Jharkhand High Court
Jageshwar Sahu & Yogeshwar Sahu vs The State Of Jharkhand on 17 November, 2022
Author: Rajesh Shankar
Bench: Rajesh Shankar
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 2016 of 2021
---
1. Jageshwar Sahu & Yogeshwar Sahu
2. Yashwant Kumar
3. Shiv Nandan Prasad
4. Sadanand Sahu
5. Ashwani Kumar Sahu
6. Rajesh Kumar Sahu
7. Chandan Kumar
8. Lalan Sahu
9. Bhola Sahu
10. Pankh Raj Prasad
11. Harihar Sahu ... ... Petitioners Versus
1. The State of Jharkhand
2. The Deputy Commissioner, Ranchi
3. The Deputy Collector Land Reforms, Sadar, Ranchi
4. The Circle Officer, Town Anchal, Ranchi
5. Binod Kumar Singh .... ... Respondents With W.P.(C) No. 3370 of 2021
---
1. Shyam Singh
2. Ravi Singh Bhatia ... ... Petitioners Versus
1. The State of Jharkhand
2. The Commissioner, South Chhotanagpur Division, Ranchi
3. The Land Reforms Deputy Collector, Ranchi
4. The Circle Officer, Hehal, District- Ranchi .... ... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioners : Mr. Anil Kumar Sinha, Sr. Advocate Mr. P.N.Rai, Advocate [in W.P.(C) No. 2016 of 2021] Mr. Mahesh Tewari, Advocate [in W.P.(C) No. 3370 of 2021] For the Resp.-State : Mr. Mohan Kumar Dubey A.C. to A.G. (in both cases) For the Resp. No. 5 : Mr. Mahesh Tewari, Advocate [in W.P.(C) No. 2016 of 2021]
---
Order No. 18 Dated: 17.11.2022 W.P.(C) No. 2016 of 2021 W.P.(C) No. 2016 of 2021 has been preferred for quashing the order dated 25.02.2021 passed by the Deputy Commissioner, Ranchi (the respondent no. 2) whereby direction has been issued to the Circle Officer, Hehal Circle, Ranchi to cancel the jamabandi running in the names of 2 ancestors of the petitioners being the recorded raiyats of the land appertaining to Khata No. 140, plot Nos. 1323, 1324, 1333, 1334, 1338 and 1337/1349 measuring an area of 7.16 acres out of total area measuring 10.88 acres of village Bajra, Thana No. 140, District - Ranchi (hereinafter to be referred as the said land) with a further direction to open the jamabandi of the said land in the name of the respondent no.5.
2. The factual background of the case of the petitioners of W.P.(C) No. 2016 of 2021 as stated in the said writ petition is that the said land is recorded in the R.S. Record of Rights as 'Bakast Malik' under Khewat No.- 6/2 standing in the name of Sitaram Sahu and Thakur Dayal Sahu sons of Man Govind Sahu of Village Argora, Ranchi who were the ancestors of the petitioners. After vesting of Zamindari, jamabandi of the said land was opened in the name of the recorded tenants in Volume 1, Page no. 141 of the Register-II. On 28.10.1960, a proceeding under section 144 Cr.P.C was initiated on protest against digging of the land with respect to plot no. 1324 by one Deodutta Singh, however the same was dropped on 17.12.1960 due to expiry of statutory period of sixty days. Again on 04.05.1961, Deodutta Singh forcibly tried to raise brick kiln on Plot No. 1324 due to which Sitaram Sahu filed Title Suit No. 379 of 1961 in the court of Munsif, Ranchi against defendant no.1-Deodutta Singh and defendant no. 2-Devi Dayal Sahu (brother of Sitaram Sahu) for declaration of his title with respect to plot no. 1323 and 1324 of Khata No. 140, village Bajra also seeking permanent injunction on the ground that those plots had fallen in his share in a partition suit with the defendant no. 2. In the said suit, temporary injunction was granted in favour of Sitaram Sahu which was made absolute vide order dated 08.02.1962 against which Misc. Appeal No. 06 of 1962 was filed before the Special Sub-Judge, Ranchi which was also decided vide order dated 28.01.1963 observing that the plaintiff would be compensated in terms of money if he succeeds in the suit. Few years back, the respondent no.5 filed an application before the Circle Officer, Town Circle, Ranchi (the respondent no. 4), registered as Mutation Case No. 1214 R 27/2015-16 for mutation of his name with respect to the said land claiming that the same was purchased by his father Late Roop Narayan Singh from ex-landlords namely Sitaram Sahu and Thakur Dayal Sahu through registered sale deed no. 255 dated 3 17.01.1938. The respondent no.4, vide order dated 07.08.2015, dismissed the application of the respondent no.5 observing that as per the report of concerned revenue Karamchari and Circle Inspector, the father of the respondent no. 5 was never in possession of the said land. Thereafter, the respondent no.5 preferred appeal before the Land Reforms Deputy Collector, Ranchi (respondent no.3) being Mutation Appeal No. 13-R- 15/2015-16, however the same was also dismissed vide order dated 20.04.2017 on the ground that the respondent no.5 was not found in possession of the said land observing that the registering authority i.e., the District Sub-Registrar, Ranchi, vide letter no. 1021 dated 29.08.2016, had reported him that it was not possible to verify the sale deed no. 255, Volume no. 6 of the year 1938 allegedly executed in favour of the father of the respondent no. 5 with the official record maintained in registry office due to tampering of page nos.133 and 134 of the said sale deed kept in the office record. The respondent no. 5, being aggrieved with the order of the respondent nos. 3, preferred revision before the respondent no.2 being Mutation Revision No. 24 R 15/2018-19 with an application for condonation of delay of about 15 months in filing of said revision. The respondent no. 2, vide impugned order dated 25.02.2021, reversed the order passed by the respondent no.3 and 4 and directed for opening of jamabandi of the said land in the name of the respondent no.5. Hence, the present writ petition.
