Jharkhand High Court
Baneshwar Manjhi vs Karmi Manjhian on 8 March, 2018
Equivalent citations: 2018 (3) AJR 610, (2018) 192 ALLINDCAS 326 (JHA), (2018) 3 JCR 478 (JHA), (2018) 3 JLJR 422
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 136 of 2015
.....
1. Baneshwar Manjhi
2. Lalu Manjhi
3. Pavan Manjhi @ Pavan Hansda
4. Sukh Ram Manjhi .... Appellants Versus
1. Karmi Manjhian
2. Jagadish Manjhi
3. Shiva Prasad @ Arshi Prasad Manjhi.
4. Sunil Manjhi, nos. 2 to 4 sons of late Mahabir Manjhi,
5. Sri Bhim Manjhi .... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR For the Appellant : Mr. Sachi Nandan Das, Advocate Mr. Nisith Kr. Sahani, Advocate Mr. Gouri Debi, Advocate For the Respondent : Mr. Mahesh Kr. Mahato, Advocate 06/ 08.03.2018 Heard the counsel for the appellant.
The present Second Appeal arises out of Title Suit No. 26 of 2002 wherein appellant/plaintiff has filed a suit for Decree of declaration of permanent raiyati rights, title and interest over the suit land and Decree for permanent injunction restraining the defendants, their men, agent to encroach upon in any portion of the land mentioned in Schedule 'C' of the plaint.
BRIEF FACTS:
The case of the plaintiff as stated in the plaint is that C.S. Khata No. 284 included several C.S. Plots of Mouza Kanari (Tola Tupkadih) under Jaridih Police Station, Pargana-Gola, District- Hazaribagh, at present District Bokaro, recorded in the names of Sukhu Manjhi. Sukhu Manjhi died leaving behind two sons Nuna Manjhi and Chura Manjhi, who subsequently separated and partitioned their land. Plot No. 3154 measuring 70 decimals along with other lands were allotted to Nuna Manjhi who remained in separate possession over it till his death. Nuna Manjhi died leaving behind his three sons Bihari Manjhi, Durga Manjhi and Bhim Manjhi. Bihari Manjhi died leaving behind two sons Baneshwar Manjhi (Plaintiff No. 1) and Jagannath Manjhi, who died leaving behind his two sons Lalu Manjahi (Plaintiff No. 2) and Pavai Manjhi (Plaintiff No. 3). Durga Manjhi another son of Nuna Manjhi died leaving his only son Sukhram Manjhi (plaintiff No. 4). Bhim Manjhi son of Nuna Manjhi was still alive and made proforma defendant (No. 6). After death of Nuna Manjhi, plot No. 3154 allotted to Bihari Manjhi, who thus came in possession over the 70 decimals land of Plot No. 3154. It is further case of the plaintiffs that Bihari Manjhi had a sister. Karmi Manjhian (defendant no.1) is the daughter of his sister, who married Mahabir Manjhi (Defendant no. 2) of village- Jhiglopa, P.S. Balidih, District- Bokaro. Landed property of Mahabir Manjhi acquired by the State. For extension of Bokaro Steel Plant, thereby defendant no. 2 become displaced, who approached Bihari Manjhi father of plaintiffs. Bihari Manjhi, who orally allowed them to occupy and construct house over 5 decimals of land in plot no. 3154 in the south eastern corner. In the month of May, 2001 defendants tried to encroach upon the land of plaintiffs over plot no. 3154 forcibly and dishonestly, a proceedings Under Section 144 Cr.P.C. Being M.P. Case No. 144/2001 initiated, but dropped later on considering the dwelling house of defendants. Suddenly on 17.3.2002, at about 8.00 A.M., the defendants tried to dig foundation of boundary wall adjoining west of their western house. Though, the defendants have stopped digging work but they are adamant to encroach upon or grab the portion of plot no. 3154 beyond the land allowed to them measuring 5 decimals. The remaining portion of the land mentioned in Schedule- C of the plaint. The defendants are thus trying to infringe the title of plaintiffs over the suit land forcibly, encroaching upon the portion of suit land, the plaintiffs advised to file this suit. Cause of action arose on 17.3.2002 within the territorial jurisdiction of this court. The suit was filed on 20.3.2002 and registered as T.S. No. 26 of 2002.
