Patna High Court
State Of Bihar vs Smt. Sharda Devi on 1 May, 1996
Equivalent citations: 1997(1)BLJR1
Author: P.K. Deb
Bench: P.K. Deb
JUDGMENT R.N. Sahay, J.
1. This litigation has a chequered history and the facts of the case are rather involved and hence has to be narrated with sufficient clarity.
2. This appeal under Clause 10 of the Letters Patent Appeal arise out of a proceedings under the Land Acquisition Act. In pursuance of a declaration dated 16.2.1982 (Ext. 7) 36.86 acres of land (out of 43.92 acres) bearing plot Nos. 4/5 and 10 appertaining to khata No. 151 of village Phusari in the district of Lohardaga, was acquired for a project called Phulsari Sapahi Nala". The lands of khata No. 151 under khewat No. 2/9 R.S. Plot Nos. 4, 5 and 10 were recorded under the revisional survey record of rights as 'gair majarua malik'. But according to the appellant-State of Bihar, the aforesaid land vested in the State of Bihar as per notification dated 18.8.V995 (Ext. M). Therefore, the State claimed that it was entitled to get compensation for the lands acquired under Ext. 7.
3. The case of the respondent was that before vesting of Zamindari, the land had been settled by the ex-landlord in the name of one Deo Narayan Prasad by means of a registered deed of settlement (Ext. B) dated 24.4.54 and it was a raivat settlement. The respondent purchased the land from said Deo Narayan Prasad by registered deed of sale dated 7.9.1962 (Ext. C) Thereafter, she developed the land, cultivated it and raised crops. Her name mutated by Circle Officer in the revenue records and correction slip was issued to her (Ext. D). The State realised rent from her from the very date of vesting, i.e. from 1955 till 1975. The rent receipts issued to her are Ext.A-A/5. However, according to the case of the appellant, in the statutory return (Ext. 9, filed by the ex-landlord after vesting, this land was not shown to be setting with anybody rather shown as simply, 'gair majarua' land. In the disputed land, erection of bandh was started in 1967 and completed in 1972. No objection was ever raised by the respondent that she was in possession of the land as occupancy raiyat.
4. The name of the respondent was recorded in the revenue records the Circle Officer vide mutation case No. 2/69 after she purchased the land from said Deo Narayan Prasad in 1962. The name of Deo Narayan was not mutated in the revenue-records. Respondent paid rent to the State rent from 1955 to 1975 for the first time after mutation in 1972 she was prevented from cultivating the land. But as stated earlier in 1967 itself the construction had started according to the case of the appellant and there was no resistance from the side of the respondent.
5. The case of the appellant-State is that transaction which is the foundation of the case of the respondent was a bogus transaction and did not confer any title on her. Her vendor was not in possession at the time of vesting of the land. If her vendor was not in actual possession, at the time of vesting, mere sale deed in favour of respondent did not confer any title on her.
6. The starting point of the real dispute was publication of notification under Section 4 of the Land Acquisition Act, 1894 for acquisition of 36.86 acres of land out of 43.92 acres. The revenue authority refused to prepare the award in favour of the respondent because according to the State she has no right to claim compensation.
7. Respondent filed CWJC 147 of 1985 before this Court. The said application was disposed of with a direction to the State to prepare an award in the name of the respondent subject to any reference under Section 18 or 30 of the Land Acquisition Act for adjudication of the claim. Accordingly award was prepared in the name of the respondent. Ultimately the Collector referred the ( dispute to the Land Acquisition Judge, Ranchi under Section 30 of the Act for adjudication. Before the Special Subordinate Judge, oral and documentary evidence on behalf of both the parties were adduced. The following documents were filed on behalf of the State of Bihar:-
Ext. 1: To show that fishery settlement was made in favour of Md. Khalil over the bandh in question.
Ext. 2: Certified copy of R.S. record of rights or khata No. 151.
Ext. 3: Copy of Register of Misc. Demand (Sairat).
Ext. 4: Copy of circular by Government.
Ext. 5: Copy of writ petition being CWJC 147/85R Ext. 6: Photocopy of return filed by the ex-landlord under the provisions of Bihar Land Reforms Act on vesting of the Zamindary under the provisions of Bihar Land Reforms Act.
On behalf of the respondent, the following documents were exhibited;-
Ext. A to A/5 : Rent receipt granted by the State of Bihar in the name of the respondent issued in the year 1970, 1971, 1973, 1974 and 1975.
Ext.B. : Certificated copy of registered deed of 1954 Ext.C. : Certificated copy of deed of sale in favour of the respondent in the year 1962 Deo Narayan Prasad.
Ext. D. : Correction slip issued in favour of the respondent in Mutation case No. 2/ R-27 of 1969-70.
Ext. E. : Notice issued under the Land Encroachment Act Case No. 3/79-80 by the Circle Officer, Kuru.
Ext. F : Order sheet dated 26.12.1983 in Land Acquisition case No. 21 of 1982-83.
Ext. H/1 : Order dated 7.10.1985 passed in MJC No. 137/85 R by this Hon'ble Court.
Ext. I : Order passed in Misc. Case No. 9 of 1981-82 by LRDC Lohardaga.
Ext. I/1 : Order dated 28.9.1981 passed in CWJC 1663/81 R Ext. J. : Copy of the petition filed by the Circle Officer, Kuru, before the Land Acquisition Officer, Lohardage in L.A. Case No. 21/82-83 Ext. K. : Notice to the respondent from the court of Commissioner, Chotanagpur Division in Appeal Case No. 132/84 filed by the appellant.
Ext. L. : Letter dated 9.6.1980 by the Circle Officer Kuru to the Addl. Collector, Lohardaga in Misc. Case No. 9/81-82.
Ext.L/1 : Letter dated 17.7.1981 by LRDC Lohardage to Circle Officer, Kuru in Misc. case No. 9 of 1981-82.
Ext. M. : Proclamation dated 18.8.1985.
8. The Special Subordinate Judge framed only two issues;-
1. Whether the objection raised by the petitioner is sustainable in law?
2. Whether the preparation of award in the name of the petitioner is liable to be cancelled?
The Learned Special Subordinate Judge should have framed the issues in more precise manner as the' following issues were involved for coming to a just decision:-
1. Whether State has right, title with respect to the lands in question and lands vested in the State?
2. Whether any raiyat settlement was made by the ex-landlord in favour of Deo Narayan Prasad?
3. Whether Deo Narayan Prasad executed the registered deed of sale in favour of Sharda Devi?
4. Whether principles of constructive res judicate is applicable?
9. The learned Special Subordinate Judge by judgment dated 6th September, 1986 answered the reference in favour of the respondent Sharda Devi. The learned Subordinate Judge rejected one of the main documents filed on behalf of the appellant, namely, some papers of return (Ext. 6) which had been filed to show that in the return submitted by the ex-landlord at the time of vesting, the disputed land was shown as 'gair majarua malik'. The learned Subordinate Judge observed that it was difficult to place reliance on the copy of the return as 'it does not show who filed this return" and there is no return certificate by the ex-land lord on it that the contents of return were correct and it also does not show when the return was filed."
10. As stated earlier, the name of the respondent Sharda Devi was mutated on her application and correction slip (Ext.D) was issued by the Circle Officer, in mutation case of 2 of 1969-70. It was urged on behalf of he appellant that according to the relevant circular, karamchari was not authorised to open Jamabandi on the basic of Hukumnama of ex-landlord vide Ext. 4 series. It was, therefore, submitted that the mutation in favour of respondent had no legal authority. The Special Subordinate Judge did not attach any importance to this objection on the ground that the order of mutation has become final.
11. On behalf of the appellant one Qurban Ansari was examined. He stated that the Bandh is over an area of 100 acres covering the lands of village phulsari, Kokar and Chandralakhe. It is stated that in 1979 sairat settlement of fishery right in the bandh was done for three years @ Rs. 500/- per month. In support of this he proved a carbon copy of receipt granted by Nazir Kurd Anchal on 17.5.79. Copy of Register of Miscellaneous demand is Ext. 3. It was filed to show that fishery was settled for a period from 1.4.79 to 31.3.82 with Md. Khalil. It was argued on behalf of the respondent that settlement of fishery right was only a paper transaction intending to create evidence before starting encroachment proceeding, (reference to which shall be made at the appropriate stage) against the respondent on 18.7.79. Learned Subordinate Judge did not place any reliance on this evidence because Md. Khalil was not examined and it was difficult to accept that anybody would exercise fishery right on the aforesaid land in contravention of right of possession of the respondent.
12. On 18.7.79, . the Anchal Adhikari, Kuru, passed an order for initiation of land encroachment proceeding against the respondent. Consequently Land Encroachment case No. 3 of 1979-80 was stated (Ext.E). The proceeding was challenged by the respondent by filing writ application being CWJC 366/79 (R). this Court by order dated 23.7.84 quashed the proceeding vide Ext. F. Learned Subordinate Judge referred to the order aforesaid passed by this Court and observed:
Para 7 of this order show that the Hon'ble Court rejected the plea that the aforesaid land is still gair majarua malik and also clearly held that objector can be ousted from three by taking recourse to the provision of Chotanagpur Tenancy Act." and Hon'ble court accepted that Sharda Devi was the occupancy raiyat of the land in M.J.C. No. 137/85 R (Ext. H-1). The Hon'ble Court made the observation to the effect that in CWJC 366/79 R the matter had been thoroughly examined and gone into and thereafter the order has been passed in which definitely the petitioner -Sharda Devi's right has been upheld and it has been held that Sharda Devi occupancy right on the aforesaid land. In view of the said finding of the Hon'ble Court in CWJC 366/79 R in which appearance was made on behalf of the State also, it is difficult to hold that it is still open to the State of Bihar to say before him that objector Sharda Devi is not occupancy raiyat of the aforesaid land.
The learned Subordinate Judge was of the view that the aforesaid finding of this Court was binding on him. In other words it would operate as resjudicata. Learned Special Subordinate Judge held that it was not open to him to investigate the question whether Sharda Devi was the occupancy raiyat of the aforesaid land or not. Learned Special Subordinate Judge did not accept the evidence of two witnesses examined on behalf of the appellant that the entire acquired area had sub-merged into water because the report of the Anchal Adhikari in case No. 9/81-82 (Ext.L) was otherwise.
