2018 Supreme(Jhk) 839

IN THE HIGH COURT OF JHARKHAND AT RANCHI
ANUBHA RAWAT CHOUDHARY, J.
Ajay Kumar Sinha S/o Late Hari Nandan Prasad – Petitioner
Versus
The State of Jharkhand – Respondent
W.P. (C) No. 225 of 2003
Decided On : 20-08-2018

Headnote:

Chotanagpur Tenancy Act, 1908 – Sections 48, 71 – Possession – Quashment of Order – Writ petition has been filed for the reliefs for quashing the order passed by the respondent no. 2 in S.A.R. Revision analogously passed with Ranchi Revenue Revision as contained in Annexure 12 the order passed by the Deputy Commissioner in S.AR. Appeal and other analogous cases and the order passed by the Special Officer in S.A.R. Case and other analogous cases whereby and whereunder the said Revenue Authorities passed orders of restoration of lands in favour of respondent no. 5, by the effect of which the petitioners are to be evicted from the lands in their peaceful possession, in a proceeding under Section 71-A of the C.N.T. Act. – What is the nature of land – Whether the lands are bakast bhuinhari or bakast bhuinhari pahnai – Whether the vendor of the appellants was in possession of the lands and whether his claim on the basis of sada Hukumnama is genuine – Whether the lands are chhaparbandi in nature – Whether the appellants have acquired title by adverse possession – Whether Gajle Pahan has got any right over the lands in question – Held, Court finds that in the judgment reported in 1992 BLJR 986 in the case of Bukan Ansari and Others vs. State of Bihar and Others, it has clearly held that provisions of Section 71 A would come into operation in connection with such property where 12 years of dispossession had not elapsed in the year 1986 when Section 71 A was amended. – Court fully agrees with the argument advanced by counsel for the petitioners that 12 years having been elapsed not only prior to 1986, but also prior to date of filing of application for restoration in the year 1985, therefore the application for restoration was to be examined in the light of limitation prescribed in Section 48(4) of the Chotanagpur Tenancy Act, 1908. – Accordingly, this court find that the application for restoration which was filed in the year 1985 by Gajle Pahan, which is the genesis of the entire proceeding, was itself is barred by limitation in the year 1985, as private respondent herein were dispossessed from the property at least in the year 1970. – Court finds that this aspect of the matter has neither been considered by the S.A.R. Officer, nor has been considered by the appellate authority nor has been considered by the revisional authority, accordingly, the impugned orders are perverse and are fit to be set-aside. – Court does not find any finding in the appellate order expressing any doubt regarding the correctness of the entry made in register II vide Mutation Case and another Reference Case – Moreover the land was transferred by badal khansama in favour of others including the petitioners by registered deeds of the year 1980 and onwards and the same was also mutated in the name of the petitioners as detailed in paragraph 8(c) above. – However, the appellate authority held that the land in question was transferred in 1980s therefore 12 years had not elapsed since the date of transfer and hence held that the case was not barred by limitation. – This court finds that the appellate authority could not have based his findings regarding period of dispossession of the recorded tenant on the sale deeds executed by Badal Khan in the year 1980 in favour of the petitioners as admittedly Badal Khan is not the recorded tenant. – The revisional authority also while considering the matter committed serious error of law in considering the point of limitation/period of dispossession of the recorded tenant and ignored the aforesaid mutation entries made in the register II in the year 1970 and 1978. – This court finds that this error in the approach of the authority is so glaring and perverse that this court is inclined to exercise powers under Article 226 of the constitution of India although the petitioners have lost before all the three authorities. – Impugned orders passed by the respondent no. 2 in S.A.R. Revision analogously passed with Ranchi Revenue Revision as contained in Annexure 12; the order passed by the Deputy Commissioner in S.AR. Appeal and other analogous cases (Annexure-11) and the order passed by the Special Officer in S.A.R. Case and other analogous cases are hereby set aside only to the extent it relates to the petitioners and this writ petition is allowed only to the extent it relates to the petitioners and aforesaid sale deeds involved in this case. –I.A Disposed off