Patna High Court
Sardamoni Debi vs State Of Bihar And Ors. on 6 October, 1978
Equivalent citations: AIR1979PAT106, AIR 1979 PATNA 106, 1979 BBCJ 37
JUDGMENT V. Mishra, J.
1. This appeal arises out of a suit for declaration of the plaintiff's title as raiyat and for injunction against the State of Bihar restraining them from interfering with her (Plaintiff's) possession, which has been dismissed by Shri H. N. Sahay, 3rd Additional Subordinate Judge, Dhanbad.
2. One Chandra Kanta Ghosal had three sons, namely, Kali Pada Ghosal, Bhawataran Ghosal and Shyama Pada Ghosal. The wife of Chandra Kanta Ghosal was Thakomoni Debi. Kali Pada was married to Sardamoni Debi, who is the plaintiff here. Chandra Kanta Ghosal was, perhaps, a leper, but he was a man of means. People were reluctant to give their daughters in marriage in his family and so, Chandra Kanta Ghosal by way of inducement promised to give or settle some land with the would-be wife of Kali Pada. With this understanding, Sardamoni Debi was married to Kali Pada. Chandra Kanta Ghosal had a joint Khewat with Ananta Lal Dey in which the share of Chandra Kanta was 12 annas and that of Ananta Lal 4 annas. In the year 1928 B. S. corresponding to 1921, Chandra Kanta as 12 annas tenure-holder, settled with the plaintiff the two plots bearing plots Nos. 5242 and 5243 appertaining to Khata No. 809 measuring 5.46 acres, situate in Mauza Chas, police station Chas, district Dhanbad. The aforesaid plots Nos. 5242 and 5243 are popularly known as Gadai Bandh, a tank and its embankment. At the same time, he also settled his 12 annas share of the tenure in some other lands situated at Mouza Salagidi alias Bhawanipur police station Chas, district Dhanbad. The area of this land was 8 and odd acres. Both the settlements were made simultaneously and a sum of Rs. 11/- was fixed as the rental thereof. Subsequently, on the 13th Shrawana 1332 F. S, (27th of July, 1925), Chandra Kanta executed an unregistered Patta (Ext. 3) in favour of the plaintiff purporting to settle the aforesaid plots with the plaintiff at a total zama of Rs. 11, Obviously, this was only with respect to his 1.2 annas share in the tenure. The plaintiff, it is said, became a raiyat in respect of 12 annas share of the plots mentioned above, right from the time of the oral settlement in 1921.
3. On the 2nd December, 1938, the three sons of Chandra Kanta Ghosal purchased from Ananta Lal Dey his 4 annas share in the tenure in respect of Gadai Bandh (Plots 5242 and 5243) through a registered sale-deed (Ext. 6) for a sum of Rs. 500/-. On the 30th May, 1939, there was a further settlement in favour of the plaintiff with respect to the remaining 4 annas tenure-holder's interest in the aforesaid plots. By this time, Bhawtaran had died unmarried and issueless and so his interest had devolved upon Thakomoni Debi, his mother. Shyama Pada was still a minor. Therefore, this settlement was made by Kali Pada for self and as guardian of Shyama Pada and also by Thakomoni on whom the interest of Bhawataram had devolved. This unregistered Patta is Ext. 3/A.
4. It would thus appear that with respect to the two plots (Plots Nos. 5242 and 5243) of Mouza Chas, settlement was made with the plaintiff by the 12 annas tenure-holder in the years 1921 and 1925 and by the remaining 4 annas tenure-holders in the year 1939 and so, after 1939, according to the case of the plaintiff. she continued as a full-fledged raiyat of the disputed plots of Mouza Chas.
3. The plaintiff claims to have paid rent to the ex-intermediaries with respect to the said plots according to the terms of settlement and also to the Slate of Bihar after the abolition of Zamindari under the Bihar Land Reforms Act, 1950. Her case is thai in the tank i.e. plot No. 5243, she had been rearing fish. Over the embankment in plot No. 5242 she grows vegetables, has planted some trees, and has also exercised other rights of a permanent raiyat. She has also constructed several buildings on the embankment after obtaining due sanction from the authorities under Section 6 of the Bihar Act XXIII of 1948.
