Md. Samim Akhtar & Others vs Mofijuddin Ansari & Others
2021 Latest Caselaw 4116 Jhar

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 (Civil Writ Jurisdiction)
               W.P. (C) No. 2203 of 2007
                  ........

Md. Samim Akhtar & Others              ....  ..... Petitioners
                             Versus
Mofijuddin Ansari & Others             ....  ..... Respondents

CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO
                                      ............
For the Petitioners      : Mr. Gaurav Abhishek, Advocate.

For the Pvt. Respondents : Mr. Jay Prakash Jha, Sr. Advocate.

Mr. Aishwarya Prakash, Advocate.

For the Respondent/State : Mr. Deepak Kumar Dubey, A.C. to Mr. Sachin Kumar, AAG-II.

........

28/01.11.2021.

Heard, learned counsel, Mr. Gaurav Abhishek on the instruction of learned counsel for the petitioners, Mr. Shray Mishra, learned senior counsel, Mr. Jay Prakash Jha assisted by learned counsel for the private respondents, Mr. Aishwarya Prakash and learned counsel for the respondent/State, Mr. Deepak Kumar Dubey, A.C. to Mr. Sachin Kumar, AAG-II.

The petitioners namely, (1) Md. Samim Akhar, son of Late Abdul Mannan, (2) Md. Arsad Hussain, son of Late Abdul Samad, (3) Jiafatur Rahman, son of Late Nasudate Ali, (4) Md. Mahmud Alam Rizvi, son of Late Mustakin Ali, (5) Yusuf, son of Abdul Subhan, (6) Abdul Rahman, son of Late Abdul Sayeed, (7) Rajaul Rahman, son of Late Sakhwat Rahman and (8) Md. Haider Ali, son of Late Hazi Ahmad Gaffur, all resident of Village - Panchrukhi, P.S. - Godda Muffasil, Sub Division Godda, District - Godda, are the writ petitioners before this Court.

The petitioners have claimed that they are the successor of the original writ petitioners, who are the legal heirs of last Pradhan Lakhi Mian. The petitioners have preferred this writ petition against the order of the revenue authority i.e. order dated 08.01.2007 passed by the Commissioner, Santhal Pargana Division at Dumka in Rev. Misc. Appeal Case No. 20/2003-04, whereby the appeal preferred by the petitioner has been rejected and also consequently set aside the order dated 12.05.2003 passed by Additional Collector, Godda in Rev. Misc. Case No. 1/1998-99.

Learned counsel for the petitioners, Mr. Gaurav Abhishek has submitted that the finding recorded by the Commissioner is recorded at page- 71 (Annexure -4) of the writ petition, where on the basis of record, the

Commissioner has held that the tanks in question are recorded as jamabandi tanks of the appellants in revenue record and on this point, there is no serious contest, but the petitioners who are the legal heirs of recorded tenant are aggrieved by the part of the order, whereby the learned Commissioner has affirmed the order of the Additional Collector, that right to growing fish in the tanks have not been recorded anywhere and the whole dispute arose on this account only, which is at point no. (2) of the order passed by the Commissioner and so far the right of irrigation albeit to a limited extent, is already proved to have been granted to the raiyats of the village and that is what has been ordered by the lower court as held by the learned Commissioner.

Learned counsel for the petitioners has submitted that the revenue authority has passed an order, whereby the title of the petitioners have been changed and touched, which was never a dispute before the learned Commissioner nor revenue authority has such power / jurisdiction to adjudicate the title.

Learned counsel for the petitioners Mr. Gaurav Abhishek has submitted that in the earlier settlement known as Mc. Phersons's Settlement, the lands of Plot No. 21, 104, 193 and 582 recorded as tank / pokhra of Jamabandi No. 55 of Mouza - Panchrukhi and the raiyats were shown as "Pradhan Ka Jote" recorded in the name of ancestors of the petitioners namely, Darbari Mian, Niyamat Mian, Imamali Mian, Sahmat Mian and Husaini Mian, all sons of Late Lakhi Mian, area comprises of 18 acres 78 decimals.