CASE OF THE RESPONDENTS These defendants raised various technical objections that the suit is not maintainable. There is no cause of action. The suit is barred by limitation and waiver, acquiescence and estoppel. The plaintiffs are out of possession of the suit land. The defendants are in possession over the suit land for more than 22 years. The suit is under valued and beyond pecuniary jurisdiction of this court. The defendants are in possession of 0.14 Acres out of 0.70 Acres in plot- in-question and not an area of 0.05 Acres. The suit is non-joinder of parties, i.e. Chura Manjhi and their successors. Defendants admitted contents of paragraph 1,2,3 and 4 of the plaint as substantially correct. The Defendants are not aware about separation of Nuna Manjhi and Chhutu Manjhi. Bihari Manjhi had a sister who died leaving behind only daughter Karmi Manjhian (Defendant No.
1). She married Mahabir Manjhi (Defendant No. 2) of village Jiglopa, P.S. Balidih, District-Bokaro. Land of Mahabir Manjhi at Balidih was acquired by State for extension of Bokaro Steel Limited in 1965-66. The defendant no. 1 approached Bihari Manjhi to allow her to live at village Kanari and accordingly allowed to occupy the land in the plot no. 3154 of village/mouza Kanari, Police Station- Jaridih, District- Bokaro. These defendants contended that in order to avoid the future complication and litigation, Bihari Manjhi executed a Kachcha deed of transfer by way of Panchnama in the year 1979 in presence of witnesses and confirmed the right, title, interest and possession of defendants over 0.14 acres of suit plot. Bihari Manjhi died and the landed property left by Nuna Ram Manjhi came into possession of his brother Bhim Manjhi and decendents came into possession of his brother Bhim Manjhi. The decendents of Bihari and Durga Manjhi along with brother Bhim Manjhi were requested to execute a deed of transfer in favour of the defendant no. 2 Mahabir but they were not in a position to collect the record of right and obtain the permission for transfer of the land-in-question, they for the time being executed an agreement dated 20.06.1999 confirming the transfer of the said 0.14 Acres of land in plot no. 3154 with payment of the consideration. A proceeding under Section 144 Cr. P.C. Being M.P. Case No. 144 of 2001 in respect of an area of 0.65 Acres, which was dropped and possession of the defendant over an area of 0.14 acres remained intact. These defendants denied other contentions of plaintiffs and prayed that the suit is liable to be dismissed.
On the basis of above pleading of the parties, the learned Trial Court has framed seven issues which is as follows:
"1. Is the suit maintainable in its present form?
2. Is the suit barred by law of limitation, principle of waiver, estoppal and acquiescence?
3. Whether the plaintiff has got valid cause of action to bring this suit?
4. Whether Bihari Manjhi gave possession orally transferred to defendant no. 1 only .05 acres out of plot no. 3154 or.14 acre of the said plot?
5. Whether the defendants are entitled to right title interest and possession of the land having an area of .14 acre in plot no. 3154?
6. Whether the defendants have encroached upon the land of the plaintiffs?
7. Whether the plaintiff is entitled to get any other relief or reliefs?"
From mere perusal of the issues it is admitted that there is no dispute regarding the right, title and interest in the property.
It is relevant to consider that both the parties plaintiff and defendants are tribals and suit land is tribal land.
