Jharkhand High Court
Ram Briksha Sahu vs The State Of Jharkhand on 25 April, 2023
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 3468 of 2001
1. Ram Briksha Sahu, Son of Late Ishwar Sahu
Deleted vide order dated 17.01.2018
1 (i) Sheo Prasad Sahu, son of Late Ram Briksha Sahu, resident of
village Nari, P.S. Kisko, District Lohardaga
Substituted vide order dated 17.01.2018
2. Sukh Sagar Sahu, son of late Ishwar Sahu
Deleted vide order dated 07.09.2021
2. (i) Gobardhan Prasad Sahu, S/o Late Sukh Sagar Sahu, Village
Nari, Lohardaga Substituted vide order dated 07.09.2021
... ... Petitioners
Versus
1. The State of Jharkhand
2. Commissioner, South Chotanagpur Division, Ranchi
3. Additional Collector, Lohardaga, P.S. and District Lohardaga
4. Special Officer, Schedule Area Regulation, Lohardaga, P.S. and
District Lohardaga
5. Dinanath Sahi, son of Suresh Nath Sahi
Deleted vide order dated 18.04.2022
5 (a) Jhubla Devi, W/o Late Dinanath Sahi
5 (b) Vivek Nath Sahi, S/o Late Dinanath Sahi
Both R/o Vill. Tisiya, P.O. Tisiya, P.S. Kisko, Dist. Lohardaga,
Jharkhand
5(c) Chandrawati Devi, W/o Raj Kishore Sai, D/o Late Dinanath
Sahi
R/o Village Dumri, P.O. Kasir, P.S. Patra, Dist. Gumla, Jharkhand
5(d) Bhawanti Singh, S/o Alok Kumar Singh, D/o Late Dinanath
Sahi
R/o Vill. Sohadag Khurd, P.O. Nawa Bazar, P.s. Bishrampur, Dist.
Palamau, Jharkhand
5(e) Jyoti Kumari Sahi, W/o Ganesh Kumar Singh, D/o Late
Dinanath Singh, R/o Vill. Bailajhakra, P.O. Dandai, PS. Dandai,
Dist. Garhwa, Jharkhand
Substituted vide order dated 18.04.2022
... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Mukesh Kr. Mehta, Advocate : Mr. Prem Mardi, Advocate For the Respondent-State : Mr. Devesh Krishna, Advocate For the Private Respondent : Mr. Binod Kr. Dubey, Advocate : Mr. Abhijeet Kr. Pandey, Advocate
---
25/25.04.2023
1. Heard the learned counsel for the parties.
22. This writ petition has been filed challenging the following orders:
(a) Order dated 18.09.1997 passed by the respondent No. 4 in S.A.R. Case No. 16/1996 (Annexure-18), whereby the said authority has passed an order for restoration of the land involved in the present case in favour of the private respondent.
(b) Order dated 25.05.1998 passed by the respondent No. 3 in S.A.R. Appeal No. 3-R-15 of 1997-98 (Annexure-19), whereby the appeal filed by the petitioners has been dismissed.
(c) Order dated 24.07.2000 (Annexure-20) passed by the respondent No. 2, whereby the revision filed by the petitioners has also been dismissed.
Arguments of the Petitioners
3. The learned counsel for the petitioners has submitted a list of dates, which is kept on record.
4. The learned counsel for the petitioners has submitted that the property in question was sold by way of auction sale in Rent Execution Case No. 374 of 1937 purchased by Mahadeolal and Khemraj. The auction purchasers settled 1.29 acres of land by virtue of registered settlement dated 12.07.1947 to Ram Briksha Sahu and after vesting, the settlees were recognized as tenants by the State of Bihar and in the final settlement, the aforesaid land has been shown in the name of the original petitioners. In the final publication of the current survey operation, the original petitioners' mother has been shown to be in possession of the aforesaid land. The learned counsel submits that in the year 1977, SAR Case No. 35 of 1977-78 under Section 71A of Chotanagpur Tenancy Act was initiated against the original petitioners' mother which was dismissed vide order dated 13.01.1979. Thereafter, the original private respondent filed another SAR case being SAR Case No. 16 of 1996 for restoration of land which was allowed vide order dated 18.09.1997. The original petitioners preferred appeal which was numbered as SAR Appeal No. 3-R-15 of 1997-98. The appeal was dismissed vide Annexure- 19. Thereafter, the revision being SAR Revision No. 60 of 1998 was also dismissed vide Annexure-20.
35. The learned counsel submits that three main questions are involved in the present case:
(a) Whether the claim of the private respondent for restoration of land in dispute could have been entertained after expiry of about 56 years from the date of initial transfer?
(b) Whether the provisions of Section 71A of Chotanagpur Tenancy Act are applicable in a case where the lands have been auctionsold?
(c) Whether the SAR Case No. 16 of 1996 was barred by the principles of res-judicata inasmuch as, the SAR No. 35 of 1977-78 was initiated against the original petitioners' mother and was also dismissed on 13.01.1979.
6. The learned counsel for the petitioners submits that SAR case was initiated by the private respondent no. 5 as back as in the year 1977.
7. The learned counsel appearing on behalf of the petitioners has relied upon the judgement passed by the Hon'ble Supreme Court in the case of "Situ Sahu and Others Vs. The State of Jharkhand and Others" reported in (2004) 8 SCC 340 and also the judgement passed in the case of "Jai Mangal Oraon Vs. Smt. Mira Nayak and Others"
reported in (2000) 5 SCC 141 on the point of limitation.
8. The following judgements have been relied upon on the point that the application under Section 71A of Chotanagpur Tenancy Act is not maintainable in a case where the property has been purchased through auction sale in the execution of a decree:
(i) "Smt. Satyabati Devi Vs. State of Bihar and
Others"reported in (1997) 1 BLJR 456
(ii) "Abdul Salim Vs. The Commissioner, South
ChotanagpurDivision, Ranchi and Others" reported in 1990 BLT (Rep. 217)
(iii) "Shambhu Nath Dutta Vs. The State of Bihar"
reportedin 1990 BLT (Rep. 220)
(iv) "Raj Sewak Singh and another Vs. State of Bihar andothers" reported in 1988 BLT (Rep) 172 Arguments of the Private Respondents.4
9. Learned counsel appearing on behalf of the private respondents has vehemently opposed the prayer and has submitted that there are concurrent findings recorded by all the courts below that the private respondents were dispossessed in the year 1977 and therefore, the application for restoration under Section 71A was not barred by limitation. He submits that auction of the property in the execution of money suit was itself illegal and therefore, no reliance can be placed upon the same by the petitioners. He submits that these aspects of the matter have been duly considered by the learned revisional court and therefore, the present case does not call for any interference in writ jurisdiction.
