Jharkhand High Court
Sk. Alim And Ors vs State Of Jharkhand And Ors on 21 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 5375 of 2012
Sk. Alim and Ors. ... ... Petitioners
Versus
State of Jharkhand and Ors. ... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioners : Mr. Vibhor Mayank, Advocate
For the Respondents : Mrs. Shalini Shahdeo, A.C. to S.C. (L&C)I
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20/21.02.2023 Learned counsel for the petitioners and the respondent - State
are present.
2. Nobody appears on behalf of the private respondents.
3. Learned counsel for the petitioners has submitted that the
solitary issue involved in the present case is whether the findings
recorded in judgment dated 18.06.1986 passed in Land Acquisition
Case No.2 of 1983 under section 30 of the Land Acquisition Act
deciding the only point in the reference case i.e who was the legal heir
of Zahurjan Bibi, wife of Rasul Khan and daughter of Nazir Sheikh, is
final and binding upon the petitioners and the private respondents and
can operate as res judicata in the impugned proceedings. The learned
counsel has submitted that in the aforesaid proceedings under the
Land Acquisition Act it was decided that the predecessor in interest
of the petitioners would be entitled to half share of the property. The
learned counsel submits that in view of the findings recorded in the
aforesaid case, the petitioners there can be no doubt that the
petitioners would be entitled for entry of their name in the record of
the respondents with regards to the property involved in the preset
case initially recorded in the name of Zahurjan Bibi, wife of Rasul
Khan and daughter of Nazir Sheikh.
4. Learned counsel submits that by the impugned proceedings
and orders , the petitioners have been totally deprived of their rights
and the authority has observed that the respondents had inherited the
property of the recorded tenant namely Zahurjan Bibi and their title
have been perfected until it is reversed by a competent court of civil
court. The learned counsel submits that the issue regarding legal heirs
of Zahurjan Bibi having been decided in the earlier suit would operate
as res judicata and therefore the property should have been recorded
jointly in favour of the present petitioners along with other co-sharers
of the property.
5. The learned counsel has relied upon the judgment passed by
Hon'ble Full Bench of this Court reported in 1997 (1) PLJR 155 and
has referred to para 46 thereof to submit that determination pursuant to
reference made under Sections 18 and 30 of the Land Acquisition Act
has the force of decree and has been held to be appealable under
Section 96 of the CPC. The learned counsel has also relied upon the
judgment reported in 1973 SCC online Pat 123. He has also relied
upon judgment passed by Hon'ble Supreme Court reported in AIR
1953 SC 33 para 13 and 14 to submit that the point of res judicata as
has been argued by the present petitioners in this case, is squarely
covered by the said judgment.
6. Learned counsel has also submitted that the determination of
heirs to Zahurjan Bibi was essentially an issue which was decided in
the aforesaid proceedings Land Acquisition Act while determining the
share of compensation arising out of land acquisition proceedings. He
submits that the property involved in this case is only a portion of the
same property. The learned counsel submits that the entire basis of
claim in the land acquisition proceedings and the present proceedings
so far as heirs are concerned is one and the same and therefore there
cannot be any occasion for the present petitioners to go again to the
court and get their rights declared. He also submits that the order
passed in the land acquisition case has attained finality. The learned
counsel has provided the list of dates in the present case and he
submits that the list of dates has also been forwarded to the State as
well as to the private respondents.
7. The learned counsel for the petitioners has also submitted that
the learned court below has not even directed the petitioners to file a
suit for declaration of the title rather by the impugned order, the
authority has declared adverse possession in favour of the private
respondents and such finding is ex facie without jurisdiction as no
such declaration can be given by the respondent authority, which is
the exclusive jurisdiction of the civil court.
8. Learned counsel for the respondent - State has submitted that
she has gone through the records and prima facie it appears that the
parties who are litigating in the present case, their predecessor in
interest were parties in the proceedings before the Land Acquisition
Officer and the entire case arises out of the property recorded in the
name of Zahurjan Bibi, wife of Rasul Khan and daughter of Sheikh
Nazir and therefore, the issue raised by the petitioners in the present
case appears to be covered by the judgments relied upon by the
petitioners.
9. Since the private party is not appearing today, in order to give
an opportunity to the private respondents to respond to the aforesaid
submission, which has been advanced by the learned counsel for the
petitioners, the matter is adjourned and directed to be posted on
01.03.2023 for the arguments of the private respondents to be taken
up at 12.30 p.m.
10. No further adjournment will be granted on the next date. If the
learned counsel for the private respondents does not appear and argue
his case, the case will be decided on the basis of argument advanced
on behalf of the petitioners and the learned counsel for the State
considering the records available with this Court.
11. Let this matter be treated as part heard.
(Anubha Rawat Choudhary, J.)
Saurav/
