{"id":259034,"date":"1997-04-22T00:00:00","date_gmt":"1997-04-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/deonarayan-singh-ors-vs-the-commissioner-of-bhagalpur-on-22-april-1997"},"modified":"2015-02-12T10:23:03","modified_gmt":"2015-02-12T04:53:03","slug":"deonarayan-singh-ors-vs-the-commissioner-of-bhagalpur-on-22-april-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/deonarayan-singh-ors-vs-the-commissioner-of-bhagalpur-on-22-april-1997","title":{"rendered":"Deonarayan Singh & Ors vs The Commissioner Of Bhagalpur & … on 22 April, 1997"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Deonarayan Singh & Ors vs The Commissioner Of Bhagalpur & … on 22 April, 1997<\/div>\n
Author: S Majmudar<\/div>\n
Bench: S.B. Majmudar, M. Jagannadha Rao<\/div>\n
           PETITIONER:\nDEONARAYAN SINGH & ORS.\n\n\tVs.\n\nRESPONDENT:\nTHE COMMISSIONER OF BHAGALPUR & ORS.\n\nDATE OF JUDGMENT:\t23\/04\/1997\n\nBENCH:\nS.B. MAJMUDAR, M. JAGANNADHA RAO\n\n\n\n\nACT:\n\n\n\nHEADNOTE:\n\n\n\nJUDGMENT:\n<\/pre>\n
\t\t      J U D G M E N T
\nS.B. Majmudar, J.\n<\/p>\n
     This appeal  on special  leave is\tdirected against the
\ndecision rendered  by a\t Full Bench  of the Patna High Court
\ndismissing the Writ Petition filed by the appellants.\n<\/p>\n
     In order  to appreciate the grievance of the appellants
\nit will be necessary to note a few relevant facts leading to
\nthese proceedings.  A Jamabandi No. 65 of mauza Billi within
\npolice Station Madhupur, in the district of Santhal Parganas
\nin the\tState of  Bihar was recorded in the names of Sitaram
\nSingh, Jaleshwar  Singh, Yudhisthir Singh and Kastura Kumari
\nDevi as\t Mool Raiyat  Ka Jote. They amongst themselves had 8
\nannas interest in the said jote. As occupants of lands, they
\nwere called  Raiyats with their headman as Mool Raiyat. Mool
\nRaiyat Ka Jote was a land tenure in Santhal parganas. It was
\nattached to  a Mool  Raiyat who\t as a  village\theadman\t was
\nresponsible for\t the collection\t of land revenue in times of
\nBritish rule.  The proprietor landlord was called ‘Ghatwal’.
\nRequisite rent of the land was to be banded over by the Moll
\nRaiyat to  the Ghatwal.\t Mool Raiyat  had  two types of land
\ntenures. Mool  Raiyat ka  Jote was  alianable and  personal.
\nMool Raiyat  Jote was  inalienable and\twas attached  to his
\noffice. It  was called\tofficial jote.\tit is not in dispute
\nbetween the  parties that official jote admeasured 1 acre 81
\ndecimals while\tMool Raiyat  of the  village in place of his
\nfarther in  Revenue Miscellaneous  Case No.99  of 1938-39 of
\nthe Court  of  sub-Divisional  officer,\t Deoghar.  the\tsaid
\nappointment was\t duly approved by the Deputy commissioner of
\nSanthal parganas.  It is  the case of the appellants that as
\nthe entire  family of  Sarju Singh @ Bhatu Singh was heavily
\nindebted and was in need of money, the said 8 annas interest
\nin Mool\t Raiyat comprising  38 acres 9 decimals representing
\nhis share  in Nij  Jote came  to be sold by said Bhatu Singh
\nand his\t brothers to  one Bimal\t Kanti Roy Choudhury on 22nd
\nMarch 1939.  The further  case of the appellants is that the
\nsaid vendors  had been\tin possession of 38.09 acres of land
\nin lieu\t of their  8 annas interest in Mool Raiyat by family
\narrangement  with   their  co-sharers.\tThe  said  sale\t was
\neffected for a consideration of Rs. 10,000\/-. That after the
\nsaid purchase  Shri Bimal  Kanti Roy  Choudhury got his name
\nmutated in  respect of\t8 annas\t interest in  Mool Raiyat Ka
\nJote of\t the said  mauza Billi in Revenue Miscellaneous Case
\nNo.21 of  193-40 by  an order of the sub-Divisional Officer,
\nDeoghar dated  27th November 1939 which was duly approved by
\nDeputy Commissioner, Dumka on 28th November 1939. Shri Bimal
\nKanti Roy  Choudhury was  subsequently appointed as 16 annas
\nsarbarakar of  the said\t mauza. The  said order\t was  passed
\nafter service  of notice  on all  the co-owners of Jamabandi
\nNo.65.\n<\/p>\n
     That by  Sale Deed\t dated 26th  June 1950\t said  Bimal
\nKanti  Roy  Choudhury  sold  his  entire  right,  title\t and
\ninterest in  the Mool  Raiyat Ka  Jote to  Shri Radha Prasad
\nSingh, Father  or the  appellants  for\ta  consideration  of
\nRs.17,000\/-. The  vendee Radha\tprasad Singh  got  hes\tname
