Sahdeo Lohra vs Lalo Orain
2022 Latest Caselaw 1044 Jhar

            IN THE HIGH COURT OF JHARKHAND AT RANCHI
                          S.A. No. 57 of 2003

Sahdeo Lohra                                 ....   .... Appellant
                               Versus
1. Lalo Orain
2. Deputy Commissioner, Gumla
3. Additional Collector, Gumla           ....  .... Respondents
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellant       : Mr. Birendra Kumar, Advocate
For the Respondents : Mr. Arun Kumar, Advocate

C.A.V. ON 24.02.2022                  PRONOUNCED ON 14.03.2022

1. This plaintiff is before this Court in appeal against the judgment of reversal passed by the Additional District Judge, Fast Track Court No.1, Gumla, in Title Appeal No. 19 of 1996, whereby and whereunder the judgment and decree passed in Title Suit No. 9 of 1991 has been reversed.

2. The parties shall be referred by their original placement in the suit and shall include their legal-representatives substituted at different stages.

3. The plaintiff Dukha Oraon filed the suit for declaration of Title with respect to the suit land fully detailed in the plaint and for declaring that the order passed in S.A.R. case No. 60/88-89 and SAR Appeal No. 10 of 1989 dated 03.07.1989 and 16.11.1990 was not binding on the plaintiff and as such the defendant be restrained from interfering with the possession of the plaintiff over the suit land and in case the plaintiff is found not in possession then a decree for recovery of possession be passed in his favour.

4. The case of the plaintiff in brief is that the suit land was recorded in the revisional survey khatian in the name of Gansa Oraon and Kauwa Sama Oraon. Gansa Oraon died issueless and Kauwa Sama Oraon became the absolute owner of all the lands of Khata No. 166 and being the absolute owner of the suit land he surrendered the same to the ex-landlord vide registered deed of surrender dated 13.01.1955. The landlord came in possession of the land and settled the suit land to Dukha Lohra the original plaintiff by registered deed of settlement. After getting settlement from the ex-landlord the original plaintiff paid rent to the ex- landlord and thereafter to the state of Bihar and by remaining in

possession for more than 35 years the plaintiff acquired title over the suit land by adverse possession. Defendant no.1 instituted SAR Case no.60 of 1988 - 89 which was decided in her favour on 3.7.89. The plaintiff filed the appeal against the order but without success. It is for this reason the present suit was filed to declare the order passed in the S A R to be null and void.

5. The case of the defendant No. 1 Lalu Orain w/o Gansa Oraon is that Gansa Oraon had a son Lotheya Oraon and Lotheya Oraon died leaving behind his son Gansa Oraon and the present defendant No. 1 is the widow of Gansa Oraon and she had a son Jaya Oraon. According to the defendant the registered deeds of surrender and settlement are illegal and not binding on the defendants and the plaintiff by playing fraud got the suit land transferred in his favour through the deed of surrender and settlement dated 13.01.1955 and as such by those deeds the plaintiff can never acquire right, title and interest in the suit land. Being the rightful owner she filed SAR Case No. 60 of 1988-89 and the land was restored in her favour and the order has been confirmed in appeal.

6. On the basis of the pleadings of the parties the following issues had been framed.

            i)     Is the suit as framed maintainable?
            ii)    Has the plaintiff got cause of action for the suit?

iii) Has the plaintiff acquired title over the suit land by way of adverse possession and if so are the orders passed in SAR Case and appeal illegal, void and not binding on the plaintiff?

iv) Whether the plaintiff has acquired absolute title over the land by virtue of the deeds of surrender and settlement dated 13.1.55 and if so, is he entitled to the relief sought for?

v) Are the deeds of surrender and settlement of the suit land dated 13.1.55, part of the same transaction with an object to frustrate the provisions of section 46 of the CNT Act as alleged?

vi) To what other relief or reliefs is the plaintiff entitled to get?

7. Plaintiff/appellant claim the source of title on the basis of the registered deed of surrender by the predecessor-in-interest of the defendant to the ex-land lord and the settlement of land by the ex-land lord in his favour. The defendant questions the surrender and settlement of land on the same day i.e. on 13.1.55 in favour of the plaintiff.

8. The Trial Court decreed the suit declaring the plaintiff's title

over the suit land .

9. The trial court admitted on the basis of the statement of the plaintiff (PW 1) in para 14 of his evidence and other evidences that the recorded raiyat died leaving behind Lotheya Oraon and the defendant no.1 is the widow of Lotheya Oraon, contrary to the averment in para 2 of the plaint that Gansa Oraon died issue less. It has been also admitted that Kauwa Sawana Oraon alone was not competent to surrender the suit land to the ex-landlord and consequently the ex-landlord had no authority to settle the land on the same day by the registered deed of settlement (Ext4) in favour of the plaintiff. The suit of surrender was decreed since the order of restoration of land in favour of the defendant went to show that plaintiff was in possession of the suit land since the year 1955 till the order was passed in S.A.R case and appeal in 1988. Therefore the application for restoration was barred by the limitation Act which is 30 years in terms of the amended limitation in Article 64 and 65. The application for restoration was barred by limitation.

Secondly, deed of surrender and settlement where part of the same transaction and in violation to Section 46 of the CNT Act being without the prior permission of the D.C. It has also been noted that consideration amount was paid to the raiyat by the ex-landlord and while settling the land in favour of Dukha Lohra also an amount of Rs.360 was realised by this a profit of Rs.60 was made by the landlord. It has been held in 1975 PLJR page 27 that such transaction was not settlement but was sale.