Section 71A of the C.N.T. Act 1908 is quoted hereinbelow:
"[71-A]. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred.-- If at any time, it comes to the notice of the Deputy Commissioner that transfer of land belonging to a raiyat [or a Mundari Khunt-kattidar or a Bhuinhari] who is a member of the Scheduled Tribes has taken place in contravention of Section 46 [or Section 48 or Section 240] or any other provisions of this Act or by any fraudulent method, [including decrees obtained in suit by fraud and collusion] he may, after giving reasonable opportunity to the necessary inquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or, in case the transferor or his heir is not available or is not willing to agree to such restoration, re-settle it with another Raiyat belonging to Scheduled Tribes according to the village custom for the disposal of an abandoned holding:
Provided that if the transferee has, within 30 years from the date of transfer, constructed any building or structure on such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed;
Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before coming into force of the Bihar Scheduled Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate such transfer where the transferee either makes available to the transferor an alternative holding or portion thereof as the case may be, of the equivalent value of the vicinity or pays adequate compensation to be determined by the Commissioner for rehabilitation of the transferor; Provided also that if after an inquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or re-settled, he shall require the transferor or his heir or another raiyat, as the case may be, to deposit with the Deputy Commissioner such sum of money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred or the market value of the land, as the case may be and the amount of any compensation for improvements effected to the land which the Deputy Commissioner may deed fair and equitable.] [Explanation-I -- In this Section "substantial structure or building" means structure or building the value of each on the day of initiation of inquiry, was determined by the Deputy Commissioner to exceed Rs.10,000/- but does not include structure of building of any value, the material of each can be removed without substantially impairing the value of] [Explanation-II--A Bhuinhar or Mundari Khunt- Kattidar, who is deemed to be a settled Raiyat under the provisions of Section 18 of this Act shall also be deemed to be a Raiyat for the purpose of this Section.]"
From perusal of Section 71A, it is evident that if there is a change of possession of land, in contravention of Section 46 of the C.N.T. Act then a jurisdiction lies with the Deputy Commissioner.
Admittedly, in present case, it is a case of the plaintiff that there is a change of possession of the suit land, some portion with consent and some portion by encroachment by the defendant. In view of the mandate of Section 71 A of the C.N.T. Act the application should have been made before the Deputy Commissioner of the district for restoration of the possession.
Thus the suit was not maintainable before the Trial Court. If the dispute is viewed from the angle of Section 46 of the C.N.T. Any transfer made from schedule tribe to schedule tribe, is permissible, if two conditions are satisfied:
1) Permission of the Deputy Commissioner.
2) Both transferrer and transferree should be residents of the same police station.
Admittedly, in the present case both the parties are schedule tribes and related. As, they are member of scheduled tribe, transfer is permissible but with the permission of the Deputy Commissioner.
It has been asserted by the plaintiff that by oral permission defendants were allowed to reside on the suit land.
Section 46 (iii) is quoted hereinbelow:
"46. Restriction on transfer of their right by raiyat-
(3) No transfer in contravention of Subsection (1) shall be registered, or shall be in any way recognized as valid by any court, whether in the exercise of civil, criminal or revenue jurisdiction."
Thus, it is clear that no court can recognize any transfer in contravention of section 46. No claim on such basis is valid in the eyes of law and same cannot be enforced.
In the present case plaintiff has filed the suit asserting therein, that 0.05 acres which has been orally transferred should be allowed to be remained in the possession of defendant and further alleged encroachment made by the defendant should be returned to the plaintiffs. In fact the claim of the petitioner was that illegal action taken by his predecessor in contravention of Section 46 should be recognized by the court, which is not permissible.
Further relief for recovery of possession on the basis of dispossession, if no dispute of title is involved, only remedy available to the plaintiff was to approach Deputy Commissioner as per the C.N.T. Act and not the suit.
Above, facts have been properly appreciated by the Appellate Court and the judgment of the Trial Court has been reversed. The learned First Appellate Court has gone into the jurisdictional issue and has returned the finding that the suit filed by the appellant/plaintiff before the Trial Court was not maintainable and in fact prayer made therein was barred by law and in contravention of the Section 46 of C.N.T. Act.
Further the present suit has been filed after the delay of more than 32 years for recovery of possession which is hit by law of limitation applicable in the present case.
The learned counsel for the appellant could not point out any infirmity in the order of learned First Appellate Court.
Thus there is no merit in the present Second Appeal, as no substantial question of law is involved and accordingly, the same is hereby dismissed.
(Rajesh Kumar, J.) Pallavi /