Jharkhand High Court
Laddu Sonar @ Laddu Gopal Swarnkar vs The Commissioner on 16 July, 2018
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, B.B. Mangalmurti
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No. 109 of 2017
.....
Laddu Sonar @ Laddu Gopal Swarnkar ---- Petitioner/Appellant/Petitioner Versus
1. The Commissioner, North Chhotanagpur Division, Hazaribagh
2. The Additional Collector, Hazaribagh
3. The Sub-Divisional Officer, Ramgarh
4. Mehiya Munda
------ Respondents/Respondents/Opp. Parties 5/A. Ghutni Devi 5/B. Jubar Mahato 5/C. Sanjoti Devi
6. Kajru Mahto
7. Laldeo mahto 8/A. Koyalu Devi
9. Donda Mahto 10/A. Sola Devi 10/B. Umesh Mahato 10/C. Dhaneshwar Mahato 10/D. Bhusan Mahato 10/E. Kamli Devi 10/F. Ramli Devi 11/A. Jai Ram Mahto 11/B. Sukhlal Mahto 11/C. Budhni Devi 11/D. Bijli Devi 11/E. Sohgi Devi
12. Jatru Mahto ------ Respondents/Respondents/Performa Respondents
---
CORAM : The Hon'ble Mr. Justice Aparesh Kumar Singh The Hon'ble Mr. Justice B.B. Mangalmurti For the Petitioner : Mr. Anil Kumar Jha, Adv.
Mr. Gouri S. Prasad, Adv.
For the State : J.C. to S.C. (L & C)
-----
04/16.07.2018 Heard learned counsel for the petitioner and learned counsel for
the State.
This petition has been preferred with a prayer to modify/recall/ review the order dated 28th November 2017 passed in L.P.A. No.168/2008 whereby the appeal preferred by the review petitioner was dismissed. The order dated 28th November 2017, of which review has been sought, reads as under :-
"The writ petitioner is the appellant herein being aggrieved by the judgment dated 10th January, 2008 passed in the writ 2 petition W.P.(C) No. 4516 of 2006 whereby the learned Single Judge did not find any illegality or infirmity in the order impugned dated 11th May, 2004 (Annexure-5) passed by the Commissioner, North Chhotanagpur Division, Hazaribagh dismissing the revision application of the petitioner and upholding the order of the Appellate Authority-cum-Additional Collector, Hazaribagh dated 24th April, 2003 (Annexure-4). The recommendation for cancellation of Jamabandi running in the name of the writ petitioner passed by the Sub-Divisional Officer, Ramgarh on 8th December, 2001 was under challenge in appeal before the Additional Collector.
2. The learned Single Judge did not find reason to interfere in the findings of the learned Revenue Courts basically on two points. Firstly, that there was no order of the competent authority by which the Jamabandi was opened in favour of the petitioner and secondly, there was a clear finding of fact relating to possession of land in favour of the private respondent in a proceeding under Section 145 Cr.P.C. The relevant records reveal that the petitioner had claimed Jamabandi in his favour on the basis of a settlement by ex-landlord in favour of the father of the petitioner by an unregistered deed dated 24th September, 1947. The petitioner claimed continuance in possession and payment of rent also thereafter in his name. The application for cancellation of Jamabandi was moved in the year 1999 by the private respondent. The learned Sub-Divisional Officer, Ramgarh, after discussion of the entire materials on record, had come to a definite finding that the private respondent was in possession of the land in question as also determined in a proceeding under Section 145 Cr.P.C.