\nmutated in  the Revenue Miscellaneous Case No. 40 of 1950-51
\nof the\tCourt of  Sub-Divisional Officer,  Deoghar. The said
\norder of  mutation was passed after service of notice on all
\nthe opposite  parties, respondent  nos.4 to  15. The  vendee
\nRadha  Prasad\tSingh  during\this  lifetime\tremained  in
\npossession of the aforesaid 38.09 acres of land of Jamabandi
\nNo.65 and  was also  acting as sharer of a annas Mool raiyat
\nKa jote\t and 16\t annas sarbarakar  or the said mauza. As the
\ncontesting respondents\tsought to  disturb the possession of
\nRadha Prasad  Singh proceedings\t under Section\t145<\/a> Code  of
\nCriminal Procedure  were initiated.  They were registered as
\nCriminal  Case\tNo.  567  of  1950.  But  the  learned\tSub-
\nDivisional Officer.  Deoghar by\t his order dated 31st August
\n1951 declared  the possession  of  the\tappellants’  father.
\nRevision against  the said  order was  rejected by  Sessions
\nJudge,\tDumka.\tAfter  the  death  of  Radha  Prasad  Singh,
\nappellant no.4\tMathura Prasad\tSingh, was appointed as Mool
\nRaiyat to  the extent  of his  interest\t in  the  said\tJote
\namounting to  8 annas and as 16 annas sarbarakar of the said
\nmauza. It  was only  thereafter that  in  the  year  1970-71
\nrespondent nos.4  to 15\t claiming to  be  the  original\t co-
\nsharers of  the\t mauza\tfiled  an  application\tbefore\tSub-
\nDivisional Officer, Deoghar against the appellants for their
\neviction from  38.09 acres  of\tland  of  Jamabandi  No.  65
\nalleging that  the same had been illegally alienated. It was
\nregistered as  Revenue Eviction\t Case No.67 of 1970-71. They
\nsought the  aforesaid relief under the provisions of Section
\n20<\/a> sub-Section\t(5) read  with Section\t42  of\tthe  Santhal
\nParganas  Tenancy   (Supplementary  Provisions)\t  Act,\t1949
\n[hereinafter referred in as ‘the Act’].\n<\/p>\n
     In the  first instance  learned Sub-Divisional Officer,
\nDeoghar, rejected  the said application. Respondent Nos.4 to
\n15 carried  the matter\tin appeal before Deputy Commissioner
\n‘Santhal Parganas’.  It\t was  transferred  to  the  file  of
\nAdditional Deputy  Commissioner, Dumka,\t who  by  his  order
\ndated 30th  September 1972  allowed the\t appeal and  ordered
\neviction of  the appellants.  It was  held by the Additional
\nDeputy Commissioner  that the  original sale  transaction by
\nBhatu Singh  in favour\tof Bimal  Kanti Roy  Choudhury dated
\n22nd March 1939 was violative of provisions of Section 27(1)
\nof  the\t  Santhal  Parganas   Settlement  Regulation,\t1872
\n(hereinafter referred  to as ‘the Regulation’) which applied
\nat the relevant time and consequently the subsequent sale by
\nShri Bimal  Kanti Roy  Choudhury in  favour  of\t appellants’
\nfather was  equally violative  of the  provisions of Section
\n20(1) of  the Act.  Hence the  appellants were\tliable to be
\nevicted\t from  the  land.  The\taforesaid  decision  of\t the
\nappellate   authority\t resulted   in\t  further    Revenue
\nMiscellaneous\tAppeal\t  before   Commissioner,   Bhagalpur
\nDivision, who  by order\t dated 2nd  June 1976  dismissed the
\nsame and  confirmed the\t eviction order passed by Additional
\nDeputy\tCommissioner,\tDumka.\tThe   appellants  thereafter
\ncarried the  matter to the High Court under Articles 226 and
\n227 of\tthe Constitution  of  India.  The  appellants’\tWrit
\nPetition was  heard by\ta Full\tBench consisting of the then
\nChief Justice  S.S. Sandhawalia,  Justice S.  Ali Ahmad\t and
\nJustice B.S.  Sinha. The  Full\tBench  considered  the\tmain
\nquestion which\twas posed  for its decision, namely, whether
\nthe prescriptive period of 12 years for perfecting the title
\nby adverse  possession when  the original  transfer  was  in
\ncontravention of  Section 27<\/a>  of the  Regulation would\tstop
\nrunning from 1st November 1949 being the date of enforcement
\nof  the\t Act.  The  Full  Bench\t noted\tthat  this  was\t the
\nsignificant solitary  question arising\tfrom  a\t deep-seated
\nconflict  of   precedent  within   that\t Court\t which\t had
\nnecessitated that  reference to\t the Full  Bench.  The\tFull
\nBench speaking\tthrough S.S.  Sandhawalia, CJ., On this moot
\nquestion referred  to an  earlier decision of the Full Bench
\nof that\t Court in the case of Bhauri Lal Jain and another v.