10. After the conclusion of hearing of the present case, the private respondents have filed one interlocutory application being I.A. No.2815 of 2023 in order to bring on record certain submissions and judicial pronouncements which they seek to rely upon. Although filing of such petition after conclusion of the arguments without the leave of this Court is not permissible in law, but in order to ensure that the ends of justice is not defeated, this Court would take into consideration the submissions/judgments which have been cited by the learned counsel for the private respondents through the interlocutory application. Submissions made by the private respondents and the judgments relied upon by the private respondents through interlocutory application is quoted as under:
"3. That the present case was taken up on 02/02/2023 by this Hon'ble Court and the present respondent no-5 has stated and submitted before this Hon'ble Court while opposing the prayer of the petitioner that there are concurrent findings recorded by the courts below that the private respondents were disposed in the year 1977 and therefore the application for restoration of land in favour of the Respondent No-5 under Section 71A of the CNT Act was not barred limitation. It has also been submitted by the present Respondent No-5 that auction of the property in the Execution of Money Suit was itself illegal and therefore no reliance can be placed upon the same by the Petitioner and therefore there is legal applicability of CNT Act in the present case.
4. That it is humbly stated and submitted that by virtue of Annexure- 16 of the Writ Petition, an Order dated 13/01/1979 was passed in S.A.R. No- 35/77-78 by the Ld. Court of Special Officer, Camp Court Kisko, Lohardaga, the said S.A.R. case was dismissed for which restoration application was filed by the original Petitioner Le. Manoharnath Sahi who 5 is the grandfather of the Respondent No-5. Therefore, by virtue the Order dated - 13/01/1979 passed in the aforesaid SAR Case No-35/77-78, the present Respondent No-5 were dispossessed from the concerned property from the date of Order passed by the SAR Court. Hence, the present Respondent No-5 in the Writ Petition are not barred by the limitation or as per Limitation Act as contended by the Petitioner.
5. That subsequently after dismissal of restoration application filed by the grandfather of the Respondent No-5, the present Respondent No-5 namely Dinanath Sahi file another application for restoration of the said property under Section 71 A of CNT Act, vide order dated - 18/09/1997 passed in SAR No-16/96 (Annexure-18 to the Writ Petition) whereby and whereunder the present case was allowed for restoration. Therefore by virtue of final Order dated - 18/09/1997 passed in S.A.R. No-16/96, the present Respondent No-5 are not barred by limitation or by the Limitation Act.
6. That the principle of Res-Judicata will also not be applicable in the present case since admittedly the present Respondent No-5 were disposed after the year 1977 from the aforesaid land since the S.A.R. No-35/77-78 was not dismissed on merits rather it has been recorded that some investigation has to be done further and therefore the subsequent restoration application bearing S.A.R. No-16/96 filed under Section 71A of CNT act is not barred by the principle of Res-judicata as per Section 11 of CPC, 1908.
7. That in support of the aforesaid contention, the Respondent No -5 would like to reply upon the judgments rendered by the Hon'ble Supreme Court of India as well as by this Hon'ble Court which are as follows: -
1) S. Ramachandra Rao Vs. S. Nagabhushana Rao & Ors passed in Civil Appeal No - 7691-7694 of 2022 reported in 2022 LiveLaw (SC) 861.
2) Mahendra Singh Vs State of Jharkhand & Ors. reported in 2004 (4) JCR 254 Ihr.
8. That the delay for supplying the aforesaid judgments before this Hon'ble Court for placing reliance by Respondent No-5 was non deliberate & unintentional and has been occasioned on account of precarious exigencies of situation and factors beyond the control of the Respondent No-5 and for that the Appellants herein begs pardon of this Hon'ble Court.
9. That refusing to consider the aforesaid judgments in support of the arguments placed by respondent No-5 would be that a meritorious matter will be thrown out at the very threshold and cause of justice being defeated, and more so when it is the constant spirit of judicial pronouncements to the effect that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred.
10. That if the present Interlocutory Application for consideration of judgment before final pronouncement of judgment in the present case, the 6 Respondent No-5 shall suffer irreparable damage and shall be denied justice for no fault on their part."
Findings of this Court
11. As is apparent from paragraph 1 of the writ petition itself that order of restoration of land in favour of the private respondent was passed by the respondent No. 4. The restoration of land with respect to plot number and khata number is as under: -
Area R.S. Plot Khata
Number Number
1.29 acres 286 1
(as per para 8
of the writ
petition)
2.52 areas 287 1
0.79 384 2
0.88 387 2
1.44 378 2
0.65 379 2
1.94 389 2
1.66 390 2
12. All the aforesaid areas of land are situated at Village Hutap, P.S. Kisko, District Lohardaga. The order of restoration was passed under Section 71-A of the Chhotanagpur Tenancy Act, 1908.
13. From perusal of the records of this case, the specific case of the petitioners is as under: -
(a) The land of Khata No. 1 and 2 at village Hutap, P.S. Kisko, District Ranchi (Now Lohardaga) was recorded in the Revisional Survey, Records of Rights Act, Ghatwali in the name of ancestors of the respondent No. 5.
(b) The lands were auction sold in Rent Execution Case No. 374/1937-
38 and was purchased by Mahadeo Lal Marwari and Khemraj Marwari to whom sale certificate was duly granted and they took delivery of possession through the process of court. Annexure 1 and 2 are the certified copy of the writ of delivery of possession in Execution Case No. 374/1937-38 and report regarding delivery of 7 possession. The auction purchasers came in possession of the land and acquired the status of tenure holder being purchaser of tenure interest.
