Jharkhand High Court

(1).Shashi Tiwari Aged About 55 ... vs M/S Tata Iron And Steel Company ... on 23 February, 2021

                           1

 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                L.P.A. No. 05 of 2019
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(1).Shashi Tiwari aged about 55 years son of Late Ganesh Tiwari, residing at Beldih Naga Mandir, P.O. & P.S. Bistupur, Town Jamshedpur, District Singhbhum East. (2).Naga Mandir, Beldih, P.O & P.S. Bistupur, Town Jamshedpur, District Singhbhum East through Shashi Tiwari, aged about 55 years son of Late Ganesh Tiwari, residing at Beldih Naga Mandir, P.O. & P.S. Bistupur, Town Jamshedpur, District Singhbhum East.

..... Respondents/Appellants

Versus

1.M/s Tata Iron and Steel Company Limited, a company incorporated under the Indian Companies Act having its office and factory at Jamshedpur, Town Jamshedpur, P.O & P.S. Jamshedpur, District Singhbhum East.

....... Petitioner/Respondent

2.State of Jharkhand

3.State of Bihar

4.Deputy Commissioner, Singhbhum East at Jamshedpur, P.O. and P.S. Jamshedpur.

5.Charge Officer, Jamshedpur, Town Jamshedpur, P.O and P.S. Jamshedpur, District Singhbhum East.

6.Assistant Settlement Officer, Jamshedpur, Town Jamshedpur, P.O and P.S. Jamshedpur, District Singhbhum East. ... Respondents/Respondents

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CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. P.K. Shahi, Sr. Advocate Mr. Kundan Kumar Ambastha, Adv.

For the Res. No. 1     : Mr. G.M. Mishra, Advocate

                       : Mr. R.K. Shahi, A.C to S.C. (L&C) I
For Res. No. 3         : Mr. S.P. Roy, G.A. Bihar.
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Oral Judgment
Order No. 14 : Dated 23rd February, 2021:

With consent of the parties, hearing of the matter

has been done through video conferencing and there is no

complaint whatsoever regarding audio and visual quality.

L.P.A. No. 5 of 2019

2. The instant intra-court appeal is preferred against

the order/judgment dated 20.11.2018 passed by learned

Single Judge in W.P. (C) No. 1978 of 2003, whereby and

whereunder the writ Court while allowing the writ petition

has quashed the order dated 13.03.2002 passed in Case

No. 343 of 1999 by the Assistant Settlement Officer,

Jamshedpur in purported exercise of power conferred

under Section 90 of the Chota Nagpur Tenancy Act, 1908,

(in short 'CNT Act, 1908') by which it was ordered for

recording possession of Beldih Naga Mandir with respect

to 0.17.00 hectares of land being new plot no. 225/3703

of khata no. 85 situated at village Beldih, P.S. Bistupur,

district - Singhbhum East within Ward No. 3 of

Jamshedpur Notified Area Committee in the remarks

column of the last survey finally published record of

rights.

3. The brief facts of the case, which are required to be

enumerated herein for proper adjudication of the lis, are

as under:

The lands of old plot no. 1861 of khata no. 3

situated at Mauza Beldih, P.S. Bistupur, district-

Singhbhum East were recorded in the old survey record of

rights in the year 1934-37 as Anabad Malik in the name

of TISCO Limited, the writ petitioner.

It is claimed by the writ petitioner that the

petitioner-company has been in peaceful, continuous and

uninterrupted possession of the aforementioned land

since last 65 years. The portion of the aforesaid land was

recorded during the current survey under khata no. 85,

new plot no. 225/3703 situated at village Beldih, P.S.

Bistupur, district - Singhbhum East within Ward No. 3 of

Jamshedpur Notified Area Committee in the name of

Anabad Bihar Sarkar in course of last survey proceeding.