13. Case No. 9/81-82 was initiated against the respondent for cancellation of Zamabandi against which respondent-Sharda Devi filed CWJC 1663/81 (R) and this Court by order dated 29.9.81 stayed the proceedings in the aforesaid case which was pending in the court of L.R.S.J. Lohardage. It was contended on behalf of the appellant that since the proceeding under Section 4 (h) of the Bihar Land Reform Act had already been initiated against the respondent for cancellation of settlement done by the ex-intermediary, the jurisdiction of the civil court was barred. However, no record of the cancellation proceeding under Section 4 (h) was produced. The plea of bar of jurisdiction was not accepted. The learned Subordinate Judge has considered only the evidence of witness No. 2 who had stated that Deo Narayan Prasad form whom the disputed land was purchased by the respondent was in cultivating possession of 5-7 acres of land out of the disputed land and that 36.83 aces of land got sub-merged under water out of 43.92 acres and that rest is still in cultivating possession of the respondent. Learned Subordinate Judge said that this evidence was supported by respondent-witness No. 1. Other oral evidence was not considered at all. Learned Subordinate Judge, therefore, came to the conclusion that respondent is the occupancy raiyat of the acquired land and as such the appellant was not entitled to condoned that the land was still 'gair magarua malik' land and had vested in the State of Bihar. The award was therefore, correctly prepared in the name of Smt. Sharda Devi and the objections raised by the State are not sustainable.
14. The State of Bihar challenged the decision of the Special Subordinate Judge aforesaid in F.A. 171/86 which was heard and disposed of by U.P. Singh, J. Learned Judge by judgment dated 25th April 1988 affirmed the award of the Special Subordinate Judge which is under challenge in this Letters Patent Appeal.
15. It would be necessary at this stage to bring on record the grounds taken by the appellant-State of Bihar in the first appeal against the judgment of the Special Subordinate Judge. The first ground was that the Special Subordinate Judge had framed cryptic issues and the real issues involved in the controversy were omitted to be framed. It was next contended before the learned Single Judge that the Subordinate Judge committed grave error in rejecting the copy of the return filed by the Ex-Zamindar (Ext. 6). It was contended that there was no reliable evidence that Deo Narayan Pd. had executed sale deed in favour of the respondent. The trial court accepted the evidence of respondent-witnesses to the effect that the land was settled by the ex-landlord in favour of Deo Narayan Prasad. It was submitted that the photocopy of the alleged settlement deed which was filed to prove settlement was not admissible, Deo Narayan Pd. having not been examined by the respondent.
16. It was contended before the learned Single Judge on behalf of the appellant that the trial court had merely mentioned filing of certified copy of the registered deed of settlement, correction slip etc. but the Subordinate Judge had not given any specific finding that he was accepting those in evidence. It was next contend that Qurban Ansari, an important witness examined on behalf of the appellant, was disbelieved on mere submission made on behalf of the respondent. The main contention of the State of Bihar before the learned Single Judge was that the entire finding of the Special Subordinate Judge was based on orders passed by this Court in various writ proceedings referred to above without appreciating the import of the observation of this Court. It was contended mat the Special Subordinate Judge committed serious error of record while considering those documents. It was submitted that the Subordinate Judge was unduly influenced by the order passed by this Court which vitiates his findings. It was submitted that Special Subordinate Judge was wrong in holding the observation made by this Court in various writ proceedings amounted to constructive res-judicate.
17. Learned Single Judge rejected all the arguments advanced on behalf of the appellant and dismissed the appeal. Learned Single Judge had held in para 5 of his judgment that in CWJC 366/79 (R) this Court held that the respondent was an occupancy raiyat of the land and she could be rejected only under the provision of Chotanagpur Tenancy Act. The Advocate General who appeared on behalf of the State contended before the learned Single Judge that in CWJC 366/79 R, the High Court had only quashed the land encroachment proceeding on the ground that it was not applicable to the case and the respondent could be evicted only under the provision of Chotanagpur Tenancy Act. In MDC case No. 137/85 R (Ext H/1), the order in CWJC 3666/79 R was reference. It was submitted by the Advocate General that the High Court had wrongly read the judgment in CWJC 366/79 R as if it was held that respondent was occupancy raiyat of the land and the lower court was influenced by the wrong reading of the judgment. This contention was considered and answered in paragraph 9 of the judgment under appeal as follows:-
In order to appreciate as to what the High Court held in its judgment (Ext. F) passed in CWJC 366/79R the judgment has to be read as a whole and the categorical finding is that the respondent could not be evicted under the Bihar Land Encroachment Act but only under the provisions of the Chotanagpur Tenancy Act. It is common knowledge that Chotanagpur Tenancy Act provides for eviction of a tenant from a raiyat land under certain circumstances, whereas, the Bihar Land Encroachment Act envisages the eviction of an encroacher from the public land. By holding that the respondent could be evicted only under the Chotanagpur Tenancy Act from the land in question it obviously meant that the respondent Smt. Sharda Devi was a raiyat of the land in question and, therefore, the contention of the appellant that the High Court wrongly read the aforesaid judgment (Ext.F) in MJC No. 137/85 R(Ext.H/1) cannot be accepted. The aforesaid M.J.C. case for contempt had arisen because of the disobedience of this Court's order dated 13.2.1985 passed in CWJC No. 147/85 R, whereby, the finding of the Addl. Collector that the land was Gairmajura Malik land and had vested in the state of Bihar and, further, that the respondent had no right to receive compensation, had been quashed and the Land Acquisition Officer had been directed to prepare the award in the name of the respondent. As stated earlier, the aforesaid order was not challenged by the State and it become final. In paragraph 14 of the grounds of appeal the appellant has accepted that in CWJC 365/79 R the High Court had observed that the respondent was an occupancy raiyat and not a trespasser and as such the High Court had quashed the proceeding under the Land Encroachment Act initiated by the Anchal Adhikari.
18. The learned Single Judge has not given categorical finding whether there was any observation in CWJC 366/79 R that the respondent had acquired occupancy right over the disputed land. Learned Single Judge only held that the order passed in CWJC 147/85R quashing the land encroachment proceeding having not been challenged in the appeal became final. Learned Judge in para 10 of the judgment considered the judgment of this Court in CWJC 1663/81 R dated 25.3.1987 i.e subsequent to the order passed by the Special Subordinate judge on 6.9.86. The High Court quashed the proceeding under Section 4 (h) of the Bihar Land Reforms Act. According to the learned Single Judge, in view of the aforesaid judgment, respondent's status as raiyat in respect of the land in question was maintained.
19. Learned Single Judge has observed that the judgment of the Special Subordinate Judge was not only based on three judgments of this Court in respect of the same land between the same parties, (Ext. F.H.H./1), but Special Judge had also taken into consideration sufficient materials on record filed by the respondent proving that she is occupancy raiyat of the land and that the State of Bihar has no interest in the acquired land except to realise rent. A prayer was made by the Advocate General that since Subordinate Judge had not adverted to the other evidence on record, the matter should be remitted to the Subordinate Judge. This plea was not accepted because it would have led to the unnecessary harassment to the respondent, who had been dragged into several litigation's in different courts.
20. Learned Single Judge was not impressed with the arguments of the learned Advocate General that original deed of settlement in favour of Deo Narayan Prasad has not been proved and unless the original deed of settlement is proved, the respondent could not claim to have acquired any right by virtue of sale deed in her favour. The certified copy of the registered deed of settlement (Ext. B) was filed on behalf of the respondent to prove the settlement. It was contended that by waiving the formal proof of certified copy of the registered deed of settlement, the contents of the aforesaid document was not proved. Reliance was placed on the cases Learned Single Judge held that settlement of land vide Ext. B was never annulled by the State. On the other hand, the State has realised rent from the said respondent in respondent of the land in question. It was held that the settlement was proved by filing certified copy of the registered deed of settlement. Learned Judge has observed in para 14 of his judgment that Circles Officer in his cross examination admitted that he has seen a copy of the deed of settlement. Learned Judge observed in paragraph 15 as follows:-
From the above admission of the Circle Officer and the question and answers quoted above, there appears to be no ambiguity in the said statement and the fact of settlement of the and in question by the ex-landlord in favor of Deo Narain Prasad, is conclusively established.
21. Learned Judge in paragraph 19 of his judgment has considered some of the documents filed on behalf of the respondent and held in favour of the respondent. Learned Judge has held that though mutation and rent receipts do not create, confer or extinguish title, but they are certainly evidence of title. In such a case rent receipts were granted by the State with endorsement without prejudice' which, according to the learned Single Judge was of no avail to the State in view of the decision of this Court in Harihar Singh v. Additional Collector, 1978 BBCJ 323). Learned Single Judge agreeing with the view of the Special Subordinate Judge did not place any reliance on Ext. 6 (photography of returns) Learned Judge held that the return filed by the appellant was not in accordance with Section 38 of the Bihar Land Reforms Act. A supplementary return was filed in this Court at the time of hearing of the first appeal on 24.11.1987. This photography of supplementary return was not accepted being not -certified copy of any registered document and, therefore, neither Section 51A of the Land Acquisition Act not Section 57 (5) of the Registration Act would make these documents of its contents admissible in law.
22. A prayer was made on behalf of the appellant for adducing additional evidence in order to show the notification regarding vesting of the land under khewet No. 2/9 published in Feb. 1995 and intermediary had filed return in March, 1955 which did not show the name Deo Narayan Prasad. This notification was not produced at the time of hearing before the trial court. The prayer for adducing additional evidence was not allowed because according to the learned Single Judge it would not have improved the case of the appellant because the settlement in favour of the respondent was in the year 1954 and vesting took place in 1955.
23. The notification regarding vesting which was filed before the Special Subordinate Judge actually related to the land in question and that is why prayers for adducing additional evidence was more but rejected by the learned Special Subordinate Judge.