6. The State Government has also realised rent from her since the year 1957 till 1966. In 1966, the Anchal Adhikari of Chas (defendant No. 4) initiated a proceeding for settlement of the tank for a period of three years claiming it to be the Sairat of the State Government. The plaintiff filed an objection asserting her raiyati right. The Anchal Adhikari conducted an enquiry into the matter and came to the conclusion that she had acquired raiyati right in the tank on the basis of settlements and that it had not vested in the State of Bihar. This was approved by the land Reforms Deputy Collector, Baghmara at Dhanbad on the 20th January, 1967. Accordingly, the question of settlement was dropped and the plaintiff continued in her possession as a raiyat. Again on instruction of the Addl. Collector, Dhanbad, the Land Reforms Deputy Collector, Baghmara at Dhanbad, started another proceeding in the year 1969, for settling the tank in question as Sairat, as the tank had been recorded in Gairabad Malik Khata and, it had not been settled with the intermediaries as homestead. He, therefore, thought it to be the Sairat of the State Government, which they were entitled to settle. The defendant No. 3, the Land Reforms Deputy Collector also fixed a date for settling it by public auction. The plaintiff again objected and she was asked to produce documents on the 17th April 1969. But, even before that, defendant No. 3 issued a proclamation for holding auction of the tank on the 15th April, 1969. The plaintiff, having come to know of it, requested defendant No. 3 to stay the settlement, but that prayer was rejected. The plaintiff, therefore, gave notice under Section 80 of the Code of Civil Procedure and instituted a suit for declaration that the tank and the embankment in plots 5243 and 5242 belonged to her in her permanent raiyati right and they had never vested in the State of Bihar and, as such, the proposed settlement of the tank by auction was illegal, invalid and beyond competence; prayer for injunction restraining the defendants from interfering with her possession was also made.
7. On behalf of the defendants, a written statement has been filed telling, inter alia, that the plots Nos. 5242 and 5243 of Mouza Chas are recorded in the record-of-rights as Gairabad Malik and consequently, upon the vesting of the Zamindari, the said plots also vested in the State of Bihar. Since the vesting, it is said the plots in question, locally known as Gadai Band, have been entered in the Sakat register of the Anchal. The right of the ex-intermediaries to settle the tank as also the factum of oral settlement have been challenged. The two pattas are said to be forged, fabricated and ante-dated documents. The rent receipts are also dubbed as collusive and cooked up. The possession of the plaintiff over the plots in question has also been denied. Even the construction of the buildings on the embankment has been denied. The rent receipts granted on behalf of the State are said to have been obtained in collusion with the employees of the State. It has further been said that the Land Reforms Deputy Collector, Baghmara at Dhanbad, had no right to take a final decision regarding the raiyati right acquired by the plaintiff over the plots in suit and, as such, there could be no legal objection in reopening the matter when the mistake came to light. In short, the case of the defendants is that the tank in question vested in the State of Bihar and it is not the raiyati property of the plaintiff and that the State is not bound by the illegal order of the Land Reforms Deputy Collector, Baghmara, passed on 20-1-67.
8. The defendants, no doubt, tiled written statement but did not do anything more than cross-examining the witnesses in the trial court. Not a single witness was examined on their behalf nor was any documentary evidence adduced.
9. The learned lower Court, disbelieving the plaintiff's documents and witnesses, came to the conclusion that she had not acquired any raiyati right over the plots in question, as there could be no legal and valid settlement of a tank. It further held that since the possession had vested in the State, she should have not only filed a suit for declaration of title, but also for recovery of possession and that on payment of ad valorem court-fees and not only declaratory court-fee. So far as the declaratory court-fees are concerned, it further held that the plaintiff had sought for three declarations, viz. ''(i) plaintiff's raiyati right, (ii) tank not vesting in State, and (iii) the proposed settlement by auction being ultra vires", but only one declaratory court-fee had been paid instead of three. On these findings, it dismissed the suit.
10. In this appeal, the following points have been pressed-
(1) The plots 5242 and 5243 of Mouza Chas could be legally settled with the plaintiff by the ex-intermediaries creating raiyati right in the plaintiff and they were actually settled with her and she had been in possession thereof as raiyat.