Learned counsel for the petitioners Mr. Gaurav Abhishek has submitted that during Ganzter's Settlement, this land was considered under Jamabandi No. 8, bearing Plot nos. 53, 207, 297 and 727 of Mouza - Parchrukhi recorded in the names of Usman Mian, Abdul Gani Mian, Abdul Rashid Mian, all sons of Darbari Mian, Ali Murtaza, son of Suleman Mian, Niyamat Mian, Imam Mian, Sahmat Mian and Hussaini Mian, all sons of Lakhi Mian, who were ancestors of the writ petitioners. There is no dispute with regard to the same nor there is any dispute with regard to Annexure-1, where the genealogy of Lakhi Mian has been given.

The petitioners are only aggrieved with part of the order particularly point no. (2), whereby the Commissioner, Santhal Pargana Division, Dumka has affirmed the order of Additional Collector, recording that the right of growing fish in the tanks have not been recorded anywhere and the whole dispute arose on this account only and the right of irrigation albeit to a limited extent is already proved to have been granted to the raiyats of the village and that is what has been ordered by the lower court, the Commissioner has not interfered.

To buttress his argument, learned counsel for the petitioner has placed Annexure-8 at page-50 of the brief, where the extract copy of the Village Enquiry Paper of Mouza-Panchrukhi No. 403 Pargana Godda, Thana - Godda, Sub-division - Godda, District - Santhal Pargana, bearing column no. 8, from the present Settlement,which is profitably quoted hereunder -

"8. What bandhs tanks and other irrigation works are therein the village, by whom were they constructed by whom are they repaired, what is the custom as regards irrigation, fishing etc.?"

Learned counsel for the petitioners Mr. Gaurav Abhishek has further submitted that in the Village Enquiry Paper, it has been submitted that Plot No. 53, 727, 207 and 279 are private tanks of Abdul Ghani Imam (vide Misc. Rev. No. 2690 of 1926 of 22.05.26) used for irrigation lands of raiyats to a small extent,but the main sources of irrigation is from river Bhesia by means of Davis. The Panchrukhi raiyats had this river at a 2/20/- north of a tank of Sibnandan Thakur and this Bandh is put up every 7 days after the lookluki and Patharia Ghats raiyats have taken their water by irrigation the Jhar river. In a period of seven days. It looklooki raiyats interfere with the irrigation of Panchrukhi raiyats then they are entitled to take the assistance of the malik.

Learned counsel for the petitioners has further submitted that vide Annexure-9 the extract copy of Khasra of Mouza - Panchrukhi no. 403 Pargana - Godda, Thana-Godda, Sub-division - Godda, Dist. (S.P.) has been brought on record with respect to Serial No. 81, 210, 786, which stands in the name of Darbari Mian Pradhan and others (Sl. No. 81), Basarat Mian and other (Sl. No. 210) and Jagan Mian (Sl. No. 786).

Learned counsel for the petitioners has submitted that in the initial revenue record and from perusal of impugned order passed by the Revenue Authority, there is no dispute with regard to title. Even, legal opinion sought for and brought on record and incorporated in the order dated 12.05.2003 passed by Additional Collector, Godda in Rev. Misc. Case No. 01/1998-99, brought on record at page-31 of the writ petition, it has been stated, that because of tension prevailing between the parties, an interim order has been passed on 26.02.1999 and rights have been granted in favour of the common raiyats for going and utilizing the pokhra as the legal opinion sought for from the Government Advocate was not received. The said interim order was challenged by ancestor of the writ petitioner Rahim Bux and others before the Hon'ble High Court of Judicature at Patna in C.W.J.C. No. 3272/1999. The Hon'ble High Court of Judicature at Patna has dismissed the writ petition as pre-matured in terms of order dated 01.03.2000, which has already been brought on record as Annexure-2 of the writ petition.

Learned counsel for the petitioners has thus submitted that at the time of final adjudication by the Additional Collector in Rev. Misc. Case No. 1/1998-99 on 12.05.2003, the final report of Mc. Pherson's Settlement has been considered and thereafter the reference has been made with regard to S.P. Settlement Revision Case No. 77/1926-27 dated 17.07.1926 passed by the then Commissioner, Bhagalpur Division in the Settlement Record Revision Case No. 269/26 dated 22.05.26.

