village Murram Kala, P.S. Ramgarh was registered in the name of Smt. Uma Sinha, wife of Late K.P. Sinha, the mother of writ petitioner-respondent no. 1, from Haricharan Mistri and Shivcharan Mistri vide registered sale deed dated 20.04.1982, which was mutated in the name of Smt. Uma Sinha vide Mutation Case No. 266/84-85 and accordingly rent receipt was issued.
28. Further admitted case is that on 19.01.1995, i.e., after 12 years of registry of the land in question, an application was filed by respondent no. 6, the appellant herein, before the Sub-Divisional Officer, Ramgarh which was registered as Restoration Case No. 1/1995 for restoration of 55 decimals 12 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) of land out of 1.15 acres falling under Mouza Murramkala Khata No. 94, Plot No. 188, which was stated to be purchased by the father of the writ petitioner, namely, Dr. K.P. Sinha.
29. On being noticed, the father of the writ petitioner, namely Dr. K.P. Sinha appeared and filed show cause stating that from the Khatian, it is evident that the recorded tenant Hardayal Karmali, Ghujua Karmali and Shobhwa Karmali are „Lohar‟ by caste, which has been put under the Backward Class, therefore, as per Section 46(4A) of the CNT Act since the applicant, who is seeking restoration of land, is not a member of Scheduled Tribe, the application for restoration is fit to be dismissed. Further ground has been taken that the application is liable to be dismissed on the ground of mis-rejoinder and non-joinder of necessary party since the land was not purchased by Dr. K.P. Sinha.
30. However, learned SDO, Ramgarh vide order dated 26.02.1997 allowed the Land Restoration Case No. 1/1995 and directed for restoration of the land by recording the finding that merely because in Khatian i.e., the record of rights, the caste of the recorded tenant has been recorded as „Lohar‟ it cannot be accepted that the applicant falls under the Backward Caste Category.
31. Against order dated 26.02.1997 passed in Land Restoration Case No. 1/1995, Dr. K.P. Sinha preferred appeal being 13 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) Appeal Case No. RAN-8/1997 before the appellate authority, which was dismissed vide order dated 14.12.2004.
32. After about 14 years, the appellant-original applicant, namely, Kamalnath Karmali filed an application on 28.03.2011 before the learned Sub-Divisional Officer, Ramgarh wherein prayer has been made for modification/rectification of the final order dated 26.02.1997 by making necessary correction of description of the land from Khata No. 94 to Khata No. 77 so that the possession of Khata No. 77 instead of Khata No. 94 be given to the applicant. The said application was allowed vide order dated 21.01.2012 by which correction, as sought for, was allowed to be carried out and direction was passed for delivery of possession in favour of original applicant, the appellant herein.
33. Against the order dated 21.01.2012 passed by the SDO, Ramgarh, the writ petitioner-respondent no. 1 herein preferred appeal being Land Restoration Appeal Case No. 15/2011-12 before the appellate-authority, the Additional Collector, Ramgarh, who refused to pass any order vide order dated 15.10.2015 stating that Appeal Case No. 8/1997 has already been decided against said Dr. K.P. Sinha vide order dated 14.12.2004.
34. Being aggrieved the order passed by the revenue authorities, the writ petitioner, the respondent no. 1 herein, has 14 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) approached this Court by filing writ petition being W.P.(C) No. 5724 of 2015, which was allowed vide order dated 3 rd April, 2018, whereby and whereunder the order passed by the revenue authorities have been quashed and set aside, against which the present appeal has been filed.