\nSub-Divisional Officer\tof Jamtara and others<\/a> AIR 1973 Patna
\n1 and  posed the  question whether  the earlier\t Full  Bench
\ndecision covered the controversy posed for their decision in
\nthe present  case and  if so what was the precise mandate of
\nthe earlier  Full Bench\t decision. In  the impugned judgment
\nthe Full Bench took the view that the earlier transaction of
\n22nd  March   1939  was\t violative  of\tSection\t 27<\/a>  of\t the
\nRegulation and\tthat the  possession of\t the vendee  through
\nBimal Kanti  Roy Choudhury from that date was adverse to the
\nvendors but  by the time the Act applied to Santhal Parganas
\nwith effect  from 1st  November 1949  the said\tvendee Bimal
\nKanti Roy  Choudhury had  not completed\t 12 years of adverse
\npossession and\tconsequently the  transaction in  his favour
\nand  the   subsequent  transaction   by\t him  in  favour  of
\nappellants’ father  on 26th  June 1950\twere  liable  to  be
\nvoided both under Section 27(1)<\/a> of the Regulation as well as
\nSection 20(1)<\/a>  of the  Act read\t with  Section\t42<\/a>  thereof.
\nResultantly the\t Full Bench  did not  find  fault  with\t the
\ndecision rendered  by  the  lower  authorities\tagainst\t the
\nappellants. Sandhawalia,  CJ., also  noted in  his  judgment
\nthat in view of his decision he was disinclined to permit or
\nadvert to  the ancillary  contentions sought  to be urged in
\nthe alternative\t for the first time in the writ jurisdiction
\nby the\tappellants. Thus  there was  a unanimous decision of
\nthe Full  Bench that  prescriptive period  of 12  years\t fro
\nperfecting the\ttitle by  adverse possession  in  connection
\nwith the  transactions\tentered\t into  in  contravention  of
\nSection 27<\/a>  of the  Regulation would  stop running  from 1st
\nNovember 1949  being the  date of  enforcement of  the\tAct.
\nHowever on  the question  of relief  to be granted under the
\ncircumstances the  majority of\tthe learned  Judges took the
\nview that  the orders  of the  learned Commissioner  and the
\nAdditional Deputy  Commissioner directing settlement of land
\nwith respondent\t no.10 must  be set  aside  meaning  thereby
\naccording to  the majority  the land  should be place at the
\ndisposal of  the State\tGovernment for\tbeing dealt  with in
\naccordance with\t law. We  may note  at this  stage that\t the
\ncontesting respondents\twho had\t moved\ta  separate  Special
\nLeave Petition\tto the\textent they  were aggrieved  by\t the
\ndecision of the majority of the High Court setting aside the
\ndirection fro  restoration of  the land\t in their possession
\ncould not  persuade this  Court to admit their Special Leave
\nPetition which\thad stood dismissed. Hence strictly speaking
\nthey are  out of  the arena  of contest\t and now the contest
\nremains between\t the officers of the State of Bihar, namely,
\nrespondent nos.1  to 3\tand State of Bihar, respondent no.16
\non the one hand and the appellants on the other.\n<\/p>\n
     Dr. Dhavan\t learned senior\t counsel for  the appellants
\nraised various\tcontentions  before  us\t for  assailing\t the
\ndecision of  the Full  Bench under  appeal. He\talso  had  a
\nserious grievance  against the\tearlier decision of the Full
\nBench of the Patna High Court in the case of Bhauri Lal Jain
\n(supra). However  as will be indicated hereinafter it is not
\nnecessary for  us to  pronounce upon  the correctness of the
\ndecision of  the Full  Bench in\t the case of Bhauri Lal Jain
\n(supra) which  in its  turn was\t heavily relied\t upon by the
\nlatter Full  Bench of  the Patna  High Court in the impugned
\njudgment.  The\tappellants  are,  as  will  be\tdemonstrated
\nhereinafter, entitled  to succeed  on an  entirely different
\nground which  also was\tplaced for  our consideration by Dr.