3. Learned senior counsel for the petitioners submits that from the factum of filing of Title Suit No. 379 of 1961 and Misc. Appeal No. 6 of 1962, it would be evident that father of the respondent no.5 was never in possession of the said land rather the ancestors of the petitioners i.e the recorded tenants were in possession of the same. It is further submitted that the respondent no.4 after due inquiry specifically recorded in his order dated 07.08.2015 that father of the respondent no.5 was never found in possession of the said land. One Narayan Sahu, father of the petitioner nos. 6 & 7 made application under Right to Information Act, 2005 before the District Sub-Registrar, Ranchi whereupon it was informed that Deed No. 255, Volume No. 6, Page 133 to 134 of year 1938 was missing from the record of the office and it appeared that tampering was 4 done with the said volume of the record. It is also submitted that Budhram Minz, Kallu Oraon and Soma Oraon, all residents of village- Bajra, P.S Sukhdeonagar, District-Ranchi have executed separate affidavits before the Notary Public Ranchi declaring that the land under Khata No. 140 belongs to the recorded tenants Sitaram Sahu and Thakur Dayal Sahu and they have been cultivating the same on 'Adhbatai' for last two years, eight years and five years respectively. They have also stated in their affidavits that before cultivation of the said land by them, the same was being cultivated by the heirs of the recorded tenants.
4. Learned senior counsel for the petitioners further submits that the respondent no.5 by taking advantage of the impugned order dated 25.02.2021, executed two separate sale deeds of land in question in the name of two persons i.e. Shyam Singh and Ravi Singh Bhatia [petitioners of W.P.(C) No. 3370 of 2021] who applied for mutation of the land in their favour wherein the petitioners filed their objection on 27.03.2021 before the Circle Officer, Hehal Circle, Ranchi whereupon, vide memo No. 320(ii) dated 15.05.2021, the said authority directed the concerned Circle Inspector, Circle Amin and Revenue Sub-Inspector of Hehal Circle to submit an inquiry report regarding possession as well as demarcation of the said land after making local enquiry and investigation, a copy of which was also forwarded to the petitioners. The petitioners were also directed by the said authority vide memo no. 321(ii) dated 15.05.2021, to physically appear before him and to produce revenue documents with respect to the said land. Thereafter, they appeared before the said authority on 20.05.2021 and filed their objections, however the same was refused. As such, the objection was sent to him by post. The petitioners after receiving memo no. 320(ii) dated 15.05.2021 and memo no. 321(ii) dated 15.05.2021 called a Panchayat meeting on 19.05.2021 wherein all the local persons/residents of village Bajra participated and a Panchnama was prepared wherein many persons put their signatures confirming right, title, interest and possession of the petitioners over the said land. It is also submitted that mutation of the said land cannot be allowed after an inordinate delay of 83 years from the date of alleged transfer occurred in the year 1938 that too in absence of any proof of physical possession over the same. Panchnama dated 13.03.2016, which has been heavily relied 5 upon by the respondent no.2 while passing the impugned order, is false and fabricated as the same neither bears the signature of the petitioners nor of any member of the Panchayat i.e., Mukhiya, Sarpanch, Gram Pradhan etc. It is further submitted that the State Government directed for an inquiry through the Divisional Commissioner, South Chotanagpur with respect to mutation of the said land pursuant to order of the respondent no.2 and the Divisional Commissioner, South Chotanagpur prepared an inquiry report stating that the order passed by the respondent no.2 was only to extend benefit to one party. It was further reported that out of connivance, the order of mutation has been passed after 83 years ignoring the orders of the original and the appellate court as well as the established law for opening of jamabandi.
