Kalachand Singh Bhumij vs The State Of Bihar (Now Jharkhand)
2022 Latest Caselaw 1270 Jhar

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   S.A. No. 208 of 2008

1. Kalachand Singh Bhumij
2. Boul Singh Bhumij
3. Chunaram Singh Bhumij                     ....    .... Appellants
                             Versus
1. The State of Bihar (Now Jharkhand)
   represented through Deputy Commissioner,
   East Singhbhum, Jamshedpur
2. The Circle Officer, Patamda, Singhbhum East
3. Lakhi Bala Singh W/o Sri Nibaran Singh,
   Beldih, Pakartola, Gobarghusi,
   Patamda, Singhbhum East
4. The Deputy Commissioner,
   Singhbhum East, Jamshedpur             ....   .... Respondents
                             ------

CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Appellants           : Mr. Saibal Mitra, Advocate
                               Mr. Akshay Kumar Mahato, Advocate
For Respondent No. 3         : Mr. Amit Kumar Das, Advocate
                               Ms. Swati Shalini, Advocate
                             ------

C.A.V. ON 03.03.2022                    PRONOUNCED ON 30/03/2022

1. The appellants are the plaintiffs, who are before this Court against the judgment and decree passed in Title Appeal No. 40 of 2004 whereby and whereunder the appeal by the plaintiff was dismissed and the cross appeal filed by defendant No. 3 was allowed from the judgment and decree passed in Title Suit No. 181 of 1996.

2. For convenience, the parties shall be referred by their original placement in the suit and will include their substituted legal representatives.

3. The plaintiffs filed the suit for declaration of right, title and interest

over the suit land, confirmation of possession and for permanent injunction restraining the defendants from interfering with their title and possession over the suit land.

4. The case of the plaintiffs, in short, is that the C.S. Plot No. 1062 of Gair Abad Khata No. 128 of Khewat No. 4/3 originally belonged to the then landlords, Jagannath Singh and Harihar Singh. The C.S. plot No. 1059 appertained to C.S. Kahtian No. 128 as the suit premises. The present Survey plot is of the land in Mouza Beldih (Pakar Tola) P.S. Patmada

bearing survey plot No.2384 measuring an area of 1.03 acre of land situated in Mouza- Beldih appertaining to cadastral survey plot No. 1059 of the same mouza Beldih.

5. The claim of the title of the plaintiffs over the suit land is on the basis of settlement of the suit land taken by the mother of the plaintiff No. 1 and grandmother of plaintiff Nos. 2 & 3 named Chanda Bhumijani by executing a Kabuliat on 15.07.1948 in favour of ex-landlords Jagannath Singh and Harihar Singh and against which receipts were issued by the ex-landlords. Thus, Chanda Bhumijani took settlement of 4 Bighas 6 Kathas and 3 Dhurs of land of C.S. plot No. 1059 and an area of 4 Kathas and 4 Dhurs of land in C.S. plot No. 1062 of Mouza Beldih and was in possession of the said land and after the death of Chanda Bhumijani, her two sons namely Bibhishan Singh Bhumij and Kalachand Singh Bhumij(P1) came in possession of the said land. After the death of Bibhishan Singh Bhumij, his two sons Boul Singh Bhujik (P2) and Chunaram Singh Bhumik (P3) came in possession of the said land. When Zamindari interest was vested in the State of Bihar, the ex-landlords of the plaintiff after filing of returns handed over the Kabuliat to Chanda Bhumijani and her sons and plaintiff and their predecessor paid rent to the State of Bihar with respect to the entire settled lands and the plaintiffs are still in possession of the same. The cause of action arose when in the present survey the aforesaid land was recorded in the name of State of Bihar and the Karamchari threatened to dispossess the plaintiffs. The plaintiffs are in possession of the suit land since 1948 and acquired a perfect title to the same. C.S. Plot No.1062 of Mouza Beldih has been recorded in the present survey in the name of Bibhisan Singh Bhumijani and Kalachand Bhumijani appertaining to present survey Khatian No. 387. The said settlement of the land by the State of Bihar in favour of defendant No. 3, Lakhibala in Settlement Case No. 299/95-96 in favour of defendant No.3 was illegal, inoperative and void ab-initio as the plaintiffs had perfected title and possession over the same .

6. The case of the defendant Nos. 1 & 2 representing the state of Bihar (now Jharkhand) is that the settlement of C.S. Plot No. 1059 and 1062 in favour Chanda Bhumijani and execution of Kabuliat in favour of the ex-landlords purported to be in possession of the plaintiff are only

paper work and not acted upon and was not a valid settlement at all because the Kabuliat was not followed by any Patta and that Chanda Bhumijani was never in possession and never paid rent to the State of Bihar. It is also averred that the suit is barred by limitation and that the State of Bihar has rightly settled the land in favour of defendant No. 3. It has also been denied that Khatians namely 367 and 387 had any connection with the suit land. These lands got vested in the state by operation of B.L.R. Act, 1950. No return was filed by the ex-landlord and the rent rolls were never made accepting the predecessor in interest of the plaintiffs as the tenant. They had full knowledge about the settlement by the State made in favour of defendant no.3 in the year

7. The case of defendant No. 3 is that the case of settlement and execution of Kabuliat in favour of the ex-landlords purported to be in possession of the plaintiffs is totally false. It is their definite case that their predecessors-in-interest got by settlement of an area measuring 11 Bighas, 18 Kathas and 4 Dhurs of land and executed a Kabuliyat vide no.7191 dated 31.10.44 in favour of the ex-landlord of Mouza Beldih from Khewat no.4/3 being the portion of C.S. Plot No. 1059 under Gorabad Khata No.128 and Chain Singh came in possession of the same. Plot nos. 2487, 2489, 2491 and 2492 have come to be recorded under Khata No.91 in the name of sons of Chain Singh and Shyam Singh and have come to be recorded in the 1964 survey settlement operation. Incidentally, when it came to be recorded in the name of state of Bihar during the current settlement they applied for settlement and after proper verification in Settlement Case No. 299/95- 96, an area measuring 1-00 was settled to the defendant no.3 Lakhibala Singh on 1.12.1995 and from the said khata No. 660 an area of 0.50 decimals had been settled to Sashibhusan Singh vide Settlement Case No. 308/95-96 and another area of 1 acre of land was settled with Rajendra Singh vide settlement case No. 301/95-96 and Patta were granted on 1.12.95 and Patta was also granted in pursuance to it.