Learned counsel for the petitioners has further submitted that the the record at page-32, which is the part of the order of Annexure-3, it is not in dispute that all the four ponds are recorded in the name of ancestors of the petitioners Darbari Mian in the Mc. Pherson's Settlement and subsequent in Gantzer's Settlement under same land under Jamabandi No. 8 in the name of Usman Mian and others with Plot No. 53, 207, 297 and 727, but during the present survey settlement, the same has been recorded in the name of raiyats, who are respondents before this Court. On the basis of the legal opinion submitted by the Law Secretary-cum-Legal Advisor, Department of Law, Government of Bihar, Patna, it has been recorded as follows:-

"It is absolutely correct that the villagers have been using those ponds or tanks for bathing, washing, drinking cattle fooding and also for irrigation

purposes time to time immemorial and may twelve years period has elapsed, therefore, they can not be restrained from using the ponds, as they have been using it always since long.

As discussed above and in views of Section 35 of Santhal Pargana Tenancy Act, 1949 and under Section 108A of Bihar Survey and Settlement Manual, the legal. As per may be taken to maintain the public character of the ponds or tanks in question."

Learned counsel for the petitioners has thus submitted that the order, which has been passed by the Additional Collector affirmed by the Commissioner, are itself contrary, as Commissioner has categorically held in the impugned order that the tanks in question are recorded as jamabandi tanks of the appellants in revenue records and there is no serious contest on this point.

Learned counsel for the petitioners has submitted that the Village Enquiry Paper, which has been brought on record as Annexure-8 (Page-50) says that these plot nos. 53, 727, 207 and 279 are private tanks of Abdul Ghani Imam (vide Misc. Rev. No. 269 of 1926 of 22.05.26) used for irrigation lands of raiyats to a small extent, as such, the Additional Collector has not appreciated the facts brought before him and passed an order that touches the title of the petitioners, though the Commissioner has categorically held that there is no dispute with regard to records of right of the jamabandi tank of the appellants nor any contest has been made by the respondents.

Learned counsel for the petitioners has submitted that petitioners are only aggrieved with part of the impugned order to the extent of use of irrigation tank and right of fishing in view of the judgment passed by the Hon'ble High Court of Judicature at Patna in the case of Ansar Ali and Others Vs. State of Bihar and Others reported in (1996) 2 PLJR 656. Para- 15 to 24 of the aforesaid judgment are quoted hereunder:-

15. From a plain reading of the aforementioned provision, it is evident that Section 35 puts two embargoes viz. (a) no settlement shall be made in respect of bandhs, aharas, tanks and other water reservoirs or channel and the same cannot be converted to any other purposes without the consent of the raiyats and the village headman or mulraiyat of the landlord in Khas village and the approval of the Deputy Commissioner; and (b)

such water reservoir or channel cannot be brought under cultivation by any person.

16. The respondent No. 2 in his impugned order noticed that the plot No. 1789 has been recorded as puratan patti. He observed:

"It admits the fact that plot No. 1445 is still being used by the sixteen- anna raiyats of the village for irrigation purposes and I find the transfer through sale deed in the name of the respondents bearing plot No. 1445 completely violates the provisions of Section 35 of the S.P.T. Act. As to plot No. 1789 it was recorded as puratan patti. The executor of the sale deed had no legal right to sell the disputed land."

17. He thereafter held:

"I find the transfer of these two disputed plots have been made against the provision laid down under Section 35 of the S.P.T. Act debarring the sixteen-anna raiyats to use the water of the tank for irrigation and drinking purposes. As regards the cancellation of these sale deeds, the appellants may file a proper suit in the relevant court but with this observation that the transfer in the name of the respondents has been made in utter violation of the S.P.T. Act and is illegal and void transfer."

18. Respondent No. 2 evidently had no jurisdiction to decide a complicated question of title while exercising his jurisdiction under Section 35 of the said Act. The respondents have contended that no sale of a tank can be made by a raiyat.

19. What is noticed hereinbefore, is prohibited under the said provision inter alia, is to make settlement i.e. no settlement shall be made by the ladlord in favour of anybody. However, the tank in question, as noticed hereinbefore, had already been settled and as has been admitted is recorded as Lakhraj land. Even from the perusal of Annexure 24 to the writ application, it is clear that officer of the Revenue department admitted that the land in question is saleable.