24. Learned Single Judge rejected the argument of the Advocate General that certified copy of the registered deed of settlement being secondary evidence was inadmissible in evidence. Learned Judge held that in view of Section 51A of the Land Acquisition Act, which came into force on 24.9.1984, the decision in are no longer relevant. Learned Judge, therefore, held that the certified copy of the raiyat settlement (Marked Ext. B without any objection from the appellant) proves not only the transaction of raiyat settlement but also contents of the registered deed of settlement. Learned Judge relying on decision of Madras High Court in held that under Section 57 (5) of the Registration Act, certified copy is admissible for the purpose of proving the contents of the original document and the mere production of such copy without any further oral evidence to support it, would be enough to show What the original document contained. It was consequently held that on a plain reading of Ext. B, the certified copy of the registered deed of settlement, it was clear that settlement by the ex-landlord was for agricultural purpose. Learned Judge further held that in view of the admission made by the Circle Officer on behalf of the appellant coupled with the evidence of witness No. 2 for the respondent, it was sufficient to hold that the respondent was in possession of the land in question. Learned Judge, however, did not decide the question whether the vendor of the respondent was in possession at the time of vesting.
25. On behalf of the respondent, strong reliance was placed on Harihar Singh v. Additional Collector, 1978 BBC 323 in which case, according to the learned Judge, in identical situation, a settles was found in cultivating possession of land in question as settled raiyat of the village and the High Court held that the settles had acquired an occupancy right and could not be evicted and could be evicted only under the provision of Bihar Tenancy Act.
26. Learned Judge in paragraph 32 to 36 summed up his conclusion as follows:-
32. The facts of the present case are even better than Harihar Singh's case. In the present case, the settlement of Garimajura Malik land is by a registered deed. The return has not been filed by the State of court. In the Misc. case No. 9/81-82 the Circle Officer admitted in his statement that the ex-intermediary had shown the name of Deo Narain Prasad the settlee, in the Jamabandi at the time of Abolition of Zamindari (Ext.L/1). All the due rents from the date of vesting in 1955 till 1975 were realised by the State and the rent receipts were granted bearing endorsement 'without prejudice' after the deemed was opened by the Circle Officer by issuing correction slip (Ext.D). The proceeding initiated by the Land Reforms Deputy Collector for cancellation of Jamabandi was challenged by the respondent in the High Court and the same was quashed in CWJC 1663/81 R on 25.3.87.
33. On further challenge of the proceeding regarding eviction of the respondent from the land in question under the provisions of the Bihar Land Encroachment Act, the High Court in CWJC 366/79 R quashed the said proceeding and held that she could be evicted from the land only under the provisions of the Chotanagar Tenancy Act. Thus in view of the aforesaid decision of this Court in the case of Harihar Singh, 1978 BBCJ , 323 it has to be held that the respondent is a raiyat in respect of the land in question. She is in cultivating possession of "the same since the date of purchase in the year 1962 and by 12 years continuous cultivation of the land as a raiyat, she was acquiring occupancy right in the land. She is, the therefore, entitled to the compensation and the State has not been able to prove its title or possession over the land.
34. In almost similar facts, this Court in the case of K.H. Farms and Industry v. The State of Bihar and Ors. in CWJC 410/78 R dated 30.6.1986 held:
Further the settlement on 24.1.1955 prior to the vesting was acted upon by accepting the petitioners as a raiyat of the said land by grant of rent receipts and was confirm and rectified by initiating land acquisition proceeding by the State itself against the settle.
It further held that:
In this backgrounds, I cannot reject the rent receipts granted by the State merely because they are 'without prejudice.' The course of action taken by the State in acknowledging the petitioner as owner of the land, the entry of 'without prejudice' bears no significance.
35. It has been noticed earlier that the Land Acquisition proceeding was started by the State by issuing notification under Section 4 (1) of the Land Acquisition Act (Ext. 3). No objection was filed by the State under Section 5A of the Land Acquisition Act. Even when notification under Section 6 of the Land Acquisition Act was published, no such objection was raised by the State. If the State was owner of the land, the question of acquiring its own land did not arise.
36. In this view, after careful consideration of the evidence on record, I hold that the appellant-State has failed to prove its title or possession over the land in question. The respondent Sharda Devi is the occupancy raiyat of the acquired land and is in cultivating possession of the same since 1962, the date of purchaser by her. The judgment and award of the court of the Land Acquisition Judge is thus confirmed with the only modification that the future interest at the rate of 15% per annum till the date of realization as awarded by the Land Acquisition Judge will not be allowed since the reference in question was under Section 30 of the Land Acquisition Act for adjudication of title between the parties.
27. The State of Bihar being aggrieved by the decision of the learned Single Judge affirming the judgment of the Special Land Acquisition Judge, Ranchi, filed this letters patent appeal. The following inter alia are the main grounds upon which the judgment of the learned Single Judge has been assailed;-
A. The learned Single Judge should have allowed the prayer for adducing additional evidence and the reasons given by the learned Single Judge for not allowing the prayer are untenable.
B. Learned Single Judge failed to appreciate that onus was on the respondent to prove the exhibits B and C in accordance with law to establish that those documents were validly executed and confer right, title and interest in her favour.
C. In absence of original document, the certified copy of those documents were inadmissible in evidence.
D. The scope and ambit of Section 51 A of the Land Acquisition Act, 1948 has been erroneously interpreted by the learned Single Judge.
E. Learned Single Judge ought to have drawn adverse inference against the respondent for her failure to examine herself or her vendor Deo Narayan Prasad to prove her case and the documents on the basis of which she was claming right, title interest over the disputed land.
F. After the vesting of the interest of the ex-intermediary in the State of Bihar under the provision of the Land Reform Act, 1950, heavy onus lies on the respondent to prove the title of the vendor over the disputed land specially when the name of the vendor does not appear in the return filed by the ex-landlord and her vendor never-'got his name mutated in the revenue record in the State of Bihar after vesting under the provisions of Bihar Land Reforms Act. Respondent had failed to discharged this onus and this aspect of the matter was not considered by the learned Single Judge.
G. Hon'ble Single Judge erred in relying on Ext. F i.e judgment in CWJC 366/79R and Ext. H and H/l for coming to the conclusion that in view of the aforesaid exhibits, the appellant was estopped from contending that respondent was not an occupancy raiyat with respect to the disputed land. It was not appreciated that the High Court in exercise of jurisdiction under Article 226 of the constitution of India was not supposed to give any findings with regard to right, title and interest of the respondent over the disputed land. This can be decided only by the civil court.
H. Learned Single Judge seriously erred in holding that observation of this Court in various earlier proceedings, operated as constructive res judicata against the appellant. In view of the finding of this Court, it was not open to the State to dispute the status of the respondent as occupancy raiyat.
I. Learned Single Judge was wrong in holding that the appellant could prove its title only by taking recourse to Section 4 (h) of the Bihar Land Reforms Act.
J. Photocopy and certified copy of the return filed by the appellant were illegally discarded by the learned Single Judge.
K. The ex-intermediary was deliberately not examined in this case; whereas respondent examined the ex-intermediatary in the reference under Section 18 of the Act.
L. In the interest of Justice, the learned Single Judge should have admitted the notification filed by the appellate with regard to vesting of Khewat No. 2/9 i.e. disputed land once it was discovered that wrong notification was filed before the trial court.
M. Learned Single Judge failed to appreciate that mere settlement by the ex-landlord will not give occupancy right to the settle unless there is absolutely convincing evidence that settlee was in actual physical and cultivating possession of the settled land on the date of vesting by getting a Zamabandi opened in his or her favour under the provision of Bihar Land Reforms Act. In the instant case, it is admitted position that no Zamabandi was ever opened in favour of the vendor of the respondent i.e. Deo Narayan Prasad and for the first time the name of respondent was mutated in the revenue record of State of Bihar in the year 1970 which was a clear pointer to the fact that vendor was never recognised after vesting. 28. This appeal was earlier placed before a Division Bench comprising B.P. Sinha and S.B. Sinha, JJ. The Division Bench considered the rival contentions in the light of the following crucial facts which have already been noticed in the earlier paragraph of this judgment:-
A. Notification under Section 4 (1) of the Land Acquisition Act was issued for acquisition of some lands situated in village Phulsari.
B. Lands under the proceeding bearing plot Nos. 4, 5 and 10 appertaining to khata No. 151 khewat No. 2/9 village Phulsari, measuring 43.92 acres out of which 36.86 acres of land are subject matter of this appeal. In the finally published cadestral survey record of rights, the aforesaid land was recorded as 'Gair Majarue Malik being Prati Kadim in nature.
C. The case of the respondent is that the then landlord of village Phusari, P.S. Kuru in the district of Lohardage by virhie of registered deed of settlement in respect of the entire 43.92 acres of land in plot Nos. 4, 5 and 10 granted a permanent raiyati settlement on 24.4.1954 in favour of one Deo Narain Prasad. Certified copy of the aforementioned deed of settlement was marked Ext. B before the trial court.
D. By reason of notification under Section 3 of the Bihar Land Reforms Act, the estates of this landlord of village Phulsari vested in the State of Bihar.
E. The appellant during the hearing of First Appeal No. 171/86 R before the learned Single Judge filed the notification dated 19.2.1955 purported to have been issued under Section 3 of the Bihar Land Reforms Act, 1950, alongwith and application for adduction of additional evidence under Order 41, Rule 27 of the Code of Civil Procedure. The said notification was, however, not marked as exhibit by the learned Single Judge. Another notification date 18.8.1955 purported to have been issued under the said Act, however, was marked before the learned Land Acquisition Judge as Ext.M. F. On or about 14.3.1955, the Ex-landlord of village Phulsari already filed a return in respect of the said Estate including those of plot Nos. 4, 5 and 10 appearing to khata No. 151 of Mauja Phulsari. An extract from the said return in respect of the plot in question was marked as Ext. 6- Before the learned Single Judge, the appellant filed the entire bunch of returns filed by one of the ex-landlord alongwith an application under Order 41, Rule 27 of the Code of Civil Procedure. The respondent although did not object to the said documents as being taken in evidence, the said documents were also not marked as exhibits.