8. The learned Trial Court on the pleadings of the parties framed the undermentioned issues, which are as follows:

(i) Is the suit as framed maintainable?

(ii) Have the plaintiffs got cause of action of the suit?

(iii) Is the suit barred by limitation?

(iv) Is the suit undervalued?

(v) Is the suit barred by C.N.T. Act?

(vi) Whether the plaintiffs have right, title, interest in the suit property?

(vii) Whether the plaintiffs have acquired occupancy interest for the suit property?

(viii)Whether the plaintiffs entitled to have an order to permanent injunction against the defendants?

(ix) Whether the defendant No. 1, rightly settled the land in favour of defendant No. 3?

9. The learned Trial Court dismissed the suit basically on three grounds.

Firstly, there was sketchy and insufficient documentary evidence in support of the claim of settlement followed by physical possession of the land. Ext. 1 is Kabuliat executed by Chanda Bhumijani, Ext. 2 is the return filed by the ex-landlords with respect to the land settled in favour of the plaintiffs. Ext. 2/a, 2/b is of 1959 and 2/c of 1964 are the rent receipts. Plaintiffs did not examine any witness to prove the Kabuliyat. The plaintiff no.1 has also not been examined. The comparative maps of the old and the new survey has not been filed to support their contention that survey Khatian no. 660 and plot no. 2384 carved out from the old Khata no.128 and old plot no.1059. The C.S. Khatian had also not been filed to enable the comparison. The Court also noted that Ext. 1 which is the kabuliat on which the entire claim of title rests has also not been proved properly.

Secondly, in case of any dispute regarding the entry in final publication of records of rights the suit under Section 87 of the C.N.T. Act, 1908 need to be filed within three months from the date of final publication. The final publication was made in the year 1964 but no such suit was filed within the stipulated period.

Thirdly, cause of action arose in 1964, and as per the ratio laid down in 2003(2) JLJR 708 maximum period for filing the suit for challenging the entry made in record of right is 12 years from the date of final publication of record of rights and the present suit was barred by limitation.

10.The learned Court of Appeal concurred with the finding of fact and allowed the cross appeal filed by defendant No. 3 and dismissed the appeal, modifying the judgment and decree dated 03.09.2004 passed in

Title Suit No. 181 of 1996 and affirmed the other part of the judgment. It also noted that only Kabuliyat executed in favour of the ex-landlord executed by the predecessor-in-interest of the plaintiff has been filed. There is no settlement deed and only one rent receipt of the 1363 (Bangla), was paid for two years for 1361 and 1362. The Government rent receipts that were so old that even the writings on it were not visible. The return claimed to have been filed in the name of Chanda Bhumijani has also not been adduced into evidence. The plaintiff had not proved payment of rent either to the Zamindar or to the Government.

11. In case of suit for declaration of title, it is incumbent on the part of the plaintiff to disclose the source of title. Settlement document has to be carefully scrutinized when it is claimed to have been made by the ex- landlord. The ex-landlord did not enjoy an unfettered right of settlement and it depended on different factors like the nature of land, and the object of settlement. The landlord had right of settlement of waste land so as to bring it under cultivation and realize rent from it. Normally only Gairmajurwa Khas land which was also called Gair Majurwa Malik land could be settled by the ex-landlord. But such a right to settle land in case of Gairmajurwa Aam land was not recognized. Such land got vested in the State by operation of the B.L.R. Act. So whenever claim of title is based on settlement of land by the ex-landlord, the Court is required to look for evidence as to the nature of land settled by the ex-landlord and subsequent conduct to show that the said settlement was not sham paper transaction, but was acted upon by various acts of possession like acceptance of rent receipts, return being filed by the ex-land lord, entry of the name of the settlee in the rent rolls prepared after the vesting. It is also to be seen whether the settlement was registered or unregistered. It has been held in Most. Ugni VS Chowa Mahto, 1968 0 BLJR 93; 1968 0 PLJR 3 that if a person claims to have obtained raiyati interest by virtue of an unregistered document and further asserts that he came into actual possession of the same and has continued in such possession and that his payment of rent has been accepted by the landlord, his title to raiyati interest must be recognised, even though the unregistered lease is inadmissible as evidence of title.

Mahadeo Oraon VS State of Bihar, 2009 4 JLJR 106 It is well settled that transfer of land cannot be done by virtue of only a Sada Hukumnama and an unregistered Hukumnama is not admissible and cannot be considered as a deed of title more so, when the settlement was also oral.

12. Here the claim to title is based on the basis of settlement of land by the land followed by acceptance of the settlement by Kabuliyat. In the absence of any cogent evidence of settlement of land in favour of the plaintiff followed by evidence of possession like return filed or fixation of return in M form and Govt. rent receipts, I find that there is no infirmity in the concurrent finding of facts recorded by both the learned Courts below while dismissing the suit of the plaintiff.

I do not find any merit in the instant appeal.

The appeal is dismissed with cost at the admission stage itself.

                                                  (Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated the 30th March, 2022
NAFR    /   AKT