\nDhavan, learned\t senior counsel for the appellants and which
\nwas  justifiably   contested  by  learned  counsel  for\t the
\nrespondent-authorities. We  will, therefore,  deal with this
\nsolitary ground.\n<\/p>\n
     The aforesaid  narration  of  facts  leading  to  these
\nproceedings shows that on 22nd March 1939 when 8 annas share
\nin Mool\t Raiyat was conveyed by one of the co-sharers of the
\nsaid Jote, namely, Bhatu Singh in favour of Shri Bimal Kanti
\nRoy Choudhury,\tSection 27(1)<\/a>  of the Regulation was holding
\nthe field. The said Section 27(1)<\/a> read with Section 27(3)<\/a> of
\nthe Regulation provided as under:\n<\/p>\n
     “27.(1) No\t transfer by a Raiyat of
\n     his right\tin his\tholding\t or  any
\n     portion  thereof,\t by  sale,  gift
\n     mortgage,\tlease\tor   any   other
\n     contract  or  agreement,  shall  be
\n     valid unless  the right to transfer
\n     has been  recorded in the record of
\n     rights, and then only to the extent
\n     to which such right is so recorded.
\n     (2) … … … …\n<\/p><\/blockquote>\n
     (3) If  at any time it comes to the
\n     notice of\tthe Deputy  Commissioner
\n     that a  transfer  contravention  of
\n     sub-Section (1) has taken place, he
\n     may, in  his discretion,  evict the
\n     transferee and  either restore  the
\n     transferred land  to the  Raiyat or
\n     any heirs\tof the\tRaiyat\twho  has
\n     transferred  it,  or  resettle  the
\n     land with\tanother Raiyat according
\n     to\t the   village\tcustom\tfor  the
\n     disposal of an abandoned holding:
\n     Provided-\n<\/p><\/blockquote>\n
     (a) that  the transferee whom it is
\n     proposed to  evict has  not been in
\n     continuous\t cultivating  possession
\n     for twelve years;\n<\/p><\/blockquote>\n
     (b) that he is given an opportunity
\n     of showing\t cause against the order
\n     of eviction; and\n<\/p><\/blockquote>\n
     (c) that  all  proceedings\t of  the
\n     Deputy  Commissioner   under   this
\n     section shall be subject to control
\n     and revision by the Commissioner.”<\/p><\/blockquote>\n
     It is  not in  dispute and\t was not rightly disputed by
\nlearned senior\tcounsel for  the appellants  that  the\tsaid
\ntransaction prima  facie appeared to be violative of Section
\n27(1)<\/a> of  the Regulation  as Bhatu  Singh who  was a  Raiyat
\nsought to transfer his 8 annas share in the Mool Raiyat when
\nthe right  to transfer\twhich was  recorded in the Record of
\nRights enabled\tthe Mool  Raiyat to transfer, if at all, his
\nentire rights  in the mauza consisting of his alienable Mool
\nRaiyat ka Jote as he was the Mool Raiyat. But learned senior
\ncounsel for  the  appellants  submitted\t that  by  a  family
\npartition prior\t to the transaction of sale 8 annas share in
\nthe Mool  Raiyat comprising  of 38 acres and 9 decimals feel
\nto the\tshare of Bhatu Singh and it  was his entire share in
\nthe Mool  Raiyat that  was transferred\tby the\ttransaction.
\nHence Section 27(1)<\/a> was fully complied with. This contention
\nis not open to the learned senior counsel for the appellants
\nfor the\t simple reason that the Full Bench of the High Court
\nof Patna in the impugned judgment has noted  in paragraph 22
\nthat there  was a  concurrent finding  of the sub-Divisional
\nofficer, the  Deputy Commissioner  and then the Commissioner
\nthat the  said transfer\t was in\t violation of  the record of
\nrights of  the estate  and  consequently  Section  27(1)  of
\nRegulation III\tof 1872\t and that concurrent finding was not
\nchallenged before  the High  Court indeed being based on the
\nrelevant record\t was  thus  wholly  unassailable.  We  must,
\ntherefore, proceed on the basis that the transaction of sale
\ndated 22nd  March 1939\tby Vendor  Bhatu Singh\tin favour of
\nvendee Bimal Kanti Roy Choudhury was violative of Section 27<\/a>
\n(1) of the Regulation.\n<\/p>\n
     But now  arises the further question as to how the said
\ntransaction was\t treated by the authorities charged with the
\nadministration of the Regulation in the area. so far as this
\naspect is  concerned unfortunately the attention of the High
\ncourt does  not seem  to have  been drawn  to it.  After the
\naforesaid purchase  the vendee\tBimal  Kanti  Roy  Choudhury
\nmoved an  application before sub-Divisional Officer, Deoghar
\ndistrict, Santhal  Parganas, for  getting clearance  of\t the
\ntransaction and\t for getting his name mutated in the records
\nas a   Vendee  of  the\ttransferred  lands.  That  case\t was
\nregistered as  Revenue Miscellaneous  Case No.21 of 1939-40.