(c) Vide registered deed of settlement dated 12.07.1947, the auction purchasers settled 1.29 acres out of R.S. Plot No. 286 and 2.52 acres out of R.S. Plot No. 287 of Khata No. 1 and the settlees were put in possession of the same from the settlement. The settlees paid rent to ex-landlord before vesting and after vesting they were recognized as tenants by the State of Bihar. In support of this, some rent receipts have been annexed as Annexure-5 to 5/g. During current survey final publication with respect to this land, it has been shown in the name of the petitioners.
(d) Auction Purchaser Khemraj Poddar also settled 0.79 acres out of R. S. Plot No. 384 and 0.88 acres out of R. S. Plot No. 387 of Khata No. 2 to Ishwar Sahu (father of the original petitioners) by virtue of registered deed of settlement dated 26.08.1946 and the settlees were put in possession of the same from the settlement. The settlees paid rent to ex-landlord before vesting and after vesting they were recognized as tenants by the State of Bihar. Ishwar Sahu remained in possession of property and after his death, his son and legal heirs inherited the aforementioned properties and came in possession thereof and still continuing in possession. In the current survey final publication, the name of the petitioners appears.
(e) The auction purchaser and tenure holder Khemraj Poddar also settled 1.44 acres out of R.S. Plot No. 378, 0.65 acres out of R.S. Plot No. 379, 1.94 acres out of R.S. Plot No. 389 and 1.66 acres out of R. S. Plot No. 390 of Khata No. 2 to Aparoop Kunwar, w/o Ishwar Sahu and mother of the original petitioners through registered deed of settlement dated 12.07.1947 and put the settlees in possession. Said Aparoop Kunwar paid rent to the ex-landlord before vesting and after vesting she was recognized as tenant by the State of Bihar and paid rent and remain in possession and after her death, the petitioners being her sons and legal heirs inherited and are still in possession.
8(f) It is the further case of the petitioners that not only the predecessor in interest of the petitioners, but also the predecessor in interest of the private respondents took settlement of portion which was auction purchased by way of a registered Kabuliyat dated 26.07.1945. The registered Kabuliyat has been annexed as Annexure-12 to the writ petition.
(g) The rent was also fixed under the provisions of Bihar Land Reforms Act vide rent fixation Case No. 6-R-27/1959-60 and Rent Fixation Case No. 133-R-8/1958-59. In connection with the property, a proceeding under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 was initiated with respect to land which were in possession of Sheo Bhagwan Poddar, the legal heir of auction purchaser and except the land which were settled as aforesaid, publication was made in land ceiling Case No. 52/1973-74 and the State of Bihar acquired the excess land. A copy of the gazette publication in L.C. Case No. 52/1973-94 has been annexed as Annexure-14 to the writ petition.
(h) It is also the case of the petitioners that ancestors of the private respondents purchased a portion of the auction purchased land from Sheo Bhagwan Poddar, the legal heir of auction purchaser, through registered sale deed dated 26.05.1969 and ancestors of the private respondents have come in possession of the property and the land has been mutated in their favour and they are paying rent. The registered sale deed dated 26.05.1969 has been annexed as Annexure 15.
14. The original private respondent had filed a counter affidavit and raised the following points: -
a. The land in question, besides land of other villages, were granted as Ghatwali grant by the then Maharaja of Chotanagpur Raj sometimes in 17th Century to the ancestor of the private respondent and the ancestor of the private respondent, namely, Chama Sahi was appointed Ghatwali in order to guard the Kharia ghat with barkhandazes against the intrusion of enemies of the Chotanagur Raj.
b. Ghatwali tenure is inalienable and impartible.9
c. Shortly before the Revisional Survey Operation, the then Maharaja of Chotanagpur Raj brought a rent suit against the ancestors of the private respondents and in execution of the decree, the Ghatwali lands of the ancestors of the private respondents were purportedly purchased by one Hari Bux Marwari in auction sale on 24.02.1933.
d. Thereafter in order to deposit the decretal sum as also compensation to the auction purchaser, the ancestors of the private respondent borrowed a sum of Rs. 5,800.00 from Mahadeo Lall and Khemraj, giving in usufructuary mortgage. e. After borrowing the said sum of Rs. 5,400.00 the same was deposited towards the decretal amount and compensation to the auction sale and on deposit, then auction sale was set-aside. f. During revisional survey operation, the names of the aforesaid Mahadeo Lall and Khemraj were entered as mortgagee with respect to the land of the aforesaid four villages. g. Thereafter said Mahadeo Lall and Khemraj brought a Money Suit No. 280/36 against the ancestors of this respondent and the said Mahadeo Lall and Khemraj claimed to have purportedly purchased the right, title and interest of the mortgagors, i.e., the lands of the aforesaid four villages of the ancestors of this respondent in Execution Case No. 374/34 though on and over the said land this respondent's ancestors had Gahtwali right and being the nature of the land as Ghatwali, the same was neither impartible nor inalienable.
h. On account of the fact that the nature of the aforesaid lands of the aforesaid villages being Ghatwali, the lands was neither validly transferred to the said Mahadeo Lall and Khemraj nor the said Mahadeo Lall and Khemraj ever came in effective and actual possession of the aforesaid lands of four villages nor Mahadeo Lall and Khemraj were recognized by the Maharaja of Chotanagpur Raj as tenure holder with respect to the aforesaid Ghatwali lands of four villages.
i. Mahadeo Lall and Khemraj therefore, instituted a suit for making their position clear in law by seeking prayer for a 10 decree that the tenure was a permanent, heritable and transferable one. The said suit was registered as Title Suit No. 4 of 1940 of the Court of the Special Sub-ordinate Judge, Ranchi. j. That the said Title Suit No. 4 of 1940 was dismissed on merit in terms of Judgment and Decree dated 7.9.1942.
k. That in the judgment in Title Suit No. 4 of 1940 (Annexure-A) the Court held that the grant of land to the ancestor of the private respondent since its inception was a Ghatwali Grant and the Ghatwali Service Tenure is impartible and inalienable. Meaning thereby, the plaintiffs to the suit have not acquired any right and title on and over the Ghatwali land belonging to the ancestors of the private respondent in the aforesaid four villages.
l. Thereafter, Mahadeo Lall and Khemraj preferred an appeal against the aforesaid Judgment and Decree dated 07.09.1942 (Annexure A & B) before the Hon'ble Patna High Court, which was registered as F.A. No. 165 of 1942. That after hearing, the Hon'ble Patna High Court by Judgment dated 20th December, 1945 dismissed the appeal.