G. On or about 7.9.1962, the original purported settle Sri Deo Narayan Prasad, by virtue of a registered deed of sale transferred all the his right, title and interest in respect of the aforesaid lands. Certificated copy of the said deed of sale dated 7.9.62 was marked as Ext. C before the learned Acquisition Judge.
H. In the year 1967, the State of Bihar approved a scheme for construction of a 'bandh' converting an area measuring 106.36 acres of lands in village Kokarchandlaso and Phusari. In the year 1972 another scheme was approved by the State of Bihar for construction of the bandh and inpursuance of the aforementioned scheme, the work for construction of the bandh started in the year 1967 and completed in the year 1974.
I. Admittedly the lands under the proceeding submerged water in or about 1974 by reason of Construction of the aforementioned bandh.
J. It is admitted that at that time respondent did not raise any objection whatsoever not filed any suit as against the State of Bihar either for injunction or damages.
K. On or about 28.8.1970, the Circle Officer Kuru issued a correction slip in the name of the respondent which was marked as Ext. D. However, on 18.3.1978 the Circle Officer Kuru issued a notice upon the respondent purported to be Section 3 of the Bihar Public Land Encroachment Act, 1956 acting as Collector. The respondent challenged the said notice by filling writ petition No. CWJC 366/79 R. By reason of judgment dated 25.7.84, the learned Single Judge of this Court allowed the said application and quashed the said proceeding which was marked as Ext. F. L. By order dated 7.1.1985, Additional Collector, Lohardaga in the aforementioned land acquisition proceeding being L.A. Case No. 21 of 1982-83 refused to prepare an award in favour of the respondents. The respondent thereupon moved this Court in its writ jurisdiction under Articles 226 and 227 of the Constitution which was registered as CWJC 147/85 R. M. By order dated 13.2.1985, a Bench of this Court disposed of the said writ application with a direction to the Additional Collector, Lohardaga to prepare an award in favour of the respondent and thereby quashed the order dated 7.1.1985 passed by Additional Collector, Lohardaga. The judgment of this Court dated 13.2.1985 in CWJC 147/85 R was marked as Ext. H. N. As the Additional Collector, Lohardaga, did not prepare any award pursuant to the aforementioned judgment of this Court in CWJC 147/85 R, the respondent filed an application for initiation of a contempt of Court proceeding against the opposite party, on the basis whereof a case under the Contempt of Courts Act being MJC 137/85 R was registered. The said application was disposed of by this Court by order dated 7.10.85 Ext. H./1. Respondent filed another contempt application in this Court which was registered as MJC 13/86 R. In the meantime, the award was prepared on 19.2.86. According MJC 13/86 R was disposed of by Order 12.3.1986.
On 19.2.1986 the award was prepared in the name of the respondent whereby the leaned Acquisition Judge valued the land in proceeding @ Rs. 3210/- per acre. On 22.4.86 notice under Section 12(2) of the said Act was issued.
P. On 30.3.1986, respondent filed an application before the Collector under the said Act for a reference to the Land Acquisition Judge in terms of Section 18 thereof, whereupon a reference to the court of Land Acquisition Judges was made on 28.6.1986.
Q. In the meantime, the State also filed an application before the Collector for making a reference under Section 30 of the said Act whereupon by an order dated 7.6.86 a reference was made to the Land Acquisition Judge which was registered as Reference case No. 42/86. Both the aforementioned reference case were heard by the then Land Acquisition Judge. On 8.10.86, the application filed an application before the Land Acquisition Judge for holding of a local inspection , but the prayer was rejected by the Land Acquisition Judge by an order dated 21.11.86.
R. By a judgment and award dated 6.9.86, the learned Land Acquisition Judge disposed of reference case No. 42/86 under Section 30 of the said Act whereby and where under it was held that the respondent was entitled to receive compensation in respect of lands in question. By another judgment and award dated 29.11.86, the Land Acquisition Judge disposed of Land Acquisition case No. 45/86 arising out of a reference made to him by the Collector under Section 18 of the said Act therein it was held that the respondent is entitled to compensation at the rate of Rs. 23000 per acre i.e. the marked value thereof as on 16.2.82.
S. The awards in both the Reference cases were challenged before this Court in First Appeal No. 171/85 R (out of which this appeal arises) and F.A. 17/86 R (out of which separate LPA is pending). Both the appeals were dismissed by the learned Single Judge by a separate judgment dated 25th April, 1988.
The appellant filed an application for additional evidence in this Court on 27.4.88 praying therein for notification dated 19th Feb. 1985 issued under Section 3 of the Bihar Land Reforms Act and published in Bihar Gazette be taken in evidence in order to show the interest of the question being in Khewat No. 2/9 vested in the State of Bihar. Learned Single Judge in the impugned judgment though discussed about the said notification in para 24 but did not consider the effect and purport thereof.
28. The grounds on which the judgment of the learned Single Judge has been challenged have already been set out above. All these grounds were raised before the learned Single Judge on behalf of appellant.
29. The counsel for the respondent submitted before the Division Bench that State of Bihar has no locus standi to dispute the title of the respondent in view of the fact that it itself issued the notification under Section 4 of the said Act as also a declaration in terms of Section 6 thereof. Therefore, the reference under Section 30 of the said Act out of which this appeal arises, was incompetent. Reliance was placed on Collector of Bombay v. Nusserwanji Rattanji Mistri and Ors. It was further submitted that in any view of the matter, the State of Bihar having not disputed the validity or otherwise of the deed of settlement dated 24.4.1954 (Ext.B) or the deed of sale dated 7.9.1962 (Ext.C) in its application for making a reference under Section 30 of the Land Acquisition Act and view of the admission made by the witnesses examined on behalf of the appellant, as noticed by the learned Single Judge, the appellant was estopped from questioning the validity of the deed. This contention was raised having regard to the provision contained in Section 53 of the Act. Reliance was placed on Ezra v. The Secy of State and Ors. ILR 30 Cal 36, Rustomji Jinibhai and Anr. ILR 30 Bombay 341 and Bhandi Singh and Ors. v. Ramadhin Roy, 10 Calcutta Weekly Notes 1991.
30. It was next submitted that genuiness of the deed of settlement and deed of sale having not been disputed and State having waived formal proof thereof, it was not open to the appellant to question the admissibility of those documents. It was submitted that under Section 51A of the said Act, certified copy of any document registered under the Indian Registration Act are to be accepted as evidence in any proceedings under the said Act.
31. Government Advocate appearing for the appellant cited numerous decisions noted by the Division Bench in reply to the contentions raised by the learned Counsel for the respondent.
32. Having considered all the pertinent questions arising in the appeal, the Division Bench formulated following questions for a decision by the Full Bench;-
A. Whether the reference under Section 30 of the Land Acquisition Act was maintainable at the instance of the State of Bihar?
B. Whether the decision of this Court in various writ petitions and contempt petitions as contained in Exts. F.H. and H/1 were relevant for the purpose of consideration for disposal of the proceedings in question?
C. Whether the certified copy of the deed of settlement dated 24.4.1954 (Ext.B) and deed of sale dated 7.9.1962 (Ext.C) are admissible in evidence? And if so, to what extent?
D. Whether the appellant has been able to prove that the estate of the Ex-landlord of village Phulsari vested in the State of Bihar under the Bihar Land Reforms Act, 1950?
E. Whether in the facts and circumstances of the case, the additional evidence adduced on behalf of the appellant, ought to have been considered?
33. This appeal was in due course placed before the Full Bench comprising Hon'ble the Chief Justice B.C. Basak, S.N. Jha and Narayan Roy, JJ. A preliminary objection was raised on behalf of the respondent as to the maintainability of this appeal having regard to the provisions of Section 54 of the Land Acquisition Act. This question was not raised before the Division Bench.
34. When this appeal was heard by us, Sri Debi Prasad learned Sr. counsel for the respondent stated that this appeal is also not maintainable be cause the memo of appeal is not accompanied by a copy of the decree under appeal as provided by Order XLI, Rule 1, CPC. The appeal is, therefore incompetent and is liable to be dismissed on this ground alone.
35. Order XLII, Rule 1, CPC provides that "Rules of Orders XLI and XLI shall apply so far as may be to appeals from appellant decree. In this connection reliance has been placed on Rule 55 of the Patna High Court Rules as also Order XLI, Rule 1, CPC.
3 In the instant case, admittedly the memo of appeal is not accompanied by a copy of the decree under appeal. Hence according to the learned Counsel for the respondent, the appeal being not in confirmed with Order XLI, Rule 1 read with Order XLII, Rule 1, which are mandatory provisions, the appeal is incompetent.
37. Learned Counsel for the respondent has raised yet another preliminary objection that the reference under Section 30 of the Land Acquisition Act at the instance of the State is not maintainable. The reference should have been under Section 18 of the Act for determination of State's title to receive compensation within the period of limitation. The reference should have been made within six weeks from the preparation of the award under Section 18 (2) of the Land Acquisition Act. In this particular case, the State had appeared before the Land acquisition Officer and filed objection on 22.6.83. The award was made on 19.2.1986. The Circle Officer on behalf of the State of Bihar filed an application only on 6.6.1986 before the Land Acquisition Officer asking for a Reference under Section 30 of the Act for determination of the title by the Civil Court. It is, therefore, contended that the Reference was time barred. It was submitted that Reference to a Civil Court for determination of title to receive compensation can be made either under Section 18 or under Section 30 of the Act. Relying on it is contended that since the State was being represented before the Land Acquisition Officer, only provision under which reference could be made is Section 18 (2) and not Section 30 of the Act which should be applicable if the party had not appeared in the land acquisition proceeding. In this connection reliance has also been placed on 1970 B.L.J.R. 566. and decision of other High Courts also. It was submitted that as this question relate to jurisdiction, it can be raised for the first time in letters patent appeal.
38. It is necessary at this stage to give our opinion on the question of competency of this appeal in the light of submission of the learned Counsel for the parties.