20. The respondent 2 and 3 have not held that the said report was incorrect or the deed of sale was executed in utter violation of the provisions of Section 20 of the said Act. The said question was never raised before respondents 2 and 3 and thus it cannot be allowed to be raised for the first time in the Court.

21. Respondent No. 2, further has committed an illegality in holding that the deed of sale was void being hit by Section 35 of the said Act although, he himself held that the same cannot be annulled in terms of the aforementioned provisions and himself having held that in order to decide the question of title, a suit may be filed by the petitioners. The respondent

No. 2, therefore, exceeded his jurisdiction in passing the impugned order. The respondent No. 2 further committed an illegality in purporting to hold that by reason of the said deed of sale a right of 16-anna raiyats of taking water for drinking, bathing, irrigational facility from the said tank had been interfered with although the petitioners categorically stated before the said authority that such rights of the villages have not been interfered with by them. It is, thus, clear that respondent No. 2 by reason of the impugned order made an attempt to establish the title of the State over the lands in question indirectly which he could not do directly while exercising his purported jurisdiction under Section 35 of the said Act.

22. For the reasons aforementioned, the impugned orders as contained in Annexures 12 and 13 to the writ applications cannot be sustained.

23. Before parting with this case, I must observe that if the tank is converted for the use of any other purpose or brought under cultivation, it would be open to the affected raiyats or the State to initiate an appropriate legal action against the petitioners. It is further made clear that the disputed question of title of the petitioners in respect of the aforementioned tank may be decided in an appropriate proceeding. This application is therefore, allowed and the impugned order as contained in Annexures 12 and 13 to the writ application are quashed with the aforementioned observations.

24. In the facts and circumstances, there shall be order as to costs. Learned counsel for the petitioners has placed reliance upon the judgment passed by the Division Bench of Hon'ble High Court of Judicature at Patna in the case of Balram Sadhu and others Vs. State of Bihar and others reported in (1983) 31 BLJR 159. Para-3 & 4 of the aforesaid judgment may profitably be quoted hereunder:

3. Mr. Ghosal learned counsel appearing on behalf of the petitioners had submitted that the tank was recorded as a raiyati which is clear from the certified copy of the Jamabandi Annexure 1 and in that view of the matter Section 4(2) of the Act was not attracted it is further been urged that in view if the provisions of Section 25(3) of the Santhal Parganas Settlement Regulation 1892 the entry was final and could not be questioned and it was the conclusive proof of the fact that the petitioners were the raiyat of the tank. Lastly it has been submitted that Section 35 of the Santhal Parganas Tenancy Act which relates to water reservoir and channels for irrigation is not applicable to the facts of this case because it prohibits settlement and cultivation of such water reservoir or channels. Learned Standing Counsel No. 11 appearing on behalf of the state has however submitted that there is

a clear assertion in the counter affidavit that the tenants were ex-landlords and therefore the tank will not be protected and will vest under the provisions of the Act after hearing learned counsel appearing on behalf of the parties in our opinion the contention raised by Mr. Ghosal has to be accepted. The petitioners have filed the certified copy of the Jamaband Annexure I which clearly shows that the petitioners are the raiyats of Jamiabandi No. 1 relating to plot No. 399 having an area of 3.10 acres which is recorded as pnshkarni meaning thereby a tank. On behalf of the State except the oral statement in the counter affidavit there is nothing to show to the contrary. In view of the provisions contained in Section 25(3) of Regulation 3 of 1872 (Santhal Parganas Settlement Regulation) the record of rights is conclusive proof as held in the case of Babuballav Mandal v. Shashi Bhusan Dass [1957 I.L.R. 288.] . No doubt the impugned orders were passed on the application of petitioner No. 2 but it is clear that the said application was filed under some misapprehension and even if such a petition was filed the authorities had only the powers to pass order which was permissible under the law. In our opinion in view of the entry in the Jamabandi it is difficult to hold in absence of any other material that the petitioners being the tenants were also the landlords of the Land in question.

4. On a careful consideration we find that the authorities have committed an error of law and without any material have wrongly held that the tank has vested in the state. In this connection they have not taken into account the most relevant document i.e., Jamabandi Annexure (1) which is conclusive proof of the fact that the petitioners are the raiyats of the land and not the landlords as held by the Courts below. The application is allowed and the order passed by the respondent Nos. 2 and 3, as contained in Annexures 2 and 3, are hereby quashed. But in the circumstances of the case the parties shall bear their own costs.