3. The entire case of the petitioner is based on the following facts :-
That the lands appertaining to Khata No.19, Thana No. 157, Tauji No.28 of Village Sosokhurd, P.O. & P.S Gola, Hazaribagh comprising several plots having an area of 17.91 acres, were originally recorded in the name of Bideshi Pahan in the last Cadestrial Survey Record of Rights conducted in the year 1911. He died leaving behind two sons namely Meshwa and Khedan and two daughters namely Akli and Pyaso. Of the two sons, Mehiya died issueless while Khediya died leaving behind a son namely Turpa as his legal heir. Out of the two daughters Mostt. Akli and Pyaso executed a sale deed in favour of one Mostt. Marchaiyo, transferring their respective interest in the aforesaid lands. Thereafter, Turpa Pahan and Mostt. Marchaiyo, the purchaser from the daughters of the recorded tenant, surrendered their interest in favour of ex-landlord by registered surrender deeds dated 26th March, 1946 and 14th September, 1944 respectively. The ex-landlord settled an area of 9.64 acres of the aforesaid land in favour of Dulari, grandmother of the appellant on 12th December, 1946. He again settled an area of 9.64 acres of land of Khata No.19 in favour of Ratan Sonar on 24th September, 1947. Mostt. Dulari, grandmother of the appellant and Ratan Sonar, father of the appellant, acquired the lands of Khata No.19 and came in cultivating possession over the same with full right, title and interest to the knowledge of all concerned. The settlees paid rent to ex-landlord and were granted rent receipts. After vesting of the ex- intermediary interest, the names of the aforesaid settlees Mostt.3
Dulara and Ratan Sonar were also entered in Register II and they continued in possession on payment of rent to the Government against grant of rent receipt. After the death of the settlees, appellant being the descendant came in possession of the entire area of 17.91 acres of land of Khata No.19 of village Sosokhurd. Father of the appellant had transferred land of Khata No.19 in favour of prospective purchaser who thereafter came in peaceful possession of the lands and got their names mutated and are continuing in possession on payment of rent. There is a history of criminal case between the private respondents and the appellant which, according to the appellant, was compromised before the learned court of Magistrate, Hazaribagh in T.R. No.8 of 1967. Another proceeding under Section 145 of the Cr.P.C. was referred to the Civil Court which confirmed possession in favour of the appellant. However, in another subsequent proceeding under Section 145 Cr.P.C., which was registered as Misc. Case No. 4 of 1976, possession was decided in favour of the respondent No.4. Thereafter, the respondent No.4 preferred an application in the year 1999 for cancellation of the Jamabandi. However, he never sought restoration of the land under Section 46 of the Chhotanagpur Tenancy Act. The proceedings before the learned Sub-Divisional Officer were contested but recommendation was made for cancellation of Jamabandi vide order dated 8th December, 2001 (Annexure-3) ignoring the opinion of the learned Court in the reference under Section 146 Cr.P.C. The appellate court and the revisional court have confirmed the finding and dismissed the appeal and revision without considering the case of the petitioner/appellant in proper perspective. No proceedings under the Chhotanagpur Tenancy Act were initiated but the learned Commissioner also treated it to be a proceeding under the CNT Act. The orders have, therefore, suffered on one count or the other. Learned Single Judge has failed to consider the entire merits of the matter in the light of the decision rendered by this Court earlier in the case of Jitan Mahto & Another - versus - State of Bihar & Others reported in 2004 (1) JLJR 718. The impugned judgment therefore, deserves to be interfered with.
4. Learned counsel for the respondents have opposed the prayer and defended the impugned judgment. Learned counsel for the respondents also submits that in the wake of the findings of possession in favour of the private respondents, the revenue courts had no other reason to uphold the Jamabandi in favour of the writ petitioner as no orders of competent authority opening Jamabandi in their name were in place. Learned counsel for the respondents have relied upon a Division Bench judgment rendered by this Court in the case of Jagdeo Mahto vs. Commissioner North Chotanagpur Division, Hazaribagh & Others in L.P.A. No 425 of 2006 reported in 2009 (2) JCR 153 (Jhr). According to the respondents, correction of Jamabandi did not create any right or title in favour of one or the other nor cancellation of Jamabandi extinguishes right and title of the actual owner, therefore, disputed questions of fact relating to title and ownership neither can be decided in writ jurisdiction nor the findings of possession recorded in a proceeding under Section 145 Cr.P.C. be interfered with.
Jamabandi is created for the purposes of revenue of the State on the basis of possession of the land holder on the piece of land in 4 question. Therefore, the appeal deserves to be dismissed as there is no substance in it.
5. We have considered the submissions of the learned counsel for the parties at some length and also gone through the relevant materials on record. We are in complete agreement with both the findings recorded by the learned Single Judge inter alia (i) that the writ petitioner has failed to show any order of the competent authority on the basis of which Jamabandi was opened in the first place in the name of his ancestors or the writ petitioner. (ii) the findings of possession in favour of the private respondent in a proceeding under Section 145 of the Cr.P.C. has not been questioned by the appellant in any other court of law. If that is the position on the point of possession, then the State authorities were justified in recommending and cancelling the Jamabandi in favour of a person who was not in possession. We refrain from observing anything further on the plea of the petitioner based on the settlement of land in question on the basis of an unregistered deed of settlement dated 24th September, 1947. Learned counsel for the respondents have rightly relied upon the judgment rendered by the learned Division Bench of this Court in the case of Jagdeo Mahto (Supra) where the learned Judges have referred to the precedents on the point and categorically held as under :-
25. This Court in the case of "Sitaram Choubey & Ors. - versus - State of Bihar & Ors., reported in 1993 (2) PLJR 255" as well as the Supreme Court in the case of "Suraj Bhan & Ors. - versus - Financial Commissioner & Others, reported in (2007) 6 SCC 186" have held that entries in the revenue records does not confer title on a person whose name appears in record-of-rights. The creation of Jamabandi neither creates any right and title in favour of one or the other nor cancellation of Jamabandi extinguishes right and title of actual owner. The entries in the revenue records or jamabandi have only "fiscal purpose" and no ownership is conferred on the basis of such entries.
