Sudarshan Prasad Sah Son Of Late ... vs The State Of Jharkhand
2023 Latest Caselaw 2107 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
            (Letters Patent Appellate Jurisdiction)

                     L.P.A. No. 212 of 2019


1.Sudarshan Prasad Sah son of Late Jagarnath Sah
2.Prashant Kumar Rajesh son of Late Jagarnath Sah
3.Rajendra Kumar son of Late Jagarnath Sah
4.Smt. Sumitra Devi wife of Late Ram Bilash Sah
      All residents of village Aguiyabandh No. 71, S.C. P.O. Kharbani
       Pargadih, P.S.- Jama, District- Dumka              ...... Appellants
                                     Versus
1. The State of Jharkhand
2.The Commissioner, Santhal Pargana Division, Dumka
3.The Settlement Officer, P.O. & P.S.-Dumka, Dumka
4.The Assistant Settlement Officer, P.O. & P.S.-Dumka, Dumka
5.The Deputy Commissioner, P.O. & P.S.-Dumka, Dumka
6.The Sub-Divisional Officer, P.O. & P.S.-Dumka, Dumka
7.The Circle Officer, Masalia, P.O. & P.S.-Dumka, Dumka
8.Mostt. Lakhia Devi wife of Late Lakhpati Singh
9.Ganesh Roy son of Late Lakhpati Singh
10.Sudan Roy son of Late Lakhpati Singh
11.Bhuwan Roy son of Late Lakhpati Singh
12.Titu Roy son of Late Lakhpati Singh
13.16 Anna Raiyats of village Aguiyabandh.
    All residents of village Aguiyabandh No. 71, S.C. P.O. Kharbani,
    Pargadih, P.S.- Jama, District- Dumka             ...... Respondents
                                     ---------
                               PRESENT
         HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
             HON'BLE MR. JUSTICE RATNAKER BHENGRA
                                  -------
      For the Appellants     : Mr. Rajeeva Sharma, Sr. Advocate
                             : Mr. Ritesh Kumar, Advocate
                             : Mr. Om Prakash, Advocate
      For the Respondents    : Mr. Rakesh Kumar Shahi, AC to SC ( L&C)-1
                                 -------
                                                      Oral Order
                                                    19th May 2023
Per, Shree Chandrashekhar,J.

I.A. No. 6372 of 2021

This Interlocutory Application has been filed for condonation of delay of 161 days in filing this Letters Patent Appeal.

2. Having been satisfied with the cause shown by the appellant, delay of 161 days in filing this Letters Patent Appeal is condoned.

3. I.A. No. 6372 of 2021 stands allowed.

L.P.A. No. 212 of 2019

4. Sudarshan Prasad Sah, Prashant Kumar Rajesh, Rajendra Kumar and Smt. Sumitra Devi, all resident of village Aguiyabandh have challenged the order dated 27th August 2018 passed in WP(C) No. 3805 of 2007.

5. In the writ petition, a prayer was made for a direction upon the Settlement Officer who was the Respondent No. 3 and the Assistant Settlement Officer who was the Respondent NO. 4 to enter the name of writ petitioners in Survey Settlement Records and to make final publication in their names in respect to the lands comprised under Jamabandi No. 17 in Khata No. 20 of Thana Masalia, district of Dumka. There was no specific prayer to challenge the order dated 19 th February 2007 passed in R.M. Case No. 252 of 1987-1988 and the order dated 25 th June 1987 passed in Fauti Case No. 01 of 1986 - only a prayer to stay the operation of the aforesaid orders was made.

6. For easy reference, the prayer in the writ petition is extracted below:

"For issuance of direction commanding the respondent no. 3 and 4 in particular to record the names of the petitioners in Survey Settlement Record on the basis of the records and factual position that the petitioners and their ancestors viz. Grand father and father have been continuously coming in legal and peaceful possession of the landed property in question of Mauza Uparbandha and Aguiyabandh and the settlement officer viz. Respondent No. 3 has also made final publication by recording their names in the record of right with respect to the landed property of Mauza Aguiyabandh and also fixed the rent, not challenged by the Respondent No. 8 or any body else, became final, but surprisingly the Respondents No. 3 & 4 refused to open the Khata with respect to the property of Mouza Uparbandha Khata No. 20, J.B. No. 16, Khesra No. 90/102, 188/102, 196/255, 261 area 58 decimals, 54 decimals and 62 decimals respectively. The Respondents No. 3 and 4 by the impugned order dated 25.06.1987 and 11.09.1987 in case no. 1/86 and have wrongly gave a wrong and perverse finding that the aforesaid landed property of J.B. No. 17 did not become a fouti property as has been allegedly succeeded by one Lakhpati Singh (imposter) as the alleged grand son of Lakhiya Devi. The finding of the Assistant Settlement Officer and the Learned Commissioner in their impugned cryptic orders with respect to succession of Lakiya Devi by Lakhpati Singh is wholly perverse without any substance, baseless, incorrect and false and in the absence of any factual enquiry. The impugned order of the Learned Commissioner, Settlement Officer and Assistant Settlement Officer are highly prejudiced to the interest of the petitioners on the landed property situated in J.B. No. 17 of Mouza Uparbandha which has been possessed by the petitioners and their ancestors for more than 70

years and perfected their title, as such are fit to be quashed by this Hon'ble Court."

