JUDGMENT
Hari Shankar Prasad, J.
1. This appeal, at the instance of the appellant, is directed against the judgment and decree dated 31.1.2000 and 14.2.2000 respectively passed in Title Suit No. 234/1993, whereby and whereunder the learned Subordinate Judge VI, Ranchi dismissed the suit. Plaintiff is appellant here.
2. The case of the plaintiff (hereinafter referred to as “the appellant”) is that the land bearing RS Plot No, 55 under khata No. 9 of village Mohulia, PS Khelari, District Ranchi was owned and possessed by the Colonization Society of India Ltd. Macluskiganj, PS Khelari, District Ranchi, which is now in liquidation. The further case of the appellant is that he had acquired 6 acres of land in Danpatra out of plot No. 55 of khata No. 9 from the Colonization Society of India in the year 1954-55 and came in actual possession thereof and paid rent for the same from 1954-55. The appellant was further settled in the year 1962-63 with 3 acres of land out of plot No. 55 of khata No. 917 of village Mohulia by way of raiyati rights by the BDO, Burmu for and on behalf of the State of Bihar and came in possession over that land since 1962-63. The appellant has been coming in peaceful possession over the said 9 acres of land for the last 40 years and has made improvement in the lands and made it cultivable and even constructed his house, in which he has been living and giving rent to the State in all the years. It is alleged that the Forest Officer Burmu, on 5.6.1993, threatened the appellant to disposses him from the suit land and he also threatened him on various dates thereafter. The appellant gave notice on 19,6.1993 under Section 80, CPC to the Forest Officer and the Deputy Commissioner, Ranchi. Being afraid of the fact that he may be dispossessed from the land in question, he has instituted the suit for declaration of right, title and interest over the suit land.
3. The defendant No. 1 contested the suit and filed written statement taking a plea, inter alia, that the suit is not maintainable and barred by law of limitation. It is stated that the suit land was Gairmajarua and Jungle land and was recorded in R.S. and as such at the time of vesting to the State of Bihar, the suit land was free from all encumbrances and when notification under Sections 29, 30 and 31 of the Indian Forest Act were published, no objection was raised and the Forest Department remained in possession. It is further alleged that it is wrong to say that appellant acquired 6 acres of land from colonization Society of India as it had no power to make such transfers and the defendants-respondents produced the gazette notification to that effect showing the claim of the Forest Department over the suit land. It is also alleged in the written statement that BDO, Burmu had no power to settle the land with the appellant and no such settlement was made with the appellant. It was further alleged that Circle Officer had no power to mutate the land and whatever receipts had been granted, that are collusive and it is wrong to say that appellant has constructed a residential house and has improved the disputed land. It is further alleged that the appellant had made encroachment on some lands of the Forest Department, for which action under Indian Forest Act was taken and appellant has no right, title and interest over the disputed land.
4. Respondent No. 3 also appeared and filed written statement stating inter alia, therein that the disputed land is a protected forest of the Forest Department and this land cannot be settled and appellant has got no possession over the disputed land. It has further been alleged that the disputed land along with other lands measuring 103.03 acres have been transferred to the Forest Department vide 8-69/89F dated 10.2.1995 by the Ministry of Environment and Forest, Government of India through Secretary Forest, Government of Bihar and as per condition of transfer, CCI, has granted that much land for forestation for which a sum of Rs. 1, 93, 24, 944.72 paise has been paid and possession has been given to the defendant No. 3 and defendant No. 3 is in possession over the said land.
5. On the pleadings of the parties, the learned Court below framed five issues for determination in the suit.
(1) Is the suit as framed maintainable?
(2) Is the plaintiff entitled to file such a suit?
(3) Has the plaintiff title and possession over the suit land?
(4) Whether defendant Nos. .1 and 2 have got title and possession over the disputed land?
(5) Whether the plaintiff is entitled to the reliefs, as claimed in the plaint?
6. Issue Nos. 3, 4 and 5 were decided against the plaintiff and issue Nos. 1 and 2 were also decided against the plaintiff.
