Kali Mahto @ Kali Charan Mahto vs Chandra Kishore Prasad Mahto
2022 Latest Caselaw 18 Jhar

       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   S.A. No. 186 of 2006

   1. Kali Mahto @ Kali Charan Mahto
   2. Bijay Mahto                                     ..... Appellants
                       Versus
      Chandra Kishore Prasad Mahto              .... .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ------

For the Appellants : Mr. Sanjay Prasad, Advocate Mr. Rahul Kumar Gupta, Advocate Mr. Nagmani Tiwari, Advocate Mr Kaustav Panda, Advocate For the Respondents : Mr. Ramchander Sah, Advocate

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C.A.V. ON 29 .11.2021 PRONOUNCED ON 04 .01.2022

1. This appeal has been preferred against the judgment dated 9.5.06 passed by ADJ-VI in Miscellaneous Appeal no. 71/04 whereby and where under the order dated 10.8.04 passed by the Assistant Settlement Officer Dhanbad in Case no. 2681 of 2000 has been set aside and the appeal allowed.

2. The plaintiff/appellant brought a suit under section 87 of the Chotanagpur Tenancy Act 1908 for correction in the column of raiyat in record of right and to delete the name of the defendant in respect of 0.36 decimals of land situated at Plot no. 324/281 of Khata No. 25/20, 22, 29 and area 0.15 decimal of land in Plot Number 908/382.

3. The case of the plaintiff is that the suit land was purchased by Pahlu Mahto vide sale deed number 22076 dated 21.8.1970 and vide sale deed number 20755 dated 24.7.1971. After purchase he came in possession and mutated the suit land in his name. Later on Pahlu Mahto died issueless and his wife Phulmani Mahtain inherited the land. While she was in possession, she sold the land to the Plaintiff's Kali Mahto and Bijay Mahto vide sale deed number 3191 dated 28.3.80. The plaintiff's case is that the suit land has been wrongly recorded in favour of the defendant in recent survey, as it absolutely belonged to the plaintiff. That area of Plot no. 350/317 should be 0.16 decimals but wrongly shown as 0.08 decimals and area of Plot no. 401/360 and 498/362 should be 0.16 decimals each and not 0.15 decimals.

4. Case of the defendant is that he purchased the land from Phulmani Mahtain vide sale deed no. 2681 dated 8.4.80. The land purchased by the plaintiff/ appellant had never been mutated by the circle officer. The rent receipts produced by the applicant was fabricated Thoka number 148 is fabricated and mutation case is related to a different plot. The name of the respondent/OP was mutated vide Mutation Case Number 1 (ii) of 81 - 82 and rent receipts were issued to the OP/respondent. It is also asserted that Pahlu Mahto in his lifetime executed will on 6.11.77 in favour of the defendant Chandra Kishore Pd. Mahto and the defendant appellant is in peaceful possession over the disputed land. The appellant/ applicant got the registered sale deed executed by Fulmani Mahtain under duress. It is further case that the name of applicant/appellant has been wrongly entered in Column Number 12 of the records of rights as in unauthorized possession.

5. The Court of Assistant Settlement officer recorded a finding in favour of the applicant while the appellate court reversed the finding of fact recorded by the revenue court.

6. The appeal preferred by the appellant/applicant has been admitted on the following substantial question of law: i. Whether the judgment and decree passed by the lower appellate court is against the provisions of section 48 of transfer of property act 1882?

ii. Whether the learned appellate court has erred in discarding plaintiff sale deed dated 28.03.1980 which was earlier in point of time then the defendant's sale deed?

iii. Whether the lower appellate court was right in holding that the plaintiff had not been able to establish his possession when in fact his possession was already noted in Khatiyan as being in possession (though illegal) and the defendant had admitted Plaintiff's possession during his oral examination?

7. Section 87 of the CNT Act reads as under:-

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 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 section whom they or any of them claim, in proceedings for the

settlement of tent 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.

From the above provision it is manifest that the scheme of the

CNT Act confers wide power to on the Revenue-officer to adjudicate

on a wide range of issues arising out of publication of record of rights

which includes title as well as any other matter. The object of the

provision was not to drive the parties to a fresh bout of litigation when

the matter touched the title of the parties and the Revenue court had

the power to finally decide such issues.