5. It is further submitted that the certified copies of the index of volume no. 6 corresponding to page no.133-134 of Book No. 1 existing in the District Sub-Registrar's Office, clearly suggest that actual deed no. 255 has been executed by one Lodha Munda son of Sadhu Munda, resident of Kadru as a mortgagor. Page no. 823 shows that the transferor of deed no. 255 is Paklu Oraon s/o Bhikha Oraon, Argora whose interest is that of mortgagee. Index-II for the year 1938 also shows that Deed No. 255 at Page 133-134 in volume 6 pertains to Mortgage. The District Sub-Registrar has also issued a confirmation to the petitioners vide letter no. 894 dated 14.09.2021 with respect to issuance of the said certified copies of indices. In view of the said facts, it is clearly established that the respondent no.5 has committed forgery and has claimed that his father had purchased the land from the petitioners' ancestors. Forgery at the hands of the respondent no.5 is also evident from the fact that the alleged certified copy of Deed No. 255 of 1938 as used by him before the revisional authority was said to have been issued on 20.04.2007 under Application No. 6726, however in the mutation proceeding before the Circle Officer, it was stated by him that the certified copy of Deed No. 255 had been issued under Application No. 21475 dated 21.02.2009 which would be apparent from letter no. 572 dated 11.04.2016 of District Sub Registrar, Ranchi addressed to the Circle Officer, Town Ranchi in pursuance of inquiry made by him before sending a report with LCR on order of the DCLR, Sadar, Ranchi- the appellate authority of the said mutation matter.
66. It is also submitted that there were concurrent finding of facts by the respondent no. 3 and 4 which has been interfered by the Deputy Commissioner being the revisional authority without jurisdiction. The revisional authority could have interfered with the finding of the original and appellate authority, only if those were perverse and since the claim of possession by the parties was not clear and undisputed, the Deputy Commissioner should not have given his finding on possession of the land. It is also submitted that "Panchnama" dated 13.03.2016 was already before the appellate authority who had also given the finding of fact on it, however the said finding of fact has been re-appreciated by the respondent no.2 without any observation that the said finding of fact arrived at by the appellate authority was perverse. Moreover, "Panchnama" itself was a doubtful document being based on so called secret and open inquiry by an extra legal body i.e a self-proclaimed 'Gram Sabha'.
7. It is further submitted that the revision application filed by the respondent no.5 was also barred by limitation since the same was filed beyond the period prescribed for filing of the same, however the respondent no.2 entertained the revision without condoning the limitation hence the impugned order is otherwise a nullity in the eyes of law. In fact, there is no provision to condone the delay in filing revision under the Bihar (now Jharkhand) Tenant's Holdings (Maintenance of Records) Act, 1973 (in short, "the Act, 1973").
8. Learned senior counsel for the petitioners puts reliance on the judgment rendered by the Hon'ble Supreme Court in the case of Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Deptt. & Others reported in (2008) 7 SCC 169 wherein it has been held that if a special or local law prescribes for filing of any appeal or application as well as a period of limitation different from the period prescribed by the Schedule to the Limitation Act, 1963 (in short, "the Act, 1963"), then the provisions of Section 29(2) of the said Act will be attracted. In that event, the provisions of Section 3 of the Act, 1963 will apply as if the period of limitation prescribed under the special law was the period prescribed by the Schedule to the Act, 1963 and for the purpose of determining any period of limitation prescribed for the appeal or application by the special law, the provisions contained in Sections 4 to 7 24 of the Act, 1963 will apply to the extent to which they are not expressly excluded by such special law. The object of Section 29(2) of the Act, 1963 is to ensure that the principles contained in Sections 4 to 24 of the said Act apply to suits, appeals and applications filed in a court under special or local laws also, even if it prescribes a period of limitation different from what is prescribed in the Act, 1963 except to the extent of express exclusion of the application of any or all of those provisions.
9. Learned senior counsel for the petitioners further submits that "Panchnama" dated 13.03.2016 alleged to have been prepared by 'Gram Sabha' has not been prepared in terms with Jharkhand Panchayati Raj Act, 2001. Moreover, the same has not been signed by the members of Gram Sabha. Curiously enough, the said "Panchnama" has been handed over by the so called villagers which was not even prepared in presence of the respondent no.4 or any other administrative/revenue authority.