7. According to the case of the plaintiff, the disputed land was possessed by Colonization Society of India Ltd., Macluskiganj, PS Khelari, District Ranchi and that society is in liquidation. Further case of the plaintiff-appellant is that the appellant had acquired six acres of land through gift out. of plot No. 55 of khata No. 9 from the Colonization Society of India Ltd. in the year 1954-55 and came in actual possession and paid rent for the same from 1954-55. The appellant was further settled with three acres of land by BDO in 1962-63 out of plot No. 55 of khata No. 917 of village Mahulia by way of raiyati right by the BDO, Burmu on behalf of the State of Bihar and he came in possession over the same since 1962-63. The appellant has been coming in peaceful possession and has constructed a house and he has been living by paying rent to the State in all the years.
8. The contention of the learned counsel for the appellant is that PW 2, who is a Mitkhia of the village, has asserted in his evidence the possession of the appellant since 1954-55 but learned Court below drew adverse inference on the statement of PW 2 that Forest Department has instituted a case in 1989 against the plaintiff. The learned counsel further pointed out that PW 3 Mango Bhagat has also asserted possession of the appellant over the suit land since 1954-55 and he has at the same time also stated that Forest lands are a bit away from this land. PW 8 is the appellant himself and he has proved his title and possession over the suit land since 195455 and has asserted that the lands are not situated within the Government forest and the State Government has no right to settle the land in spite of the denial of the plaintiff that the suit land are about 100 meter away from the suit land. The learned Court below has wrongly construed his evidence to be an admission that he has admitted the possession of the Government over the land and further the Government has not been able to prove that pursuant to the notification under Section 29 of the Indian Forest Act, an enquiry was conducted by the Forest Department to take away the rights, which they have acquired in the land before notification, but no such enquiry has been made, although the same enquiry has to be made within six months from the publication of notice under Section 29 of the Indian Forest Act. It was further submitted that the concerned authority had not made any enquiry and enquired the claim of the appellant over the said land and no further notification has been proved what was invited on 1st July, 1955. The aforesaid notification dated 1st July, 1955 was conditional to an enquiry but no notification was published that such an enquiry has been made and as such, it is clear that no such enquiry has been made. It was further submitted that almost all the suit lands are situated 100 meter away from the forest land but there is no cogent and reliable evidence produced on behalf of the defendants that the suit land is in the forest land, whereas, on the other hand, witnesses of the appellant proved that the forest lands are 100 meter away from the suit land and trial Court on 31st January 2000, by his above findings, dismissed the suit of the plaintiff and hence this appeal.
9. Learned counsel while assailing the judgment, submitted that the evidence of the witnesses of the appellant-plaintiff have not been properly appreciated and the witnesses have deposed in favour of the appellant-plaintiff, but adverse inference without any mistake has been drawn by the learned Court below. In this connection, he referred to the evidence of witnesses examined on behalf of the plaintiff-appellant and submitted that except those who are formal witnesses, other witnesses including the plaintiff-appellant examined as PW 8 have fully established possession of the plaintiff-appellant over the suit land and also 100 meters away from the forest land. It is also submitted that pursuant to the notification dated 1.7.1958, no inquiry was conducted by the Forest Department to take away rights of any raiyat which they have acquired in their land before notification and no evidence was also led that above notification was brought to the knowledge of the general public by any process of law and as such, in view of facts that the Forest Department had not made any inquiry in respect of the forest that they wanted to construct as required in the notification and the finding of the learned Court below in absence of any evidence from defendants that claim of the plaintiff over the suit land was ever inquired into and that their lands were also included in the forest land, it was also pointed out that no further notification issued after 1st July, have been proved and the aforesaid notification dated 1st July was changed and thereafter it has not been stated that any inquiry was held. According to the notification under Section 29 of the Forest Act, it simply speaks that in village Mahulia where plaintiff-appellant had any land in plot No. 55, has been acquired in toto. Learned Court below has failed to take due consideration of law and held that plaintiff-appellant is in the possession since 1954-55.