35. The ground has been agitated on behalf of appellant that the appellant is actually a member of Scheduled Tribe belonging to the Karmali Caste, which is scheduled tribe as notified in the Constitution (Schedule Tribe) Order, 1950 and also according to the list of Schedule Tribe appearing in Appx.-IX of the Bihar Schedule Area Regulation, 1969 and since the land in question was transferred without necessary permission of the Deputy Commissioner of the concerned district, as required under Section 46(4A) of the CNT Act, 1908, therefore, the SDO, Ramgarh has rightly passed the order for restoration of the land in favour of appellant, which was affirmed by the appellate authority. However, due to wrong description of land in original application i.e. in Restoration Case No. 1 of 1995, the appellant filed application for the rectification of description of khata number of land i.e., from Khata No. 94 to Khata No. 77, before the SDO, Ramgarh and was allowed, which was also confirmed by the appellate authority. But the learned Single Judge did not consider these aspects of the matter that there is concurrent finding recorded by the authorities, which is 15 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) passed as per mandate of CNT Act, 1908. The appellant has also taken the ground that the sale deed executed in the name of Smt. Uma Sinha wife of Dr. K.P. Sinha was obtained by playing fraud by changing the name of the executants, Haricharan Karmali and Shivcharan Karmali and by omitting the title „Karmali‟ and introducing the title „Mistri‟ against their names in order to conceal the true identity of the vendors, who were members of the schedule tribe community.
36. While, on the other hand, the writ petitioner-respondent no. 1 has taken the ground that it is not the case wherein only the issue of wrong khata number is there i.e., Khata No. 94 or Khata No. 77 but besides that the area of land is different as also the case is barred by mis-joinder and non-joinder of necessary party since Dr. K.P. Sinha was made party instead of Smt. Uma Sinha. Further ground has been taken that the learned SDO, Ramgarh has wrongly decided the case of the appellant since appellant is by caste „Lohar‟ as mentioned in khatian, which falls under the category of Backward Class and not the Scheduled Tribe. Further ground has been taken the learned SDO, Ramgarh on its own has come to the conclusion that „Karmali‟ caste falls under Schedule Tribe Category and based upon the aforesaid ground the land in question was erroneously directed to be restored in favour of appellant. The issue of limitation has also been taken stating 16 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) that after 14 years from the date of order of restoration passed by the SDO, Ramgarh on 26.02.1997, the appellant had filed application on 28.03.2011 for review of order by rectifying the khata number, even though there is no provision of review under the CNT Act but without having such jurisdiction, the SDO, Ramgarh has reviewed original order dated 26.02.1997 by making correction order in khata number and also directed for delivery of possession, in utter violation of law that the power of review can only be exercised by the Statutory Authority if the statute provides such power.
37. This Court, on appreciation of the aforesaid factual aspect as also the grounds taken by the parties, needs to consider following question for adjudication of the lis:
"(i).Whether the caste of the appellant will be allowed to prevail on the basis of the reference made in the khatian wherein the caste of the appellant has been referred to be „Lohar‟ or merely on the basis of the Constitution (Schedule Tribe) Order, 1950, wherein the reference of the caste „Karmali‟ is there , can the claim of the appellant of belonging to „Karmali‟ Caste is allowed to be prevail upon the reference made in the „Khatian‟ showing the writ petitioner to be „Lohar‟ Caste?
(ii).Whether the original proceeding and consequential proceedings i.e., Restoration Case No. 01 of 1995 and R.A.N. 8/97 is barred by the principle of non-joinder and mis-joinder of necessary party?17 LPA No. 409 of 2018
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(iii).Whether on allowing to rectify the Khata Number from 94 to 77 can the appellant get an advantage if he does not belong to a Schedule Caste Category as per description of his caste in Khatian?"
38. Since all the issues are inter-linked, as such they are taken up together.
39. This Court, before proceeding further, needs to refer herein the object of the CNT Act, 1908, as such the object and intent of the Act, 1908 and the relevant provisions for adjudication of the lis is mentioned as under.
40. It needs to refer herein the very object of the Chota Nagpur Tenancy Act, 1908. The CNT Act, 1908, is a land rights legislation that was created to protect the land rights of the tribal. Major feature of the C.N.T. Act is that it prohibits the transfer of land to non-tribals to ensure community ownership. The areas of North Chotanagpur, South Chotanagpur and Palamau Division are included in the jurisdiction of C.N.T. Act. The Act is listed in the 9th Schedule of the Constitution.