39. Section 54 of the Act provides as follows:-
Subject to the provisions of the Code of Civil Procedure, 1908 (V of 1908), applicable to appeals from original decrees and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908 (V of 1908) and in Order XLV thereof
40. The question which arises for consideration is whether decision on Reference under Section 30 of the Act is an award within the meaning of Section 54 and hence appeal would lie against it under that section? Decision in a Reference under Section 30 is not an award within the meaning of Section 54. Hence no appeal would lied against it under that Section. As held by the Madras High Court in Mahalinge Kudumband and T. Mudaliar A.I.R. 1929 Madras 223, the decision in Reference under Section 30 being one on rights of contending parties, is a decree within the meaning of Section 2(2) and is appeal able under Section 96, CPC, The Bombay High Court in Reghunathadas Harjvahdas v. The Dist. Superintendent of Police Nasik A.I.R. 1933 Bom. 187 and Mysore High Court in Hanumanthappa v. Kesisty A.I.R. 1970 Mysore 139 have taken the same view.
41. By Section 3 of the Land Acquisition (Amendment)Act (Act XIX of 1921), this section has been substituted in place of the old Section 54. The section as it originally stood need "subject to the provision of the Code of Civil Procedure, applicable to appeals from original decree, an appeal shall lie in the High Court from the award of any part of the award of the Court in any proceedings under this Act."
In order to remove the bar to appeals to the Privy Council form the decision of the High Court in cases in which the value of the claim was Rs. 10, 00/- or upwards, Act XIX of 1921 was passed which enacted that the awards in Land Acquisition cases by the Courts will be decreed and the grounds of the awards will be considered as judgment with the meaning of Section 2 Sub-section (2) and Section 2. Sub-section (9) respective of the Civil Procedure Code, 1908 and Section 96 of the Civil Procedure Code provides that "an appeal shall lie from every decrees passed by the Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of such Court. In view of the amendment, "an award is a decree or order" of a Civil Court.
42. By the amending act of 1921, the awards of courts made in Land Acquisition cases were placed in the same category as decrees and awards are now, after the passing of the Amending Act, decree or orders of Civil Courts and the statements of the grounds of such awards are judgments within the meaning of the Civil Procedure Code. A judgment in a Land Acquisition case is now under the Code of Civil Procedure and appealable as such, By the express provision contained in the Amending Act of 1921, a judgment includes a judgment in a Land Acquisition case.
43. In Collector of Dacca v. Golam Azam Chowdhury, 40 C.W.N. 1143,-A.I.R. 1936 Calcutta 688, a Full Bench of the Calcutta High Court held "judgment in Clause 15 Letters Patent means a decision which affects the merits of the question between the parties, by determining some right or liability; judgment n a land acquisition case is a judgment as mentioned in Clause 15 Letters Patent and is appealable:"
The Calcutta High Court followed the, decision of Lahore High Court the judgment of Sir Sadilal C.J. (as his Lordship then was) in Her Dial Shaha v. Secy of State 3 Lah. 420(8) where it was held that "Land Acquisition Amendment Act (19 of 1921) did not in any way effect the right of appeal from the judgment of one Judge to a Division Bench under the Letters Patent; the scope of the amendment was to extend the right of appeal and not be curtail any existing right.
44. This very question was considered by Full Bench of the Delhi High Court in Mahli Devi V. Chander Bhan and Ors. . The question "whether a letters patent appeal under Clause 10 of the Letters Patent applicable to this Court, is maintainable in view of the provisions of Section 54 of the Land Acquisition Act, 1894 and whether there can be an appeal from a Bench to a larger Bench of the same Court (with regard to Section 54 of the Act) was considered and discussed in paragraph 9 to 11 of the report as follows:-
After the amendment of the Act in the year 1921 all the Courts have taken a consistent view that Section 54 of the Act does not bar a Letters Patent appeal. First this matter came up for consideration in Har dial Shah v. Secretary of State A.I.R. 1923 Lah. 275. It was held that Section 54 of the Act does not take away the right of appeal contained in the Letters Patent of the High Court. In this context while referring to the word only which occurs in Section 54, it was observed that the said word did not restrict the right of appeal. It governs the forum of appeal which has to be only the High Court and not the District Court. It was further felt that the object of amendment of the Act in 1921 was to extent the scope of the right of appeal and not to curtail any existing right. It was also observed the Section 54 was mainly an enabling provision and it did not contain any bar to the right of appeal as such. According to this judgment Clause 10 of the Letters Patent gives in express terms a right of appeal and it cannot be held that right has been view was taken in Narayan Daga v. Ganpatrao A.I.R. 1944 Nagpur 28. Section 54 of the Act came up for consideration in the light of Clause 10 of the Letters Patent of the High Court. It was held that the right of appeal under Clause 10 against the judgment of a single Judge is not effected by Section 54 of the Act and an appeal from the judgment of single Judge of the High Court lies to the Division Bench of the Court under Clause 10. The same argument was advanced before Division Bench of the Nagpur High Court as has been advanced before us, namely, that appeal against the decision of the High Court could be filed to His Majesty in Council subject to the provisions contained in Section 110 CPC. Further it was contended that Section 54 speaks of one appeal in High Court and other to His Majesty in Council if the case fulfills the condition laid down in Section 110 CPC and, therefore, appeal under Clause 18 of the Letters Patent was incompetent. In view of the non-obstante clause referred to above it was argued that Section 54 controls the Letters Patent of the High Court. Relying in the judgment of the Lahore High Court referred to hereinbefore, it was held that the word 'only' in Section 54 does not restrict the right of appeal but was intended to make it clear that the forum of appeal in land acquisition cases is always the High Court and that section does not affect the right of appeal from the judgment of single Judge to a Division Bench under Clause 10 of the Letters Patent. It was also noticed that the Calcutta High Court had also taken a similar view in Collector of Dacca v. Gholam Kuddne A.I.R. 1936 Ca. 688.
10. The question again came up for consideration in Siri Chand Sheo Lai v. Union of India A.I.R. 1963 Punj. 321. The case was. decided by a Division Bench of the Punjab High Court sitting in Circuit at Delhi. In view of the language of Section 54 of the Act it was observed that this section did not contain any prohibition against filing of a second appeal unlike Sub-section (2) of the Section 39 of the Indian Arbitration Act. The word 'only' occurring in Section 54 of the Act did not indicate that only one appeal is provided against the award of the Court. The said word emphaised the fact that the forum of appeal in all such cases would be the High Court. Reliance was given placed on the judgment of the Lahore High Court in Har Dial Shas's case AIR 1923 Lahore 275, referred to hereinbefore. It will be further seen from this judgment that the emphasis is on the fact that Section 54 does not bar a second appeal. For this purpose comparison was made with the provisions of Section 39 of the Indian Arbitration Act. Sub-section (2) of 39' contains a specific bar against a second appeal and, therefore, a Letters Patent appeal would be deemed to be barred in proceedings arising under the said Act. There is no such bar in Section 54 of the Land Acquisition Act and therefore, there cannot be any implied bar to Letters Patent appeal. A right of appeal is a substantive right of a party given by the Statute or an analogous enactment and cannot be denied to a party by implication or on deemed basis.
11. While on the aspect of comparison with other statutes, Mr. Gopal Narain Aggrawal, Advocate brought to our notice a Full Bench occasion of this Court in Registrar of Companies v. Hardit Singh Giani, ILR (1975) 2 Delhi 1. The Court was dealing with a question of right of appeal under Section 483 of the Companies Act from an order of a single Judge without a certificate from the single Judge who passed the order sought to be appealable against. The appealability of such orders, it was felt, arises in two sets of cases. On the one hand there are cases where statutes expressly bar further appeal which would have otherwise been maintainable under Clause 10 of the Letters Patent. Australian of this is the Delhi Rent Control Act which allowed a second appeal to the High Court under Section 39 but Section 43 of the same Act provided that "save as otherwise, expressly provided in this Act, every order made by the Controller or an order passed on appeal under this Act shall be final" It was in view of the said provision of Section 43 of the Delhi Rent Control Act that the Supreme Court held in South Asia Industries (P) Ltd. v. S.B., Samp Singh , that no appeal would lie under Clause 10 of the Letters Patent. Another instance of such a statute would be Section 39 (2) of the Arbitration Act which allows an appeal to High Court against orders passed under the Act but expressly bars a second appeal. This provision was held to cut down the ambit of Clause 10 of the Letters Patent under which otherwise a second appeal would have been competent. It was so held in U.G. I. v. Mohindre Supply Co. In the other set of cases where the statute did not contain any specific bar to right of second appeal was placed Section 54 of the Act and it was observed that the order of the High Court passed in an appeal under Section 54 of the Act was appealable in view of the decision of the Punjab High Court in Sirich and Sheo Lai (supra). Another instance cited of similar statutory provision was that of Section 110-D of the Motor Vehicles Act, 1939. An appeal lies to the High Court against the decision of Motor Accident Claims Tribunal. In Municipal Corporation of Delhi v. Kuldeep Lal Bhandari A.I.R. 1970 Dal. 37, a Full Bandh of this Court held that an appeal against the decision of a learned single Judge would lie under Clause 10 of the Letters Patent to a Division Bench. In Shanti Devi v. G.M. Hamyana Koaotuys A.I.R. 1972 Punj & Har 65, a Full Bench again held that Letters Patent appeal against the judgment of a single Judge rendered under Section HOD of the Motor Vehicles Act is maintainable.
45. It may, however, be observed that Delhi High Court considered unreported decision of the Supreme Court in Civil Appeals Nos. 1663 to 1668/82 (decided on 30th July, 1987) Baljit Singh v. State of Haryana, wherein it has been held that Letters Patent appeal is not maintainable in cases arising under the Land Acquisition Act. The judgment of the Supreme Court proceeded on the basis of concession by the counsel. The learned Judges of the Delhi High Court held that the Court had no occasion to go into the merits of the question of maintainability of letters patent appeal before the High Court. It was held that decision in South Asia Industries case be said to an authority for the proposition that letters patent appeal in cases arising under the Land Acquisition Act will not be maintainable. The decision in South Asia Industries case was held to be distinguishable. The Delhi Court, therefore held that there was no bar to the maintainability of letters patent appeal under Clause 10 of the Letters Patent under the Land Acquisition Act.