10. Further assailing judgment of the learned Court below, learned counsel pointed out that from Ex.-6, Khatiyan prepared and published under the provisions of law proved title or possession of the State over the said land. But contrary to that, Ext.-5 in clear terms states about possession of the plaintiff over the above lands and in absence of any evidence that those land of the plaintiff which are admittedly in his possession, are included in the forest land as per notification under Section 29 of the Act. But the notification does not give boundary of the land which the State has notified for the Forest Department under Section 29 of the Indian Forest Act. It was also pointed out that the defendants have not proved that suit lands are within the forest land and no evidence to that effect has been led on behalf of the defendants and, therefore, the judgment of the learned Court below is fit to be set aside.
11. On the other hand, learned State Counsel appearing for the defendants have submitted that the land in question bearing plot No. 55 under khata No. 9 of Mouza/village-Mohulia District, Ranchi is the property of the State of Bihar (Now the State of Jharkhand) and the same has been notified as protected forest vide notification No. CF/17033/55-2180-R dated, 5th of July 1955 under Section 29(5) of the Forest Act, 1927 and, therefore, the appellant has no claim over the land and the above notification have been issued by the State Government after setting all kinds of right and further no objection was ever raised by the appellant or his ancestors with respect to the suit land in question and the land has been coming in possession of the Forest Department since 1955. It has been further submitted that suit land has further been notified under Sections 30 and 31 of the Indian Forest Act, 1927 to which no objection was ever raised by the plaintiff. It was also pointed out that an area of 11.10 acres in two blocks, one 9.06 acres and another 1.50 acres out of plot No. 55 of village Mahulia along with other lands of four other villagers and total area of 103.03 acres have been approved for diversion vide 8-69/89F dated 10.2.1995 by the Ministry of Environment and Forest, Government of India through Secretary Forest, Government of India through Secretary of Forest, Government of Bihar in favour of Piparwar Coal Project of CCL for construction of railway siding with collaboration of Australian Government under Section 2 of the Forest Conservation Act, 1980 and the plaintiffappellant encroached illegally a portion of suit land in question and under the provision of Indian Forest Act, a criminal proceeding was initiated against the plaintiff-appellant vide Forest Case No. IP of 1990-91 at Ranchi and claim of the appellant-plaintiff is baseless that he has constructed his residential house and the land has been improved and the plaintiffappellant has grown crops on the said land and the plaintiff-appellant has got right, title and interest in the land in question and the same has been recorded as gairmajarua land in revisional survey of rights and the land being gairmajarua vested in the State of Bihar by virtue of Sections 3 and 4 of Bihar Land Reforms Act and Government is in possession of the same free from all encumbrances. It is submitted that DFO made an inquiry in July 1955 and thereafter a notification under Section 29 of the Indian Forest Act was issued and forest land was demarcated and notification under Sections 30 and 31 of the Indian Forest Act have also been issued but no objection was ever raised. It was also pointed out that vide notification made in the year 1954-55, settlement of the land by the BDO, in 1962-63 becomes without jurisdiction and the settlement of the aforesaid land of three acres by BDO without obtaining permission of the Government is honest for which State Government is not bound by the same and even in banda parcha i.e. draft publication, name of the forest department after the State of Bihar has been recorded. Learned counsel for the respondents No. 2-CCL also appeared and submitted that the land is in possession of the CCL and compensation for the land in question has been paid by the CCL to the State Government and construction of railway siding is in progress and if any adverse order is passed, it will cause damage to the project.
12. Plaintiff-appellant has been claiming the right, title and interest over the land in question and has made out a case that he acquired the land from Colonization Society of India through gift made by Colonization Society of India, but no such averment has been made by the appellant-plainttiff that the land was acquired by gift; it has simply been averred that six acres of land has been acquired from Colonization Society of India, but at the evidence stage this plaintiff examined as PW 8 has stated that he acquired the land through gift made by Colonization Society of India. It has nowhere been averted that the land which fell in the Jamindari of Arun Kumar Nath Sahdeo was settled with Colonization Society of India in 1937 and further that if the land was actually settled with Colonization Society of India, still it has not been averred or no case has been made out that Colonization Society of India was authorized to make gift of the property in question because the land recorded as Gairmajarua vested in the State of Bihar in 1951-52 under Sections 3 and 4 of the Bihar Land Reforms Act and consequently the suit land also vested and the case even if believed to be true for the sake of argument made in 1954-55 is to be seen from the point of view, whether Colonization Society of India was in possession to make gift of the land. It is true that notification dated 1st July 1955 issued under Section 29 of the Indian Forest Act was provisional and thereafter no inquiry which was required to be made as per Section 29 of the aforesaid Act for ascertaining the right of the residents of the area, was not made and, therefore, the persons possessing the land owning the same, was not to be affected by the notification made under Section 29 of the Indian Forest Act because no such inquiry was made and there is no evidence to that effect that persons residing in the area were notified or not. In this connection, the effect of not holding inquiry has been dealt with the case law i.e. (1990) 4 Supreme Court Cases 320 relied upon by the learned counsel for the appellant wherein it has been held that Section 29(3) of the Indian Forest Act provides for inquiry. Para 20 of the aforesaid judgment may be quoted herein-below.