The title of the property can only be decided by a competent civil court."
6. On consideration of the entire facts and circumstances and the grounds of challenge urged, we do not find any merit in the appeal. It is accordingly dismissed."
Learned counsel Mr. Anil Kumar Jha representing the review petitioner submits that the matter could not be appreciated by this Court in proper perspective as no opportunity of hearing was given to the counsel for the petitioner on that date who had made a prayer for adjournment. He further submits that the learned Writ Court and the inferior forums of the Commissioner, North Chotanagpur Division, Hazaribag in revision and the Additional Collector in appeal have also failed to consider that the Sub- Divisional Officer was not competent authority to cancel the Jamabandi running in the name of the writ petitioner. This legal issue was also not 5 considered by this Court in appeal. He has specifically made reference to an order passed in Case No.01/1993 by the Land Reforms Deputy Collector, Ramgarh (Hazaribag) in the case of Mehiya Munda Vrs. Dina Sonar dated 8 th September 1995 (Annexure-1) which according to him has been brought on record for the first time in this review petition. However he submits that specific reference thereof was made in the writ proceedings/appeal also in connection with the application preferred by the same applicant/respondent no.4 herein in 1999 for cancellation of the Jamabandi before the learned court of Sub-Divisional Officer. Learned counsel submits that this fact was evident from the application of the respondent no.4 made in 1999 that he had earlier approached the Land Reforms Deputy Collector, Hazaribag in the said Case No.01/1993 where the L.R.D.C. had directed the applicant to approach the competent forum since it was not the competent forum. Learned counsel submits that as a matter of fact, the competent forum is that of the Circle Officer before whom the proceedings for cancellation of Jamabandi could have been initiated by any aggrieved person. Since the order of the Sub- Divisional Officer dated 8th December 2001 was without jurisdiction, the whole proceedings were nullity in the eye of law. This legal issue was not correctly appreciated by the Writ Court and also in appeal by this Court. On factual score, the devolution of the piece of land on the writ petitioner has again been placed. The case of the writ petitioner has also been recorded at paragraph-3 of the impugned order herein.
Apart from the above, learned counsel further submits that in another proceeding under Section 145 Cr.P.C. which was referred to the Civil Court, the order of possession in favour of the writ petitioner/appellant/review petitioner was confirmed. However, learned counsel for the review petitioner does not dispute that no such order was brought on record in the writ proceeding or in L.P.A. He submits that the impugned order is suffering from errors of record on the face of it and has been passed without proper assistance on behalf of the appellant on the date on which it was decided. Therefore, it deserves to be recalled/reviewed.
Learned counsel for the review petitioner also refers to the averments made at paragraph-16 of the writ petition and paragraph-17 of the letters patent appeal wherein it has been mentioned that due to illegal harvesting of crops by the private respondent no.4 grown on the plots 6 comprising within Khata No.19, a criminal case was instituted against the private respondent no.4 under Sections 147 and 379 of the Indian Penal Code being T.R. No.8/1967 in the court of learned Magistrate at Hazaribag which appeared to have been compromised between the parties wherein Mehiya Munda, the private respondent no.4 had relinquished his right, title and interest in respect of land of Khata No.19. Compromise petition and the order dated 26th July 1968 in T.R. Case No.8/1967 are annexed as Annexure-1 series thereto. Learned counsel for the petitioner has referred to the judgment rendered by the learned Single Judge, High Court of Patna in the case of Lal Muni Devi Vs. State of Bihar, reported in 1988 (PLJR) 174 in support of his submission that the order passed by the Sub-Divisional Officer dated 8.12.2001 was without jurisdiction.
Learned counsel for the State submits that plea of the petitioner herein is based upon a document being an order dated 17th October 1995 passed in Case No.01/1993 by the L.R.D.C., Ramgarh (Hazaribag) which has been brought on record for the first time in the review petition. The order itself indicates that it was between Mehiya Munda and Dina Sonar. The order further refers to the report of the Circle Officer, Gola in respect of the land of other persons on Plot Nos.219 and 220 of Khata No.19. This document which is of the year 1995 could have been brought on record by the writ petitioner in the earlier proceedings. Learned counsel for the State submits that no grounds are made out for review of the impugned order.