41. The position of law is that if any beneficial piece of legislation has been made to protect the interest/right of a particular community, the same is to be taken note by following liberal approach and not on the basis of technicality.
18 LPA No. 409 of 2018
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42. The CNT Act has been enacted by keeping the principle that the tribal people are novice and as such, in each and every proceeding, the Deputy Commissioner has been made to be a necessary party so that they may not be subjected to any exploitation. The CNT Act has got mandatory provision as under Section 46 wherein the land can be transferred in between tribal to tribal but with prior sanction of the Deputy Commissioner if the land falls within the same police station. For ready reference, the provision of Section 46 is being referred as under:
"[46. Restrictions on transfer of their right by Raiyat. -
(1) No transfer by a Raiyat of his right in his holding or any portion thereof,-
(a) by mortgagte or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement, shall be valid to any extent: Provided that a Raiyat may enter into a 'bhugut bundha' mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the 'Bihar and Orissa Co-operative Societies Act, 1935 (B&O Act VI of 1935) for any period not exceeding fifteen years:] Provided further that,- (a) an occupancy-Raiyat, who is [a member of the Scheduled Tribes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to [another person, who is a member of the Scheduled Tribes and], who is a resident within the local limits of the area of the police station within which the holding is situate;
(b) an occupancy-Raiyat, who is a member of the [Scheduled Castes or Backward Classes] may transfer with the previous sanction of the Deputy Commissioner his right in his holding 19 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) or a portion of his holding by sale, exchange, gift, will or lease to another person, who is a member of the [Scheduled Castes or, as the case may be, Backward Classes] and who is a resident within the local limits of the district within which the holding is situate;
[(c) any occupancy-Raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the 'Bihar and Orissa Cooperative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government, and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and (d) any occupancy-Raiyat, who is not a member of the Scheduled Tribes, Scheduled Castes or Backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person.] (2) A transfer by a Raiyat of his right in his holding or any portion thereof under subsection (1) shall be binding on the landlords.
(3) No transfer of contravention of sub-section (1), shall be registered or shall be in any way recognised as valid by any Court, whatever in exercise, of civil, criminal or revenue jurisdiction.
[(3-A) Notwithstanding anything contained in any other law for the time being in force, the Deputy Commissioner shall be a necessary party in all suits of a civil nature relating to any holding or portion thereof in which one of the parties to the suits is a member of the Scheduled Tribes and the other party is not a member of the Scheduled Tribes.] (4) At any time within three years after the expiration of the period or which a Raiyat has under clause (a) of sub-section (1) transferred his right in his holding or any portion thereof, the Deputy Commissioner shall on the application of the Raiyat put the 20 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) Raiyat into possession of such holding or portion in the prescribed manner.
[(4-A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by an occupancy-Raiyat, who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of clause (a) of the second proviso to sub-section (1):
Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy- tenant within a period of twelve years from the date of transfer of his holding or any portion thereof:
Provided further that before passing any order under clause
(b) or clause (c) of this subsection, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter.
(b) If after holding the inquiry referred to in clause (a) of this sub-section, the Deputy Commissioner finds that there was no contravention of clause (a) of the second proviso to sub-section (1) in making such transfer, he shall reject the application and may award such costs to the transferee to be paid by the transferor as he may, in the circumstances of the case, deem fit.
(c) If after holding the inquiry referred to in clause (a) of this sub- section, the Deputy Commissioner finds that such transfer was made in contravention of clause (a) of the second proviso to sub-section (1), he shall annul the transfer and eject the transferee from such holding or portion thereof, as the case may be and put the transferor in possession thereof:
Provided that if the transferee has constructed any building or structure, such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow failing which the Deputy Commissioner may get such building 21 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) or structure removed: Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before the commencement of the Chota Nagpur Tenancy (Amendment) Act, 1969 (President's Act 4 of 1969) he may, notwithstanding any other provisions of this Act, validate such a transfer made in contravention of clause (a) of the second proviso to sub-section (1), if the transferee either makes available to the transferor an alternative holding or portion of a holding, as the case may be, of the equivalent value, in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor.