\nThus he\t drew the  attention of\t the competent\tauthority in
\nconnection with this transaction. The Sub-Divisional officer
\nby his\torder dated  31st May  1939 issued  notices  to\t the
\nparties concerned  for objection,  if any. Notices were duly
\nserved. The  landlord Ghatwal  did not\tfile  any  objection
\nthrough his  agent as  noted in\t the proceedings of 1st July
\n1939. The  Vendee remained present thereafter and the matter
\ngot adjourned  from time  to time.  On 19th  August 1939 the
\nlandlord’s  agent   objected  to   the\tclearance   of\t the
\ntransaction by saying that the security offered by other co-
\nsharers was  insufficient and  that the\t purchaser had taken
\nonly Mool  Raiyat’s interest.  Hence notices  were issued to
\nthe co-sharers of the late Mool Raiyat why their share would
\nnot remain  in security.  Thereafter on\t 09th  October\t1939
\nVendee’s agent\tand landlord’s agent were present and no one
\nappeared for  the co-sharers of the late Mool Raiyat. Matter
\nwas put\t up for\t orders on  02nd November  1939\t vendee\t was
\npresent. The  sub-Divisional officer heard and adjourned the
\nmatter for  orders on  27th November  1939. On 27th November
\n1939 co-sharers\t of the\t late Mool  Raiyat did not appear or
\nobject. He,  therefore, held that  mutation was required  to
\nbe allowed.  He, therefore,  submitted\tthe  matter  to\t the
\nDeputy Commissioner  for orders. Submitted the matter to the
\nDeputy\tcommissioner   approving  the  transaction  and\t the
\nmutation in  favour of the vendee Bimal Kanti Roy Choudhury.
\nAccordingly mutation  was carried  out on  24th January 1940
\nand papers  were corrected.  The aforesaid  facts which have
\nbeen brought  on record and on which learned counsel for the
\nauthorities could  not obviously  offer any objection, leave
\nno room\t for doubt  that the first transaction of sale dated
\n22nd March  1939  was  duly  scrutinised  by  the  competent
\nauthorities and\t the Deputy  Commissioner who  approved\t the
\nsame. The  proceedings remained under scrutiny from 31st may
\n1939 till  28th December  1939. Thus  for seven\t months\t the
\nenquiry went  on and  ultimately the  aforesaid decision was
\nrendered. It  must, therefore,\tbe held that there was ample
\nopportunity for\t the Deputy  Commissioner, if so advised, to
\norder eviction\tof the\ttransferee in exercise of his powers
\nunder Section 27(3)<\/a> of the Regulation but it appears that in
\nhis  discretion\t  he  had   waived  his\t  objection  to\t the
\ntransaction and the same was regularised. The said inference
\nis inevitable as but for the said fact mutation in favour of
\nvendee Bimal  Roy Choudhury would never have been sanctioned
\nby the\tcompetent authority  at the  relevant time. It must,
\ntherefore, be  held that  on the peculiar facts of this case
\nthe first  transaction of  sale dated  22nd March  1939\t was
\nduly  approved\t and  cleared  by  the\tcompetent  authority
\nexercising powers  under Section  27(3)<\/a> of  the\t Regulation.
\nOnce that  happened a  right accrued in favour of the vendee
\nto remain in possession of the transferred lands admeasuring
\n38.09 acres  in his own right and the curtain dropped on the
\nsaid transaction.  It is  obvious that\tthereafter under the
\nsaid  Regulation   if  it   had\t continued  to\toperate\t the
\ntransaction would  not have been re-opened once it was found
\nthat  the   Deputy  Commissioner   having  notice   of\t the
\ntransaction had\t not thought it fit to exercise powers under
\nSection 27(3)<\/a>  of the  Regulation for  evicting the  illegal
\ntransferee.  it\t  may  be  ,  as  learned  counsel  for\t the
\nauthorities rightly  submitted\tthat  if  in  a\t given\tcase
\nrelevant facts\twere not brought to the notice of the Deputy
\nCommissioner earlier  and if  subsequently he had found that
\nthe transaction\t was violative of sub-Section (1) of Section
\n27<\/a> in  a proper\t case he  could have  exercised power  under
\nSection 27(3)<\/a>  but such\t are not  the facts  of the  present
\ncase. As noted earlier seven months elapsed during which the
\ntransaction remained  under the gaze of scrutiny of the sub-
\nDivisional officer  and ultimately  got scrutinised  by\t the
\nDeputy Commissioner  himself. Consequently  on the  peculiar
\nfacts of this case it must be held that the said transaction
\nwas duly  filtered by  the competent  authority who  in\t its
\ndiscretion approved  the same  years back  on 28th  December