The writ petitioner had challenged the entries made

in the record of rights recording the name of Anabad

Bihar Sarkar before the Hon'ble Supreme Court on the

ground that the proprietary interest of the writ petitioner

with respect to the aforementioned land besides others

have not vested in the State of Bihar by promulgation of

the Bihar Land Reforms Act, 1950. Subsequently, there

was an amendment in Bihar Land Reforms Act, 1950 by

Amendment Act of 1982, according to which aforesaid

land besides others have been given on lease by the State

of Bihar to the writ petitioner for a period of 40 years

commencing from 01.01.1956 with right to the writ

petitioner to obtain successive renewal of lease at an

interval of every 30 years and the said lease has been

granted by the Governor of Bihar in favour of the writ

petitioner by virtue of registered indenture of lease dated

01.01.1985.

It is case of the writ petitioner that the terms of the

said registered indenture of lease provides that the

lessee/petitioner would be entitled to continue in peaceful

possession of the leasehold premises and shall also be

entitled to make construction thereon and also to grant

sub-leases besides various other powers as mentioned in

the said deed.

The petitioner-company has already exercised its

option of further renewal of lease for a period of 30 years

w.e.f. 01.01.1996. Thus, by virtue of lease deed the

petitioner-company has acquired valid right, title and

interest as statutory lessee under the State with respect to

the entire lease hold lands including the aforementioned

lands.

During the current survey, the aforesaid lands were

recorded during Khanapuri in the name of Anabad Bihar

Sarkar, upon which, the writ petitioner filed objection

under Section 83 of the CNT Act, 1908 with a prayer to

record its name as lessee under the State of Bihar in

column number 6 of the record of rights with respect to

the aforementioned land before the Assistant Settlement

officer, Jamshedpur which was registered as Objection

No. 947 of 1986-87.

The Assistant Settlement Officer vide order dated

08.09.1989 though passed order to record the name of

the writ petitioner as lessee under the State of Bihar but

recorded illegal possession of respondent no. 6 (appellant

no. 1 herein) in respect of the land in question.

The writ petitioner, being aggrieved with the order

passed by the Assistant Settlement Officer preferred

revision being Case No. 122 of 1990-91, under Section 89

of the CNT Act, 1908 before the Charge Officer,

Jamshedpur, who after being satisfied about the genuine

claim of the writ petitioner, passed final order on

21.08.1991 directing to delete the name of respondent no.

6 from the remarks column of the record of rights.

Pursuant thereto, necessary correction in the record was

made by deleting the name of respondent no. 6 from the

record of rights.

It is further case of the writ petitioner that no

appeal against the order passed under Section 89 of the

CNT Act, 1908 was filed, as such the same became final

and conclusive. But, the respondent no. 6, after expiry of

eight years from the date of passing of revisional order,

filed an application purported to be under Section 90 of

the CNT Act, 1908 claiming that his grand father is in

possession of 0.17.00 hectares of land out of the said plot

and had constructed residential house and further there

is Mandir in other plot as also name of respondent no. 6

be recorded in remarks column of Khatian before the

Assistant Settlement Officer, Jamshedpur which was

registered as Case No. 343 of 1999. The Assistant

Settlement Officer disposed of the said application vide

order dated 13.03.2002 holding inter alia that the lands

measuring 0.17.00 hectares out of the disputed plot are in

position of Beldih Naga Mandir and ordered to record the

name of Beldih Naga Mandir in the remarks column of

finally published record of rights.

The writ petitioner being aggrieved with order

13.03.2002 approached this Court by filing writ petition

being W.P.(C) No. 1978 of 2003, taking inter alia the plea

that provision of Section 90 of the CNT Act has wrongly

been entertained without taking into consideration the

delay in filing said application since under the provision of

Section 90 of the CNT Act, application has to be filed

within a period of five years from the date of draft

publication as under sub-section (2) of Section 83 and

further on the ground that the disputed right, title and

possession does not come within the purview of Section

90 the CNT Act, 1908 and as such the concerned

authority had no jurisdiction to entertain the petition filed

by the respondent no. 6.