(5) Nothing in this Section shall affect the validity of any transfer (of otherwise invalid) of a Raiyats right in his holding or any portion thereof made bona fide before the first day of January 1908 in the Chota Nagpur Division except the district of 'Manbhum', or before the first day of Januaury 1909, in the district of 'Manbhum'. [(6) In this Section [and in Section 47],-
(a) "Scheduled Casted" means such castes, races or tribes as are specified in Part II of the Scheduled to the Constitution (Scheduled Castes) Order, 1950;
(b) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are specified in Part II of the Scheduled to the Constitution (Scheduled Tribes) Order, 1950; and
(c) "Backward classed" means such classes of citizens as may be declared by the State Government, by notification in the Official Gazette, to be socially and educationally backward.]"
43. The aforesaid provision also provides by putting embargo of transfer of land from tribal to non-tribal and for such transfer, the permission of the Deputy Commissioner is required as per the provision of Section 46(1). At the time when the CNT Act was enacted there was no provision for restoration of land save and except the provision as under 22 LPA No. 409 of 2018
( 2025:JHHC:17674-DB ) Section 46(4-A), therefore, an act has come known as The Scheduled Area Regulation Act, 1969 by virtue of the same, Section 71-A has been inserted conferring power upon the Deputy Commissioner that if at any time it comes to the notice to the Deputy Commissioner or any application is being made before the Deputy Commissioner, he on his own motion can proceed for restoration of the land. For ready reference, Section 71-A is being referred as under:
"71A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred. - If at any time, it comes to the notice of the Deputy Commissioner that transfer of land belonging to a Raiyat or a Mundari Khunt-Kattidaror a Bhuinhari who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or Section 48 or Section 240 or any other provisions of this Act or by any fraudulent method, including decrees obtained in suit by fraud and collusion he may, after giving reasonable opportunity to the transfer, who is proposed to be evicted, to show cause and after making necessary inquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or, in case the transferor or his heir is not available or is not willing to agree to such restoration, re- settle it with another Raiyat belonging to Scheduled Tribes according to the village custom for the disposal of an abandoned holding:
Provided that if the transferee has, within 30 years from the date of transfer, constructed any building or structure on such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed :23 LPA No. 409 of 2018
( 2025:JHHC:17674-DB ) Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before coming into force of the Bihar Scheduled Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate such transfer where the transferee either makes available to the transferor an alternative holding or portion thereof as the case may be, of the equivalent value of the vicinity or pays adequate compensation to be determined by the Commissioner for rehabilitation of the transferor: Provided also that if after an inquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or re-settled, he shall require the transferor or his heir or another Raiyat, as the case may be, to deposit with the Deputy Commissioner such sum of money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred or the market value of the land, as the case may be and the amount of any compensation for improvements effected to the land which the Deputy Commissioner may deem fair and equitable."
44. Here, admittedly, in the Khatian i.e., the record of rights, published in the year 1916, the caste of the appellant has been mentioned as „Lohar‟ which has never been challenged by the appellant meaning thereby it is admitted by them.