7. The writ Court has refused to interfere in the matter except to the extent to observe that the appellate authority had no occasion to make an observation that the writ petitioners cannot claim benefit of adverse possession.

8. The writ Court has further observed that in the event any proceeding for eviction is initiated under Santhal Pargana Tenancy (Supplementary Provision) Act, 1949 the writ petitioners shall be at liberty to lay claim over the subject property claiming adverse possession.

9. The court Court has made the following observations:

"8. This court further finds that even if the original recorded tenant in connection with both the properties are the same and the property being Jamabandi No. 31 has been declared 'Fauti", it has no bearing in connection with Jamabandi No. 17 as the name of legal heirs of the recorded tenant did not find place in the proceedings in connection with Jamabandi No. 31. Otherwise also even if the legal heirs of the recorded tenant has not been brought on record in relation to a proceeding for Jamabandi No. 31, that does not mean that they cannot be found in connection with proceedings relating to Jamabandi No. 17. This court further finds that both the authorities below have given consistent finding that the private respondent herein was the legal heir of the recorded tenant and accordingly they have refused to declare the property as 'Fauti'. So far as earlier proceeding being Revenue Misc. Case No. 72/1971-72 is concerned, the property was never declared as 'Fauti' rather some observation was made that the petitioners were in possession of the property 12 years prior to 1949 and the authority did not consider it appropriate to evict the petitioners from the property although the said proceeding was not a proceeding for eviction under the provisions of the Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949. This court finds that in the impugned order passed by the appellate authority there is observation that the petitioners cannot claim the benefit of adverse possession and they have failed to prove their possession of the property 12 years prior to 1949. This court finds that the appellate order did not arise out of a proceeding for eviction and the proceeding was related to declaration of the property as 'Fauti". Accordingly, there was no scope for giving any finding as to whether the petitioners have perfected their title by way of adverse possession or not. In such circumstances, this court finds that so far as finding in connection with declaration of a property as 'Fauti' and other findings given in the order passed in Fauti Case No. 1/1986 is concerned, the same does not call for any interference. But the observation made by the appellate authority to the extent that the appellant has failed to prove his possession and cannot be given benefit of adverse possession was totally uncalled for as proceeding herein do not arise out of the proceeding for eviction of the petitioners.

9. Accordingly, this writ petition is disposed of without interfering with the impugned order with the observation that if any proceeding for eviction is initiated against the petitioner under the

provisions of Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 then it will be open to the petitioners to establish their claim of adverse possession, if any, over the property and such proceedings will be decided without being influenced by any observation made in the impugned order dated 19.02.2007 passed in R.M. A. Case No. 252/1987-88."

10. Mr. Rajeeva Sharma, the learned senior counsel for the appellants has contented that once the landed property within Mauza Aguiyabandh has been declared fauti property, the revenue authorities could not have taken a contrary view with respect to the subject property under Mauza Uperbandha. The learned senior counsel for the appellants has further contended that the revenue authorities were required to record a definite finding on the plea raised by the appellants that Lakhpati Singh is an imposter and not the grand-son of Lakhiya Devi.

11. This is a well-settled proposition in law that the proceeding before the revenue authority is summary in nature and the findings recorded by the revenue authority therein does not decide right, title and interest in the property. The appellants have pleaded that Title Suit No. 06 of 1956/41 of 1957 was instituted by the grand-father and father of the Doman Sah and Jagarnath Sah who are the ancestors of the appellants and the said suit was decreed in their favour. They have further pleaded that Title Appeal No. 54 of 1957/ 56 of 1958 was dismissed affirming the judgment and decree in the aforesaid title suit. The appellants have claimed that in the proceeding of Title Execution Case No. 15 of 1959 the ancestors of the appellants were given possession of the subject property and since then they are in continuous cultivating possession over the same and have paid rent. From the order dated 27th August 2018, this position seems to have been accepted by the writ Court that the appellants are in possession over the subject land.

12. Now in a situation where the orders passed by the revenue authorities were not under challenge before the writ Court, the prayer made in the writ petition could not have been granted. The writ Court has rightly stayed away from entering into the factual dispute which is quite apparent at a mere glance at the prayer made in the writ petition. To be more precise, it is indicated here that the appellants have raised a question of fact that Lakhpati Singh is an imposter and not the grand-son of Lakhiya Devi.

Evidently the dispute between the parties involves such questions of fact which could not have been adjudicated by the writ Court.

13. Having found so, finding no merit in this Letters Patent Appeal, LPA No. 212 of 2019 is dismissed.

(Shree Chandrashekhar, J.)

(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 19th May, 2023 Sharda/S.B.-N.A.F.R