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1992 Supreme(Pat) 258
HIGH COURT OF PATNA (RANCHI BENCH)
G. C. Bharuka, J.
Johan Lakra
Vs.
State of Bihar and others
C.W.J.C. Nos. 853 and 854 of 1987 (R)
Decided On : 30.7.1992
For the petitioner: Mr. A. Sahay.
For the respondents: Mr. B. K. Dubey.
The provisions of section 48(4) of the Chotanagpur Tenancy Act, 1908 must be read down so as to safeguard the interest of the transferee who had perfected his title in the land by prescription, by long and continuous enjoyment thereof in accordance with the law before commencement of the Act.
Headnote:
CHOTANAGPUR TENANCY ACT, 1908 - SECTION 48 - RESTRICTION OF TRANSFER OF BHUINHORI TENURE - ADVERSE POSSESSION - LIMITATION - TRANSFER OF LANDS BY A MEMBER OF BHUINHORI FAMILY - VALIDITY - INTERPRETATION OF SECTION 48(4) - PERFECTION OF TITLE BY ADVERSE POSSESSION - APPLICABILITY OF SECTION 48(4) - SCOPE AND EXTENT.
Fact of the Case:
Petitioner challenged the orders passed by the Special Officer, Scheduled Area Regulation, Ranchi, directing the restoration of lands held by him to respondent no. 5, pursuant to the provisions under section 48 of the Chotanagpur Tenancy Act, 1908 (the Act). The petitioner claimed that he and his predecessors-in-interest had been in continuous uninterrupted possession of the plots in question since 1914 and had perfected their title by way of adverse possession.
Finding of the Court:
The court held that the authorities under the Act had failed to apply themselves to the aspects of whether there was any transfer by a member of the Bhuinhari family in respect of the lands within the statutory period and whether such an action is permissible in view of the limitation as to time provided for initiation of such proceedings as well as for perfection of title by a person possessing the land in contravention of any law.
Issues: 1. Whether the impugned orders of ejectment and restoration were passed beyond the statutory period provided under sub-section (4) of section 48 of the Act? 2. Whether the petitioner and his predecessors-in-interest had perfected their title by way of adverse possession?
Ratio Decidendi: 1. Section 48(4) of the Act empowers the Deputy Commissioner to eject the transferee and place such member of the Bhuinhari family in possession of a Bhuinhari tenure or portion at any time within twelve years from the date of the transfer or from the expiration of the period of transfer, as the case may be. 2. The Supreme Court in Sri Manchegowda etc. v. State of Karnataka and others held that the provisions of the Act must be read down so as to safeguard the interest of the transferee who had perfected his title in the land by prescription, by long and continuous enjoyment thereof in accordance with the law before commencement of the Act.
Final Decision: The court allowed the writ applications, quashed the impugned orders, and directed respondent no. 4 to hear the parties, give them a reasonable opportunity to adduce evidence on the issues involved, and pass fresh orders in accordance with law.
G. C. Bharuka, J. -Since common facts and law are involved in these two writ applications, therefore, these have been heard together and are being disposed of by this common judgment.
2. These two writ applications have been filed by the petitioner, Johan Lakra, for quashing the orders dated 30.6.86 and 30.5.85 (annexure 8 in both applications) passed by the Special Officer, Scheduled Area Regulation, Ranchi, respondent no. 4 as well as the appellate and revisional orders filed as annexures 9 and 10 in both the applications respectively by which, pursuant to the provisions under section 48 of the Chotanagpur Tenancy Act, 1908 (hereinafter in short 'the Act'), the authorities have directed for restoration of the lands held by the petitioner.
3. The foundational facts are not in dispute. The lands in question are plot nos. 1356 and 1355 of khata no. 154 and sikmi khata no. 22 respectively situated at Kokar. P.S. Kandey in the district of Ranchi. According to the revisional records of right prepared on 2nd of January, 1935 (annexure 3), Nathuni Kumhar and Chedi Kumhar, both sons of Jagat Kumhars, have been shown as in possession of the plots in question as Kayamidars and Sikmiuars respectively. The Kayami right was acquired on rent of Rs. 3/ on the basis of a sada Hukumnama dated 25.9.1914.
4. After the death of the original Kayamidars/Sikmidars, it was inherited by the heirs, Ram Kishun Kumhar and others who sold the same to one Erich Kujur by virtue of a registered sale deed dated 8.8.1955. According to Erich Kujur, he had purchased these plots as a benamidar of Promod Tigga and, accordingly, he executed a deed of release in his favour. Pursuant to this deed of release, Promod Tigga got his name mutated in the revenue records and began to pay rent in his own name to the khewatdar.
5. After the death of Pramod Tigga his son, Roshan Lal, after taking permission from the competent authority under section 46 of the Act, sold 9.25 decimals of plot no. 1355 and 8.05 decimals of plot no. 1356 to the petitioner by virtue of registered sale deed dated 20.3.82. It is also not in dispute that right from 1914 the petitioner and his predecessor-in-interest are in continuous uninterrupted possession of the plots in question.
6. It seems that on the basis of two different applications filed by respondent no. 5, Birsa Munda, dated 26.5.84 (annexure 1) proceedings were initiated by respondent no. 4 under section 71A of the Act but subsequently the same were converted into one under section 48 of the Act on the ground that the lands in question were Bhuinhari lands.
7. After hearing the parties in respect of their rival claims respondent no, 3, by the impugned orders dated 30.6.86 and 30.5.85 respectively as contained in annexure 8, has directed for eviction of the petitioner from the lands in question and restoring the same to respondent no. 5. After discussing the facts, as stated above, he has held that the repeated transfers have been effected by practising fraud without making respondent 110. 5 even a party to the said transactions and, therefore, according to him, the transfers are not valid.
8. Section 48 of the Act reads as under:-
"48. Restriction of the transfer of Bhuinhori tenure.-(1) A member of a 'Bhuinhari' family may transfer any 'Bhuinhari' tenure as defined in the Chota Nagpur Tenurs Act, 1869 (Ben. Act 2 of 1869) which is held by him or any portion thereof in the same manner and to the same extent as an aboriginal 'raiyat' may transfer his right in his holding under Clauses (a) and (b) of sub-section (2) of Section 46.
(2) The (State) Government may make rules permitting a member of a 'Bhuinhari family who holds any 'Bhuinhari tenure to transfer such tenure or any portion thereof by sale, gift, exchange or will, subject to such restrictions and conditions as may be specified in the said rules.
(3) Save as provided in sub-section (1) or in any rules made under sub-section (2), a transfer of a Bhuinhari tenure or any portion there