“20. We may now consider the effect of the notification issued under Section 29 of the Indian Forest Act, 1927. Sub-Section (1) of Section 29 permits the State Government to issue a notification declaring the application of the provisions of Chapter IV to any forest land which is not included in a reserved forest but which is the property of Government, or over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government is ‘entitled’. The forest land comprised in any such notification is called a ‘protect forest’. Sub-Section (3) of Section 29 reads as under :
“29(3) No such notification shall be made unless the nature and extent of the rights of Government and of private persons in or over the forest land or waste land comprised therein have been inquired into and recorded at a survey or settlement, or in such manner as the State Government thinks sufficient. Every such record shall be presumed to be correct until the contrary is proved.”
13. The witnesses examined on behalf of the appellant-plaintiff such as, PW 2 who is mukhia, has stated that he has been finding possession of the appellant-plaintiff on the suit land for the last 35-36 years and the land in question over which he had found possession of the appellant-plaintiff for the last 35-36 years is not within the Forest Area. Similar is the evidence of PW 3. He says that the land has been coming in possession of the appellant for last 35-36 years and both of them have stated that appellant has constructed his house and improved the land and grown crops, etc. PW 5 has also found possession of the appellant-plaintiff over the land from 1954. PW 7 is the plaintiff-appellant. He himself had also claimed possession over the suit land since 1954-55, but has given evidence that he acquired the land through gift, but such a case has not been made out in the plaint. He admits that some portion of plot No. 55 is jungle but there is no such forest on his land. He has denied that he has got no knowledge that there is forest from 1955 over the suit land. He also does not know whether the land in question gifted by Colonization Society of India, was mutated in the name of Colonization Society of India. Receipts which have been marked as exhibits on behalf of the plaintiff, Ext. 1 to Ext. 1/E are from the year 1984 and Ext.-2 is a letter to Lok Adalat, Khelari from Ranger Office dated 20.2.1990 which discloses that Colonization Society of India who gifted the land to the appellant-plaintiff must have disclosed as to which side of plot No. 55, land has been given to the appellant, but no such description Is there. Ext.-3 is notice under Section 80, CPC dated 19.6.1993. Ext-6 is Survey of Khatiyan, from perusal of which it appears that entry is in the name of Bihar Government but there is no evidence that any objection to the aforesaid was made on behalf of the appellant- plaintiff. Learned Court below has also found that Ext. 1 series do not tally with the area claimed in the plaint.
14. On the other hand, evidence led on behalf of defendants proved that the land has been recorded in the name of Government of Bihar and notification has been issued as required under Forest Act. Although, Exts. 10 and 10/Aare two letters from official liquidator disclosing fact that rent for the six acres of land from the appellant has been received in 1972 and in August-December 1972 respectively.
15. On behalf of the respondents, DWs 1, 2, 3, 4, 5 and 6 have all stated about the entry of plot No. 55 in the name of forest, Government of Bihar as well as they have sought notification issued under Sections 29, 30 and 31 of the Indian Forest Act and, therefore, claim of the appellant-plaintiff that he has been coining in possession from 1954-55 is baseless.