The respondent no. 6 has appeared and contested

the case and filed counter affidavit taking inter alia the

plea that the order passed by the concerned authority

under Section 90 of the CNT Act suffers from no infirmity

as the application filed under the aforesaid provision was

along with the petition filed under Section 5 of the

Limitation Act. It has been contended therein that

respondent no. 6 is in peaceful possession of the land

since 80 years and after taking into consideration the

possession over the land since long the order has been

passed under Section 90 of the CNT Act, therefore, the

same cannot be said to be unjustified

The writ Court, after taking into consideration the

rival submissions of the parties has allowed the writ

petition vide order dated 20.11.2018 by quashing and

setting aside order dated 13.03.2002 on the ground that

the concerned authority in exercise of power conferred

under Section 90 of the CNT Act is not competent enough

to decide the established question of title, which is the

subject matter of present intra-court appeal.

4. Mr. P.K. Shahi, learned senior counsel being

assisted by Mr. K.K. Ambastha, learned counsel for the

appellants has assailed the impugned order on the

ground that the learned Single Judge has not appreciated

the fact that the land in question is in peaceful

possession of since last 80 years and, therefore, the

appellants have obtained title over the land in question by

virtue of adverse possession. It has further been

contended that plot no. 226 is having a temple

surrounded by plot no. 225 and since public sentiments

is attached to the said temple, the concerned authority

while adjudicating the application under Section 90 of the

Act has taken into consideration this aspect of the matter

and ordered for making entries in the column part of the

record of rights by inserting the name of respondent no. 6,

the appellant no. 1 herein, which cannot be said to suffer

from infirmity but the learned Single Judge, without

appreciating the aforesaid factual aspect, has allowed the

writ petition, which is not sustainable in law.

5. Per contra, Mr. G.M. Mishra, learned counsel for the

respondents-company has submitted that under

Section 90 of the CNT Act, 1908 the concerned authority

has got no jurisdiction to decide the issue of title on the

basis of adverse possession. Further by referring to

impugned order dated 13.02.2002 passed under Section

90 of the CNT Act, 1908 whereby and whereunder the

concerned authority has considered the fact about public

sentiment and taking into consideration the adverse

possession, had passed the order for inserting the name

of respondent no. 6 in column no. 6 of the record of

rights, which according to learned counsel is beyond the

jurisdiction of power conferred under Section 90 of the

CNT Act, 1908 and after taking into consideration the

implication of the provisions of Section 90 of the CNT Act,

1908, the impugned order was quashed and set aside,

which cannot be said to suffer from an error and

accordingly, the appeal may be dismissed.

6. We, after having heard learned counsel for the

parties and on perusal of the documents available on

record as also the finding recorded by the learned Single

Judge, deem it fit and proper first to refer the relevant

provisions of CNT Act, 1908, in particular Sections 83, 84,

89 and 90 of the CNT Act, 1908, before going into the

factual aspect of the matter.

Sections 83, 84, 87, 89 and 90 of the CNT Act, 1908

read under as:

83.Preliminary publication, amendment and final publication of record-of-rights. -

(1) When a draft record-of-rights has been prepared under this Chapter, the Revenue Officer shall publish the draft in the prescribed manner and for the prescribed period and shall receive and consider any objections which may be made to any entry therein, or to any omissions therefrom, during the period of publication.

(2) When such objections have been considered and disposed of in the prescribed manner, the Revenue Officer shall finally frame the record, and shall cause it to be finally published in the prescribed manner, and the publication shall be conclusive evidence that the record has been duly made under this Chapter.

(3) Separate draft or final records may be published under sub-section (1) or subsection (2) for different local areas, estates, tenures or parts thereof.

