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Nageshwar Singh And Jeetan Singh vs The State Of Bihar (Now Jharkhand) … on 8 August, 2006

Jharkhand High Court
Nageshwar Singh And Jeetan Singh vs The State Of Bihar (Now Jharkhand) … on 8 August, 2006
Equivalent citations: 2007 (1) JCR 149 Jhr
Author: R Merathia
Bench: R Merathia


JUDGMENT

R.K. Merathia, J.

1. Petitioner has challenged the order dated 14.11.1986 (Annexure 5) passed by respondent No. 3 in S.A.R. Appeal No. 122 R-15 of 1977-78 directing for restoration of the lands bearing R.S. Plot Nos. 960, 461, 994, 995, 996, 997 and 999 measuring an area of 135 acres under Khata No. 56 of Village Ugra, P.S. Senha, District Lohardaga and the order dated 9.3.1997 (Annexure 6) passed by respondent No. 2 in S.A.R. Revision No. 570 of 1986 dismissing the said revision preferred by the petitioner.

2. The father of respondents No. 5 to 7, namely, Late Chandra Oraon filed an application under Section 71A of the Chotanagpur Tenancy Act, 1908 (for short “the Act”) being S.A.R. Case No. 77/111 of 1977-78 for restoration of land against the petitioner No. 1 and one Ram Lagan Singh Son of Late Indra Nath Singh. (In paragraph 6 of the writ petition, it is stated on behalf of the petitioner that Ram Lagan Singh had no Interest or possession over the land covered by the proceeding as the same had been allotted to the share of the petitioners). The case of Chandra Oraon inter alias was as follows: That the lands were originally recorded as raiyat Kaimi of Choga Oraon, his father and after the death of Choga Oraon, Ghandra Oraon succeeded the properties and came in possession thereof on payment of rent to the superior landlords and obtained rent receipts thereof as exclusive owner of the lands in question and remained in exclusive possession of the properties much after the vesting. About ten years ago, the petitioner No. 1 took the lands in question from Chandra Oraon as adhbataidar and since then held the land illegally in contravention of the provision of the Act and got their name mutated without knowledge and consent of the applicant Chandra Oraon. Since vesting, the rent was paid and rent receipts were obtained as an occupancy raiyat by Chandra Oraon. In 1956 in a case filed under Section 144 of the Code of Criminal Procedure against the petitioner No. 1 (M. No. 1053 of 1965), possession of Chandra Oraon was declared in respect of the lands in question. Inspite of the said order, petitioner No. l did not give up his claim and entered the lands and continued in possession merely on the plea that there had been a compromise between the parties.

The case of petitioner No. l was as follows: Chandra Oraon was not a raiyat rather he was merely adhbataidar with respect to Khata No. 56 who voluntarily abandoned the lands immediately after the revisional survey some times in the year 1936 and the landlord entered into the abandoned holding and came into cultivating possession of the same and after his death, the petitioner No. l is coming in peaceful possession of the same. Regulation of 1969 was not applicable to adhbataidars. After vesting of the Zamindari, rent for the entire Khata was fixed in his name under Sections 5, 6 and 7 of the Bihar Land Reforms Act without any objection from any corner including Chandra Oraon, Petitioner No. 1 has regularly paid rent to the State and his name stood in Register II and he was recognised as raiyat by the State. In any event, he had perfected his title by adverse possession and no order of restoration could be passed after 40 years.

3. By order dated 3.2.1978 (Annexure 4), respondent No. 4 dismissed the petition of respondents No. 5 to 7, inter alia, on the ground that as per Khatian they were recorded as adhbataidars and that rent was paid pursuant to the Rent Fixation Case No. 209 of 1963-64 after petitioner No. 1 was found to be in possession of the lands in question.

Chandra Oraon filed an appeal against the said order which was registered as S.A.R. Appeal Case No. 122 R 15 of 1977-78 before the respondent No. 3. By order dated 14.11.1986 (Annexure 5), the said appeal was allowed mainly on the ground that there is no evidence to show that the father of Chandra Oraon had voluntarily abandoned the land in the year 1936 and this is a mere story concocted to circumvent the provisions of the Act and that the adhbataidar became a recorded raiyat for all purposes under the provisions of the Act after vesting of the lands in the State. Accordingly, he ordered for restoration of land in question. Against this order, the petitioner No. 1 filed revision being S.A.R. Revision No, 570 of 1986 before respondent No. 2, Commissioner, South Chotanagpur Division, Ranchi, who by order dated 19.3.1997 (Annexure 6) dismissed the same, inter alia on the ground that Chandra Oraon was son of the recorded tenant and it was a clear and simple case of dispossession which probably was effected in the year 1963 when the mutation was illegally done in the name of petitioner No. 1.

4. Mr. P.K. Prasad, appearing for the petitioners submitted that Section 71A of the Act is not applicable in this case. He further submitted that rent was fixed under Sections 5, 6 and 7 of the Bihar Land Reforms Act in favour of the petitioner No. 1. He relied on the judgments of Sudarshan Ram v. Rawal Karketta and Ors. 9981 BLT (Rep.) 2511, Shaukat Ali v. Commissioner of South Chotanagpur Division, Ranchi and Ors. 1993 (1) PLJR 548 and Radhashyam Naik and Ors. v. Sripati Naik and Ors. 1988 PLJR 75.

5. Inspite of notice, no body appeared on behalf of respondents No. 5, 6 and 7. By order dated 19.8.1999, State counsel was directed to file an affidavit stating specifically whether the order in the rent assessment proceeding was passed after giving notice to the recorded tenant, the father of respondents No. 5 to 7 but no such affidavit has been filed as yet. In view of the order which I propose to pass, it is not necessary to wait for such affidavit.

6. In my opinion, the case has to be remanded back to the Commissioner, South Chotanagpur Division, Ranchi (respondent No. 2). The rival claims of the parties have not been considered in the order (Annexure 6). The same is cryptic and cannot be said to be a well reasoned order.

7. In the circumstances, the order dated 19.3.1997 (Annexure 6) is set aside and the matter is remitted to respondent No. 2 for passing a fresh order in accordance with law, after holding a proper enquiry, if necessary, and after hearing the parties, preferably within a period of six months from the date of receipt of a copy of this order which will be produced by petitioner No. 1 within two weeks from today.

6. With these observations and directions, this writ petition is disposed of. No costs.

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