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2008(1) Supreme 609
Supreme Court of india
P.P. Naolekar & Dalveer Bhandari, JJ.
Fulchand Munda — Petitioner
versus
State of Bihar & Ors. — Respondents
Appeal (civil) 3267 of 2001
Decided on : 24-01-2008
(b)Chota Nagpur Tenancy act, 1908 – Section 46 – Under the CNT Act as it stood in the year 1922, the transfer could have been challenged being a contract or agreement of transfer in contravention of Section 46 of the CNT Act – That plea having not been taken by the appellant’s predecessors, the appellant and his predecessors were not entitled to raise the question of transfer being invalid under Section 46 of the CNT Act as it stood in 1922 on the principle of constructive res judicata. (Para 5)
(c)Chota Nagpur Tenancy act, 1908 – Section 46 r/w 71A – Possession of the land by respondents having been upheld by High Court, the predecessors of the respondents could not be treated to be in possession in contravention of Section 46 – The decision of the High Court cannot be reopened by taking advantage of amendment in Section 46 which came into force with effect from 5.1.1948 – The possession having been denied to the appellant’s predecessors holding that there was no contravention of Section 46 as it stood in 1922, the appellant cannot be permitted to take advantage under Section 46 on same having been amended by an Act of 1947. (Para 5)
(d)Chota Nagpur Tenancy act, 1908 – Section 71A – Although no period of limitation is prescribed for exercising the power under Section 71A by the Deputy Commissioner, the party affected is called upon to approach the appropriate authority or the power has to be exercised by the Deputy Commissioner within a reasonable period of time – The gap of more than 50 years for challenging the transaction of 1922 cannot be said to be a reasonable time for exercising the power even if it is not hedged in by a period of limitation. (Para 5)
Facts of the case:
1.The land of plot Nos. 1695, 517 and 802 under Khata No. 288 within Khewat No. 6/1 of Village Hocher, P.S. Kanke, District Ranchi was recorded in the record of rights as Bakast Bhuinhari land in the name of Chamtu Pahan & others as landlords.
2.In the record of rights in the remarks column, these lands were shown in possession of Kolha Kumhar & others, the predecessors-in-interest of the private respondents herein as Beyayani Bakbaje.
3.The recorded bhumidar Chamtu Pahan & others filed a title suit against Kolha Kumhar & others for relief of declaration of title and recovery of possession. The said suit was decreed by the trial court and the appeal preferred by the predecessors-in-interest of the respondents herein was dismissed.
4.A second appeal filed by the defendants in the original suit was allowed by the High Court on 20.9.1951 and the judgment & decree passed by the trial court and that of the first appellate court was set aside.
5.After commencement of the Bihar Scheduled Areas Regulation, 1969, successive applications were filed under Section 71A of the Chota Nagpur Tenancy Act, 1908 by the predecessors-in-interest of Chamtu Pahan. All these applications were ultimately rejected by the Special Officer, Scheduled Areas Regulation.
6.Despite rejection of the suit and the applications moved under Section 71A of the CNT Act, a fresh application was moved by the appellant claiming himself to be the heir of Chamtu Pahan which was allowed by the Special Officer, Scheduled Areas Regulation, who directed restoration of possession of the land in favour of the appellant.
7.The private respondents herein thereupon preferred an appeal before the Additional Collector, Ranchi which was allowed by him.
8.The appellant preferred a revision before the Divisional Commissioner under Section 217 of the CNT Act, which was allowed and restoration of possession order was restored.
9.Learned Single Judge of the High Court allowed the writ petition assailing the revisional order of the Divisional Commissioner. The order of the learned Single Judge was upheld by the Division Bench in letters patent appeal.
Findings of the Court :
The possession having been denied to the appellant’s predecessors holding that there was no contravention of Section 46 as it stood in 1922, the appellant cannot be permitted to take advantage under Section 46 on same having been amended by an Act of 1947.
Result : Appeal dismissed.
judgment
P.P. Naolekar, J. —
1.The brief facts of the case necessary for deciding the questions involved are that the land of plot Nos. 1695, 517 and 802 under Khata No. 288 within Khewat No. 6/1 of Village Hocher, P.S. Kanke, District Ranchi was recorded in the record of rights as Bakast Bhuinhari land in the name of Chamtu Pahan & others as landlords. In the record of rights in the remarks column, these lands were shown in possession of Kolha Kumhar & others, the predecessors-in-interest of the private respondents herein as Beyayani Bakbaje. The recorded bhumidar Chamtu Pahan & others filed a title suit against Kolha Kumhar & others for relief of declaration of title and recovery of possession. The said suit was decreed by the trial court and the appeal preferred by the predecessors-in-interest of the respondents herein was dismissed. A second appeal being Appeal from Appellate Decree No. 1909 of 1948 filed by the defendants in the original suit was allowed by the High Court on 20.9.1951 and the judgment & decree passed by the trial court and that of the first appellate court was set aside. The Court came to the finding that the appellants predecessors neither redeemed mortgage nor came in possession of the land and that the suit for recovery of possession was not maintainable. The Court recorded the finding that there was an oral usufructuary mortgage as not yet been repaid and that mortgage, under Section 59 of the Transfer of Property Act, is bad in law and as such the defendants possession as mortgagees must be ignored. After commencement of the Bihar Scheduled Areas Regulation, 1969 (Regulation 1 of 1969), successive applications were filed under Section 71A of the Chota Nagpur Tenancy Act, 1908 (for short “the CNT Act”) by the predecessors-in-interest of Chamtu Pahan bearing SAR Nos. 65/76, 82/77 and 543/83. All these applications were ultimately rejected by the Special Officer, Scheduled Areas Regulation, in terms of the orders dated 16.9.1976, 7.7.1977 and 31.12.1983 respectively holding that the predecessors-in-interest of the respondents had perfected their title and the applications for restoration were barred by limitation. Despite rejection of the suit and the applications moved under Section 71A of the CNT Act, a fresh application was moved by the appellant claiming himself to be the heir of Chamtu Pahan alleging therein that he by caste is Munda and is a member of the Scheduled Tribes and is the priest (Pahan) of his village and the land in question measuring a total area of 6.38 acres is Bakast Bhuinhari Pahani land recorded in the name of his grandfather Chamtu Munda/Pahan and others in the record of rights. It was alleged that the land in question is community land, the usufruct of which is used for the community feast at the time of Sarna Puja or Bhut Puja held by the community members on several occasions of the agricultural year and the said land cannot be transferred to a person other than the members of a Bhuinhari family as provided under Section 48 of the CNT Act. It was further alleged that although such land is non-alienable, the ancestors of the respondents by playing fraud on the grandfather of the appellant, namely, Chamtu Munda, took the same on oral zerpesgi (mortgage) for Rs.154/- for a period of 20 years as mentioned in the record of rights in the year 1922 and, thus, the transfer being in contravention of Section 46 of the CNT Act, possession of the land be restored. The application moved by the appellant was allowed vide order dated 21.12.1987 by the Special Officer, Scheduled Areas Regulation, who directed restoration of possession of the land in favour of the appellant. The private respondents herein thereupon preferred an appeal before the Additional Collector, Ranchi which was allowed by him. Considering the judgment & order passed in the second appeal by the High Court as also the orders passed on successive applications under Section 71A of the CNT Act, he came to the conclusion that f
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