Gulia Deogam @ Gulia @ Mahendra @ ... vs The State Of Jharkhand
2023 Latest Caselaw 3255 Jhar

                       IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                   W.P.(C) No. 3899 of 2017

              1.  Gulia Deogam @ Gulia @ Mahendra @ Tantu
              2. Pradhan Deogam @ Pradhan @ Tamdia
              3. Prakash Deogam                                    Petitioners.
                                                      Versus
              1. The State of Jharkhand
              2. The Divisional Commissioner
              3. The Deputy Commissioner, West Singhbhum, Chaibasa.
              4. The Additional Deputy Commissioner, West Singhbhum, Chaibasa.
              5. Bholenath Deogam.
              6. Jagram Deogam (Minor)
              7. Aashai Kui.
              8. (a) Durga Deogam @ Haty
                  (b) Gulia Deogam.
              9. Bablu Deogam.
              10. Premlal Deogam
              11. Chhota Nando Deogam
              12. Ardan Deogam @ Chhote Deogam (Minor)
              13. Das Deogam (Minor)                               Respondents
                                               ----

                   CORAM : SRI ANANDA SEN, J.

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For the Petitioner(s) : Mr. Amit Kumar Das, Advocate.

For the respondent(s) : M/s Krishanu Ray and Anjani Kumar, Advocates.

         For the State:                   Mr. Jayant F. Toppo, G.A.-V
                                          Mr. Amrit Raj Kisku, AC to G.A.V.
                                                  ----

10/30.08.2023:         Heard the learned counsel for the parties.

2. Counsel for both parties agree for final disposal of this case at this stage.

3. By filing this petition, the petitioner has challenged the order dated 2.6.2017 (Annexure-7) passed by the learned Divisional Commissioner, Singhbhum Kolhan Division, Chaibasa in Kolhan Title Appeal No. 09/2017-18.

4. Learned counsel for the petitioners submits that the appellate order is non-speaking and no reason has been assigned as to why the judgment passed in Kolhan Title Suit No. 02 of 2009 has been upheld. He further submits that through consideration has been made in Paragraph 5 of the judgment but the said consideration contradicts the finding of the Additional Deputy Commissioner, West Singhbhum, Chaibasa given in Kolhan Title Suit No. 02/2009. He also submits that the plaintiffs, who are the respondents herein filed the suit for declaration of right, title and interest over the suit lands, described in Schedule- "B" of the plaint, situated in Mouza Khaporsai and Katigutu, area 3 acres 59 decimals and 6 acres 44 decimals respectively and

also for delivery of possession. The suit was contested by the defendants- appellants. Ultimately, the suit was decreed holding that the plaintiffs have exclusive right, title and interest over the property and when the said judgment was challenged by the defendants before the Appellate Court, by the impugned order, the judgment passed by the Addl. Deputy Commissioner, West Singhbhum at Chaibasa in Kolhan Title Suit No. 2/2009 was upheld without giving any reason rather the observations which were given are contrary to the judgment passed by the Addl. Deputy Commissioner. It is also contended that in the appellate order the Divisional Commissioner, Singhbhum-Kolhan Division has heldthat from the genealogical table and the Khatiyan of 1911-13 and that of 1963-64, it is clear that the appellants, respondents and proforma respondents are all the members of one common ancestor and the settlement records clearly shows that the parties held the land of the suit, jointly. If that be so, finding and declaration of trial court that it is the plaintiffs only, who have exclusive right, title, interest and possession over the property in question is absolutely bad. He further contended that the aforesaid finding of the Appellate Authority has not been challenged by the plaintiffs, thus the order of the Addl. Deputy Commissioner could not have been uphold by the Commissioner in Kolhan Title Appeal No. 09/2017-18.

5. Counsel for the respondents submits that the plaintiffs have only claimed a portion of the huge chunk of land to be the exclusive property of the plaintiffs. He further submits that there was earlier internal partition by way of panchayati and on that basis the plaintiffs were claiming exclusive right, title and interest over the suit property. He further submits that the order passed by the Addl. Deputy Commissioner, West Singhbhum at Chaibasa has been correctly upheld by the Appellate Authority.

