Unknown vs State Of Bihar Through The Deputy ...
2022 Latest Caselaw 1628 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                             S.A. No. 88 of 1992(R)
                                     ------

        1(a).    Subhadra Devi
        1(b).    Deo Kumar Mahto
        1(c).    Shambhu Singh Mahto
        1(d).    Devendra Kumar Mahto
        1(e).    Anjula Kumari
        1(f).    Smt. Mira Kumari
                                              ....  .... .... Appellants
                                 Versus

State of Bihar through the Deputy Commissioner (Collector), Singhbhum at Chaibassa, Singhbhum West .... .... .... Respondent

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

For the Appellants : Mr. Manjul Prasad, Sr. Advocate Mr. Praveen Kumar Verma, Advocate Mr. Baban Prasad, Advocate Mr. Arbind Kumar Sinha, Advocate For the Respondent : Ms. Moushmi Chatterjee, A.C. to S.C. VII Mr. Neil Abhijit Toppo, A.C. to S.C. VII

CAV ON : 14.03.2022 PROUNOUNCED ON 22. 04. 2022

1. The plaintiff is in appeal before this Court against judgment of reversal passed by the learned First Appellate Court.

2. The parties shall be referred by the placement in the suit and shall include his legal representatives substituted.

3. The plaintiff filed the suit for declaration of title and confirmation of possession and for permanent injunction over 0.09 dec 80 hectors of land fully detailed in the schedule of the plaint.

4. The case of the plaintiffs is that the suit land was fellow (Parti) land and he reclaimed it about more than 30 years back and made it fit for cultivation and since than he is in cultivating possession of the said land and has acquired occupancy right over it. The land was recorded in the first survey under the C.N.T. Act as Anabad Bihar Sarkar, though it was reclaimed by the plaintiff. In the recent survey settlement under the Bihar and Orissa Municipal Act, the said land had been recorded in Plot No.1386/01 of Mouza Kharsawan as Anabad Bihar Sarkar Khata No.363 and in the remark column of Khatiyan, the possession of the plaintiff is noted since 1970 and the record has been finally published on 2nd June, 1977. Taking undue advantage of the erroneous entry of the land in Anabad Bihar Sarkar's Khatiyan, the Circle Officer of Kharsawan, long after the final publication of the record filed a petition under Section 90 of C.N.T. Act in the

Court of Charge Officer of Singhbhum at Jamshedpur against the plaintiff which was registered a case no.5/1981-82 under Section 90 of C.N.T. Act for removing the entry of the plaintiff's possession of the plot as mentioned in the remarks column of the Khatiyan. The learned Charge Officer by the order dated 06.07.1983 directed to remove the entry in the Khatiyan about the possession of the said plot by the plaintiff. The plaintiff served the notice upon the Deputy Commissioner, Singhbhum through the lawyer on 20.09.1993 which was duly acknowledged by him. The cause of action of the suit arose on and from 06.07.1993, the date of order of the Charge Officer and on subsequent date of threatening to disturb the possession of the plaintiff by the Circle Officer and his staffs of Kharsawan Block at Mouza Kharswan for the purpose of Court fee and jurisdiction of this Court.

5. The defendant State of Bihar (now Jharkhand) has contested the claim of title of the plaintiff. Apart from the legal pleas taken the definite case of the defendant is that the plaintiff is not a resident of Kharsawan and his contention that he reclaimed the suit land 30 years ago and possessed the same is absolutely false and imaginary and as such his claim that he acquired the occupancy right is denied. The suit land was subjected to survey settlement operation from 1958-61 known as Sighbhum Survey and settlement operation held under the C.N.T. Act. The record of right where prepared and finally published under section 83(2) of the C.N.T Act and in the said survey the plaintiff did not claim any reclamation or occupancy right nor did he filed any Tanaza during survey settlement operation. After final publication the survey entries in the year 1961 the state of Bihar never recognised the plaintiff as raiyat or that he had possession over the suit plot. Regarding the entry as to illegal possession of the plaintiff in the survey settlement operation under the municipal act, it has got no basis and so under section 90 of the C NT act the name of the plaintiff over the remarks column in the records of municipal survey had been ordered to be deleted. The plaintiff has no title or possession over the suit land and has acquired no occupancy right.

6. On the basis of the pleadings of the parties, in all eight issues were framed of them the main issue was "Whether the plaintiff had any title and possession over the suit land?".