\n1939. Accordingly  it must  be held  that a right accrued to
\nthe transferee\tof the said transfer in his favour under the
\nRegulation. Let us now see as to what was the effect on this
\nright of  the vendee  by the  coming in\t to operation of the
\nAct. As\t noted earlier\tthe Act\t became applicable from 01st
\nNovember 1949.\t Section  3<\/a>  of\t the  Act  states  that\t the
\nenactment mentioned in Schedule A are repealed to the extent
\nspecified in  the fourth  column thereof.  When we  turn  to
\nSchedule A  to the Act we find listed as one of the Acts the
\nRegulation of  1872 and\t the extent  of the  repeal  of\t the
\nRegulation was\tin connection  with Sections 27<\/a> and 28<\/a>. Once
\nSection 27<\/a>  of the  Regulation stood  repealed by  the\tAct,
\nquestion arises\t whether the  right  which  had\t accrued  to
\nvendee Bimal  Kanti Roy\t Choudhury under  the Regulation  in
\nconnection with\t the operation of Section 27<\/a> sub-Sections(1)
\nand (3)\t of the\t Regulation was\t saved or  not\tdespite\t the
\nrepeal of  the said  Section 27<\/a>. A mere look at the relevant
\nprovisions of  the  Act\t shows\tthat  there  is\t no  express
\nprovision in  the Act  which lays  down that notwithstanding
\nthe orders  passed  or\tactions\t taken\tin  connection\twith
\ntransactions under  the Regulation.  and notwithstanding any
\nrights which might have accrued thereunder fresh scrutiny of
\nthe said  transaction  could  be  made\tunder  the  relevant
\nprovisions of  the Act\twhich corresponded  to\tthe  earlier
\nrepealed Section  27<\/a> of the Regulation. When such a contrary
\nintention does\tnot appear  from the  scheme of the Act, the
\neffect of  the\trepeal\tof  Section  27<\/a>\t of  the  Regulation
\nsquarely attracts  the provisions  of Section 8<\/a> of the Bihar
\nGeneral Clauses Act, 1917 which reads as under:\n<\/p>\n
     “8. Effect\t of repeal.  – Where any
\n     Bihar and\tOrissa Act  or Bihar Act<\/a>
\n     repeals  any   enactment\thitherto
\n     made,  or\thereafter  to  be  made,
\n     then, unless  a different intention
\n     appears, the repeal shall not-\n<\/p><\/blockquote>\n
     (a) revive anything not in force or
\n     existing at  the time  at which the
\n     repeal takes effect; or\n<\/p><\/blockquote>\n
     (b) affect\t the previous  operation
\n     of any  enactment so  repealed,  or
\n     anything  duly   done  or\tsuffered
\n     thereunder; or\n<\/p><\/blockquote>\n
     (c) affect\t any  right,  privilege,
\n     obligation, or  liability acquired,
\n     accrued  or   incurred  under   any
\n     enactment\tso  repealed; or\n<\/p><\/blockquote>\n
     (d) affect\t any penalty, forfeiture
\n     of punishment  incurred in\t respect
\n     of any  offence  committed\t against
\n     any enactment so repealed; or\n<\/p><\/blockquote>\n
     (e) affect any investigation, legal
\n     proceeding or  remedy in respect of
\n     any    such    right,    privilege,
\n     obligation,   liability,\tpenalty,
\n     forfeiture,   or\t punishment   as
\n     aforesaid,
\n     and any  such investigation,  legal
\n     proceeding\t  or   remedy\tmay   be
\n     instituted, continued  or\tenforce,
\n     and any such penalty, forfeiture or
\n     punishment may be imposed as if the
\n     repealing Act had not been passed.”<\/p><\/blockquote>\n
     As repealed  Section 27<\/a> of the Regulation is re-enacted
\nas Section  20(1)<\/a> of  the Act and as the latter Act does not
\nproject any  different and  contrary  intention\t to  set  at
\nnaught any  final orders  rendered  by competent authorities
\nunder the repealed Section 27<\/a>  of the Regulation, the repeal
\nof Section  27<\/a> of  the Regulation by the Act will not affect
\nany right,  privilege, obligation,  or\tliability  acquired,
\naccrued,  accrued   or\tincurred  under\t the  said  repealed
\nprovision.  Consequently   the\timmunity   earned   by\t the
\ntransaction of\t22nd March 1939 under the Regulation and the
\napproval granted  to it\t by the Competent authority, namely,
\nthe Deputy  Commissioner by  his order\tdated 28th  December
\n1939 remained  available and  accrued to  the  Vendee  Bimal
\nKanti Roy  Choudhury despite the repeal of Section 27<\/a> of the
\nRegulation by  the Act.\t Thus on  the peculiar facts of this
\ncase it must be held that the transaction of 22nd March 1939
\ncannot be  said to  have any  adverse effect on the right of
\nthe vendee  under  the\tsaid  transaction  and\the  remained
\nperfectly competent to deal with the transferred 38.09 acres