Learned counsel for the petitioners has also placed order at Annexure-

7, whereby the cost of Rs. 50/- has been put upon the defendants / villagers, who are now the respondents before this Court.

Learned counsel for the petitioners has thus submitted that even in the record of rights during Mc. Pherson's Settlement and Gantzer's Settlement, the title is not under dispute nor before the Commissioner, which is vested in the ancestor of the writ petitioners. It is peculiar that against the Village Enquiry Paper, where there was a limited right and no right of fishery to the raiyats, the Commissioner has passed an order incorporating such right in the

impugned order, at point-1 that the tanks in question are recorded as jamabandi tanks of the appellants in revenue record and there is no serious contest on this point, but even though the tanks are recorded as jamabandi tanks of the appellants, but the Commissioner has given right to grow fish in the tanks to all the villagers as it has not been recorded anywhere and the right of irrigation, which was limited extent in the Village Enquiry Paper to the Raiyats, has been extended and given as unlimited to the raiyats, as such, the impugned orders may be set aside and if the private respondents have any grievances with regard to the records of Mc. Pherson's Settlement and Gantzer's Settlement, they may avail legal remedy available under law before the competent court of Civil Jurisdiction.

Learned senior counsel for the private respondents, Mr. Jay Prakash Jha, assisted by learned counsel, Mr. Aishwarya Prakash has opposed the prayer and has submitted that detail counter affidavit has been filed.

Learned senior counsel has placed reliance upon the order at Annexure-A, passed by the Court of Commissioner, Bhagalpur Division, Bhagalpur in Santhal Parganas Settlement Revision No. 77 of 1926-27 against the order dated 22.05.1926 passed in Settlement Record Revision Case No. 269 of 1926 and the said Revision Application preferred by the writ petitioner has been dismissed without any interference.

Learned senior counsel appearing for the private respondents has submitted that all the four ponds situated at Village brought on record as Annexure-B have been shown in the Map of the Village and the extract of agreement entered between the parties on 28.08.2006, has also been brought on record as Annexure-C, though the lands of Plot Nos. 53, 207, 278 and 727 have been recorded as khas malik, as such, these lands are vested in the State and thus the State of Bihar / Jharkhand is owner of the same, as such recorded tenants are not the owner of the tanks rather they have given right to enjoyment before vesting of Estate.

To strengthened his argument, learned senior counsel, Mr. Jay Prakash Jha has placed reliance upon the judgment passed by the Apex Court in the case of State of H.P. Vs. Keshav Ram and others reported in (1996) 11 SCC 257 = AIR 1997 (SC) 2181 and has referred para-5, which may profitably be quoted hereunder: -

5. In view of the rival contentions, the question that arises for consideration is whether the plaintiffs have been able to establish their title and the courts below were justified in declaring plaintiffs' title. As has been stated earlier the only piece of evidence on which the courts below relied upon to decree the plaintiffs' suit is the alleged order made by the Assistant Settlement Officer directing correction of the record of right. The order in question is not there on record but the plaintiffs relied upon the register where the correction appears to have been given effect to. The question, therefore, arises as to whether the entry in the settlement papers recording somebody's name could create or extinguish title in favour of the person concerned? It is to be seen that the disputed land originally stood recorded in the name of Raja Sahib of Keonthal and thereafter the State was recorded to be the owner of the land in the record of right prepared in the year 1949-50. In the absence of the very order of the Assistant Settlement Officer directing necessary correction to be made in favour of the plaintiffs, it is not possible to visualize on what basis the aforesaid direction had been made. But at any rate such an entry in the Revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs. To our query as to whether there is any other document on the basis of which the plaintiffs can claim title over the disputed land, the learned counsel for the plaintiffs-respondents could not point out any other document apart from the alleged correction made in the register pursuant to the order of the Assistant Settlement Officer. In our considered opinion, the courts below committed serious error of law in declaring plaintiffs' title on the basis of the aforesaid order of correction and the consequential entry in the Revenue papers. In the circumstances, the appeal is allowed and the judgment and decree passed in all the three forums are set aside. The plaintiffs' suit stands dismissed. There will be no order as to costs.