m. That no appeal/revision was filed by the said Mahadeo Lall and Khemraj against the order dated 20th December, 1945 (Annexure-C) and thus, the Judgment and Decree passed by the Special Sub-ordinate Judge in T.S. No. 4 of 1940 attained finality by virtue of "Annexure-C" and the Judgment and Decree dated 07.09.1942 (Annexure A and B) and the judgment dated 20.12.1945 (Annexure-C) are final and binding. n. After vesting of the estate, the ancestor of the private respondents became raiyat of the aforesaid land over which they had Ghatwali right and were recognized by the State as raiyat and rent of the land was fixed and the private respondents have been paying rent to the State.
o. The ancestors of the private respondents and now the original private respondent was all along in possession of the aforesaid land including the land in question, but the original private 11 respondent was forcibly and illegally disposed from the land in question sometime in or about 1977 by the writ petitioners. p. The writ petitioners claim to have acquired the land in question by virtue of settlement made on 12.07.1947, 26.08.1946 and 12.07.1947 (Annexure 4, 7 and 9 respectively to the writ application) by the aforesaid Khemraj whose right, title and possession was negated by the Judgement and Decree dated 07.09.1942 (Annexure A and B) and the Judgment and Decree attained its finality by virtue of Judgement dated 20.12.1945 (Annexure-C) of the Hon'ble Patna High Court. The Judgment of the Competent Civil Court is final. In terms of "Annexures A and B" it is crystal clear that the land in question is neither transferable nor alienable and the said Khemraj and Mahadeo Lall lost the suit wherein they sought a declaration for their title and right on and over the land in question besides other land.
q. Said Khemraj and/or Mahadeo Lal has/have absolutely no right and title to transfer the land either as mortgagee or auction purchaser and any such transfer is nothing but a paper transaction and has been made illegally, without having any right, title, possession and authority and all such transfer/transaction is vitiated in law.
r. The original private respondent was forcibly and illegally dispossessed from the land in question in or about 1977. He filed an application against the writ petitioners for restoration of the land in question under Section 71A of the Chotanagpur Tenancy Act, 1908 before the Deputy Collector Land Reforms- cum-Special Officer, Schedule Area Regulation, Lohardaga (the respondent No. 4), which was registered as S.A.R. Case No. 16/96.
s. The respondent No. 4 after hearing found that the writ petitioners were never in possession of the land in question by virtue of the purported settlements made by aforesaid registered deeds dated 12.07.1947, 26.08.1946 and 12.07.1947. The learned trial court further found that this respondent was dispossessed from the land in question in or about 1977 and by 12 order dated 18.9.1997 passed in S.A.R. Case No. 16/96 as contained in "Annexure-18" to the writ application, the learned trial court ordered for restoration of the land in question to this respondent.
t. In pursuance of the said order dated 18.09.1997, this respondent was put in possession of the land in question through the process of Court.
u. Against the said Order dated 18.9.1997, the appeal being S.A.R. Appeal No. 3 R 15/97-98 and then revision being S.A.R. Revision No. 60/1998 heard analogously with S.A.R. Revision No. 61/1998, was also dismissed. The revisional authority held that irrespective of finding of the lower courts regarding the possession, the settlement made by Mahadeo Lall Khemraj is bad in law and therefore, the claim of the petitioner cannot be accepted merely on the statement that they have continued in possession over the land in dispute.
15. A rejoinder to the counter affidavit has been filed on 21.04.2022 by referring to the operative portion of the judgement of the appellate court in Appeal From Original Decree No. 165 of 1942 (Annexure-B to the counter affidavit of Respondent no.5) whereby the suit was disposed of on the preliminary ground that a suit for a mere declaration like the present does not lie, and if it did lie, the judgment passed by the learned Subordinate Judge refusing to grant the declarations sought can be said to be an erroneous exercise of discretion. It was also observed that it appeared that the parties did not adduce all the evidence that was available bearing on the question in controversy between the parties. By referring to the appellate judgement, it has been submitted that the submission of the private respondents is erroneous to the extent that the decree passed by the learned Subordinate Judge has been confirmed by the learned Appellate Court. The sequence of events has been reiterated by the petitioner.
16. It has been further submitted that this Hon'ble Court has already settled the issue by holding that section 71A of Chotanagpur Tenancy Act is not applicable in the case of auction sale and it has 13 been submitted that the land has been settled in favour of the petitioners by the auction purchasers themselves. Reliance has been placed on the judgement dated 17.03.1990 passed in the case of Abdul Salim v. The Commissioner, South Chhotanagpur, Division, Ranchi and Ors. in C.W.J.C. No. 862 of 1984 (R).
17. Upon filing of the application for restoration under Section 71(A) of the Chotanagpur Tenancy Act by the original respondent No. 5, an inspection was conducted. The inspection report dated 27.08.1997 is on record. Some of the findings of the inspection report are as under: -
a. The inspection report deals with the history of the transfer of land involved in the present case and that the purchasers had obtained the property from auction purchasers and are in possession of the property.
b. As per R.S. Khatian, the land is recorded as Bakhast. c. Reference of Appeal No. 165/1942 and has been stated that the appeal was dismissed.
d. Earlier one S.A.R. Case No. 35/1977 was filed which was dismissed.
e. The applicant is a member of schedule tribe.
18. From perusal of the inspection report, this Court finds that nothing has been mentioned as to the year from which the petitioner has remained in possession or the year from which the applicant (Original private respondent no.5) was dispossessed from the property.
19. The Land Reform Deputy Collector passed in impugned order dated 18.09.1997 after hearing the parties and recording their respective submissions including the documents relied upon by them.
The plea raised by the petitioner, interalia, on the point of res-judicata by referring to Section 11 of the CPC as well as the plea that the petition for restoration was filed after expiry of 51 years from the date of dispossession and barred by limitation has been recorded. The plea of the private respondent (applicant) that the property was non transferrable ghatwali tenure and upon vesting of zamindari they became the raiyat. The vendors had got the property through auction 14 sale, but the purchasers (predecessor in interest of the petitioner) could not get their title declared in Title Suit No. 4/40 which was dismissed and the appeal 162/42 was also dismissed. The applicant claimed that they were forcibly dispossessed from the property in the year 1977 and hence the petition for restoration was not barred by limitation.