84.Presumptions as to final publication and correctness of record-of-rights - (1) In any suit or other proceedings in which a record-of-rights prepared and published under this Chapter or a duly certified copy thereof or extract therefrom is produced, such record-of-rights shall be presumed to have been finally published unless such publication is expressly denied and a certificate, signed by the Revenue Officer, or by the Deputy Commissioner of any district in which its local area, estate or tenure or part thereof to which the record-of- rights relates is wholly or partly situate, stating that the record-of-rights has been finally published, under this Chapter shall be conclusive evidence of such publication. (2) The [State] Government may, by notification, declare with regard to any specified area, that a record-of-rights has been finally published for every village included in that area; and such notification shall be conclusive evidence of such publication.

(3) Every entry in a record-of-rights so published shall be evidence of the matter referred to in such entry and shall be presumed to be correct until it is proved, .by evidence, to be incorrect.

87.Institution of suits before Revenue Officer - (1) In proceedings under this Chapter a suit may be instituted before a Revenue Officer, at any time within three months from the date of the certificate for the final publication of the record-of-rights under sub-section (2) of Section 83 of the decision of any dispute regarding any entry which a Revenue Officer has made in, or any omission which he has made from the record [except an entry of a fair rent settled under the provisions of Section 85 before the final publication of the record-of-rights] whether such dispute be,-

(a) between the landlord and tenant, or

(b) between landlords of the same or of neighbouring estate, or

(c)between tenant and tenant, or

(d) as to whether the relationship of landlord and tenant exists, or

(e) as to whether land held rent-free is properly so held, or [(ee) as to any question relating to the title in land or to any interest in land as between the parties to the suit; or]

(f) as to any other matter; and the Revenue Officer shall hear and decide the dispute : Provided that the Revenue Officer may, subject to such rules as may be made in this behalf under Section 264, transfer any particular case or class of cases to a competent Civil Court for trial: Provided also that in any suit under this Section, the Revenue Officer shall not try any issue which has been, or is already, directly and substantially in issue between the same parties or between parties under whom they or any of them claim, in proceedings for the settlement of rent under this Chapter, where such issue has been tried and decided, or is already being tried, by a Revenue Officer under Section 86 in proceedings instituted after the final publication of the record-of-rights. (2) An appeal shall lie, in the prescribed manner and to the prescribed Officer from decisions under sub-section (1) [and a second appeal to the High Court shall lie from any decision on appeal of such Officer as if such decision were an appellate-decree passed by the Judicial Commissioner under Chapter XVI.]

89.Revision by Revenue Officer - (1) Any Revenue Officer specially empowered by the [State] Government in this behalf may on application or on his own motion within twelve months from the making of any [entry in the draft record-of- rights or of any] order or decision under Section 83, Section 85 or Section 86, revise the same, whether it was made by himself or by any other Revenue Officer, but not so as to affect any order passed under Section 87 or any order passed in appeal under Section 85, sub-section (4): Provided that no such order or decision shall be so revised if a suit or an appeal in respect thereof is pending under Section 85, sub-section (4) of Section 87 until reasonable notice has been given to the parties concerned to appear and be heard in the matter. (2) An appeal shall lie, in the

prescribed manner and to the prescribed Officer, from any order passed under sub-section (1).

[90. Correction by Deputy Commissioner or Revenue Officer of mistake in record of-rights. - in case of discovery of bona fide or material error in record-of-rights within five years from the date of the certificate of its final publication under sub-section (2) of Section 83, the Deputy Commissioner or any Revenue Officer specially empowered by the State Government in this behalf may, on his own motion, or on application made to him within the said period, after holding an inquiry in the prescribed manner, by order in writing, direct that such error shall be corrected in the mariner specified in the order:

Provided that no such correction shall be made,-

(i)until reasonable notice has been given to the parties concerned to appear and be heard in the matter;

(ii)if a suit under Section 87, clause (8) of Section 111 or Section 252, or, an appeal under clause (10) of Section 111 or Section 253, affecting such an entry is pending.]

Section 83 stipulates that when a draft record-of-

rights has been prepared under this Chapter, the Revenue

Officer shall publish the draft in the prescribed manner

and for the prescribed period and shall receive and

consider any objection which may be made to any entry

therein, or to any omissions therefrom, during the period

of publication. However, doing that the objection has to be

considered and disposed of.