We have considered the submissions of the learned counsel for the review petitioner and learned counsel for the State.
Perusal of the impugned order quoted above would show that the case of the appellant was duly considered in the light of the findings recorded by the Writ Court in the order dated 10th January 2008 We have however heard learned counsel for the petitioner at length and given anxious consideration to the submissions made by him to dispel any notion that the appellant was not heard properly at the time of deciding the appeal. The order dated 22nd September 1995/17th October 1995 (Annexure-1) brought on record by the review petitioner shows that it was on the application of Mehiya Munda directed against the opposite party Dina Sonar with a prayer for issuance of revenue receipts in his favour after cancellation of the revenue receipt being issued in favour of the opposite party Dina Sonar. The writ 7 petitioner/ appellant/review petitioner is Laddu Sonar @ Laddu Gopal Swarnkar son of Late Ratan Sonar, resident of village Gola, P.S. Gola, District Ramgarh (previously Hazaribag). Petitioner has not made any statement relating to the relationship between Dina Sonar and the present petitioner. Perusal of the order of LRDC (Annexure-1), on the other hand, shows that Mehiya Munda asserted that he was in peaceful possession over the plot in Khata No.19 (the relevant part of the sentence in original order (Annexure-1) is however not fully legible). A report of the Circle Officer, Gola was called for by the L.R.D.C. The Circle Officer, Gola stated that on the land in question no revenue receipts were being issued in the name of Dina Sonar. Instead revenue receipts were being issued in the name of Most. Dulari for 7.35 Acre, Ratan Sonar and others for 9.64 Acre, Hari Mahto and others for 48 Acre, Mukhlal Mahto and others for 2.15 Acre, Matu Mahto for 0.16 Acre and for certain pieces of land in the name of Vichari Mahto, Md. Yunus, Mukhlal Mahto, etc. The Circle Officer also reported that on the land in question i.e. Khata No.19, Plot Nos.219 and 220 in respect of an area of 4 decimals and 8 decimals, total 12 decimals Basgit Parcha had been issued but in respect of rest of the Plot Mehiya Munda son of Late Dashai Munda was in cultivating possession. Upon taking note of these facts the LRDC observed that application has not been made in respect of rest of the Jamabandi raiyats. LRDC observed that it did not have the competence to close the Jamabandi. Accordingly it directed the applicant Mehiya Munda to approach the competent court in respect of other Jamabandi raiyat in respect of whom illegal Jamabandi was created. The Circle Officer, Gola was also directed to stop issuing revenue receipts in the pieces of land under Khata No.19 except 12 decimals of land in respect of which Basgit Parcha had been issued.
Learned counsel for the review petitioner at this stage has sought to point out that relationship between Dina Sonar and the writ petitioner finds mention in the objection application filed by the writ petitioner in the proceedings bearing no.01/1999. That document was enclosed in the writ petition. A copy of the writ petition has also been produced by the learned counsel for the review petitioner for our perusal and specific mention is made to paragraph-13 thereof. Paragraph-13 of that objection petition of the writ petitioner in Case No.01/1999 reads as under :-
8"13. That after death of the settlee their legal heirs are coming in peaceful cultivating possession over the same jointly as per their share by inheritance, opposite party no.(1) Laddu Sonar son of Ratan Sona (one of the settlee) and (2) Chandra Sona S/o Dulari Devi W/o Durga Charan Sonar one of the settlee) and rest some opposite party members are the descendants of the other settlee and other are purchasers from settlee the rightful owners.
As such opposite party members are coming in peaceful cultivating possession over the lands in question as per their shares and various sale deeds. It is important to note that there are so many persons in possession over the lands in question evident from the perusal of the report submitted by A.A. concern but only 16 were made party as per petition of the petitioner as such is suffering from non- joinder of parties also presume that the petitioner had or have no knowledge about the real fact for the same."
Apparently there is no reference of relationship of Dina Sonar and the present petitioner therein also. Submissions of the learned counsel for the petitioner on this score therefore do not support the grounds of review. Firstly this document i.e. order dated 22.10.1995 passed in Case No.01/1993 was not in connection with the present petitioner. Secondly this was not such a document which came into the knowledge of the petitioner at this stage and could not have obtained earlier despite exercise of due diligence.