20. The Land Reform Deputy Collector passed the order and, interalia, held as follows: -
a. The petitioners had purchased the property from the auction purchasers.
b. The property is of "tisiya salaiya" plot which was jagir of 12 villages and was ghatwali jagir given in the name of the ancestors of the applicants by the Maharaja.
c. The auction purchaser did not get possession of the property because the land was under 'ghatwali tenure' and consequently, the purchaser filed suit for declaration of title which was numbered as Title Suit No. 04/1940 and the learned Sub-Judge passed the order that the property was under ghatwali tenure. Thus, the auction purchaser could not get title over the property as ghatwali land is given for service which is not saleable. Such property could not be put for auction.
d. The fixation of rent under Section 6 of Bihar Land Reforms Act, was not correct.
e. The ancestors of the applicants were 'ghatwali tenure' and accordingly, they had become raiyat in terms of Section 6 of the Bihar Land Reforms Act.
f. Ghatwali tenure land is non-transferable and therefore, the sale of the land was against the provisions of Chhota Nagpur Tenancy Act.
g. The applicant is out of possession since 1977 and hence the application is not barred by limitation.
h. No finding has been recorded with respect to the point of res- judicata.
21. The order passed by Land Reforms Deputy Collector does not record any finding on the point of res-judicata and while recording 15 that the applicant has been out of possession since 1977, there is no discussion or reference to any material on record to arrive at such a finding. Rather, the authority has not even considered the various documents of the petitioner including rent receipts etc. and has also held that the fixation of rent in favour of the petitioner under Section 6 of Bihar Land reform act was not in accordance with law. The entire finding is primarily based on the fact that Title Suit No.4 of 1940 filed by the auction purchaser was dismissed and against which the appeal was also dismissed and also recording that in the title suit, it was declared that the property is ghatwali tenure which is non transferrable and cannot be auction sold. It has been held that after dismissal of the title suit and the appeal by the High Court, the entire claim of the petitioner stood automatically extinguished. With this, the L.R.D.C. allowed the application for restoration of land in favour of the original private respondent.
22. The appellate court also dismissed the appeal on similar reasoning and did not decide the point of res-judicata. Before the appellate authority, the petitioner has also argued that at the time of abolition of jamindari, Mahadeo Lal Khemraj filed return; as per Section 6 of the Bihar Land Reforms Act; the property was found to be bakhast which was in possession of the previous landlord; Form-M was prepared in the name of Sheo Bhagwan Poddar who was the successor in interest of Mahadeo Lal Khemraj, who sold the property through registered sale deed. The appellate authority also came to the conclusion that the auction purchasers having lost the title suit no. 04/1940 against which appeal was also dismissed, the entire claim of the petitioner, who derived title through sale made by the auction purchaser, stood extinguished.
23. This Court finds that the L.R.D.C. as well as the appellate authority have not considered the plea of res-judicata. Further they have recorded that the rent was wrongly fixed under the provisions of Section 6 of Bihar Land Reforms Act in favour of the petitioners. They based their findings on the basis of Title Suit No. 04/1940 filed by the auction purchasers (predecessor in interest of the petitioner) which was dismissed and the Appeal No. 165/1942 was also dismissed 16 by the High Court. On the basis of decision in the title suit, it has been held by the authorities that the property was 'ghatwali tenure' which could not be subject matter of auction sale and therefore all the claim pursuant to auction sale stood extinguished by virtue of dismissal of the title suit and dismissal of the appeal arising therefrom.
24. This Court finds that although the applicants had claimed that they were dispossessed from the property after 1977, but apart from their bald statement that they were dispossessed after 1977, even in the inspection report, no such finding regarding the date of dispossession of the applicant from the property has been mentioned. It further appears that admittedly rent was fixed in favour of the petitioner under Section 6 of Bihar Land Reforms Act, but the aforesaid authorities passing the impugned orders were of the view that the rent was wrongly fixed.
25. The revisional authority also did not considered the plea of res- judicata at all and refused to consider the plea of limitation by holding as follows: -
"I am of the view that irrespective of the finding regarding the possession, the settlement made by Mahadeolal Khemraj is bad in law and therefore, the claim of the petitioners cannot be accepted merely on the statement that they have continued in possession over the land in dispute."
26. Thus, the learned revisional authority based its entire findings on the premise that the settlement made by the auction purchasers (Mahadeolal and Khemraj) was bad in law and was of the view that continued possession of the petitioners, being the successor in interest of the auction purchasers does not help the petitioners in any manner.
The plea of res-judicata
27. This Court finds that none of the authorities have decided the plea of res-judicata, although it was the specific plea raised by the petitioners' right from the beginning.
28. It was the specific case of the petitioners that a proceeding under Section 71(A) of Chhota Nagpur Tenancy Act was initiated against the petitioners' mother and several other persons separately and all the proceedings were heard and the case which was registered against mother of the petitioners was S.A.R. Case No. 35/1977-78 17 which was dismissed on contest vide order dated 13.01.1979. On the point of res-judicata, the private respondents have taken a specific plea in their I.A No. 2815 of 2023 in para 6 that S.A.R Case no.35 of 1977- 78 was not dismissed on merits rather it was recorded that some more investigation was required and therefore the subsequent SAR Case no. 16/96 (i.e the present case was not barred by res-judicata).
29. This Court finds that S.A.R. Case No. 35/1977-78 and other analogous cases including S.A.R. Case No. 4/1978-79 were filed for restoration of land and all the cases except S.A.R. Case No. 4/1978-79 were dismissed vide order dated 13.01.1979 (Annexure-16). It was only in connection with S.A.R. Case No. 4/1978-79, further enquiry was required and the case was kept pending vide the aforesaid order dated 13.01.1979 (Annexure-16). Thus, the argument of the petitioner that S.A.R. Case No. 35/1977-78 was not decided on merits and some more investigation was required, prima-facie does not appear to be correct. However, various ingredients for applicability of principles of res-judicata is certainly required to be examined.
30. Since none of the authorities have considered the plea of res- judicata raised by the petitioners and the matter is required to be remanded for consideration on this point, no further discussion is required to be made by referring to the judgements relied upon by the private respondents as mentioned in I.A. No.2815 of 2023 which have been cited on the point of res-judicata.