45. The Hon‟ble Apex Court in the case of Nityanand Sharma Vs. State of Bihar [(1996) 3 SCC 576], while considering the issue of caste of „Lohar‟ whether it is Schedule Tribe or not has come to the conclusion that Lohars are an Other Backward Class/Backward Class. They are not Scheduled Tribes. For ready reference, the relevant paragraph of the judgment is quoted as under:
24 LPA No. 409 of 2018
( 2025:JHHC:17674-DB ) "12. According to Hisley, Lohars are large and heterogeneous aggregate comprising members of the several different tribes and castes, who in different parts of the country took up the profession of working in iron. Of the various sub-castes ... the Kanaujia claim to be the highest in rank, and they alone have a well-marked set of exogamous sections. They regard Vishwani as their legendary ancestors, and worship him as the tuolary deity of their tracts. The Magahaiya seems to be the indigenous Lohars of Bihar, or opposed to the Kanaujia and Motiniya, who profess to have come in turn from the North-West Provinces. The Kamia Lohars found in Champaran have immigrated from Nepal and are regarded as ceremonially unclean.... The Manhhum Lohars acknowledge three sub-castes -- Lohar Manjhi, Danda Manjhi and Begdi Lohar, names which suggest a connection with the Begdi castes. Lastly, in Lohardagga we have the Sed-Lohars, claiming to be immigrant Hindus; the Manjha Turiyas who may well be a branch of the Turi caste;
and the Munda Lohars who are certainly Mundas. In Andhra Pradesh, blacksmiths are known as Kammara, who work on preparing iron articles for agricultural operations and Kamsalis prepare gold ornaments. They are OBCs. Their names are different from region to region. It would thus be clear that Lohars are blacksmiths, while Loharas/Lohra are Scheduled Tribes.
18. It is seen that in the Second Schedule in Part III of the Act, as extracted hereinbefore, Lohar was not included as a Scheduled Tribe. It is only, as evidenced from the translated version, that the community „Lohar‟ came to be wrongly translated for the word „Lohra‟ or „Lohara‟ and shown to have been included in the Second Schedule, Part III, applicable to Bihar State. Mr B.B. Singh, therefore, is right in placing before us the original version in English and the translated version.
19. Article 348(1)(b) of the Constitution provides that notwithstanding anything in Part II (in Chapter II Articles 346 and 347 relate to regional languages) the authoritative text of all Bills to be introduced and amendments thereto to be moved in either House of Parliament ... of all ordinances promulgated by the President... and all orders, rules, regulations and bye-laws issued under the Constitution or under any law made by Parliament, shall be in the English language. By operation of 25 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) sub-article (3) thereof with a non obstante clause, where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub- clause, a translation of the same in the English language published under the authority of the Governor of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article. Therefore, the Act and the Schedule thereto are part of the Act, as enacted by Parliament in English language. It is the authoritative text. When the Schedules were translated into Hindi, the translator wrongly translated Lohara as Lohar omitting the letter „a‟ while Lohra is written as mentioned in English version. It is also clear when we compare Part XVI of the Second Schedule relating to the State of West Bengal, the word Lohar both in English as well as in the Hindi version was not mentioned. Court would take judicial notice of Acts of Parliament and would interpret the Schedule in the light of the English version being an authoritative text of the Act and the Second Schedule.
20. Accordingly, we hold that Lohars are an Other Backward Class. They are not Scheduled Tribes and the Court cannot give any declaration that Lohars are equivalent to Loharas or Lohras or that they are entitled to the same status. Any contrary view taken by any Bench/Benches of Bihar High Court, is erroneous. It would appear that except some stray cases, there is a consistent view of that Court that Lohars are not Scheduled Tribes. They are blacksmiths. We approve the said view laying down the correct law."
46. Since we are dealing with the issue wherein the provision of Act, 1908 is applicable which contains provision of making rectification, if there is any error crept up in the record of right. The relevant provision is under Sections 80 to 84, which are referred herein below:
26 LPA No. 409 of 2018
( 2025:JHHC:17674-DB ) "80. Power to order survey and preparation of record-of-
rights - (1) The [State] Government may make an order directing that a survey be made and a record-of-rights be prepared, by a Revenue Officer in respect of the lands in any local area, estate, or tenure or part thereof. (2) A notification in the [* * *] [Official Gazette] of an order under sub-section (1) shall be conclusive evidence that the order has been duly made. (3) The survey shall be made and the record-of-rights shall be prepared in the prescribed manner.