Thus, it is evident that the provision of Section 83 of

the CNT Act, 1908 provides for preliminary publication,

amendment and final publication of record-of-rights.

Section 84 of the CNT Act, 1908 stipulates that in

any suit or other proceedings in which a record-of-rights

prepared and published under this Chapter or a duly

certified copy thereof or extract therefrom is produced,

such record-of-rights shall be presumed to have been

finally published unless such publication is expressly

denied and a certificate, signed by the Revenue Officer, or

by the Deputy Commissioner of any district in which its

local area, estate or tenure or part thereof to which the

record-of-rights relates is wholly or partly situate, stating

that the record-of-rights has been finally published, under

this Chapter shall be conclusive evidence of such

publication.

Thus, the provision of Section 84 envisages about

presumptions as to final publication and correctness of

record-of-rights.

Section 87 of the CNT Act stipulates about

institution of suits before Revenue Officer wherein it has

been provided that in proceedings under this Chapter a

suit may be instituted before a Revenue Officer, at any

time within three months from the date of the certificate

for the final publication of the record-of-rights under sub-

section (2) of Section 83 of the decision of any dispute

regarding any entry which a Revenue Officer has made in,

or any omission which he has made from the record.

Section 89 of the CNT Act, 1908 stipulates that any

Revenue Officer on application or on his own motion

within twelve months from the making of any order or

decision under Section 83, Section 85 or Section 86,

revise the same.

Section 90 of the CNT Act, 1908 stipulates that in

case of discovery of bona fide or material error in record-

of-rights within five years from the date of the certificate

of its final publication under sub-section (2) of Section 83,

the Deputy Commissioner or any Revenue Officer

specially empowered by the State Government in this

behalf may, on his own motion, or on application made to

him within the said period, after holding an inquiry in the

prescribed manner, by order in writing, direct that such

error shall be corrected in the mariner specified in the

order, provided that no such correction shall be made,- (i)

until reasonable notice has been given to the parties

concerned to appear and be heard in the matter; (ii) if a

suit under Section 87, clause (8) of Section 111 or Section

252, or, an appeal under clause (10) of Section 111 or

Section 253, affecting such an entry is pending.

Thus, Section 90 of the CNT Act, 1908 provides

provision for correction by Deputy Commissioner or

Revenue Officer of mistake in record of-rights is case of

discovery of bona fide or material error in record-of-rights

within five years from the date of the certificate of its final

publication.

7. Applicability of Section 90 of the CNT Act, 1908 has

elaborately been dealt with by Patna High Court in N.

Subramanian @ Shri Mani Iyer Vs. The State of Bihar

& Ors [(1990) 1 PLJR 577] wherein while dealing with

the jurisdiction of Deputy Commissioner or the Revenue

Officer, while exercising power under Section 90 of the

CNT Act, it has held that a disputed question of title cannot

be said to be a bona fide mistake or a material error. Such

bona fide mistake or material error, must be found out on

the basis of the records of the case itself and while doing

so he cannot adjudicate upon a dispute involving serious

question of title or possession in respect whereof.

The relevant paragraph 15 of the said judgment is

quoted hereunder as:

"In this view of the matter, in my opinion, it cannot be said that the jurisdiction of the respondent no. 3 while exercising his power conferred upon him under Section 90 of the Chotanagpur Tenancy Act was extended to decide disputed question of title based on adverse possession. A disputed question of title cannot be said to be a bonafide mistake or a material error. Such bonafide mistake or material error, must be found out on the basis of the records of the case itself and while doing so he cannot adjudicate upon a dispute involving serious question of title or possession in respect whereof, as indicated in Mewalal's case as also Sisir Kumar Sarkar's case the remedies have been provided for in the Chotanagpur Tenancy Act."

Thus, it is evident that under the provisions of

Section 90 of the CNT Act, 1908, the disputed question of

fact cannot be adjudicated by the Revenue Officer in

exercise of power conferred under Section 90 of the CNT

Act, 1908.