10. On the contrary, learned counsel for the respondent no. 5 submits that the then landlord had transferred his right, title and interest of the land in question in the name of Roop Narayan Singh (father of the respondent no. 5) through registered sale deed dated 17.01.1938 and as such the petitioners or their ancestors had lost all right, title and interest over the same. Neither the order of mutation nor any rent receipt has been produced by the petitioners which suggests that no process for fixation of the rent for the said land was initiated after vesting of Zamindari and after coming into force of Act, 1950. The disputed question of title and possession cannot be decided in the writ jurisdiction. It is further submitted that prior to 1950, the status of the ancestors of the petitioners was of tenure holder and after vesting of estates and tenures in the State when Zamindari came to an end and the Act, 1950 was enforced, the ancestors of the petitioners ceased to be the owners of the said land in view of the fact that neither any Form "K" nor Form "M" was submitted for the said land before the State authorities. It is also submitted that the jamabandi opened in the name of Sita Ram Sahu and Thakur Dayal Sahu for the said land was completely against the provisions of the Act, 1950 in view of the fact that neither Form "K" nor Form "M" was submitted by them before the competent revenue authority of the State. Moreover, no application was made for mutation of the said land in 8 their favour. The petitioners did not file any application for fixation of rent for the land measuring an area of 10.88 acres. It is further submitted that under the Act, 1950, it is the Deputy Commissioner who has been given power of revision in cases of mutation and the Divisional Commissioner does not have any jurisdiction to pass any order as has been done while preparing the enquiry report. Moreso, the manner in which the enquiry has been conducted and the report has been prepared by the Divisional Commissioner clearly suggests that he was completely biased against both the respondent no. 2 and the respondent no.5 with a view to extend undue favour to the petitioners. It has been informed under Right to Information Act, 2005 that Deed No. 255 Page No. 133 to 134 finds entry in the official register. If the petitioners claim that the registered deed of conveyance executed in favour of father of the respondent no.5 is forged one, then they have the remedy to file a suit before the Civil Court for cancellation of the deed as the disputed question of fact cannot be adjudicated under the writ jurisdiction. The Circle Officer, DCLR and the Deputy Commissioner or any other revenue authority have no jurisdiction to declare the registered deed of conveyance executed in favour of the father of the respondent no.5 as forged merely on the basis of a letter of the registering authority till the same is declared void by the competent court of Civil jurisdiction in an appropriate suit. It is an admitted fact that the petitioners have filed separate rent assessment cases before the DCLR, Ranchi, however the details of the said cases have not been placed before this court. The jamabandi of the said land has rightly been cancelled by the respondent no.2 observing that there were parallel jamabandies running in the name of different persons for the same land. On the one hand, the Circle Inspector, Town Circle, Ranchi (as it then existed) differed with the factual note of Halka Karmachari to the extent that as per Circle Inspector, some portions of the lands were in possession of Bataidar of Ravindra Nath Sahu whereas in the report of the respondent no.4 submitted before the respondent no.3 in the course of hearing of the appeal, it was stated that some of these petitioners came to his office and stated that they themselves were cultivating the land. Thus, the report of the Circle Inspector was contrary to the statement made by the petitioners before the respondent no.4. The villagers have also opposed the claim of 9 the petitioners with regard to their possession over the land in question.
11. Learned counsel appearing on behalf of the respondent-State of Jharkhand submits that the respondent no.5 was having possession of the said land on the basis of the registered deed of settlement made in the year 1938. It is further submitted that the Panchnama received from the office of the Circle Officer, Hehal Anchal vide letter no. 885(ii) dated 07.11.2020, suggests that the respondent no.5 was in possession of the said land. Moreover, the Halka Karmachari had reported in Mutation Case No. 1214 R 27/2015-16 about the factum of possession of the said land.
12. Heard learned counsel for the parties and perused the materials available on record. The petitioners are aggrieved with the order of the respondent no.2 whereby the jamabandi of the land running in the names of their ancestors has been directed to be cancelled with a further direction to the respondent no.4 to open jamabandi of the same in favour of the respondent no.5.
13. Thrust of the argument of the learned senior counsel for the petitioners is that the respondent no. 2 has failed to appreciate that the petitioners being the successors of the recorded tenants were in peaceful possession of the said land without any hindrance whatsoever from any person. It has also been contended that the respondent no.2 while passing the impugned order, has heavily relied upon a "Panchnama" dated 13.03.2016 which cannot be said to be cogent and conclusive proof of possession of any person moreso when the same has been prepared behind the back of the petitioners.
14. The petitioners in order to show their possession over the said land have relied upon the judgment passed in Misc. Appeal No. 6 of 1962. It has been contended that had the said land been transferred to the father of the respondent no.5 by way of settlement or sale in the year 1938 itself and he was in possession of the same, then there would not have been any dispute in the year 1962 among one of the recorded tenants namely Sitaram Sahu, his brother namely Devi Dayal Sahu as well as a third party namely Deodutta Singh for declaration of title of the said land. Further contention of the petitioners is that the respondent no.5 has not given any explanation as to why he failed to get the land mutated in his name for 10 more than 70 years of vesting.
15. Before coming to the merit of the rival contentions of the parties, it would be appropriate to refer the judgments of the Hon'ble Supreme Court as well as this High Court on the point of mutation.