81. Particulars to be recorded - Where an order is made under Section 80, the particulars to be recorded shall be specified in the order and may include, either without or in addition to other particulars, some or all of the following, namely :- (a) the name of each tenant or occupant; (b) the class to which each tenant belongs, that is to say, whether he is a tenure- holder, 'Mundari khunt-kattidah', settled 'Raiyat', occupancy 'Raiyat', non-occupancy-Raiyat khunti' having 'khuntkati' rights, or under-'Raiyat' and, if he is a tenure-holder, whether he is a permanent tenure-holder or not and whether his rent is liable to enhancement during the continuance of his tenure; (c) the situation and quantity and one or more of the boundaries of the land held by each tenant or occupier; (d) the name of each tenant's landlord; (e) the name of each proprietor in the local area or estate; (f) the rent payable at the time the record-of-rights is being prepared; (g) the mode in which that rent has been fixed- whether by contract, or by order of a Court, or otherwise; (h) if the rent is a gradually increasing rent, the time at which and the steps by which it increases; (i) the rights and obligations of each tenant and landlord in respect of,- (i) the use, by tenants, of water for agricultural purposes, whether obtained from a river, 'jhil' tank or well or any other source of supply, and (ii) the repair and maintenance of appliances for securing a supply of water for the cultivation of the land held by each tenant, whether or not such appliances be situated within the boundaries of such land;
(j) the special conditions and incidents (if any) of the tenancy; (k) any easement attaching to the land for which the record-of-rights is being prepared; (l) if the land is claimed to be held rent-free- whether or not rent is actually paid, and, if not paid, whether or not the occupant is entitled to hold the land without payment of rent, and, if so entitled, under what authority; (m) [the existence, 27 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) nature and extent of] the right of any person whether a landlord or tenant or not, to take forest-produce from jungle-land or waste- land, or to graze cattle on any land [or to take fish from any water, or of any similar right] in any village in the area to which the record-of-rights applies; (n) the right of any resident of the village to reclaim jungle-land or wasteland, or to convert land into korkar.
82. Power to order survey and preparation of record-of- rights as to water - The [State] Government may, for the purpose of settling or averting disputes existing or likely to rise between landlords, tenants, proprietors, or persons belonging to any of these classes, regarding the use or passage of water, make an order directing that a survey be made and a record-of- rights be prepared by a Revenue Officer, in order to ascertain and record the rights and obligations of each tenant and landlord in any local area, estate or tenure or part thereof, in respect of,-
(a) the use by tenants of water for agricultural purposes, whether obtained from a river, 'jhil', tank or well or any other source of supply; and (b) the repair and maintenance of appliances for securing a supply of water for the cultivation of the land held by each tenant, whether or not such appliance be situated within the boundaries of such land.
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. (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 28 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) Chapter or a duly certified copy thereof or extract therefrom is produced, such record-of-rights shall be presumed to have bean 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.
47. It is thus evident from the aforesaid provisions that after draft publication, the liberty has been given to the party if there is any error in the publication of record of rights to make an objection for its consideration and taking decision after inviting objection by the other affected party. The provision of appeal, the revision, the suit and finally the appeal before this Court, as per the provision as contained in the Act, 1908.
48. The admitted fact herein is that the khatian is the original record of rights, which is the basis to identify the nature of land and the description of caste of the raiyat. It is the admitted case that in the khatian the reference of the caste of the ancestral of the appellant is „Lohar‟. The same entry has been made, as has been submitted by learned counsel for the appellant, on the basis of cadastral survey 29 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) made sometimes in the year 1916. However, as per pleading available on record, no endeavour has ever been made for making necessary correction/rectification in the khatian so as to rectify the reference of caste of the appellant showing of the „Lohar‟ caste. As such the element that the appellant belong to the „Lohar‟ caste as per khatian is admitted one particularly in absence of objection ever been made, as per the statutory remedy available under the Act, 1908.