8. We have proceeded to examine the factual aspect in

order to examine the legality and propriety of the

impugned order, for which, we have gone across the

admitted factual facts, as per the pleadings made by the

parties.

Admittedly, the land in question was recorded in the

old survey record of rights in the year 1934-37 as Anabad

Malik in the name of TISCO Ltd and by virtue of that the

petitioner-company has been in peaceful, continuous and

uninterrupted possession of the land for the last 65 years.

Further admitted fact is that the land in question

was recorded during the current survey under new Khata

No. 85 plot no. 225/3703 in the name of Anabad Bihar

Sarkar, which entry has been challenged before the

Hon'ble Supreme Court on the ground inter alia that the

proprietary interest of the writ petitioner with respect to

the aforementioned land besides others have not vested in

the State of Bihar by promulgation of the Bihar Land

Reforms Act, 1950. Subsequently, there was an

amendment in Bihar Land Reforms Act, 1950 by

Amendment Act of 1982, according to which aforesaid

land besides others have been given on lease by the State

of Bihar to the writ petitioner for a period of 40 years

commencing from 01.01.1956 with right to the writ

petitioner to obtain successive renewal of lease at an

interval of every 30 years and the said lease has been

granted by the Governor of Bihar in favour of the writ

petitioner by virtue of registered indenture of lease dated

01.01.1985.

The petitioner-company has also exercised its

option for further renewal of lease w.e.f. 01.01.1996 but

being aggrieved by the entry made in the current survey of

the land in question in name of Anabad Bihar Sarkar, a

petition under Section 83 of the CNT Act, 1908 was filed

with a prayer to record its name as lessee under the State

of Bihar in column number 6 of the record of right of the

aforesaid land before the Assistant Settlement Officer,

being Objection No. 947 of 1986-87, who vide order dated

08.09.1989 has found the petitioner lessee under the

State of Bihar but also recorded illegal possession of

respondent no. 6 in respect of the land in question which

led the writ petitioner-company to file revision under

Section 89 of the CNT Act, 1908 before the Charge Officer

being Revision No. 122/1990-91 and the Charge Officer,

being satisfied with the contention of the writ petitioner,

has passed the order on 21.08.1991 by deleting the name

of respondent no. 6 from the remarks column of the

record of rights.

The respondent no. 6, after eight years of passing of

order in revision, filed an application purportedly under

Section 90 of the CNT Act, 1908 claiming that his

grandfather is in possession of 0.17.00 hectares of land

out of the said plot and had constructed residential house

and there is Mandir in other plot and further name of

respondent no. 6 be recorded in remarks column of

Khatian before the Assistant Settlement Officer which was

registered as case no. 343 of 1999 wherein order was

passed on 13.03.2002 by reversing the order passed by

the Assistant Settlement Officer holding inter alia therein

that the land measuring area 0.17.00 hectares within the

disputed plots are in possession of Beldih Naga Mandir

and directed to record the name of Beldih Naga Mandir in

the remarks column of finally published record of rights,

which was challenged before this Court, in which, the writ

Court has quashed and set aside the order dated

13.03.2002, which is the subject matter of present intra-

court appeal.

9. This Court, after considering the factual aspect as

also the legal position as discussed herein above, deem it

fit and proper to answer as to whether the authority

concerned in exercise of power conferred under section 90

of the CNT Act, 1908, can pass order declaring the writ

petitioner in possession of the land on the basis of so-called

claim of long possession of the land in question merely on

the ground that the land is being utilized for the devotees?

10. We have discussed herein above by making

reference of Section 90 of the CNT Act, 1908 whereby and

whereunder the provision stipulates for making necessary

correction of error in case of discovery of bona fide or

material error in the record of rights within five years from

the date of its final publication under sub-section (2) of

Section 83, meaning thereby the error must be bona fide

or material error in the record of rights.