(2) The State Government, after once finding the settlement in her favour to be true, could not review its own order under any law whatsoever.
(3) It was not at all necessary for the plaintiff to seek recovery of possession or to pay ad valorem court-fee or for the matter of that even three declaratory court-fees.
11. Before taking up the points, it may be mentioned that at the time of the admission of this appeal ad valorem court-fee was demanded not only for this court, but also for the lower court and the same was deposited by the plaintiff-appellant. Reference may also be made to order No. 7, dated the 14th Sept., 1971 of this court through which the respondents were restrained from taking possession of the suit property during the pendency of this appeal. The plaintiff-appellant was also ordered to go on depositing a sum of Rs. 1500/-from year to year, subject to the condition that if the plaintiff ultimately wins the case, she would withdraw the deposits, but if she loses, the State Government would withdraw the same and appropriate towards their claim of mesne profits and the like against the appellant.
12. I now take up the question whether plots 5242 and 5243 could be the subject-matter of an agricultural lease. I may mention here that both the pattas (Exts. 3 and 3/A) are unregistered ones and they will be in accordance with law only if they are for the agricultural purposes under Section 117 of the Transfer of Property Act. Plot No. 5242 has been described in the lease (Ext. 3) as "bandh ail" which is a local term for embankment, Plot No. 5243 has been described as ''bandh'', i.e. tank. The area of the tank portion is 3.84 acres and that of the embankment 1.62 acres. Learned counsel for the appellant conceded in the very beginning that a lank cannot be the subject-matter of agricultural lease, but he contended that if the tank appertains to some land which can be the subject-matter of an agricultural lease, and it the tank and the land both have been settled together, then such a settlement would be valid in the eye of law. It has, therefore, to be considered whether the tank portion could be said to appertain to the embankment. An authority has been cited (which will be discussed hereafter) to show that if the embankment is just an embankment, only to contain the tank, then the settlement of that embankment cannot be taken to be a settlement for agricultural purpose; but if the area of the embankment is something more than just the bank, i. e. the area is big enough for cultivation, it can be the subject-matter of an agricultural lease, and in that case, the tank would also come within the ambit of that lease,
13. In order to show the concessions given by the authorities regarding settlement of tank, reference may first be made to the case of Mohamed Munoor Mean v. Sreemutty Jybunee (1873) 19 Suth WR 200) in which it has been said that the provisions of Act X of 1859 which confer a right of occupancy, do not apply to a tank used only for the preservation and rearing of fish, and not forming a part of any grant of land or an appurtenance to any land, even though possession may have been held for more than twelve years. In this case, merely the tank was the subject-matter of dispute. The matter was more clarified in the case of Nidhi Krishna Bose v. Ram Doss Sein (1873) 20 Suth WR 341). In that case, a tank with some portion of the bank also was the subject-matter of a lease. It was held that a right of occupancy in land includes the same right in respect of a tank appurtenant to the land. But a right of occupancy cannot be acquired in a tank with only so much land as is necessary for the bank. Both these cases came to be considered with approval by the Calcutta High Court in the case of Surendra Kumar Sen Chaudhury v. Chandratara Nath (AIR 1931 Cal 135). There the subject-matter was a tank measuring 7 kanis and odd and its banks measuring 4 kanis or so. The settlement was for "rearing fish in the tank and stacking grass for cattle on the bank" and again for "rearing fish and grazing cattle." An argument was made to consider the bank and the tank separately, but their Lordships held that the lease was indivisible one and it was a lease for agricultural purposes. It would be advantageous to refer to the following two paragraphs of the authority for appreciating the logic in it.
"It was next argued on behalf of the appellant that, even if this argument be held to be good so far as the banks are concerned, it cannot apply to the tank itself which was leased solely for the purpose of catching fish. The answer to this contention seems to me to be twofold. In the first place it is to be borne in mind that a supply of water both for drinking purposes and for washing is essential for the keeping of cattle for agricultural purposes, and secondly, that the tank and its banks must be treated as one holding, and that it cannot be split up and the water portion distinguished from the dry portion. The patta itself shows that it is one holding, and it is clear that the defendant appellant himself recognised it as such. Furthermore if a portion of the demised area is used for agricultural purposes, that will determine the character of the lease as a whole. In this connection it may be mentioned that out of a total area of 11 kanis odd the banks cover an area of three and three-fourths kanis, so that the land portion is by no means an insignificant portion of the whole.