49. The appellant has tried to make out a case that he belong to Karmali Caste and Karmali caste, under the Order, 1950, falls under Schedule Tribe and hence, there is illegality committed in transfer of land in question due to want of permission of the Deputy Commissioner of the concerned district, as required under Section 46(4A) of the CNT Act, 1908.
50. The appellant has claimed himself to be Karmali, which is contrary to the caste description shown in the name of Khatian. The SDO, Ramgarh has accepted the said version accepting the caste of the appellant to be „Karmali‟, which falls under Schedule Tribe, on the so-called report of the Circle Officer, without verifying the content of the Khatian and on its own by making a finding that it is known to everybody that Karmali caste falls under the Schedule Tribe Category. The law is well settled that the adjudicator whether quasi-judicial or judicial in nature is to go by the 30 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) admitted document and not on presumption, but herein no document has ever been placed before the authority to establish the caste of „Karmali‟.
51. This Court has also perused the affidavit dated 29.04.1982 filed by the appellant wherein he has described himself as Kamalnath Mistry, son of Haricharan Mistry clearly stating therein that he belongs to Backward Class and by caste is Lohar, Bishwarkarma and not an Adivashi. In paragraph 2 of the affidavit, he has further stated on oath that he has sold 22 decimals of land falling under plot no. 188 Khata No. 77 of village Murramkala to Smt. Uma Sinha wife of K.P. Sinha.
52. This Court has also gone through the copy of Register-II, which has been marked as Annexure 13 series to the writ petition, wherefrom it is evident that descendants of the recorded tenants describing themselves as the members of Backward Class community have sold out major part of Khata No. 77 vide registered sale deeds to the persons who are not the members of Schedule Tribe community and accordingly mutation has been done in the name of purchaser.
53. Furthermore, admittedly the Khatian is said to have been prepared in the year 1916 and admittedly, no endeavour has ever been taken for rectifying the entry made in the Khatian, if it is wrong, as per the claim made by the 31 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) appellant that the predecessor-in-interest of the appellant belong to „Karmali‟ caste, which falls under Schedule Tribe category. Even accepting that there was error in the record of rights, then also it was the bounden duty of the appellant to make an application before the competent authority for making necessary correction in the Khatian, which is the original record of rights. If no endeavour has been taken for making necessary correction the record of rights then whatever is being reflected in the record of rights that is to be accepted by the adjudicator.
54. This Court, taking into consideration the aforesaid fact in particular the Khatian wherein the caste of the appellant has been mentioned as „Lohar‟, which as per the law laid down by Hon‟ble Apex Court is Backward Category as also taking into consideration the affidavit sworn by the appellant wherein he has specifically stated on oath that he belongs to Backward Class and by caste is Lohar, Bishwarkarma and not an Adivashi and considering the fact that in Register-II relating to Khata No. 77, the land has been transferred in the purchasers who are not falling under schedule tribe, is of the view that the appellant does not fall under the category of Schedule Tribe.
55. The issue of limitation has also been agitated by the parties on the ground that the sale deed was executed on 20.04.1982 whereas on 19.01.1995 application for 32 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) restoration has been filed i.e., after more than 12 years of execution of the sale deed, the application for restoration was filed. Whereas the appellant has taken the ground since the mutation was done in the year 1984-85, as such the period of limitation has not expired.
56. The learned SDO has come to the conclusion that since the mutation has been done in the year 1984-85, as such it cannot be said that the writ petitioner was in possession since 1982 the date when he purchased the land in question. On the basis of aforesaid finding, the application for restoration was allowed.