46. In view of the above discussion on the question it must be held that letters patent appeal is not barred under Section 54 of the Land Acquisition Act. I have already held that the decision under Section 30 of the Act has force of decree and is appellate under Section 96 and not under Section 54 of the Act. The decision referred to above relate to reference under Section 18 of the Act and in those cases it has been consistently held that letters patent appeal is maintainable.
4. The next question for consideration is as to whether there is any for in the contention of the learned senior counsel for the respondent that the appeal is not maintainable because memo of appeal is not accompanied by copy of the decree appealed from. Learned Counsel has referred to order XLIL Rule 1, CPC read with Order XLI, Rule 1 and Rule 55 of the Patna High Court Rules. Strong reliance has been placed on Jagadish Bhargav. v. Jewa harlal Bhargav). The Supreme Court in this case has not held that in all where memo of appeal in a letters Patent appeal is not accompanied by certified copy of decree, the appeal would be incompetent. The conflicting decision of the Lahore High Court on this point (relating of appeals under Section 96, CPC) was considered in para 15 of the judgment. It was observed:-
Dealing with appeals filed without certified copy of decree, some decisions have dismissed the appeal as defective and have given an effect to the mandatory words in Order 41, Rule 1, CPC without presumably examining the question as to whether the failure of the trial court to draw up a decree would have any bearing or relevance on the point or not. However, as we have indicated the question about the competence of appeal has to be judged in each case on its own facts and appropriate orders must be passed at the initial stage soon after, the appeal is presented to the appellant court.
In Shah Babulal Khitnji. v. Jayaben D. Kania and Anr. , strongly relied upon by the senior counsel for the respondent, the Supreme Court held:-
Although the letters patent is a special law certain provisions of the Code of Civil Procedure in the matter of procedure do apply to appeals against the decision of a trial Judge to a larger Bench i.e. to internal appeals.
It was further held that:-
a combined reading of the provisions of Section 4, 5, 104 and XLIX Rule 3 of CPC lead to the irresistible conclusion that 5.104 readwith 0.43 Rule 1 clearly applies to the proceedings before the trial Judge of the High Court. There is no inconsistency between the letters patent jurisdiction and Section 104 readwith 0.43 Rule 1 of the Code.
It was, therefore held :-
Under Clause 15 of the Letters Patent (Bom) an order refusing to appoint a receiver or to grant interim injunction is a judgment and hence appealable.
The submission advanced by Sri Debi Prasad is not correct this the appeal is not maintainable only because certified copy of the decree has not been filed alongwith the memo of appeal in absence of any assertion that a decree was prepared following the judgment of the learned Single Judge.
48. There is another aspect of this matter. This appeal is under Clause 10 of the Letters Patent of the Patna High Court which provides for appeal to the High Court from the judgment of single Judge of the Court. The appeal under letters patent is different from ordinary appeals under Section 96 of the CPC. It is clear from Clause 10 that appeal lies from the judgment of the Single Judge. There is no reference to decree in the said clause. We cannot import something which is not in Clause 10. Reference in this connection may be made to the succinct enunciation of the rule in Maxwell on Interpretation of Statute at page 21-Object of all interpretation is to discover the intention of the Parliament. The intention of the Parliament must be deduced from the language used. See 1965 (2) QB 53. under Clause 10 of the Letters Patent, Appeal lies to the Division Bench against the Judgment of a Single Judge. The leading case on the subject is that of Justice of Peace for Calcutta v. Oriental Gas Co. 1872 (8) Bom. L.R. 433 decided by the High Court of Calcutta back as in 1872. In that case Couch CJ said:- "We think judgment under Clause 15 means a decision which affects the merits of the question between the parties by determining right or liability. It may either final or preliminary or interlocutory. The difference between them being that final judgment determines the whole issue Rd preliminary or interlocutory judgment only determines part of it leaving other matters to be determined. As Mulla has observed "this definition now is of some antiquity and rapidly becoming and, if not already become, almost classical. The definition of 'Judgment' in the case of Justice of Peace Calcutta (supra) was adopted by the majority of the High Courts in later cases where it was held that appeal lies under this clause against the order passed by the single Judge of that Court under Order XLI, Rule 15, CPC.
The Supreme Court in Shah Babulal Khimji-vrs-Jayaben D. Kania and Anr. made following comments on the view of Sir Richard Couch, C. Jain 1872-8 Beng LR 431- Although it is the true that this decision is practically the locus classicus so far as the Calcutta High Court is concerned and has been consistently followed by later decisions at the same time it cannot be denied that in a number of cases the conscience of the Judges was so shocked that they tried to whittle down or soften the rigorous of this decision so much so that in one case the observations of the Chief Justice were not only followed but were described as antiquated and in other cases the Judges strongly expressed themselves that the High Court should give up the fondness to stick to the principles laid down by the learned Chief Justice. It is not necessary for us to burden this judgment with later decisions of the Calcutta High Court in trying to comment on the correctness of the principles laid down by Sir Couch, C.J. but a few instances may be quite revealing.
49. It would appear that under Clause 10 appeal lies also against interlocutory order. It cannot be disputed that the decision of learned Single Judge is a 'judgment' and as such appellate under Section 10.
49a. In the Supreme Court considered the Full Bench decision of the Rangoon High Court in In re Dayahhai Jiwandas's, ILR 13 Rang 457, where the following observation were made:
I am of opinion that in the Letters Patent of the High Courts the word 'Judgment' means and is a decree in a suit by which the right's of the parties at issues in the suit are determined.
50. The Supreme Court overruled the said decision stating:
With due respect to the learned Chief Justice and the Judges who agreed with him, we are unable to accept the interpretation of the word 'Judgment' given by the Chief Justice which runs counter to the very spirit and object of word 'Judgment' appearing in Clause 15 of the Letters Patent. The learned Chief Justice seems to have fallen into the error of equating the word 'Judgment' with 'decree' as used in the Code of Civil Procedure when as pointed out above, the words 'Judgment' and 'decree' used in the Code cannot form a safe basis to determine the definition of the word 'Judgment' in the Letters Patent particularly when the Letters Patent particularly when the Letters Patent has deliberately dropped the word 'decree' from 'judgment'. We are, therefore, unable to hold mat view taken by the Chief Justice to hold that the view taken by the Chief Justice, Sir Page, is correct and accordingly overrule the same.
51. The preliminary objection of Shri Devi Prasad must be overruled in view of the direct decision of the Supreme Court.
52. Learned Counsel referred to Sub-rule (b) of Rule 55 of the Patna High Court Rules which provides that Paper Book for letters patent appeal against appeal from original decree shall consist of judgment and decree under appeal Patna High Court Rules cannot control the letters Patent. According to the prevailing practice in this Court in respect of Letters Patent Appeal, appellant is not required to file copy of the decree alongwith memo of appeal. In view of the decision of the Supreme Court in , the contention of Sri Debi Prasad cannot be accepted.
53. Now the next objection of Sri Devi Prasad that reference to the Civil Court under Section 30 was itself barred by limitation, is to be considered. Sri Prasad contends that award was made on 19.2.1986; the Circle Officer on behalf of the State filed application on 6.6.86 for reference under Section 30 of the Act. It is contended that the Circle Officer and the Deputy Commissioner represented the State at the time of preparation of award. The application for reference having been made after fourteen weeks of the award was barred since Section 18 (2) of the Act requires that the application is to be made within six weeks from the date of making award. This is a new ground which was never urged before the Subordinate Judge of before the learned Single Judge of this Court. Admittedly the reference was under Section 30 of the Act. Hence the plea of limitation should not allowed to be raised for the first time at this stage.
54. However, Sub-section 2(b) of Section Ij8 of the Act provides that reference can be made within six weeks from the date of the award of the Collector or six weeks of the receipt of the notice from the Collector under Section 12 whichever period shall first expire. Learned Counsel for the appellant has submitted that in the instant case, no notice under Section 12 was given to the State, hence reference could be made within six weeks from notice. In Chimanhl Hargonbing v. Special LA.D. A.I.R. 1980 SC 1852, it was held that in an application of Reference under Section 18, limitation is to be reckoned from the date of communication of the contents of the award. Sri Debi Prasad contended that reference should have been made under Section 18 and not under Section 30. It is to be remembered that only distinction between reference under Section 18 of the Act and one under Section 30 thereof is that reference under the latter Section is made solely on the question of title the reference under the former section is made on the application of the person interested for the compensation money and not by the acquiring officer of his own motion.
55. It may be stated the in the instant case reference under Section 30 of the Act was made in view of the observation of this Court in a writ proceeding. There is no substance in the contention of Sri Debi Prasad the reference under Section 30 of the Act was incompetent and if reference under Section 18, it would have been time barred.
56. However, Sri Prasad has reference to the decisions of the Gauthti High Court in Phongsh Missav. Collector of Land Acquisition, reported in AIR 1977 Gauhati 47, in support of his contention that reference at the instance of Government is not competent. But in paragraph 10 of the judgment, Gauhati High Court did not accept the contention that once an acquisition proceedings is taken up and award is made, the Govt. has no right to intervene and ask for reference. It was held following Dr. Gant's case and decision of the Full Bench of the Allahabad High Court reported in A.I.R. 1934 Allahabad 260 that Collector is within his jurisdiction under Section 30 of the Act to make a reference for determination of right of the Government to compensation which may develop on it after the award.
57. The decision of the Himachal Pradesh High Court in State v. Rajendra Singh, 1966 H.P. 61, no doubt supports the contention of Sri Prasad. It was held in the this decision that the Act contemplates adjudication of question of title and interest of persons other than the Government which seeks to acquire the land and the question whether Government enjoys title to the land must be treated as outside the scope of adjudication under the Act. R.S. Pathak, C.J. (as His Lordship then was) did not approve the view of the Allahabad Full Bench referred to above and distinguished the decision of the Patna High Court in , Dr. Gant's case which ultimately went to the Supreme Court).