10. The judgment passed by the Trial Court has been reversed in appeal on the ground that surrender was not transfer in view of the Hon'ble Patna High Court (Ranchi Bench) full bench in Smt. Rani Ghose 1985 P.L.J.R page 732. Further, there is no limitation for invoking the provision of section 71A of the CNT Act. It held that the recorded raiyat in collusion with the ex-landlord and the prospective settlee executed the deed of surrender and on the same day the ex-landlord settled the land to frustrate the provision of the CNT Act.

11. It is an admitted position that both Gansa Oraon and Kauwa Sama Oraon were the recorded tenants with respect to the suit land. The plaintiff's case is that Gansa Oraon died issueless and the land was surrendered by Kauwa Sama Oraon and settled in favour of plaintiff

Dukha Lohra .

12. Both the learned Courts below have concurrently held that Gansa Oraon did not die issueless and had a son Lotheya Oraon and had son Jaya Oraon from his wife Lalo Orain (defendant). The plaintiff's case that Gansa Oraon died issueless has been falsified by both the learned Courts below. Thus, the very surrender of land by only one of the recorded tenant of the entire suit land was ab initio flawed to the core and did not convey any valid title to the plaintiff. No permission was taken under Section 46 of the Chotanagpur Tenancy Act, 1908 (hereinafter called CNT Act) and therefore the land was restored to the defendant in the S.A.R Case.

13. The appellant has clung to the last straw and claimed title on the basis of adverse possession which has been framed as issue no.3 and forms the part of substantial question of law formulated in the appeal.

14. The claim of adverse possession is premised on the ground that more than 30 years have elapses since the settlement in his favour and thereby perfected title thereby.

15. Suit has been decreed by the trial Court on the ground that the SAR proceeding was hit by the limitation Act, 1963 since the defendants were in possession since settlement in 1955 and the restoration has been ordered after the statutory period of 30 years as provided under Article 64 and 65 of the Limitation Act 1963 as amended by the Schedule Area Regulation Act 1969 for its application in case of Schedule Tribes.

16. This appeal has been admitted to be heard on the following substantial question of law:

Whether the lower appellate Court having held that tenant's possession was on the basis of some document, which was void ab initio, erred in holding that appellant's possession was not adverse possession?

17. In order to appreciate the legal position regarding restoration of land and the period of limitation it will be desirable to refer the relevant provision:

"71A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred. - If at any time, it comes to the notice of the Deputy Commissioner that transfer of land belonging to a Raiyat [or a Mundari Khunt-Kattidar a Bhuinhar] who is a

member of the Scheduled Tribes has taken place in contravention of Section 46 [or Section 48 or Section 240] or any other provisions of this Act or by any fraudulent method, [including decrees obtained in suit by fraud and collusion] he may, after giving reasonable opportunity to the transferee, who is proposed to be evicted, to show cause and after making necessary inquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or, in case the transferor or his heir is not available or is not willing to agree to such restoration, re-

settle it with another Raiyat belonging to Scheduled Tribes according to the village custom for the disposal of an abandoned holding:

Provided that if the transferee has, within 30 years from the date of transfer, constructed any building or structure on such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed:

Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before coming into force of the Bihar Scheduled Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate such a transfer where the transferee either makes available to the transferor an alternative holding or portion thereof as the case may be, of the equivalent value in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor:

Provided also that if after an inquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or re- settled, he shall require the transferor or his heir or another Raiyat, as the case may be, to deposit with the Deputy Commissioner such

sum of money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred or the market value of the land, as the case may be, and the amount of any compensation for improvements effected to the land which the Deputy Commissioner may deem fair and equitable."

From the above provision it is apparent that Section 71 A does not provided any period of limitation for restoration of land to the transferor which has been transferred in contravention of Section 46 [or Section 48 or Section 240] or any other provisions of this Act or by any fraudulent method. Proviso further clarifies the position and states that in case where transferee has, within 30 years from the date of transfer, constructed any building or structure he is to be duly compensated for it. From the second proviso it is apparent that even where the transferee has acquired title by adverse possession, in such cases also restoration can be allowed, subject to the conditions laid down therein. There is no specific period for limitation but it has been held in different authorities that restoration petition ought to be filed within reasonable time. Trial Court therefore was clearly in error to hold that restoration was barred under Section 71 A of the CNT Act.

18. Now coming to Article 64 and 65 of the Limitation Act question is whether the plaintiff had perfected title by adverse possession being in continuous possession for more than 30 years since settlement in 1955 followed by possession, thereby the S.A.R case filed under Section 71 A for the restoration of land?

As discussed earlier, there is no specific period of limitation provided under Section 71A under CNT Act for filing a case for restoration. It is evident from the provision of Section 71A of the Act, 1908 which confers power to restore possession of land unlawfully transferred, if it comes to the notice of the Deputy Commissioner at any time the same shall be restored, if the Deputy Commissioner is satisfied that the transfer has been made contrary to any of the provision of the Act, 1908. Thus even where title is perfected by adverse possession there is no bar to restoration when the transfer is fraudulent and in contravention to the provision of the CNT Act. Instantly, I find that the surrender and settlement was made fraudulently in contravention to the CNT Act. The plaintiff did not acquire title by adverse possession.

Accordingly, the substantial question of law is answered in favour of the defendant/ respondent.

The appeal is, accordingly, dismissed with cost. Consequently, I.A. No. 11731 of 2019 stands disposed of.

(Gautam Kumar Choudhary,J.) Jharkhand High Court, Ranchi Dated the 14th March, 2022 AFR / AKT