16. In the case of Municipal Corporation, Aurangabad Vs. State of Maharashtra reported in (2015) 16 SCC 689, the Hon'ble Supreme Court has held as under:
"13. It is settled that mutation does not confer any right and title in favour of any one or other, nor cancellation of mutation extinguishes the right and title of the rightful owner. Normally, the mutation is recorded on the basis of the possession of the land for the purposes of collecting revenue.
14. In the present case, we find that a disputed question of fact was raised by the parties with regard to the title over the land in question. The appellant Corporation on the one hand based its claim of title on payment of amount by depositing it in the court and possession of the land taken pursuant to the agreement reached between the appellant Corporation and the father of Respondent 2. On the other hand, the case of the second respondent is that the amount was not deposited by the appellant Corporation with regard to the land in question. In view of the fact that there is a disputed question of fact, we are of the view that it was not a fit case for the High Court to decide the question of mutation doubting the title in a petition under Article 226 of the Constitution and thereby reversing the concurrent finding of fact by the competent authorities."
17. It has thus been held in the aforesaid judgment that the order of mutation neither confers nor extinguishes any right of the parties. The purpose of mutation is only to collect government revenue from a person who is in possession of the land. The revenue authorities while deciding the mutation cases are not supposed to look into the right and title of a person over the land in question.
18. In the case of Mahabir Mahto & Ors. Vs. State of Jharkhand & Ors. reported in 2012 (4) JLJR 210, the learned Division Bench of this court has held as under:
"26. In sum and substance, the mutation proceedings have limited scope so far as its effect is concerned and the purpose of mutation proceeding is very clear from the Act of 1973 itself which substantially suggests that these are proceedings to safeguard the interest of the State and the revenue authorities primarily so that the State may know the persons' right over the agricultural land and once the names are entered in the revenue record they can be altered only because of the reasons mentioned in Sections 3 to 13 of the Act of 1973. The provisions referred above are not meant for getting a 11 declaration in serious dispute cases with respect to the entitlement and, therefore, it has been specifically provided by Section 5 of the Act of 1973 that when under the Code of Civil Procedure, possession of a holding or part thereof has been delivered in execution of a decree to the decree holder or to a purchase at Court auction sale or when a final decree for partition or for foreclosure of a mortgage has been passed the Court executing the decree or the Court passing the final decree for partition or foreclosure, as the case may be, shall also give notice of the fact in the prescribed form to the Anchal Adhikari of the area. The Anchal Adhikari has no jurisdiction to alter or modify or disobey the court's decree and consequential effect of the possession under the Act of 1973 or otherwise. Looking to the nature of the proceeding and limited jurisdiction of the Anchal Adhikari of making correction in the revenue record, the Anchal Adhikari has no power and jurisdiction to pass a decree or order of declaration of a right, title or interest in the property or has right to declare about legality and validity of an instrument of transfer or a settlement or decide the issue of contentious succession cases which power vest under the provisions of the Indian Succession Act, in civil courts."
19. In the aforesaid judgment, the learned Division Bench has held that the mutation proceeding has limited scope and the order of mutation neither confers nor extinguishes any right of the parties over the land. The purpose of mutation is only to collect government revenue from a person who is in possession of the land. A revenue authority while deciding the mutation case has no power and thus is not supposed to look into the right and title of a person upon the land.
20. Reverting back to the present case, the respondent no.5 filed an application for mutation of the said land in his favour which was registered as Mutation Case No. 1214 R 27 of 2015-16 claiming that the same was purchased by his father from Sita Ram Sahu and Thakur Dayal Sahu vide registered sale deed no.255 dated 17.01.1938. In the said case, the Halka Karamchari recommended for mutation of the said land in favour of the respondent no.5 stating that he was in possession of the same. However, the Circle Inspector reported that as per one Kaluwa Oraon, he was cultivating the said land on giving 'Adhbatai' to Ravindra Sahu and Others. The Circle Inspector further reported that the respondent no.5 or his father was never in possession of the said land and the Hlka Karamchari had submitted report without any inquiry as to the factum of possession of the respondent no.5 over the same. The respondent no.4 on the basis of the report of the Circle Inspector rejected the mutation case filed by the 12 respondent no. 5 who thereafter filed appeal before the respondent no. 3 whereupon the respondent no.3 called a report from the respondent no.4 vide letter no. 443(ii) dated 05.02.2016. The respondent no.4 submitted his report vide letter no. 1815(ii) dated 09.05.2016 stating that the said land was recorded in the Khatian as 'Bakast Malik' in the name of Sita Ram Sahu and Thakur Dayal Sahu and the rent of the said land had neither been fixed nor any rent receipt had been issued. It was further reported that on the aspect of possession, an