Apart from the above, the petitioner had made reference to an order passed by the Civil Court confirming the proceedings under Section 145 of the Cr.P.C. in favour of the writ petitioner/appellant. Learned counsel for the petitioner, however, fairly submitted that the order has not been brought on record either before the Writ Court or in LPA or in the present petition.
In the background of these specific grounds urged by the learned counsel for the petitioner, we consider it proper to refer to two specific grounds on which the Writ Court had declined to exercise its discretionary jurisdiction in the matter : (i) that the writ petitioner had failed to show any order of the competent authority on the basis of which Jamabandi was opened in the first place in the name of his ancestors or the writ petitioner, (ii) the finding of possession in favour of the private respondent in a proceeding under Section 145 of the Cr.P.C. had not been questioned by the appellant in any other court of law. Evidently the writ petitioner had not been able to show that Jamabandi was opened in the name of his ancestors or the writ petitioner by an order of competent authority at any point of time. The other issue, as 9 recorded by the Writ Court and taken note of in L.P.A. related to the question of possession which is in the realm of facts on contest between the parties. The Letters Patent Court therefore, on consideration of all the materials on record, did not find any error of law in exercise of the discretionary jurisdiction by the Writ Court.
The scope and powers of review are contained in Order XLVII of Code of Civil Procedure quoted hereunder:
"Order XLVII: 1. Application for review of judgment.- (1) Any person considering himself aggrieved -
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the records, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate Court the case on which he applies for the review.
[Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]"
The words "any other sufficient reason" as contained in Order XLVII CPC has been interpreted in the case of Chhajju Ram vs. Neki ( AIR 1922 PC 112) approved by the Apex Court in Moran Mar Basselios Catholicos vs. Most, Rev. Mar Poulose Athanasius & Ors ( 1995) 1 SCR 520, to mean "a reason sufficient on grounds at least analogous to those specified in the rule". These principles have been reiterated by the Apex Court from time to time.
In the case of Kamlesh Verma Vs. Mayawati and others reported in (2013) 8 S.C.C. 320, the principles under which review is maintainable has been summarized after discussing the precedent on the point. Their Lordships have also enumerated the grounds when the review will not be maintainable.10
"Summary of the principles
20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(1) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him;
(ii) Mistake or error apparent on the face of the record ;
(iii) Any other sufficient reason.
The words "Any other sufficient reason" have been interpreted in Chhajju Ram v. Neki and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius to mean "a reason sufficient on grounds at least analogous to those specified in the rule." The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd.
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough to reopen concluded adjudications.
(ii) Minor mistakes or inconsequential import.
(iii) Review proceedings cannot be equated with the original hearing of the case.
(iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice.
(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error
(vi) The mere possibility of two views on the subject cannot be a ground for review.
(vii) The error apparent on the face of the record should not be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived."
The order dated 22nd September 1995/17th October 1995 passed in Case No.01/1993 by LRDC, Ramgarh (Annexure-1) relied upon by the petitioner is not a new material or evidence which was not within the knowledge of the petitioner or could not be produced at the time the order was passed despite the exercise of due diligence. It is also evident that such a document did not relate to the case of the present petitioner. Therefore the soundness of the decision taken cannot be questioned on that ground. The review proceeding cannot be equated with the original hearing of the case. Moreover, appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review 11 petition. The review is not maintainable if the petitioner has failed to show any error apparent on the face of the record.
On a conspectus of the entire facts noted above and the grounds urged, we do not find that the review petitioner has been able to make out any ground for review/recall of the order. Submissions of the review petitioner, as noted above, are also to be seen in the light of well settled legal position that entries in a Revenue record does not confer a right or title on a person nor extinguish it. The opinion of the learned Division Bench of this Court in Jagdeo Mahto (Supra) has also been quoted in order passed in L.P.A. It also refers to the judgment rendered by the Patna High Court and in the case of Suraj Bhan & Ors. Vs. Financial Commissioner & Ors. reported in (2007) 6 SCC 186. It was held therein that entries in the revenue records do not confer title on a person whose name appears in the record of right. The creation of Jamabandi neither creates any right and title in favour of one or the other nor cancellation of Jamabandi extinguishes right and title of actual owner. The entries in the revenue records or Jamabandi have only fiscal purpose and no ownership is conferred on the basis of such entries. The title of the property can only be decided by a competent civil court.
Therefore, we are of the considered view that petitioner has not been able to make out sufficient grounds for recall/review of the order passed in the letters patent appeal. Accordingly, the instant petition is dismissed.
(Aparesh Kumar Singh, J.) (B.B. Mangalmurti, J.) Shamim/