11. We have further gone across the order passed

under Section 83 of the CNT Act, 1908 wherein the order

has been passed on 08.09.1989 with a direction to enter

the name of the writ petitioner-company in column no. 6

of the Khatian by making reference of the possession over

the land for last 40 years by virtue of lease deed dated

01.01.1956 and further stipulation was directed to be

made in the 6th column about adverse possession of the

predecessor-in-interest of the appellants since 1986. The

said order has been reversed by the revisional authority

in exercise of power conferred under Section 89 of the

CNT Act, 1908 vide order dated 21.08.1991 and thereafter

no proceeding has been initiated for assailing the said

order for almost eight years and after that an application

under Section 90 of the CNT Act, 1908 was filed in the

year 1999.

The provision as contained under Section 90 of the

CNT Act, 1908 stipulates about resorting to the said

provision within a period of 5 years from the date of

certificate of its final publication under sub-section (2) of

Section 83 of the CNT Act, 1908, but admittedly herein

order has been passed on 08.09.1989 however, the

revisonal order is dated 21.08.1991 but even from the

date of revisonal order, application under section 90 of the

CNT Act, 1908 has been filed in the year 1999 i.e. after

lapse of about eight years from the date of passing of the

order by the revisional authority and almost about 11

years from the date of order passed by the original

authority under sub-section Section 83 of the CNT Act,

1908.

11. This Court has perused the petition filed under

Section 90 of the Act, 1908 but no document for

condonation of delay has been filed showing sufficient

reason as to why such application could not be filed

within the prescribed time i.e. within five years, as

provided under Section 90 of the Act, 1908, however

reference has been made at paragraph 7 of the said

application that appropriate petition under Section 5 of

the Limitation Act has been filed.

12. We after going through the order passed by the

revenue authority under Section 90 of the CNT Act, 1908

has found therefrom that no finding has been recorded

with respect to delay, therefore, we are of the view that the

authority exercising power under Section 90 of the CNT

Act, 1908 without passing any appropriate order on

limitation petition has passed the order on merit under

Section 90 of the CNT Act, 1908.

Further, it appears from the order passed under

Section 90 of the CNT Act, 1908 that there is reference of

two plots, being plot no. 225 and 226. According to the

appellants there is a temple in the adjacent plot no. 226,

which has been recorded as Mandir in the revisional

survey and on its peripheral plot no. 225 is situated and

further all the entry and exit of the temples are through

plot no. 225, which is being used by the devotes for

worship and taking into consideration the religious

sentiment of the people, the revenue authority had

passed order showing the appellants in the adverse

possession of the land in question and accordingly

ordered to make necessary correction in the record of

rights.

One relevant fact that is required to be referred

herein is that the writ petitioner has filed an affidavit on

14.01.2021 wherein it has been stated that the temple is

situated on plot no. 226 and in the record of rights the

only plot which is recorded in the name of Ganesh Tiwari,

father of the appellants is plot no. 226. Accordingly, the

respondents company confirms that it has absolutely no

dispute or claim over the claim of plot.

For ready reference, paragraph 4 of the affidavit

dated 14.01.2021 is reproduced hereunder as:

"4.That it is stated and submitted that the Temple is situated on Plot No. 226 and in the RECORD OF RIGHT the only plot which is recorded is in the name of Ganesh Tiwari father of the Appellant is plot no. 226. The Respondent company confirms and reiterates that it has absolutely no dispute and or claim over the said plot."

13. Be that as it may, we are looking into the legality

and propriety of the impugned order dated 13.03.2002

and as has been held by the Patna High Court in N.

Subramanian @ Shri Mani Iyer (supra) that in

purported exercise of power conferred under Section 90 of

the Act, there cannot be declaration of the right, title and

interest of adverse possession, as has been done by the

authority vide impugned order, therefore, the said order

in exercise of power conferred under section 90 of the CNT

Act, 1908 is not sustainable.

14. The learned Single Judge after taking into

consideration the facts, as indicated herein above as also