7. The learned trial court decreed the suit on the ground that under Section 6 of the Specific Relief Act a person entitled to the possession of the immovable property may recover it in the manner provided by the civil procedure code. Under this section a person who has been dispossessed without his consent from

immovable property otherwise than in due course of law, he or any person claiming under him may bring a suit to recover back possession within six months from the date of dispossession. In such suit he is not required to establish his title. The court took note of Exhibit-D which was a report of Charge officer recommended deleting the entry regarding possession from the remark column as he was in the legal position over the suit land. It also considered Ext C/1 the Khatian which disclosed that the name of the plaintiff had been recorded in the remarks column about the illegal possession of Gagan Chander Mahto father of Jado Mahto in 1970 which was finally published on 27th June, 1977. In view of the possession for more than 30 years it was the duty of the state of Bihar to settle the land in the name of the plaintiff on the basis of long continuous possession over the suit land.

8. The first court of appeal reversed the judgement and decree passed by the trial court. It held that the trial court committed gross error application of section 6 of the Specific Relief Act as it ignored section 6(2)(b) appended to that section wherein it has been clearly mentioned that suit under this section shall not be brought against the government. In the suit the plaintiff had sought for relief for declaration of his title to and confirmation of possession over the suit land with prayer for permanent injunction against the defendant being the state of Bihar. From this it was evident that there was no plea of dispossession but only apprehension of it after the passing of the order under section 90(1) of the C.N.T Act. The plaintiff had not prayed for recovery of possession rather had claimed the relief for declaration of title which was not maintainable under section 6 of the specific relief act. No reason has been assigned by the trial court for discarding the documentary and oral evidence of the defendant. The plaintiff failed to produce any document of claim concerning the suit land only some oral evidence where led on possession. There were two survey operations concerning the suit land which is situated within the notified area of Kharsawan in which the record of rights was prepared in the year 1961 in the name of state of Bihar under plot number 703 under Khata no. 995 showing the land as 'Anabad Bihar Sarkar' and the khatian was finally published on 6 December 1991. The plaintiff did not file any objection after the final publication of the record of rights. Ext.C falsifies the claim of the plaintiff regarding continuous possession for 30 years. It also held that the claim of occupancy right under section 64 of the CNT Act has not been able as no prior permission from the Deputy Commissioner had been taken for reclaiming the land. Earlier the lands where under Kharsawa princely estate

which had later on vested in the state of Bihar by the operation of law. There is no evidence that before the vesting the plaintiff was in cultivating possession over the suit land and therefore the claim of possession was not borne by evidence on record.

9. The appeal has been admitted to be heard on the following substantial questions of law:

i. Whether the finding of the appellate court that no occupancy right can accrue and no plea of adverse possession can be available when the land in question is recorded as "Anabad Bihar Sarkar" is sustainable in law? ii. Whether the deletion of the entry of the plaintiffs possession has made in the remarks column of survey record under section 90 of the Chotanagpur Tenacy Act was justified?

10. The first substantial question of law is with respect to occupancy rights and adverse possession against a government land . There is no absolute bar to take such plea, but such a plea has to be grounded on definite pleading and proof. Chapter IV of the Chota Nagpur Tenancy Act, 1908 from Sections 16 to 36 deals with occupancy right and incidence of occupancy right. Under Section 16 of Chota Nagpur Tenancy Act 1908, every raiyat who immediately before the commencement of this Act, has, by the operation of any enactment, or by local custom or usage or otherwise, a right to occupancy in any land, shall when this Act comes into force, have a right of occupancy in that land, notwithstanding the fact that he may not have cultivated or held the land for a period of twelve years. From the provision of Section 16 it is evident that such a right is available to a raiyat who had such right when the CNT Act came into force in 1908. The occupancy right is also accorded to a settled raiyat under Section 19 of the CNT Act. Settled raiyat has been defined under Section 14 as every person who, for a period of twelve years, whether wholly or partly before or after the commencement of this Act, has continuously held as a raiyat land situate in a village, whether under a lease or otherwise, shall be deemed to have become on the expiration of that period settled raiyat of that village.

11. Before such a plea is taken, one is to establish that he is a raiyat and it naturally follows that right of occupancy is not for a trespasser or one who has come in illegal occupation of land. The precondition to claim a right to occupancy is that he was a raiyat with such a right at the time of commencement of the CNT Act. The claim of such a right by the plaintiff who has never been accepted as a raiyat by the state is without any basis. In any claim of title the party by his

pleading has to disclose the source of title, as to how one has acquired the title, either by inheritance, conveyance or by testament and so on , which should be duly proved. Here the claim of title is based on reclamation of land without any supporting tangible evidence in that regard. The learned Appellate Court has dealt at length the evidence and has assigned specific reason for reversing the judgment of the Court below. Not a single document in support of title has been adduced into evidence, therefore for valid reason the name of the plaintiff has been deleted from the remarks column.

Both the substantial questions of law are answered against plaintiff/ appellant.

The judgment and decree passed by the Appellate Court is, accordingly, affirmed.

Appeal is dismissed with cost.

(Gautam Kumar Choudhary, J.) Jharkhand High Court, Ranchi Dated the 22nd April, 2022 AFR / Anit