The learned advocate for the appellant urged that none of the reported cases covers the present case because in this instance we are dealing with a tank for the rearing of fish. That, however, sounds rather like begging the question. If it were purely and simply a question of a tank the argument would no doubt be sound and the Bengal Tenancy Act would not apply. But, as I have shown, there are the banks of the tank to be considered, and the purpose for which they were intended to be and have in fact been used. These, as it seems to me, determine the character of the holding."
14. On the analogy of this case, learned counsel for the appellant has invited our attention to the areas of the tank and the embankment in the case under consideration. The ratio between the tank (Plot No. 5243 area 3.84 acres) and the embankment (Plot No. 5242 area 1.62 acres) can stand comparison with the areas of the tank and the embankment (roughly 7 1/4: 3 3/4) in the reported authority. On this basis, it has been argued that if the bank could be settled for an agricultural purpose, both bank and the tank should be considered as one indivisible holding. The argument is quite appealing.
15. Before examining the documents of lease and the evidence of possession, I may refer to the case of Sobharam Mahato v. Raja Mahato (AIR 1957 Pat 278), which has also been relied upon by the learned Subordinate Judge. I have, however, a feeling that he did not carefully examine the authority and appreciate the reasonings mentioned therein. As would appear from paragraphs 23 to 31 of the authority, what was settled was tank in plot No. 51.3 and its embankment, in plot, No. 514, but the purpose for which the tank, was settled was not specifically mentioned in the document (Amalnama). The lease, therefore, did not show whether it was granted for agricultural purposes or not. It only mentioned that the settlee could remove the mud of the said tank and remain in possession of it on payment of rent fixed in the lease." From the document, therefore, the purpose of the lease could not be ascertained. In paragraphs 25 and 26 of that authority, it has been observed as follows-
"(25). In my opinion, on the document itself, it is plain that only the tank, which consisted of its embankment, and the ditch or the underground wherein the water was stored, was settled with the plaintiffs' ancestors by the original mokarridars.
(26) The question for determination, therefore, is whether the lease of the tank in question was an agricultural lease for 'agricultural purposes' within the meaning of Section 117 of the Transfer of Property Act,"
The controversy therein resolved itself into a narrow compass whether a 'tank' could be called 'land' so as to make the holder of it a 'raiyat' within the meaning of the Bihar Tenancy Act. The Subordinate Judge here has relied on this Patna case only for saying that the land cannot include a tank or reservoir of water. I am afraid, the case under consideration before us is much too different from the said Patna case. Even the authority reported in AIR 1931 Cal 135 has been referred to in the Patna case, and though the ratio has been approved it has been distinguished on facts. It appears to me that the Calcutta authority is on all fours with the case under consideration in this Court. In that very Calcutta authority, Mitter, J. in agreement with Graham, J. in course of a separate but concurrent judgment, has observed that :--
"The true test as to whether lease is for agricultural purposes or not is to see whether the primary object was the lease of the tank or lease of the land surrounding it for purposes of agriculture with tank within it. In this respect the area of the surrounding land is an. important factor to be considered."
16. In view of the authorities discussed above, it has now to be examined whether the true object of lease was the lease of embankment for the pur-pases of cultivation or was the lease of the tank only for the purposes of rearing fish. The area of the embankment would also have to be kept in view. Here itself I may mention that the subsequent conduct of the plaintiff in cultivating the land would also be an important factor to be considered. In AIR 1931 Cal 135, at p. 337, it has been observed as follows:
"Even, however, if it be held that the terms of the lease are not free from ambiguity, it is permissible to take into consideration the conduct of the parties for the purpose of determining its true nature."
With this background, I would now take up the documents of lease and the oral evidence.