16. In course of submissions, learned counsel for the appellant pointed out that plaintiff-appellant has also made out a case on the basis of adverse possession and there is no denial on behalf of the defendants on the point of adverse possession and also there is no finding of the learned Court below on the point of adverse possession. From perusal of the counter-affidavit filed on behalf of the State. I find that claim of plaintiff-appellant on the ground of adverse possession has been denied, but at the evidence stage suggestion has been made to the witnesses that plaintiff has illegally occupied the land for the last five to six years and further that, the case has been filed in the year 1989-90 by the plaintiff-appellant. Further, witnesses examined on behalf of the plaintiff do not belong to the village Mahulia, but they are all outsider, therefore, on the point of possession witnesses produced on behalf of the appellant-plaintiff cannot be relied upon because not a single witness has come to depose from the village Mahulia. Further, PW 2 who claims to be mukhia of village, has stated that he is not mukhia of the village Mahulia and, therefore, he is outsider.
17. Learned counsel for the appellant tried to show that the plaintiff-appellant acquired land from the Colonization Society of India and the Colonization Society of India was settled with the land by the Chainpur Estate. The plaintiff-appellant made out a case that he acquired six acres of land from the Colonization Society of India, but there is no averment in the plaint as to how he acquired that piece of land from Colonization Society of India. But at the trial stage, this appellant appearing as PW 8 tried to make out a case that Colonization Society of India made a gift of that six acres of land to him but there is no such averment in the plaint and, therefore, subsequent development of case is beyond pleadings and cannot be accepted and how he acquired the land, remains in dark and there is no evidence to that effect. Further, the plaintiff-appellant has failed to show whether Colonization Society of India has authority to make gift of the land and the plaintiff-appellant has failed to prove whether name of the Colonization Society of India was mutated in respect of the land which Colonization Society of India gifted to the plaintiff-appellant. Further, no paper of settlement of land with Colonization Society of India by the Chainpur Estate has been brought on record to show that in fact Chainpur Estate made settlement of the land with the Colonization Society of India. Although, two rent receipts granted by the Colonization Society of India in 1972 have been brought on record showing that rent for the month of December 1972 and August 1972 were received by the official liquidator and on merely bringing on record the rent receipts, there cannot be a ground for settlement of the land in question. Further, Gairmajarua land vested in the State of Bihar under Sections 3 and 4 of the Bihar Land Reforms Act in 1951-52 and as such, the land in question also vested in the State of Bihar. On 1st of July 1955 as per notification under Section 29 of the Indian Forest Act, 1927, although this notification was provisional, as final notification was to be issued after inquiry relating to the rights and privilege of the persons residing in nearby area and within six months from the date of notification under Section 29 of the Indian Forest Act, notification was to be issued, but no such notification has been brought on record. But when notification under Section 29 of the Indian Forest Act was issued, no representation came or produced of any kind by this appellant, although learned counsel for the appellant cited ruling as noted above (supra), from perusal of which it appears that notification was of no help to the State of Bihar. But the fact about very basis of the mode of settlement of the land with the appellant by the Colonization Society of India, has not been brought on record and further that BDO had no right to settle 3 acres of land with the plaintiff-appellant in 1962-63 because after vesting of jamindari, no land could have been settled without the sanction of the State Government and BDO is not all competent to make settlement of the land and all these settlements have been managed by the plaintiff-appellant and rent receipts which have been on record are without prejudice and of no help to the plaintiff-appellant. Further the claim of the plaintiff-appellant that he has been enjoying the possession over the suit land for the last 40 years and to that effect, witnesses have been produced on behalf of the plaintiff-appellant to show that he has been exercising possession for the last 40 years, cannot be accepted in view of the fact that all the witnesses other than this plaintiff-appellant are outsider and not a single witness is of village Mahulia. Even PW 2 who is mukhia admits that he is not mukhia of the village Mahulia. He is an outsider. On the other hand, land has already been settled with the respondent No. 3 and railway tracks are being laid for a particular purpose and respondent No. 3 has already paid huge sum to the State for the settlement of the aforesaid land and other land.
18. On consideration of materials brought on record and after going through the submissions of the parties as well as after perusal of documentary evidence, etc., I am of the view that the judgment does not require any interference. In the result, this appeal is dismissed, but in the circumstances, without any order as to costs.