6. After hearing the parties, I find that the plaintiffs have filed the suit being Kolhan Title Suit No. 2 of 2009 under the Wilkinson Rules 1833, which is prevalent in the area. As per the plaint, the plaintiffs claimed absolute right, title and interest over the property described in Schedule-B in the plaint, situated in Mouza Khaporsai and Katigutu, area 3 acres 59 decimals and 6 acres 44 decimals respectively and also for delivery of possession. The suit was heard and vide order dated 31.12.2016 the Addl. Deputy Commissioner, West Singhbhum at Chaibasa decreed the suit declaring the absolute and exclusive right, title and interest over the suit land in Schedule-B of the plaint in favour of the plaintiffs confirming the possession of the plaintiffs. The defendants

challenged the said judgment in appeal and the Appellate Court i.e. the Divisional Commissioner, Singhbhum Kolhan Division, Chaibasa heard the parties and dismissed the appeal thereby affirming the judgment of the Trial Court.

7. After going through the impugned order, I find that in the first four paragraph of the judgment, the learned Divisional Commissioner had only recorded the statement of the parties and thereafter in the next paragrpah he arrived at conclusion that from the Khatian and genealogical table of the parties, it is clear that the land belongs to the plaintiffs, defendants and proforma respondents. He also held that in the settlement record of 1963-64, the land got recorded only in the name of the appellants, which is not correct. Thus the finding clearly suggests that the Appellate Court was of the opinion, derived from the records that the land belongs to all the parties of the suit. It is necessary to quote the observation;

"I have considered the rival submissions of both the parties and perused the relevant materials on records. From the perusal of Khatiyan of 1911-13 and that of 1963-64 and looking at genealogical table of the parties, it is clear that the appellants, respondents and proforma respondents are all members of one common ancestor. On further perusal of 1911-13 settlement records, it is clear that the ancestors of all the parties held the land in suit and other lands jointly. Thereby, cannot be said that the respondents do not have a share to the land in suit which were also settled in their ancestor's name. Not recording the share of respondents in the 1963-64 settlement, it does not mean that the respondents rights to ancestral share of landed property cease to exit. On perusal of 1963-64 settlement records, it shows that the entire land of the respondents got recorded in the name of appellants and proforma respondents' ancestors. By any imagination of law it cannot be justified that from on common proprietorship, only one family gets the share and other legal heirs are left out empty hands."

8. If the aforesaid observation is treated to be correct then automatically the judgment passed by the learned Addl. Deputy Commissioner declaring the exclusive right, title and interest of the plaintiffs is not correct. Both the findings of the court do not match and the same are contrary to each other. After giving the aforesaid observation the Divisional Commissioner thereafter only in one line has held that the parties are are the members of Ho Tribe Community and they are governed by their own customs and usages in the matters of succession and inheritance. There is nothing on record to suggest that what is the custom and what is the usages and only in one line, the appeal has been dismissed.

9. Further, it has been held by the Divisional Commissioner that the order was passed in accordance with law and Wilkinson Rules 1833. This Wilkinson Rules is the procedural law. The appellants herein also has not challenged any of the procedure, so following the Wilkinson Rules will not make the impugned judgment of the first court to be sacrosanct. The facts of the case and the law involved and the custom should have also been considered by the Appellate Court independently, which the Appellate Court failed to do. Thus, the order itself is un-reasoned, as held earlier, also the same is contrary to the findings arrived at by the Trial Court. When the finding or observation of the Appellate Court is contradictory to the finding or observation of the Trial Court, the Appellate Court, cannot dismiss the appeal. To dismiss the appeal, the Appellate Court has to concur with the findings of the Trial Court on the issues, which is not the case here.

10. In that view, I am inclined to set aside the order impugned i.e. the the order dated 2.6.2017 (Annexure-7) passed by the learned Divisional Commissioner, Singhbhum Kolhan Division, Chaibasa in Kolhan Title Appeal No. 09/2017-18 and remand the matter to the Appellate Court i.e. the learned Divisional Commissioner, Singhbhum Kolhan Division, Chaibasa for passing a fresh order in accordance with law, after hearing the parties.

11. With the aforesaid observations and directions, this petition stands disposed of.

12. Pending interlocutory application(s), if any, also stands disposed of.

(ANANDA SEN, J.) Anu/-CP2