The plea of Limitation
31. This Court is of the considered view that the learned revisional authority was not justified in refusing to decide the point of limitation and has in fact not recorded any finding with regard to the date of dispossession of the private respondent from the property. The petitioner had claimed the property through auction purchasers who had purchased the property through auction sale conducted in execution of decree and have produced registered deeds which were executed much before introduction of section 71 A of The Chhota Nagpur Tenancy Act, 1908 and much before coming into force of Schedule Area Regulation, 1969. The petitioners have also produced a copy of writ of delivery of possession in Execution Case No. 374/37 18 and report regarding delivery of possession and also various rent receipts in support of their possession throughout. The documents/evidences regarding possession were required to be considered. The private respondent has come up with a plea that the auction itself was set-aside, but no such document has been filed before this Court and the impugned orders also do not reflect filing of any such documents before the authorities. The materials were required to be examined and finding was required to be arrived with regard to the alleged date of dispossession of the private respondent. Such an important point could not have been refused to be considered only by stating that irrespective of the finding regarding the possession, the settlement made by Mahadeolal and Khemraj is bad in law and therefore, the claim of the petitioners cannot be accepted merely on the statement that they have continued in possession over the land in dispute. The approach is all the more not sustainable in the eyes of law as because the authority has totally misread and misunderstood the judgement passed in Title Suit No. 4 of 1940 read with appeal decided by the High Court and was of the view that the predecessor in interest of the petitioner, the auction purchaser, had lost the title suit and also the appeal and could not get their title declared from the court. This approach with respect to interpretation of the judgments passed in Title Suit No. 4 of 1940 and the appeal has been adopted by the LRDC as well as the appellate authority. It was pointed out by the petitioner before the revisional authority as recorded in para 4 of the impugned order that Mahadeo lal and Khemraj got possession over the land through the court on 22.01.1940 and continued in possession in spite of order of learned sub-judge and the order passed in appeal by the High Court and no steps were taken to take back the possession and therefore he was entitled to make settlement. This point was rejected by holding that a person who does not have title cannot have right to make settlement only on the basis of possession and the settlement made was in teeth of the judgement passed in title suit no 4 of 1940 read with the judgement passed by the High Court in appeal.
1932. This Court finds that the respondents while passing the impugned orders have completely mis read and mis understood the judgement passed in Title Suit No 4 of 1940 read with the judgement passed by the High Court in appeal.
33. The revisional authority was of the view that irrespective of date of dispossession of the private respondent, the petitioners had no right and the land has rightly been directed to be returned. Such approach of the revisional authority is in direct conflict of the judgment passed by the Hon'ble Supreme Court in the case of Situ Sahu & Ors. vs. The State of Jharkhand & Ors. The Hon'ble Supreme Court clearly recorded that the transfer under Section 71(A) of Chhota Nagpur Tenancy Act has not been defined and the transfer as a physical fact will also be a transfer within the meaning of Section 71(A) of Chhota Nagpur Tenancy Act. This Court is of the considered view that title and possession are two different features in connection with any property. Here the initial transfer has been by way of auction sale through process of court in execution proceeding which is claimed to be coupled with dispossession. The private respondent claim that the auction was set-aside but no such material has been brought on record by the private respondent to show that the auction was set-aside and the impugned orders also do not reflect consideration of any such order of setting aside the auction sale.
34. A copy of the judgment passed in Title Suit No. 04/1940 has been annexed by the respondents in their counter-affidavit. The same was filed by Mahadeo Lall and Khemraj against Maharaja and his family members. The suit was filed for a declaration that the properties mentioned in the Schedule 'B' of the plaint are permanent transferable and heritable Jagir of the plaintiffs. The background of the suit was also mentioned. The defendant no.1 was having their permanent heritable title over the property and their right was all along recognized during the cadastral survey. The Maharaja (defendant No. 1) had filed a rent suit against defendant No. 2 and his co-sharers and in execution of the decree, the entire tisaiya silaiya lot was purchased by one Hari Bux Marwari on 24.02.1933. In order to pay the decree and compensation money, 20 the defendant Nos. 2 to 13 borrowed Rs. 5,800.00 from the plaintiffs and executed a zerpheshgi bond in favour of the plaintiffs and put the plaintiffs in possession and thereafter, the sale was set- aside on deposit of the decree money and compensation money. Thereafter, the plaintiffs brought Money Suit No. 280/1936 against the defendant Nos. 2 to 13 for recovery of settlement costs paid by the plaintiffs and in execution of the decree purchased the right, title and interest of defendant Nos. 2 to 13 in the villages enumerated for Schedule 'B' for Rs. 1200.00 subject to mortgage in favour of the plaintiffs and thus, the plaintiffs were in possession of the villages in the suit as auction purchasers. During the attestation stage of the revisional survey, one Kalinath alleging to be the son of Taleswar Braj Nath Sahi admitted the tenure to be a 'Ghatwali tenure' and hence the entire lot was wrongly recorded as a 'ghatwali tenure'. After the final publication of the Revisional Survey the Maharaja brough rent suit No. 1176 of 1936/37 against defendant Nos. 2 to 13 and for the first time in the history of the tenure the Maharaja alleged in his petition dated 21.08.37 for amendment of the plaint in the above-mentioned rent suit that the tenure is a 'private Ghatwali tenure' and is not permanent or transferable and that defendant Nos. 2 to 13 are liable to be ejected under Section 59 of the C.N.T. Act. In order to remove all misapprehensions and make the position clear plaintiffs were advised to institute the suit to seek a declaration that the acquisition by the plaintiffs of the village mentioned in Schedule 'B' is legal, valid and binding on defendant No. 1. It was the specific case of the plaintiffs that the lot was never created as a 'ghatwali tenure' and at any rate, the Maharaja and his ancestors have been all along treating the lot as a jagir 'putrapuradik' and hence it has lost the Ghatwali character, if any. Altogether seven issues were framed in the suit and one of the issues was as follows: -
issue No. 2: -
"Have the plaintiffs acquired any title to any portion of lot 'Tisia Salaiya' by auction purchase? Is it binding on defendant No. 1. The issue No. 2 was decided as follows: -21
"By its very nature a Ghatwali tenure is inalienable (Vide I.L.R. 3 Patna, 183 and I.L.R. 7 Patna 744) Plaintiffs have therefore acquired no title by their auction purchase of the villages in suit which can be binding on defendant no. 1. But it is urged on behalf of the plaintiffs that these rulings cannot assist defendant no. 1 because it was found as a fact in those cases that the tenures in question were Ghatwali tenures governed by a particular regulation. In the ruling reported in I.L.R. 3 Patna, 183, however, there are general observations at pages 217 and 218 to the effect that a Ghatwali service tenure is impartible and inalienable. This issue is decided against the plaintiffs."