\nof land\t covered by the said transaction in his favour which
\nwas duly  filtered by  the then\t competent authorities under
\nthe Regulation.\t Consequently the  decision rendered  on the
\nmerits of  this transaction by all the authorities below and
\nwhich came  to be accepted by the High Court in the impugned
\njudgment cannot\t be sustained  on account  of these  salient
\ntell-tale facts\t which have remained undisputed on record of
\nthe case.\n<\/p>\n
     The  Second  transaction  which  is  on  the  anvil  of
\nscrutiny is the sale dated 26th June 1950 by Bimal Kanti Roy
\nChoudhury in  favour of\t Radha Prasad  Singh, father  of the
\nappellants. so\tfar as this Sale Deed is concerned it stands
\non a  a still  stronger footing.  By the  said Sale Deed the
\nentire\tright,\t title\tand  interest  of  Bimal  Kanti\t Roy
\nChoudhury in  38.09 acres  of land  got\t conveyed  to  Radha
\nPrasad Singh.  Consequently it\tcould not  be said  to be  a
\ntransfer which\twas hit\t by  Section  20<\/a>  of  the  Act.\t The
\nrelevant provisions thereof read as under :\n<\/p>\n
     “20. Transfer  of Raiyat’s rights.-
\n     (1) No  transfer by a Raiyat of his
\n     holding or\t any portion thereof, by
\n     sale, gift,  mortgage, will,  lease
\n     or any  other contract or agreement
\n     express or implied, shall be valid,
\n     unless the\t right to  transfer  has
\n     been  recorded  in\t the  record  of
\n     rights, and then only to the extent
\n     to which such right is so recorded.
\n\t  Provided  that   a  lease   of
\n     Raiyati land in any subdivision for
\n     the purpose excise shop thereon may
\n     be validly\t granted or renewed by a
\n     Raiyat , for a period not exceeding
\n     one year, with the previous written
\n     permission\t   of\t  the\t  Deputy
\n     Commissioner:\n<\/p><\/blockquote>\n
\t  provided  further  that  where
\n     gifts by  a recorded Santhal Raiyat
\n     to\t a   sister  and   daughter  are
\n     permissible under\tthe Santhal law,
\n     such Raiyat  may, with the previous
\n     written permission\t of  the  Deputy
\n     Commissioner, validly  make such  a
\n     gift.\n<\/p><\/blockquote>\n
\t  Provided    also    that    an
\n     aboriginal\t Raiyat\t may,  with  the
\n     previous written  permission of the
\n     Deputy Commissioner  , make a grant
\n     in\t respect   of  his   lands   not
\n     exceeding one  half of  the area of
\n     his holding  to his  widowed mother
\n     or to  his wife for her maintenance
\n     after his death.\n<\/p><\/blockquote>\n
     (2)…………………………..
\n     (3)…………………………..
\n     (4)…………………………..
\n     (5) If  at any time it comes to the
\n     notice of\tthe Deputy  Commissioner
\n     that a transfer in contravention of
\n     sub-section (1)  or (2)  has  taken
\n     place  he\tmay  in\t his  discretion
\n     evict  the\t transferee  and  either
\n     restore the transferred land to the
\n     Raiyat or\tany heirs  of the Raiyat
\n     who  has  transferred  it,\t or  re-
\n     settle the land with another Raiyat
\n     according to the village custom for
\n     the  disposal   of\t  an   abandoned
\n     holding:\n<\/p><\/blockquote>\n
\t  Provided that\t the  transferee
\n     whom it  is proposed to evict shall
\n     be given  an opportunity of showing
\n     cause   against\tthe   order   of
\n     eviction.”<\/p><\/blockquote>\n
     It would at once become clear that Section 20(1)<\/a> of the
\nAct runs parallel to the scheme of the earlier provisions of
\nSection 27(1)<\/a>  of the Regulation. Bimal Kanti Roy  Choudhury
\nwas a  Raiyat who  was recognised  as the Mool Raiyat by the
\ncompetent  authorities\tunder  the  Regulation.\t His  entire
\nright, title  and interest  in the  said land  which was  an
\nalienable  jote\t  was  transferred  under  the\tsaid  second
\ntransaction in favour of the appellant’ father. The right to
\ntransfer was  duly recorded  in the  Record  of\t Rights\t and
\nrequired the  transferor to  transfer if  at all  his entire
\nright, title  and interest  in\tthe  Mool  Raiyat.  That  is
\nprecisely what\twas done by Bimal Roy Choudhury in favour of
\nthe appellants’\t father by  the transaction  dated 26th June
\n1950.  Therefore,   this  transaction  did  not\t offend\t the
\nprovisions of  Section 20(1)<\/a>  of the  Act. If that is so, it
\nremained fully\twithin the forecorners of the said provision
\nand could  not be  treated to be illegal or invalid from any
\nangle. Consequently  there would  remain no occasion for the