17. Exhibit 3 is an unregistered lease of the year 1925. It is in Bengali. Its English translation appears at page 43 of the paper-book, I may repeat to say that this Patta was granted only by 12 annas tenure-holder. There were two schedules in the Patta, one of which is the land in dispute here, namely, plots Nos. 5243 and 5242 of Mouza Chas having a total area of 5.46 acres. The other schedule relates to Salagidi lands having a total area of 8 acres and odd covered by about 28 plots. The plots of Salagidi have been settled for the purpose of cultivation. That is not, in dispute here. So far the purpose of the entire lease is concerned, it has been translated in English as follows :
"You shall, by rearing fish in the said tank and catching the same and by planting trees as in parh (embankment thereof) possess the same in various ways and the lands by growing paddy etc. therein."
18. Patta (Ext. 3/A) is also in Bengali and its English translation appears at p. 48 of the paper-book This was executed to confer raiyati right in respect of the remaining 4 annas tenure-holder's interest. The purpose of lease mentioned therein runs as follows:--
"......You together with your sons, son's sons etc. in succession shall continue to possess in great happiness, according to your sweet will, by reclaiming silt from the said beds at your own cost by rearing small and big fish therein and catching and selling the same and by planting trees etc., on the embankment (of the bandh), and growing vegetables etc. on the embankment..."
19. Exhibit 3/A was executed in 1939 and Exhibit 3 had been executed in 1925. Between 1925 and 1939, the plaintiff was, therefore, a raiyat of only 12 annas tenure-holder, but after 1939, the plaintiff became the raiyat of 16 annas tenure-holder. As would appear from [the rights given in the two leases, the plaintiff was free to cultivate the embankment almost in any manner she liked, by planting trees thereon by growing vegetables thereon, or by cultivating it in any manner she liked. It has, therefore, to be examined now if (actually she cultivated the embankment or not. That will indicate whether the lease was taken for agricultural purposes or not.
20. Plaintiff's witness No. 3 in the case is Pashupati Mishra, a Postmaster, He has taken oath to say that the plaintiff is in possession of the tank for the last 40 years and she has been appropriating fish of the tank and growing vegetables on the embankment. According to him, there was also a hut on the embankment in which a guard for guarding fish and vegetables used to live. He also had his own lands nearabout which he had sold to the plaintiff. In the cross examination, further detail about the growing of vegetables was taken, when it was said that the vegetables were grown in the north in one corner and in the south in one corner.
21. Plaintiff's witness No. 7 is Kunjo Behari, a cultivator. He has grown vegetables on the ridge of the tank at the instance of the plaintiff. He has also said that there was a mud hut on the bank in which he used to live. He is also a bataidar of Salagidi land of the plaintiff. On the point of vegetable growing, he has said in his cross-examination that the vegetables were meant for personal consumption of the plaintiff and of himself (witness). He has given details about his cultivation of other lands as well.
22. Plaintiff's witness No. 11 is Dharu Acharjee. He is a Karpardaz of the plaintiff and looks after her affairs. He says that in the suit tank fish is reared and the produce is divided. Part of the fish is also sold. He also testifies to the growing of vegetables on the ridge by Kunjo Behari (P.W. 7) about 20 years ago. In cross examination, he says that the vegetables were grown on the southern and northern ridges. The plaintiff was examined on commission in this case and her evidence appears at pages 22 to 25 of the paper-books. She has also taken oath to say that on the ridge of the tank vegetables are grown. She has reiterated it in her cross-examination as welt. These witnesses have fully stood the test of cross-examination and there is hardly anything to disbelieve them. Our attention has not been invited by the respondent State to any statement which may be said to be contradictory I may repeat to say that there is absolutely no evidence on behalf of the defendants to say that vegetables were not grown or that the embankment was never used for the purpose of cultivation.
23. On the point of possession, a doubt was cast at the time of argument as to how the plaintiff could be in possession as a tenant of only 12 annas tenure-holder between 1925 to 1938. I do not see any absurdity in it. Alter all Chandra Kant Ghosal and Ananta Lal Dey were in possession as tenure-holders to the extent of 12 annas and 4 annas shares respectively. After settlement of 12 annas interest, the settlee or the raiyat could possess the tank and embankment just in the same way as Chandra Kant Ghosal used to possess. All that the lessee had to do was that she had to pay rent to Chandra Kant Ghosal, in lieu of her possession. So far the possession after 1938 is concerned, she became the 16 annas raiyat and there was no difficulty at all in her exclusive possession.