Issue no.5 was as follows:-
"5. Is the lot "Tisia Salaiya' a permanent, heritable, transferrable and partible putraputradik jagir as alleged by plaintiffs or is it a zamindari ghatwali tenure as alleged by the defendant? Issue No. 5 was decided by the learned trial court and the learned trial court considered the sale certificate showing that the plaintiffs purchased the village in suit at court auction in execution of their money decree against Taleshwar and Exhibit 17 and 18 showed that the plaintiffs obtained delivery of possession of the properties through court. However, the learned trial court was of the following opinion: -
"In my opinion, the documents filed by the plaintiffs are insufficient to prove partible nature of tenure. My most important reason for this view is that although shares were allotted to the descendants of the branches other than Gopal from the Khewats, it appears that Gopal's descendants alone were recorded as the tenure holders and the other three branches were recorded under Gopal's Branch. I am, therefore, of the opinion that Ext. 3 was never acted upon. Similarly the decree (Ext. 5) shows that the rent as also the service was the primary liability of Chama, son of Gopal and that the other branches were liable to pay their quota to Chama. This document further shows that the grantees would attend on the Maharaja at Dasahera time, Hence Ext. 5 far from helping the plaintiffs helps defendant No. 1. Ext. 4 no doubt shows that Budhmani Kuer, a widow of the family of the Taleswars sued for partition against SK. Farzand and was allotted a share in the tenure of the Taleswars. But there is no document to show that the Mahraja recognized Budhmani Kuer as a sharers in the tenure. There is no evidence to show that Mosamat Budimani Kuer ever paid rent or got receipts from the Maharaja. There is no evidence that the rental of the tenure was split up in the Maharaja's serishta who 22 (Maharaja), according to the case of both parties, realized the entire rental of the tenure one and the same person and never consented to a splitting up to the Jama. Thus, the first element, viz/ the partibility of the tenure has not been proved by the evidence on record."
The element of transferability was also considered and the learned trial court recorded that the transferability was also not been proved by the evidence on record .
Ultimately, the suit was dismissed.
35. The plaintiffs filed appeal before high court which was appeal No. 165/1942. The appellate judgment has also been filed by the respondents. The appellate court recorded that the most important issues between the parties were (1) whether the 'Tisia Salaiya lot' was a permanent, heritable, transferrable and partible putraputradik jagir as alleged by the plaintiffs, or a zamindari ghatwali tenure as alleged by the defendants; (2) have the plaintiffs acquired any title to any portion of the said tenure by their auction purchase aforesaid.
36. The learned appellate court recorded that the learned Subordinate-Judge after going into the evidence both oral and documentary adduced by the parties came to the conclusion that the tenure in question was the zamindari ghatwali tenure, and not a permanent or transferable tenure and in that view of the matter, the court below dismissed the plaintiffs' suit with costs to the defendant No.1. The appellate court though dismissed the appeal, but recorded its findings as under: -
"In this case, as already observed, the reliefs sough is a mere declaratory one, and the grant of a declaratory relief is discretionary with the Court, and cannot be claimed as a matter of right by the plaintiffs. In this case the admitted proprietor, the defendant No. 1, did not do anything in relation to the portion of the tenure purchased by the plaintiffs to indicate that the Maharaja was seeking to eject them. The court below has gone into the merits of the claim of the plaintiffs, and decided against them. But in our opinion, the suit can be disposed of on the preliminary ground that a suit for a mere declaration like the present does not lie, and if it did lie, the judgment passed by the learned Subordinate Judge refusing to grant the declarations sough can be said to be an erroneous exercise of discretion. It also appears that the parties did not adduce all the evidences that was available bearing on the question 23 in controversy between the parties. Hence, in our opinion, it is not necessary to go into the merits of the plaintiffs' claim. It is enough to hold that the discretion exercised by the court below in refusing to grant a mere declaratory relief can be said to be an unjudicial exercise of discretion. If and when the plaintiffs are sought to be ejected by the contesting defendants, or are actually dispossessed, occasion may arise for them to institute a suit for declaration of their title, and for confirmation or for recovery of possession, and if such a suit is brought the court will have once again to go into the question as to the exact nature of the tenure in question. The parties will then be in a position to adduce all the relevant evidence, and the court will then be in a better position to decide on the merits of the respective claim of the parties. Hence, without going into the merits of the case of the parties this appeal is dismissed on the preliminary ground that the suit for a mere declaration cannot be entertained. See in this connection the decision of their Lordships of the judicial committee in the case of Rajesh Nilmony Singh vs. Kaly Churn Bhattacharjee (2 Indian Appeals 83).
As a result of these considerations, the appeal is dismissed with costs."
37. Thus, this Court finds that the appellate court was of the view that the suit for declaration itself was not maintainable. Further the appellate court was of the view that if and when the plaintiffs are sought to be ejected by the contesting defendants, or are actually dispossessed, occasion may arise for them to institute a suit for a declaration of their title, and for confirmation or for recovery of possession, and if such a suit is brought the court will have once again to go into the question as to the exact nature of the tenure in question and the parties will have to adduce evidence to satisfy the court. Thus, this Court finds that the findings which was recorded by the learned trial court in Title Suit No. 04/1940 stood nullified by the judgments of the appellate court although, the appeal was dismissed in view of the fact that the a suit for mere declaration cannot be entertained.