\nauthorities to\tinvoke Section\t20(5)<\/a> of  the Act  read with
\nSection\t 42<\/a>   thereof  in   connection\twith   this   latter
\ntransaction of\tsale  dated  26th  June\t 1950.\tIn  fact  in
\nfairness to  the respondents  it must  be submitted that all
\nauthorities below  as well as the High Court by the impugned
\njudgment  have\t considered  the  invalidity  of  the  first
\ntransaction of\tsale dated 22nd March 1939 and in that light
\nthey have  voided the  second transactions  a  consequential
\ntransaction. once  the nexus  between  the  two\t sales\tgets
\nsnapped and  the earlier  transaction by  itself  cannot  be
\nfound fault  with from any angle, then there would remain no
\noccasion  for\tthe  respondent-authorities  to\t invoke\t the
\nprovisions of  Section 20(1)<\/a>  read with\t sub-section (5) and
\nsection 42<\/a>  of the  Act in  connection with  even the second
\nsale transaction  dated 26th June 1950. once that conclusion
\nis reached  the result\tbecomes obvious.  On these  peculiar
\nfacts there  is no  escape  from  the  conclusion  that\t the
\npossession of  the appellants  as heirs\t of deceased  vendee
\nRadha Prasad Singh can be said to have been validly obtained
\nand a  valid title  that was  convoyed in  land\t admeasuring
\n38.09 acres,  to their\tfather Radha  prasad Singh under the
\nsecond sale  transaction dated\t26th June  1950, got legally
\ntransmitted  to\t the  appellants  by  rules  of\t succession.
\nConsequently on\t these facts no action could have been taken
\nby the\tauthorities under the relevant provisions of the Act
\nagainst\t the   appellants,  Only   on  this   short  ground,
\ntherefore, the\tappeal is required to be allowed. We made it
\nclear that in view of the aforesaid decision of ours we have
\nnot thought  it fit  to\t consider  the\tcorrectness  of\t the
\ndecision of  the Full Bench of the High Court in the case of
\nBhauri Lal  Jain (supra) as well as the impugned judgment of
\nthe full  Bench in connection with the adverse possession of
\nthe vendee under an  invalid transaction of land in the area
\nbeing violative\t of  Section  27(1)<\/a>  of\t the  Regulation  or
\nSection 20(1)<\/a>  of the Act. That question is, therefore, kept
\nopen. Similarly\t we have  also not thought it fit to go into
\nthe wider  question canvassed  by learned  counsel  for\t the
\nrespondent-authorities that  even if  mutations are rendered
\nby the\tauthorities under  the Regulation  or the  Act if on
\nsubsequent facts  being brought\t to the notice of the Deputy
\nCommissioner and  once there  was  no  earlier\toccasion  or
\npossibility for\t the Deputy  Commissioner to exercise powers
\nunder Section  21(5)<\/a> of\t the Act or 27(1) of the Regulation,
\nsuch  power   could  be\t  exercised  later  on\tunder  those
\ncircumstances. We leave that question also open as it is not
\nnecessary for  us to  pronounce upon the same in view of the
\ndecision rendered  by us  on the  merits of the impugned two
\ntransactions as seen earlier.\n<\/p>\n
     In the  result the\t appeal is allowed. The judgment and
\norder of the High Court are quashed and set aside. Similarly
\nthe decision rendered by the Additional Deputy Commissioner,
\nDumka dated  30th September  1975 as  well as  the  decision
\nrendered by  the Commissioner  dated 02nd June 1976 are also
\nquashed\t and   set  aside   and\t the  application  moved  by
\nrespondent nos.4 to 15 under Section 20<\/a> sub-section (5) read
\nwith Section  42<\/a> of  the Act  is ordered to be dismissed. In
\nthe facts  and circumstances  of the  case there  will be no
\norder as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Deonarayan Singh & Ors vs The Commissioner Of Bhagalpur & … on 22 April, 1997 Author: S Majmudar Bench: S.B. Majmudar, M. Jagannadha Rao PETITIONER: DEONARAYAN SINGH & ORS. Vs. RESPONDENT: THE COMMISSIONER OF BHAGALPUR & ORS. DATE OF JUDGMENT: 23\/04\/1997 BENCH: S.B. MAJMUDAR, M. JAGANNADHA RAO ACT: HEADNOTE: JUDGMENT: J […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-259034","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nDeonarayan Singh & Ors vs The Commissioner Of Bhagalpur & ... on 22 April, 1997 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/deonarayan-singh-ors-vs-the-commissioner-of-bhagalpur-on-22-april-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Deonarayan Singh & Ors vs The Commissioner Of Bhagalpur & ... on 22 April, 1997 - 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