inquiry was conducted by the respondent no. 4 by visiting the spot alongwith concerned Halka Karamchari and Anchal Amin in which the villagers namely Bandhan Tirkey, Mahadeo Oraon and Bablu Munda stated that they were cultivating some part of the said land whereas Kallu oraon, Karia Oraon and others were also cultivating some part of the said land. The respondent no. 4 further reported that the successors of Sitaram Sahu had made objection by visiting his office and had claimed that the sale deed produced by the respondent no. 5 was forged as they themselves were cultivating the said land, however their claim was objected by the villagers who also produced "Panchnama" dated 13.03.2016. The respondent no.4 finally reported that both the parties had their own contentions and as such an order could be passed after making verification of the said sale deed by the office of District Sub-Registrar, Ranchi as also on the aspect of Bataidari. Thereafter, the respondent no.3, vide letter no. 1949 dated 17.08.2016 issued to the District Sub-Registrar, Ranchi, requested for verification of Deed No. 255 executed in the year 1938, Volume No. VI, Book No.1, Page No. 133-134 which was replied by the District Sub-Registrar Ranchi vide letter no. 1021 dated 29.08.2016 stating that the said sale deed was compared with the documents maintained in the record of registry office where it was found that the page nos. 133-134 were missing from the said volume which suggested tampering with the office records of the said sale deed and thus it was not possible to verify the same. Finally the respondent no.3 vide order dated 20.04.2017 rejected the appeal of the respondent no.5 based on the report of the respondent no.4 and the District Sub-Registrar, Ranchi. Aggrieved thereby, the respondent no.5 filed Mutation Revision No.24 R 15 of 2018-19 wherein the respondent no. 2 observed that on the one hand, jamabandi of the land was running in the 13 name of ancestor of the petitioners and on the other hand, parallel jamanbandi was running in the name of Rohit Lakra and Jitram Mahto which indicated that the jamabandies were fraudulently created. Finally the revision was allowed by holding that as per the report of the respondent no.4, the claim of the respondent no.5 regarding settlement of the land in favour of his father and factum of possession over the same was fortified by the minutes of the 'Gram Sabha'.
21. In the present case, the petitioners were disputing both title and possession of the respondent no.5 over the said land before the revenue authorities. It is an admitted fact that the petitioners are the successors of the recorded tenants whereas the respondent no.5 is claiming right, title and interest over the said land by virtue of a registered sale deed of the year 1938 said to have been executed by the recorded tenants in favour of his father. Since the petitioners had disputed the said sale deed, a report was called from the District Sub-Registrar, Ranchi, however he was unable to verify the authenticity of the said sale deed due to unavailability of the record. So far as the issue with respect to possession over the said land is concerned, though 'Halka Karamchari' had reported that the respondent no.5 was in possession of the said land, the Circle Inspector on inquiry from the 'Adhbataidar' made contrary report observing that the petitioners were in possession of the said land and as such the Circle Officer rejected the mutation application filed by the respondent no.5. The respondent no.5 also failed to show any cogent evidence regarding his possession over the said land before the respondent no.3 and thus the appeal was rejected. However, the respondent no.2 while passing the impugned order has heavily replied upon the "Panchnama" dated 13.03.2016 which was submitted by the respondent no.4 to the respondent no.3. It also appears that the said "Panchnama" was not prepared pursuant to any order of the respondent nos. 2, 3 and 4, rather the same was produced by the villagers before the Circle Officer, Town Anchal, Ranchi. The respondent no.5 also failed to show that the said "Panchnama" was prepared by following due process of law as it did not contain the signature of any competent authority. Moreover, the specific stand of the petitioners is that the said "Panchnama" was prepared behind their back and the said factual stand has not been controverted by the respondent no.5. In fact, the said 14 "Panchnama" does not contain the signatures of the petitioners which justifies their stand. That apart, the petitioners have also produced one "Panchnama" dated 19.05.2021 prepared in their favour so as to justify their claim of possession over the said land. The Act, 1973 provides the procedure for mutation of any land whereunder the Circle Officer has been empowered to hold inquiry after issuing notice to the parties and general public.
22. In the case of Bishwanath Singh Vs. State of Jharkhand reported in 2008 (1) JCR 396, learned Division Bench of this Court has held as under:-
"14. It is well settled that the order of mutation has to be passed on the basis of the possession only. Whereas on enquiry possession of the petitioner was not found by the Deputy Commissioner. However, though the petitioner disputed the said finding regarding possession but the facts remains that there is serious dispute not only with regard to the possession of the petitioner but with regard to his title also. It is also well settled principle of law that in a proceeding for mutation disputed or complicated question of title cannot be gone into. The ex-parte decree obtained by the petitioner against his own vendors is also of no help to the petitioner because the same is not binding upon State or TISCO since they were not party in the Suit, filed by the petitioner."