In (Dr. G.H. Grant v. The State of Bihar, in para 20 following observations were made:
The dispute between the State of Bihar and Dr. Grant has been expressly referred by the Collector to the Court for decision. Under the Bihar Land Reforms Act, the title of Dr. Grant to the land notified for acquisition become vested in the State and therefore, the right to compensation for the land acquired developed-upon the State. A dispute between Dr. Grant and the State as to their conflicting claims to the compensation money was clearly a dispute which could be referred under Section 30 of the Land Acquisition Act to the Court and was in fact referred to the Court. We are unable to agree with the counsel for Dr. Grant that the reference made by the Collector under Section 30 was in competent, because the State was not interested in the compensation money on the date when the award was made. The right of the State of Bihar has undoubtedly arisen the award was made, but once the title which was originally vested in Dr. Grant stood statutorily transferred to the State, it was open to the State to claim a reference, not because the State was a person interested in the compensation money before the date of the award, but because of the right which has arisen since the award was made.
The decision of the Himachal Pradesh High Court does not lay down the correct law and cannot be accepted in view of direct authority of the Supreme Court in Dr. Grant's case.
58. Learned Counsel has placed strong reliance on Collector of Bombay v. Nusserwanji Rattanji Mistry and Ors. This decision, in my opinion, does not touch the question of acquisition of any interest by the Government which already belongs to Government. In this case, certain lands were originally known as 'Foras' land and the rights of the occupants of those lands wee settled by the Foras Act. Between 1964 and 1967 the Government acquired the lands under the provisions of Land Acquisition Act 6 of 1857 and in 1938 there were sold by the Governor General under a sale deed. The question that came up for consideration before the Supreme Court was whether the purchases were liable to be assessed to revenue under the Bombay City Land Revenue Act. It was held that lands were not exempt from liability to be assessed to land revenue. It was further held that when the lands were acquired under the Land Acquisition Act, the entire "estate, right, title and interest" subsisting thereon became extinguished and the lands vested in the Govt. absolutely freed from Foras tenure and when they were sold by the Government the purchasers obtained them as freehold and not as Foras lands. This decision is hardly of any assistance for our purpose.
59. Sri Prasad has also referred to Md. Wajeeh Mirza v. Secretary of the State for India in Council reported in A.I.R. 1921 oudh 31 in which it has been held that the question of title arising between the Government and Anr. claimant cannot be settled by the Judge in a reference under Section 18 of the Act. This decision, in my opinion, does not lay down correct law in of the Supreme court in Dr. Grant's case (supra).
60. The next important question which arises for decision is whether the orders and observations made in various writ petitions and contempt petition as contained in Exts. F.H and H/1 operated as constructive resjudicata preventing the appellant to raise those questions in the reference case.
61. The Government Advocate appearing for the appellant has argued that the Reference Court as well as learned Single Judge attached too much weight and importance to the observations made by this Court in CWJC 366/79 R (Ext.F) CWJC 147/85R (Ext.H) and MJC/85R (Ext.H/1). It was submitted that the approach of the Special Subordinate Judge which was affirmed by the learned Single Judge in dealing with the issues involved in the Reference case was patently erroneous. It was submitted that the entire findings in favour of respondents are based on the decisions of this Court. Even if findings in writ proceeding and contempt proceedings are considered and the principle of constructive resjudicata applied the question whether the vendor of the respondent was in possession on the date of vesting and whether the vendor had transferred his possession to the respondent, if he was ever in possession at all. It was decided in a slip-shod manner mainly because of the observations and decision in writ proceedings.
62. Learned Counsel for the respondent submitted that a Division Bench of this Court in CWJC 366/79R has held that respondent was a raiyat of the land in question which implied that the land did not belong to Government. It was submitted that in the face of such a categorical finding, the Reference Court was bound to hold that the respondent was a raiyat in respect of the land in dispute. It is stated that though appeared in CWJC 366/79R but no counter-affidavit was filed to controvert the case of the Supreme Court in to support his contention that the decision in CWJC 366/79R (Ext.F) will operate as res judicata/constructive res judicate on the subsequent land acquisition proceedings.
63. It would be appropriate at this stage to refer to order passed by this Court in CWJC 366 of 1979 (R) (Ext. F) at page 360 of the paper book. The respondent had filed the writ application for quashing the order initiating a proceeding under the Bihar Public Land Encroachment Act in case No. 3/79-80 Learned Single Judge of this Court in the light of the facts stated in the writ application held as follows :-
The petitioner purchased the land from the said Deo Narayan Prasad for valuable consideration and as such the lands could not be deemed to be Gairmazrua Aamland. The petitioner contended that she is raiyat of the land in question and she can be ejected therefrom only in accordance with the provisions of the Chotanagpur Tenancy Act. No ground for the eviction of the petitioner from the lands in dispute have been disclosed in the notice issued to the petitioner. Above all the Bihar Public Land Encroachment Act, 1956 does not apply in this case. In case the respondents want to deprive the petitioner from the lands in dispute, they may take recourse to the provisions of the Chotanagpur Tenancy Act. The impugned notice in this writ application is wholly without jurisdiction and has no substance in law. The petitioner is being harassed for no fault of his own.
64. It is obvious from the above passage that this Court after adverting to the contention advanced on behalf of the respondent quashed the proceeding under the Land Encroachment Act. There is no finding as submitted by Sri Debi Prasad that the respondent had raiyati interest in the disputed land. It is settled by series of decisions of this Court that land encroachment proceeding cannot be resorted in cases of disputed question of title. I am unable to accept the contention of Sri Prasad that there was any finding which should have operated as res judicata in the subsequent land acquisition proceedings.
65. The second writ application being CWJC 147/85R filed by the respondent was disposed of by passing the following order:
We direct the land Acquisition Officer, respondent No. 3 to prepare the award in the same of the petitioner in L.A. Case No. 21 of 1982-83. If there be any dispute thereafter, the matter be referred to the Civil Court under Sections 18 and 30 of the Land Acquisition Act for adjudication of any claim in accordance with law. "That being 80, Annexure 10 containing the order dated 7.1.85 passed by Additional Collector, Lohardaga is hereby quashed.
66. No question was decided in this case but liberty was given to the appellant to apply for reference under Section 18 or 30 of the Act which right was exercised by the appellant resulting the impugned award. In my view, the order passed in CWJC 147/85R obliterated the effect of the order passed in CWJC 366/79R. The respondent, therefore, cannot contend that in a proceeding under Section 30, the question of title of the parties could not be adjudicated.
67. It may be stated that when the award was not prepared in the name of the respondent as directed in CWJC 147/85R, the respondent filed a contempt application (MJC 137/85R) which was disposed of by order dated 17.10.85 (Ext. H/1) (page 374 of the paper book). Learned Counsel for the respondent has built up his argument on the basis of the order passed in the contempt case. The same Division Bench which had disposed of CWC 147/85R decided the contempt application. The order passed in CWJC 366/79R was considered and the learned judge observed:
The petitioner had filed CWJC 366/79R for quashing of the encroachment case and this Court vide its judgment dated 23.7.94 had quashed the land encroachment case holding that the petitioner had acquired occupancy right over the land in question. The judgment of this Court dated 23.7.94 is Annexure 1 to this application. On persual of the judgment it appears that the matter had been fully examined and gone into and thereafter the order has been passed in which definitely the petitioner's case has been upheld and the encroachment order has been quashed.
In the first place there was no occasion to consider the import of the decision in the earlier writ application. The contempt application was filed for non-implementation of the order passed in CWJC 147/85 (R). Secondly, the observation extracted above is serious error of record. As already noted, the learned Single Judge in CWJC No. 366/79R only noted the submission of the learned Counsel for the respondent and had quashed the land encroachment proceeding. The contempt application was disposed of with fresh direction to the State to comply with the order passed in CWJC 147/ 85R. The award was accordingly prepared in the name of the respondent and in view of the directions in CWJC 366/79(R), the State applied for Reference and in due course Reference as made to the Special Subordinate Judge.
68. Sri Prasad has contended that finding in MJC No 137 of 1985 (R) also amounts to res judicata. This argument is absolutely unacceptable. Learned Judge decided to contempt by reading something in the order passed in CWJC No. 366/79 (R) which is not there and is error on record. In my considered opinion, therefore, the observations in the aforesaid there cases was of no consequence on the proceeding under Section 30 of the Land Acquisition Act. The special subordinate Judge and the learned Single Judge were mislead by the observation in the contempt case and order passed in CWJC 366/79 (R). This erroneous approach to a large extent vitiate the judgment under appeal.
This question, is therefore, answered in favour of the appellant.
69. Whether the certified copy of the deed of settlement dated. 24.4.54. (Ext. 8) and the deed 7.9.62 (Ext. C) are admissible in evidence and the decision of the learned single Judge to this effect is correct is the next important question for consideration.
7 Section 27 of the Amending Act 68 of 1984, Section 51A has been inserted in the Land Acquisition Act.
Section 51A provides as follows;-
In any proceeding under this Act, certified copy of the document registered under the Indian Registration Act, 1908 (Act 16 of 1908) including a copy given under Section 57 of the Act may be accepted as evidence of the transaction recorded in such document.
It is not disputed that the two documents referred to above are covered by Section 51A. Learned Government Advocate submitted that under Section 51A registered certified copy of the document should be accepted as evidence, but this does not mean that documents are to be treated as of conclusive in nature relating to the transaction to which the documents have been executed. It was submitted that a party can insist for better proof of the transaction. On the other hand, the counsel for the respondents submitted that the expression "may be accepted as evidence of transaction recorded in it" is very significant. The word 'accepted' is of wider amplitude and it denotes that certified copy of the registered document in the Land acquisition proceeding may not only admissible in evidence but also acceptance as evidence of transaction recorded in the certified copy. Again the meaning of the word "evidence of transaction" denotes the nature of the dealing as to whether the dealing is a sale, mortgage, gift, or lease of exchange with that of the details of the deal mentioned in the certified copy of the registered deed. Sri Prasad has relied on a decision in madras High Court in A.I.R. 1954 Madras 486 (Karrnpanna Gaunder and Ors. v. Kolanda Swatni and Ors.) wherein it has been held:-
A, certified copy obtained from Registrar's office is admissible under Section 57 (5) for the purpose of proving the contents of original document, the mere production of such copy without any further, oral evidence to support it would be enough to show that the original document contained.