8. Both the parties claim title on the suit land on the basis of

the sale deed by Phulmani Mahtain W/o Pahlu Mahto. It is not in

dispute that the sale deed in favour of the appellant/applicant was prior

in time to the opposite party. Therefore, by operation of Section 48 of

the Transfer of Property Act the right, title and interest of the

respondent/opposite party over the suit property will be subject to that

of the appellant /applicant. The learned appellate Court completely

misdirected itself to hold that Revenue Court has got no right to interfere in the title of parties. It is to be kept in mind that under Section

87 of the CNT Act it is a Suit that is filed within three months of the final

publication and the Revenue Court has power to adjudicate in matters

of title after the 1920 amendment by inserting Section 87(1)(ee). Once

the party invokes this provision the jurisdiction of Civil Court is ousted

in view of Section 258 of the CNT Act 1908. The law on this point has

been settled by Hon'ble the Patna High Court in its full bench decision

in Paritosh Maity v. Ghasiram Maity, 1986 SCC OnLine Pat 243 :

AIR 1987 Pat 167 wherein it has been held

"16. The true legal effect of a harmonious reading of Ss. 87 and 258 may, therefore, be noticed. Chapter XII provides for the record of rights and S. 83 therein deals with the preliminary publication, the amendment and the final publication of the record of rights, whilst S. 84 creates certain rebuttable presumptions in favour of the correctness of the entries in the record of rights. However, S. 87 provides a remedy by way of a suit before the Revenue Officer for resolving any dispute with regard to such an entry in the record of rights or an omission therefrom. In essence, such a suit is thus directed as a challenge to the entry or omission in such a record, but S. 87 further provides that this can be raised even where such a dispute be with regard to matters specified in Cls. (a) to (f) of S. 87. In a way, therefore, S. 87 provides a special and additional remedy pertaining to entries in the revenue records as soon as they are finally published and certified. That is why the Legislature has chosen to provide a narrow limitation of three months from the date of the certificate of the final publication of the record of rights for bringing such a suit. To my mind, this remedy is not in any way in derogation of the civil rights of the parties, but indeed is a special and additional remedy which may be availed of within a limited period of three months, if a party feels aggrieved by any of the entries in the record of rights. However, if such a remedy is availed of by the parties then the statute now provides an appeal and even a second appeal to the High Court itself in the very forum of sub-s. (2), S. 87 which inevitably would achieve finality. Thus, if actual resort has been made to a suit under S. 87 then for an identical lis S. 258 would bar a further resort to the Civil Courts except on the grounds of fraud or want of jurisdiction. Obviously enough, to bring in even this limited bar, the lis would have to be identical. However, as already noticed and it bears repetition that if no resort has been earlier made to a suit under S. 87 by the parties, the very precondition for the application of S. 258 would be absent and it cannot come into play in such a situation."

9. From the above authority it is apparent that in the suit preferred under Section 87 of the CNT Act, the revenue Court do have a power to adjudicate on the title of the parties when it is related to the issue of entries made in record of right after final publication. Once such right has been adjudicated a further title suit shall not lie, which will be barred under Section 258 of the Act.

10. In view of the above position of law and fact, I find and hold that the appellate Court committed gross error of law by ignoring the sale deed dated 28.03.1980 executed in favour of the applicant /appellant prior in point of time than that of the respondent/opposite party with respect to the suit land on the ground that the revenue Court had no authority to adjudicate on question of title. Earlier sale will have effect in view of Section 48 of the Transfer of Property Act. Mutation on the basis of the subsequent sale-deed with respect to the suit property did not confer any right in favour of in favour of the respondent /opposite party. All the three substantial questions of law is answered in favour of the appellants.

11. In the result the Judgment and decree passed by the appellate Court is set aside and the appeal is allowed.

(GAUTAM KUMAR CHOUDHARY, J.)

Jharkhand High Court, Ranchi Dated the 4th January, 2022 AFR / Tarun