24. The oral evidence of possession and cultivation is also supported by a large number of rent receipts (Exts. 2 to 2/V) which were granted by the State of Bihar and Exts. 2/W to 2/Z-35 granted by the ex-landlord. Nothing has been shown why they should be discredited. They all bear the look of genuineness. There is absolutely no evidence on behalf of the State to prove that anyone of them was collusive or forged or ante-dated. There is also nothing to show that the employees of the State were in collusion with the plaintiff and so the rent receipts were obtained from the State collusively. Merely, the fact that the rent receipts of the State were issued 'without prejudice', it does not mean that the State is not bound by them. Mere argument that the leases and the rent receipts are forged and fabricated can be of no avail.
25. It would not be out of place to mention here itself that she has built a number of houses on the embankment. With the passage of time, the place came to assume importance on account of the development of Chas Bazar and the Purulia road passing just by its side. Buildings were erected round about 1969 with due permission of the Government. This is an admitted position. The site plan has also been filed in this case which is marked Ext. 4, It would not be out of place to mention that if the plaintiff acquired a permanent raiyati right in 1938 as lessee from the 16 annas tenure-holders, there could be no impediment in erecting buildings on the site.
26. In the circumstances disagreeing with the learned lower court, I hold that both the settlements were genuine that the areas of the embankment (Plot No. 5242) and the tank (Plot No. 5243) are such that agricultural lease in respect of ihe embankment could be granted, that the tank appertains to the embankment and that the primary object was settlement of the embankment with the tank as its appurtenance. Having held her possession as tenant since the settlements were taken, the first point is answered in affirmative.
27. Coming to the second point, it has to be considered if the State Government after once finding the settlement to be genuine can review the said finding or not. Exhibit 5 is copy of Sairat case No. 63 (III) 66-67 of Chas On 17-5-66, the Anchal Adhikari started a proceeding for settling the tank (Plots Nos. 5242 and 5243) for three years, as he took it as a Khas tank of the Government. 27-5-66 was fixed as the date of auction. The order dated 27-5-66 shows that Sardamoni Debi raised the objection to the auction on the ground that it was her raiyati tank. She was asked to produce her documents in support thereof on 27-6-66 and the auction was stayed. Thereafter, for some reason or the other, the matter was again taken up on 15-9-66. The Anchai Adhikari examined the documents and came to the conclusion that 'it cannot be presumed that the property has vested in the State' and so he referred the matter to the Land Reforms Deputy Collector, Baghmara at Dhanbad, for approval. Exhibit 5/A is the order-sheet of the Land Reforms Deputy Collector where it came to be numbered as Sairat Suit No. 12 of 1966-67. He examined the matter on 20-1-1967. He took into consideration the two documents of lease, the rent receipts granted by the ex-intermediaries and also by the Government (from 1958 onwards) and also the peaceful possession of the tank for such a long time. He further took into consideration the fact that the tank had never been settled before by the State Government. He also looked into Ihe precedence of a similar tank, which was available in his office. On consideration of all aspects he recorded the following order on 20-1-1967- '"
As such the Anchal Padadhikari, has rightly observed that the properly cannot be presumed to have vested in the State.
Inform the Anchai Padadhikan, Chas, and return record."
In view of this order, the settlement of the tank by the Government by public auction was stopped. There was no trouble for about a couple of years thereafter, but in April, 1969, yet another case was started by the then Land Reforms Deputy Collector. The Additional Collector had, perhaps, inspected the records and had entertained some doubts, in respect of the Godai Bandh. On basis of that inspection note, the Land Reforms Deputy Collector took up the matter for consideration as to how the tank had not vested in the State under the Bihar Land Reforms Act, He referred the matter to the Additional Collector, who besides passing other orders passed the following order also on 3-4-69:--
"If the tank is situated in Gair-abad Maiik and if has not been settled with the ex-intermediaries as homestead, immediate action for the settlement as Sairat after pre-fixing reserve jama should be taken "
The question is whether the Additional Collector or Land Reforms Deputy Collector is competent to reopen the matter and review the previous order of 20-1- 1967.