71. Sri Prasad further submitted that this document Ext, B and C have been admitted in evidence and marked as Ext. without any objection and with the express consent of the appellant. It is submitted that there is a long range of decisions without a single dissention that when a certified copy of a registered document is admitted in evidence and marked exhibits without objection in the trial court, its admissibility cannot be challenged in appeal with the result that the original document is treated as proved.
See .
72. Although the provision of Section 51A was amended and by amendment it permits the court to admit in evidence a transaction recorded in the certified copy of the document, yet it leaves within the discretion of the court to cast doubt on suspicious document for valid (See )
73. In my opinion, the contention of Sri Debi Prasad learned Counsel for the respondent is sound and accordingly this question is answered in favour of the respondent. It must further be held that mere proof of a document in the instant case is not sufficient to prove that actually either Deo Narayan, the original settle of the Land of the respondent were in possession pursuant to the settlement deed (Ext. 8) and the sale deed Ext C at the time of resting and the same needs more evidence to validate the contents of the documents.
74. Having considered and answered the above legal questions, I now turn to the next question which is a question of fact as to whether estate of village Phulsari vested in the State of Bihar under the Bihar Land Reforms Act and, if so, with effect from which date?
75. Chapter II of the Bihar Land Reforms Act, 1950 deals with vesting of estate or tenure in the State and its consequences. Under Section 3 of the Act, the State Government, may from time to time by notification declares that the estate or tenures of a proprietor or tenure-holder, specified in the notification, have passed to and became vested in the State. Notification is to be published in the official gazette, as provided in Sub-section (2) of Section 3. Sub-section (3) of Section 3 is very important. This says "publication of such notification evidence of the notice of the declaration to such proprietors or tenure holders interests are affected by the notification.
The consequences of the vesting of an 'estate' are provided in Section 4 of the Act. The entire property gets vested in the State of Bihar free from all encumbrances on issuances of notification under Section 3(1) and in case the raiyat interest in the land is deemed to be settled with the ex-intermediary that raiyat interest is also free from only liability in respect of a past transaction. See Shivashakar Pd. Sah v. Baikunth Nath Singh .
It was held in Surajnath Ahir v. Prithinath Singh , the mere fact that a proprietor had a subsisting title to possession over certain land on the date of vesting would not make that land under his 'khas possession' within the meaning of Section 6 of the Act.
It was held in S.N. Chaudhary v. State of Bihar that the entire estate vest in the State except for the raiyat interest, if any, of the ex-proprietor on the issuance of notification under Section 3.
76. In the instant case, it is difficult to accept the contention of the respondent that 'estate' of village Phulsari had not vested in the State of Bihar under the Land Reforms Act. It was never the case of the respondent that the estate had not vested. In my opinion, respondent is estopped from raising this question because it is admitted fact that on the application of the respondent in Mutation case no. 27 1969-70, mutation was allowed in favour of the respondent and correction slip dated August 28, 1970 was issued to her (Ext. D). She also paid rent to the State from the date of vesting, i.e. from 1955 to 1975. Rent receipts issued to her are Exts A to A/5. These documents will operate as estoppel against the respondent. So in my view, respondent cannot be allowed to question the factum of vesting.
77. The technical and extreme argument advanced on behalf of the respondent that in absence of legal evidence estate in question had never vested, must be rejected. It is true that before the Special Subordinate Judge, a wrong notification was filed which was sought to be corrected before the learned Single Judge by filing the correct notification. But the learned Counsel for the respondent has argued that the estate could not be permitted to file notification dated Feb. 1955, to show that the estate had actually vested in February, 1955 when according to the photocopy of the notification filed before the Special Subordinate Judge, the date of vesting was August, 1955 (Ext.M). In my opinion, there is no necessity of adducing additional evidence to prove the vesting in view of Sub-section (3) of Section 3 which says that "publication of notification in official Gazette is conclusive evidence of the notice of declaration."
The technical argument advanced by the counsel for the respondent is hardly of any consequences.
78. I, therefore, hold that the respondent cannot question the factum of vesting; whether the estate vested in Feb. 1955 or August, 1955 is not of any significance.
79. Learned Government Advocate has argued that mere settlement by the ex-zamindar in favour of vendor of the respondent was not sufficient to cloths the settle with the right of a raiyat unless the settles was able to prove that he was. in possession of the settled land on the date of vesting, Neither the vendor nor the proprietor were examined on behalf of the respondent.
80. On the other hand Sri Debi Prasad counsel for the respondent has argued that deed of settlement having been proved and accepted by Special Judge and learned Single Judge, it must be held that ex-landlord had settled the land with Deo Narayan Prasad. Deo Narain transferred the disputed land by registered deed to the respondent. The State accepted rent from the respondent. On these facts, it is submitted that there can be no manner of doubt that respondent acquired raiyati right. It is not possible to accept the contention.
81. The crucial question for consideration is whether the settlee was in possession on the date of vesting. The whole case depends on the decision on this question.
82. Two crucial aspects of the matter had not been considered by the learned Single Judge. As noted earlier, it is the case of the appellant that he scheme for construction of Bandh in village Phulsari was approved in 1967; the work was started in 1967 and completed in 1974. The land under the proceedings submerged under the water on or about 1974 by reason by reason of construction of the Bandh. Respondent did not raise any objection whatsoever. He did not claim any compensation for damage to the land. Although sale deed in favour of respondent was executed in 1962, no step was taken for mutation till 1970.
83. Learned Counsel for the State has submitted that this fact has not been controverted by the respondent. It was submitted that special Judge and the learned single Judge without examining the effect of inaction on the part of the respondent and with out considering the oral evidence, held in favour of the respondent mainly on irrelevant consideration and observation of this Court in writ proceedings. Learned Government Advocate submitted that it is not the case of the respondent that ex-landlord in his return had included the disputed 1 and Sri Debi Prasad has vehemently argued that this Court in CWJC 366/79R held that the respondent could be evicted only by taking resort to Section 4 (4) of the Land Reforms Act. I have already held that this Court has not given any such finding because no such question was raised in the first writ case filed by the respondent. I do not find any force in the contention that the respondent could be evicted only by taking out a proceedings under Section 4 (4) of the Act.
84. Shri Debi Prasad has placed heavy reliance on two decisions of this Court. One in Harihar Singh v. Additional Collector, reported in 1978 BBCJ 323 and Maheswari Devi v. State of Bihar, reported in 1988 BLJ 1051 which appears to be sheet anchor of respondent and indeed the learned Single Judge has decided the whole case on the strength of ration of Harihar Singh's, case.
In Harihar Singh's case certain gairmjarua land was settled by the Baraili Rai by means of a Sada Hukumnama dated 15.6.1940. In 1963 Anchal Adhikari opened jamabandi in the name of the petitioner after due enquiry. The petitioner was in cultivating possession of the settled land. They had further constructed houses on the land and also made Ahar and Dug well. The Additional Collector issued notice to the petitioner to produce relevant documents and receipts showing settlement. The Additional Collector cancelled the jamabandi and opened in the name of the petitioner. This was challenged before he High Court. This held that the State have admitted that the petitioner No. 1 was a settled raiyats of the village in view of Section 21 of the B.T. Act he had acquired occupancy raiyat in that village.
In this view of the matter, the cancellation of janbadi was quashed. In 1988 BLJ 1051 it has been held that the proceeding under Land Encroachment Act, 1956 is not permissible when there is a serious dispute of title and some observation has been made in para 29 (relied by Sri Debi Prasad) which is obiter dictim.
85. In my considered opinion none of the decisions is relevant when question of title was to be adjudicated in a reference under Section 30 of the Land Acquisition Act. There is no question of taking recourses to Section 4 (h) of the Bihar Land Reforms Act in such a situation. It is not the case that the State has accepted the factum of settlement, but settlement was illegal for the reason that it was done in order to defeat the provision of the Act.
86. I have no doubt in my mind that once the matter was before a Civil Court for determination of right, title and interest provision of Section 4 is hardly of any relevance and the observation made by this Court in writ jurisdiction on the submission of the respondent counsel stand as barrier.
87. On going through the judgment of the learned Single Judge, I find that the oral evidence adduced on behalf of the appellant has not been considered at all. The decision of the learned Single Judge, therefore, is not in accordance with law and must be set aside. As the learned Single Judge has not given any finding on two vital aspects of the matter, namely, whether the vendor of this respondent was in possession of the land on the date of vesting and further the learned single judge has not considered the very logical objection of the appellant that if respondent was in possession there was reason she would not have raised any objection when the State-authority took possession of the disputed land in 1967. There is also no explanation as to why respondent or his vendor did not apply for mutation.
88. After the draft judgment was finalised Sri Debi Prasad, learned Counsel for the respondent filed certified copy of the order of the Hon'ble Supreme Court in Baljit Singh and Ors. v. State of Harayana and Ors. in Civil Appeal Nos. 1663 to 1668 of 1982 , disposed of on 30.7.1987. In this decision the Hon'ble Supreme Court has held as follows:-
The short question raised is whether the Letters Patent Appeals were maintainable under the law. The learned Counsel for the appellants agreed that such appeal did not lie on the authority of a judgment of this Court in Asia Industries v. Sarup, 1965 (2) SCR 756, where a four Judge bench has clearly held that such an appeal does not led. On this authority the judgment of the Division Bench of the High Court has to be vacated and consequently the decision of the learned Single Judge has not to be restored. Learned Counsel for Bharat Steel Tubes Ltd. , respondent No. 3 herein contends that this point had not been raised before the Division Bench when the appeals were heard and, therefore, the appellants are barred from failing this plea in this Court. We see no force in such a contention as this is not a case of lack of jurisdiction in the ordinary sense of the terms. There is total absence of jurisdiction as that appellate forum is not provided by law. It is well settled that right of appeals has got to be statutory provided. Otherwise, there is inherent incompetence to entertain the appeal. Accordingly, the decisions of the Division Bench must be taken as nullity.
89. The above decision has already been dealt with by me in paragraph Nos. 45 and 46 of the judgment.
90. All the question referred in the all Full Bench are answered. First Appeal No. 171 of 1986 (R) is remitted to the learned Single Judge for fresh decision in the light of observations made in this judgment.
91. It would be open to the parties to apply for additional evidence before the learned single Judge. Cost will abide the final result of the appeal.