23. In the case of Shrimandar Kumar Jain Vs. State Of Bihar reported in 2002 (3) JCR 726, a co-ordinate bench of this court has held as under:-
"6. Besides the above, from the averment made by the parties in their respective affidavits it appears that the dispute is with regard title and possession over the land in question. In such a situation and particularity when the Jama Bandi was running in the name of the concerned respondent the proper remedy for the petitioner is to get his title adjudicated by Civil Court of competent jurisdiction. If the petitioner succeeds in the suit then that will be binding both the parties and also upon the State of Bihar and accordingly fresh Jama Bandi will be opened in the name of the successful party. For the present, I do not find any serious illegality or infirmity in the order passed by the Deputy Collector.
24. Thus, if there is a factual dispute as to the possession and title of the applicant of mutation, then in such case it is not appropriate to allow the mutation, rather the best course is to refer the said applicant to the competent civil court which is empowered to adjudicate such dispute. In the case in hand, the possession of the respondent no.5 over the said land 15 has been disputed by the petitioners who are claiming themselves to be the heirs of the ex-landlords whereas the respondent no.5 has claimed that his father had purchased the said land from the said ex-landlords. Further, the petitioners have also placed evidence in support of their claim of possession over the said land. Under the said circumstance, I am of the considered view that the impugned order of the respondent no.2 directing for opening of jamabandi of the land in the name of the respondent no.5 merely relying on the "Panchnama" dated 13.03.2016 suffers from serious infirmity.
25. The next argument of the learned counsel for the respondent no.5 is that the report of the Divisional Commissioner is beyond jurisdiction since he has no power or authority in the matter of mutation, rather it is the Deputy Commissioner who has power of revision in such matter particularly under Section 16 of the Act, 1973. In support of the said argument, learned counsel for the respondent no.5 has put reliance on the judgment of learned Full Bench of this court rendered in the case of Ram Chandra Ram & Others Vs. Commissioner, North Chotanagpur and Others reported in 1985 SCC Online Pat 260 wherein it has been held that a second revision is not maintainable in a mutation proceeding after repeal of Section 17 of the Act, 1973 in all areas where the Act has been duly extended and enforced.
26. I have perused the report of the Divisional Commissioner, South Chhotanagpur Division, Ranchi which reflects that the same was prepared pursuant to the direction issued vide letter no. 2509(6) dated 22.07.2021 by the Department of Revenue, Registration and Land Reforms, Government of Jharkhand in compliance of the direction issued by the Chief Secretary, Government of Jharkhand vide his letter no. 262 dated 19.07.2021 for conducting inquiry regarding wrong mutation order passed by the respondent no. 2 directing to create jamabandi in favour of the respondent no. 5 with respect to different plots under Khata No. 140 measuring total area of 7.16 acres of village - Bajra, Circle-Hehal, Ranchi. Pursuant to the said direction, the Divisional Commissioner has submitted his report vide letter no.1248 dated 12.08.2021 observing inter alia that the respondent no.2 while passing the order of revision has not considered the order of the respondent no. 3 and 4 and has allowed the revision on 16 the basis of a "Sada Panchnama". It has further been observed that on the application of the respondent no.5, large numbers of security personnel were deputed to deliver the possession of the said land to the respondent no.5 which shows the connivance of the respondent no.2 with the respondent no.5. The Divisional Commissioner has thus recommended for cancellation of the order of the respondent no.2 passed under revisional jurisdiction as well as for initiating departmental proceeding against him. It has further been recommended that in few more mutation cases also, the respondent no.2 has passed special orders issuing direction to create jamabandi in favour of applicants of such mutation cases and therefore the said orders passed by him in last one year are required to be reviewed.
27. Thus, it appears that while submitting the report, the Divisional Commissioner has not exercised revisional jurisdiction, rather has acted on the direction issued to him by Department of Revenue, Registration and Land Reforms, Government of Jharkhand, complying the direction issued by the Chief Secretary, Government of Jharkhand to enquire the order of mutation said to have been wrongly passed by the respondent no. 2 directing Circle Officer, Hehal, Ranchi to create jamabandi in favour of the respondent no. 5. Hence, the judgment relied upon by the respondent no. 5 is not applicable in the factual context of the present case. This Court does not feel it appropriate to make any comment on the internal inquiry held by the Divisional Commissioner on the direction of the Chief Secretary, Government of Jharkhand which is an administrative measure.
28. One of the contentions of the learned senior counsel for the petitioners is that the respondent no. 2 while hearing revision application has exceeded his jurisdiction by interfering with the finding of fact arrived at by the original as well as the appellate court.