28. It is not clear from the order-sheets as to under what provision of the Bihar Land Reforms Act, 1950, the aforesaid two enquiries were initiated. At the time of argument, it was submitted that it could be either under Clause (g) or Clause (h) of Section 4 of the Bihar Land Reforms Act. It is important to note that the effect of settlement of tank by public auction would mean ouster or dispossession of the appellant. As would appear, the effect of enquiry under Clause (g) or (h) would also be the same as dispossession of the appellant. Section 4 gives the consequences after the publication of the notification under Sub-section (1) of Section 3 of the Act. The substance of Clause (g) is that after vesting of the estate if the Collector is of opinion that the State is entitled to the direct possession of any property he shall, by an order in writing served in the prescribed manner on the person in possession of such property, require him to deliver possession thereof to the State or show cause if any, against it. Obviously, in this case no show cause notice has been given to the appellant, Clause (h) empowers the Collector to enquire in respect of any transfer including the settlement or lease and, it gives him certain powers if he finds the settlement to have been effected any time after the 1st January 1946. In that case also, he has to give a notice to the party concerned as to why the transfer should not be annulled and then decide the matter. Whether the enquiry be under Clause (g) or Clause (h), an appeal has been provided for in both the clauses. Obviously, no appeal has been filed by the State Government in this case. I may mention that on behalf of the State, it could not be pointed out as to under which provision the first enquiry was made and the second enquiry is being made. It was also pointed out that whatever enquiry the Land Reforms Deputy Collector may initiate, either under Clause (g) or Clause (h) of Section 4, it was in the capacity of his being a Collector and if the State was not satisfied with the order, an appeal should have been preferred against the same. There is also provision of revision under Section 4A of the same Act giving revision powers to the Commissioner, but even that was not availed of- Now, if the order of 1966-67 case is set aside, it would mean only reviewing that order. The learned counsel for the Slate has not been able to show under which authority, the State Government or for the matter of that, the Collector could review the previous order. It is important to note that under Section 38 of the said Act, any enquiry under Section 4 is a 'judicial proceeding' and, as such, an order passed in the proceeding can be set aside only in the manner provided in law. The mere desire of any higher officer can be of no avail. In Thakur Ram Chandra Ji v. The State of Bihar, (1976 BBCJ (HC) 647), a Division Bench of this Court relying upon the authority reported in AIR 1974 SC 1791 has held that unless there is a power of review specifically given by the statute, no such power can be exercised. In the Patna case, the Land Reforms Deputy Collector had once found that the petitioners had no land beyond the ceiling area. It was held that the same mailer could not be re-opened because there was no power of review in the statute. If there were no such curb on the exercise of powers, the position would always remain uncertain. Any Land Reforms Deputy Collector can at any time issue notice for making the settlement by auction and harass the raiyat indefinitely. I, therefore, find that the matter could not be re-opened or reviewed in the way it has been done in the instant case, and the order passed by the Additional Collector on 3-4-69 quoted above is without jurisdiction.
29. Coming to the third point i.e. the court-fees, I may only mention that since the possession was with the plaintiff herself, there could have been no necessity of seeking recovery of possession, as found by the learned Subordinate Judge. It is, however not at all necessary for me to assess at this stage the court-fees that the plaintiff was liable to pay. She has already deposited in this Court, the ad valorem court-fee for this Court as also the court below. Since the suit is going to be decreed, obviously with costs, she will get back the same. No further finding is, therefore, called upon on this point.
30. Needless to repeat that in view of order No. 7, dated 14th September, 1971 of this Court, the plaintiff will also be entitled to get back the entire amount deposited by her in pursuance of that order.
31. In the result, the appeal is allowed on contest with costs and hearing fee Rs. 100. The judgment and decree of the lower court are hereby set aside and the suit is decreed on contest with costs and pleader's fee including pleader's clerk fee at the minimum contested scale. The title of the plaintiff-appellant to the suit land as permanent raiyat thereof is declared. The defendants are hereby permanently injuncted from interfering with the possession of the plaintiff-appellant.
Birendea Prasad Sinha, J.
I agree.