57. On this issue, this Court has gone through the provision of Section 46(4A) of the Act, 1908 which contains a proviso that application is to be filed before Deputy Commissioner of the concerned district, which shall be entertained by the Deputy Commissioner unless it is filed under Occupancy of Tenant within a period of 12 years from the date of transfer of his holding or any portion thereof; meaning thereby the application must be filed within a period of 12 years from the date of transfer. The aforesaid provision thus suggest that the application is to be filed within a period of 12 years, which is to be established by the claimant who is seeking restoration of the land but the aforesaid aspect of the matter has not been taken into consideration rather the learned SDO, Ramgarh has gone 33 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) into the issue of possession of the land instead of going to the issue of date of transfer. Thus, on this score also, the order passed by the learned SDO, Ramgarh suffers from error since the land has been transferred by way of registered sale deed dated 29.04.1982 and the application has been filed after 12 years on 19.01.1995. Furthermore, the concerned SDO, in order to negate the registered sale deed 29.04.1982 ought to have led the evidence in order to disprove the element of possession/transfer over the land in question or dispossession of the appellant but no such endeavour has been taken.
58. Further, it is evident from the record that even after correction of khata number from Khata No. 94 to Khata No. 77, the Land Restoration Case No. 01/1995 and the all consequential proceedings before the revenue authorities are barred by mis-joinder and non-joinder of necessary party since the land in question admittedly was registered in the name of Smt. Uma Sinha, wife of Dr. K.P. Sinha, for which mutation has been done and her name reflects in Register II, but the case i.e., Land Restoration case and all other consequential proceedings have been initiated against Dr. K.P. Sinha. Therefore, on that ground also application is liable is to be dismissed on the ground of mis-joinder and non-joinder of necessary party.
34 LPA No. 409 of 2018
( 2025:JHHC:17674-DB )
59. It needs to refer herein that "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. In the context of the aforesaid paragraph-15 of the judgment passed by Hon‟ble Supreme Cou Mumbai International Airport Private Limited vs. Regency Convention Centre and Hotels Private Limited and Ors., (2010) 7 SCC 417 is being referred as under:
"15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed.
60. Therefore, the proceeding before the revenue authority is barred by the principle of non-joinder and mis- joinder of necessary party and even after allowing the modification/rectification application for rectification of the Khata Number from 94 to 77 the appellant cannot get an advantage.
61. Accordingly, all the issues are answered.
62. The fact that the description of the caste as admittedly available in the khatain and the issue of limitation which although has been agitated before the 35 LPA No. 409 of 2018 ( 2025:JHHC:17674-DB ) learned Single Judge but has not been considered but merely on the aforesaid ground the order passed by the learned Single Judge cannot be said to suffer from an error due to simple reason that if the law points are available then even the same can be considered at the intra-court appeal stage since it is settled that the intra-court appeal is in furtherance of the proceeding of the writ proceeding and if any pleading has been taken by the parties and it has not been considered then there is no difficulty in considering the same. Reference in this regard be made to the judgment rendered in the case of Baddula Lakshmaiah v. Sri. Anjaneya Swami Temple, (1996) 3 SCC 52. Relevant paragraph of the said judgment reads as under:
"2. ... A letters patent appeal, as permitted under the Letters Patent, is normally an intra-court appeal whereunder the Letters Patent Bench, sitting as a Court of Correction, corrects its own orders in execise of the same jurisdiction as was vested in the Single Bench. ..."
63. This Court, applying the said principle and coming to the conclusion that as per Khatain, the caste of the appellant is „Lohar‟ which comes under Backward Category and also the proceedings initiated before the revenue authorities are barred by limitation as also barred by mis- joinder and non-joinder of the necessary party, is of the view that orders passed by the revenue authorities has rightly been quashed and set aside by the learned Single Judge, which requires no interference by this Court. 36 LPA No. 409 of 2018
( 2025:JHHC:17674-DB )
64. This Court, in view of the aforesaid discussion, is of the view that the order passed by the learned Single Judge so far its outcome is concerned needs no interference. However, the same is being improved, as per discussions made hereinabove.
65. With the aforesaid observations, the instant intra- court appeal stands dismissed.
66. Pending Interlocutory Application, if any, stands disposed of.
67. Let the record of Land Reformation Case No. 1/1995 be returned to the concerned forthwith.
I agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
Alankar/A.F.R.
37 LPA No. 409 of 2018