29. The Hon'ble Supreme Court in the case of V.M. Mohan Vs. Prabha Rajan Dwarka reported in (2006) 9 SCC 606 as has been cited by learned senior counsel for the petitioners, has held that the High Court was not justified in interfering with the concurrent finding of fact recorded by the original authority and confirmed by the appellate authority under revisional jurisdiction since the High Court nowhere stated that the finding 17 of fact recorded by the original authority and confirmed by the appellate authority were perverse in any manner. It was not even observed that the material evidence was not considered by the two courts of fact or the evidences adduced by the parties were misread in any manner.
30. In an another judgment relied upon by the learned senior counsel for the petitioners i.e., Ambadas Khanduji Shinde vs. Ashok Sadashiv Mamurkar reported in (2017) 14 SCC 132, the Hon'ble Supreme Court has held that the revisional power of the High Court is restricted to cases of illegal or irregular exercise of jurisdiction by the subordinate courts. Under Section 115 of the Civil Procedure Code, it is not open for the High Court to correct errors of facts or law unless those go to the root of the issue of jurisdiction.
31. Considering the facts and circumstance of the case as detailed hereinabove, I find substance in the argument of the learned senior counsel for the petitioners as the respondent no.2 is found to have given extra indulgence to the respondent no. 5 while deciding the revision by recording his finding of fact with regard to possession over the land on the basis of the alleged "Panchnama" which was already before the appellate authority i.e the respondent no.3 who however did not accept the same and rejected the appeal on the basis of the report of the respondent no.4 and the District Sub-Registrar, Ranchi. I am also of the view that the respondent no.3 had not committed any error while rejecting the appeal. The respondent no.2 has in fact erroneously entered into the finding of fact over those arrived at by the respondent nos. 3 and 4. The "Panchnama" dated 13.03.2016 cannot be said to be such a sacrosanct document so as to be accepted as conclusive evidence of possession of the respondent no.5 over the said land that too when the same was not prepared in accordance with law. Moreover, under the Act, 1973, the Circle Officer has been empowered to inquire into the factum of possession of mutation applicant who in the present case did not find conclusive evidence of possession over the said land. It is also found from the record that the respondent no.5 sometime claimed that the land was transferred to his father by way of settlement, however sometime deviated from the said stand by contending that the same was sold to his father by the recorded tenants. Thus, such contradictory statements of the respondent 18 no. 5 at different stages of the proceedings also create doubt on his claim which can only be appropriately adjudicated by a competent civil court.
32. The next contention of the learned senior counsel for the petitioners is that there was a huge delay in filing the said revision petition, however the respondent no. 2 entertained the same in absence of any such provision in the Act, 1973 to condone the delay occurred in filing revision and thus the impugned order is liable to be set aside on that ground also.
33. It appears from the record that there was delay in filing the said revision and an application under Section 5 of the Act, 1963 was filed by the respondent no. 5 for condition of delay, however the respondent no. 2 put the case on admission without deciding the said limitation petition. Nonetheless, since this Court has already observed that the respondent no. 2 has exceeded his jurisdiction while entering into the finding of facts arrived at by the respondent nos. 3 and 4, there is no need to adjudicate the said issue raised by the learned senior counsel for the petitioners and the issue as to whether the revisional court under the Act, 1973 has power to condone the delay in filing revision petition, is left open to be decided in an appropriate case.
34. In view of the aforesaid factual and legal position, the impugned order dated 25.02.2021 passed by the respondent no.2 cannot be sustained in law and accordingly the same is quashed and set aside. The respondent no. 5, however, will be at liberty to move before the appropriate civil court claiming his right, title and possession over the said land.
35. The writ petition is, accordingly, allowed.
36. I.A. No. 2891 of 2021 also stands disposed of.
W.P.(C) No. 3370 of 202137. The present writ petition has been preferred for quashing and setting aside the inquiry report submitted by the Divisional Commissioner, South Chotanagpur Division, Ranchi (the respondent no. 2) vide letter no. 1248 dated 12.08.2021 to the Additional Chief Secretary, Department of Revenue, Registration and Land Reforms, Government of Jharkhand, Ranchi. Further prayer has been made for quashing and setting aside letter no. 1205 dated 06.08.2021 issued by the respondent no. 2 to the 19 Circle Officer, Hehal Ranchi (the respondent no. 4) whereby a direction has been issued not to take any further action with respect to the land in question.
38. The writ petitioners of W.P.(C) No. 3370 of 2021 have claimed to have purchased the said land by virtue of registered sale deeds dated 22.03.2021 and 24.03.2021 respectively from the respondent no.5 of W.P.(C) No. 2016 of 2021 and as such they are also not entitled to get any relief from this court in view of the discussion made in the said writ petition. They will however also have the same liberty as has been granted to the respondent no. 5 of W.P.(C) No. 2016 of 2021.
39. The writ petition is accordingly dismissed with the aforesaid liberty and observation.
40. I.A. No. 5149 of 2021 and I.A. No. 876 of 2022 also stand disposed of.
(Rajesh Shankar, J.) Ritesh/AFR