38. All the authorities below have recorded their findings on the basis that it was already declared in the title suit that the property involved in the present case is 'ghatwali tenure' but have failed to consider the judgement rendered by the high court in appeal which held that the suit itself is not maintainable and practically nullified the judgment rendered in the title suit and also observed that all the 24 evidences were not even brought on record. The appellate court left it open to the plaintiffs to seek appropriate relief as and when they are dispossessed. Thus apparently, the plaintiffs (predecessor in interest of the petitioner) were found in possession and were at liberty to take steps as and when they were dispossessed. This Court finds that the factum that the plaintiffs of the suit were already in possession was clearly recorded and so far as the right, title, interest and possession with regard to suit property is concerned, it was left to be decided at a later stage as and when the plaintiffs would be sought to be dispossessed or were actually dispossessed from the property.
39. It is not clear from the writ records and the materials produced before this Court as to when and how the private respondents came in possession of the property and were claiming dispossession in the year 1977. The private respondents in their I.A No. 2815 of 2023 have tried to explain as to how they were dispossessed by stating in para 4 that the original private respondent no.5 was disposed by virtue of order dated 13.01.1979 passed in earlier case S.A.R. Case No. 35/1977-78 from the date of the order. This Court is unable to appreciate such stand of the private respondents. The S.A.R. Case No. 35/1977-78 seeking restoration of land was dismissed vide order dated 13.01.1979, then how the private respondents can be said to have been dispossessed by virtue of order passed in S.A.R. Case No. 35/1977-78. The point regarding date of dispossession of the private respondents requires fresh consideration as it has an important bearing in the matter when seen in the light of the judgements cited by the petitioner on the point of limitation and also the judgement passed in the case of Pandey Oraon reported in 1992 Supp (2) SCC 77 (para 5 and 6).
'Transfer' has not been defined in the Act. The term has a definition in Section 5 of the Transfer of Property Act which states:
"5. 'Transfer of Property' means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons and 'to transfer property' is to perform such act."
6. In Section 71-A in the absence of a definition of transfer and considering the situation in which exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of transfer to transfer under the Transfer of Property Act or a situation where transfer has a statutory definition. What exactly is contemplated in the provision is where possession has passed from one to another and as a physical fact the member of the Scheduled Tribe who 25 is entitled to hold possession has lost it and a non-member has come into possession would be covered by transfer and a situation of that type would be amenable to exercise of jurisdiction within the ambit of Section 71-A of the Act.
40. In the judgement passed in the case of Situ Sahu v. State of Jharkhand, (2004) 8 SCC 340, para 11 and 12, it has been held that the test is not whether the period of limitation prescribed in the Act of 1963 had expired, but whether the power under Section 71-A was sought to be exercised after unreasonable delay. It was also conceded that Section 46 of the Chota Nagpur Tenancy Act, 1908 came into force on 5-1-1948 which had no retrospective effect and in the said case there was no question of the transfer which took place in 1938 being in contravention of Section 46. The aforesaid paragraphs are quoted as follows: -
"11. We are, therefore, of the view that the use of the words "at any time" in Section 71-A is evidence of the legislative intent to give sufficient flexibility to the Deputy Commissioner to implement the socio-economic policy of the Act viz. to prevent inroads upon the rights of the ignorant, illiterate and backward citizens. Thus, where the Deputy Commissioner chooses to exercise his power under Section 71-A it would be futile to contend that the period of limitation under the Limitation Act has expired. The period of limitation under the Limitation Act is intended to bar suits brought in civil courts where the party himself chooses to exercise his right of seeking restoration of immovable property. But, where, for socio-economic reasons, the party may not even be aware of his own rights, the legislature has stepped in by making an officer of the State responsible for doing social justice by clothing him with sufficient power. However, even such power cannot be exercised after an unreasonably long time during which third-party interests might have come into effect. Thus, the test is not whether the period of limitation prescribed in the Act of 1963 had expired, but whether the power under Section 71-A was sought to be exercised after unreasonable delay.
12. Mr Narasimha fairly conceded that he was not in a position to demonstrate that the surrender which took place on 7-2-1938 was in contravention of any of the provisions of the Act. He also conceded that Section 46, which came into force on 5-1-1948, had no retrospective effect. Thus, there was no question of the transfer which took place in 1938 being in contravention of Section 46. He, however, strongly urged that the circumstances of the transfer brought about on record suggest a fraudulent transaction on the part of the landlord. He particularly urged that as the facts show, only some of the co-sharers had surrendered their rights while some had not and the landlord had managed to take possession of the land and within a span of less than three weeks settled the land upon the present appellants. This transaction smacks of a fraudulent act and must be viewed at askance, is his submission."26
41. It is important to note that in the present case also most of the transfer/dispossession is claimed to have taken place before coming into force of Section 46 which came into force on 5-1-1948 as is apparent from the observation made in the aforesaid quoted portion of the judgement passed in the case of Situ Sahu (supra). These aspects of the matter are also required to be considered along with the fact that most of the transactions in this case have taken place much prior to introduction of Section 71A of the Act and prior to coming into force of Bihar Scheduled Areas Regulation, 1969. The consequence of auction sale of the property and subsequent transfers are required to be considered in the light of the relevant provisions of law as applicable to the transaction and also in the light of the judicial pronouncements relied upon by the parties.
42. This Court is of the considered view that the learned Commissioner has passed a cryptic order by refusing to consider the point of limitation; not considering the point of res-judicata and not properly understanding the import of the judgement passed in the title suit no.4 of 1940 and the findings and observations made by the high court in dismissing the appeal no. 165 of 1942 filed against the title suit, though the appeal was also dismissed. The right, title, interest and possession with regard to the property involved in this case is required to be considered afresh in the light of the aforesaid observations and such decision is required to be taken after close scrutiny of the records of the LRDC as well as the appellate authority and the materials available on record.
43. As a cumulative effect of the aforesaid findings, the impugned order passed by the learned Commissioner is hereby set-aside and the matter is remitted back to the learned Commissioner to pass a fresh order in accordance with law based on materials available on record after hearing the learned counsel for the parties. The petitioners as well as the private respondents are directed to appear before the learned Commissioner on 12.06.2023 along with a copy of this order and a copy of the writ records. Upon their appearance, fresh order be 27 passed in terms of the aforesaid directions within a period of 3 months from 12.06.2023.
44. This writ petition is accordingly disposed of with the aforesaid observations and directions.
(Anubha Rawat Choudhary, J.) Mukul/Saurav