Learned senior counsel has thus submitted that writ petitioner may go before the competent court of law for correction with regard to declaration of title as the Santhal Pargana is passing through phase of fresh settlement, which is in process.

Learned counsel for the respondent / State, Mr. Deepak Kumar Dubey has submitted, that State has also filed counter affidavit in this case and has again placed part of the order passed by the Additional Collector, Godda.

After hearing the counsels for the parties and on the basis of materials bought on record as well as the judgment relied upon by the learned counsel

for the parties, it appears that there was Mc. Pherson's Settlement followed by Gantzer's Settlement and now Santhal Pargana is passing through present survey settlement. It is not in dispute that Mc. Pherson's Settlement was during 1888 to 1907 where Mc. Phersons Settlement Jamabandi No. 55 of Mouza - Panchrukhi with regard to Plot No. 21, 104, 193 and 582 pokhra tank has been recorded in the name of recorded tenant Darbari Mian, Niyamat Mian, Imamali Mian, Sahmat Mian and Hussaini Mian, all sons of Late Lakhi Mian, which was subsequently affirmed as it is with regard to Jamabandi no. 8, Plot Nos. 53, 207, 297 and 727 recorded in the name of Usman Mian, Abdul Gani Mian, Abdul Rashid Mian, all sons of Darbari Mian, Ali Murtaza, son of Suleman Mian, Niyamat Mian, Imam Mian, Sahmat Mian and Hassaini Mian, all sons of Lakhi Mian, during Gantzer's Settlement for the period 1927 to 1935.

These two entries made in the Mc. Pherson's Settlement and in the Gantzer's Settlement have not been disputed by the private respondents before the Commissioner and as such, no application or appeal has been preferred or writ has been preferred by the private respondents against the order of Commissioner, where the Commissioner has held that tanks in question are recorded as jamabandi tanks of the appellants in revenue record and there is no serious contest on this point.

Under the aforesaid circumstances, so far title is concerned, this Court under Article 226 of the Constitution of India or revenue authority have not touched it and the title remains of the writ petitioners, as recorded in Mc. Pherson's and Gantzer's Settlement.

So far rights of fishery or limited rights of irrigation are concerned, which have been passed by the Commissioner in favour of the raiyati, has been assailed by the writ petitioner, where the writ petitioner has placed reliance upon the Village Enquiry Paper, extract of same is brought on record as Annexure-8, where it has been mentioned that Plot Nos. 53, 727, 207 and 279 are private tanks used of Abdul Ghani Imam (vide Misc. Rev. No. 269 of 1926 of 22.05.26) used for irrigation lands of raiyats to a small extent. But the main sources of irrigation is from river Bhesia by means of Davis. The Panchrukhi raiyats have this river at a 2/20/- north of a tank of Sibnandan Thakur and this Bandh is put up every 7 days after the Looluki and Patharia

Ghat riayats have taken their water by irrigation the Jhar river in a period of seven days. If Looklooki riayats interfere with the irrigation of Panchrukhi raiyats, then they are entitled to take the assistance of the malik.

Since, no right can be created by the revenue authority and the title is not under dispute, which is in favour of the writ petitioners devolving from their ancestors, as such in view of the judgment passed by the Apex Court in the case of State of H.P. Vs. Keshav Ram and also in view of the judgment passed by the Hon'ble High Court of Judicature at Patna in the case of Ansar Ali (Supra) and Balram Sadhu, the private respondent may prefer title suit for declaration of their title or alternative right over the land before the competent court of Civil Jurisdiction, as the Village Enquiry Paper gives limited right for irrigation and no fishery right to the raiyats as title is of the writ petitioners. Accordingly, the impugned order with regard to point nos. (2) & (3) passed by the Commissioner, affirming the order of Additional Collector are set aside, as the title is not touched by the Commissioner, as such, private respondents seek remedy available under the law before competent court of Civil Jurisdiction.

If so aggrieved may file title suit under Regulation 5 of Santhal Pargana Regulation, 1872 challenging the title of the petitioners or right of the petitioners before a competent Civil Court.

Accordingly, the writ petition is hereby allowed.

(Kailash Prasad Deo, J.) sunil/