Jharkhand High Court
Balram Mahaldar vs Most. Batia And Ors on 22 January, 2025
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No. 346 of 2017
Balram Mahaldar ... ... Appellant
Versus
Most. Batia and Ors. ... ... Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Appellant : Mr. Rajeeva Sharma, Senior Advocate
: Mr. Om Prakash, Advocate
: Mr. Ritesh Kumar, Advocate
: Ms. Makanda Khatun, Advocate
For the Respondents :
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13/22.01.2025 Heard Mr. Rajeeva Sharma, the learned Senior counsel
appearing on behalf of the appellant along with Mr. Om Prakash,
Advocate, Mr. Ritesh Kumar, Advocate and Ms. Makanda Khatun,
Advocate.
2. In spite of service of notice, nobody has entered appearance on
behalf of the private respondents. Nobody is appearing on behalf of
the respondent-State also.
3. This appeal has been filed against the judgment dated
27.04.2017 and decree dated 04.05.2017 passed by learned Principal
District Judge, Sahebganj in Title Appeal No.15 of 2014 whereby the
appeal has been dismissed. The trial court judgment is dated
05.06.2014 and decree is dated 16.06.2014 passed by Senior Civil
Judge - 1, Sahibganj in Title Suit No.3 of 2006 whereby the suit was
dismissed on contest.
4. It has also been pointed out to the learned senior counsel for the
appellant that the present appeal stood abated against respondent no.3
vide order dated 16.02.2023, to which, the learned counsel for the
appellant has submitted that he has nothing to say.
5. The present second appeal has been admitted on following
substantial question of law.
"1. "Whether the order of eviction of defendants passed by S.D.O.
and Deputy Commissioner in R.E. Case No. 9/85-86 and Rev.
Misc. Appeal No. 19/87-88 by order dated 22.04.1987 and
30.05.1989 respectively can be set aside by Civil Court in T.S. No.
24/89 in utter disregard and flagrant violation of Section 63 of the
Said Act or not?"
2. "Whether the appellate court below while deciding the Title
Appeal No. 15/2014 has not considered Section 63 of the Santhal
Pargana Tenancy (Supplementary Provision) Act in its right
perspective or not?"
6. The learned counsel for the appellant has submitted that one
Title Suit No.24 of 1989 was filed by the defendants of this case
seeking a declaration that the order passed by the Revenue Authorities
in R.E. Case No.9 of 1985-86 and Revenue Miscellaneous Appeal
No.97 of 1987-88 were illegal void and inoperative and not binding on
the defendants of this case and a prayer seeking decree for permanent
injunction was made in connection with the suit property.
7. The learned counsel has submitted that the defendants in the
said title suit were Kalu Mahaldar, Balram Mahaldar and Jagdish
Mahaldar. He has also submitted that Lakhi Mahaldar was also a party
in the title suit whose name was deleted on account of his death during
the pendency of the said title suit. The learned counsel has submitted
that the suit was set ex parte and a decree was passed for permanent
injunction against the defendants of Title Suit No.24 of 1989
restraining defendants of Title Suit No.24 of 1989 from
dispossessing the plaintiffs of the said suit. Thus, in the Title Suit
No.24 of 1989, the order passed in R.E. Case No.9 of 1985-86 and
Revenue Miscellaneous Appeal No. 19 of 1987-88 were made
inoperative against the plaintiffs of the present suit , who are the
appellants before this Court.
8. The learned counsel has further submitted that, in view of bar
under Section 63 of the Santhal Pargana Tenancy (Supplementary
Provisions) Act, 1949 [hereinafter referred to as the Act of 1949], the
order of the Revenue Courts in the matter of eviction passed under
Section 42 of the aforesaid Act could not be subject matter of suit. The
learned counsel submitted that there is a clear bar under the statute
and the suit, which was filed being Title Suit No. 24 of 1989 itself was
not maintainable, and the judgment and decree passed therein is not
binding on the present plaintiffs.
9. The learned counsel has relied upon the judgment passed by
this Court in Second Appeal No. 190 of 2019, decided on 19.12.2024,
and submits that similar issue has been decided. He has submitted that
one of the substantial questions of law which was framed in said
Second Appeal No. 190 of 2019 was:
"(ii)Whether both the courts below committed a grave illegality
by ignoring Section 63 of Santhal Parganas Tenancy
(Supplementary Provision) Act, 1949 by ignoring the order of
eviction passed by the S.D.O. and Deputy Commissioner in R.E.
Case No. 16 of 1975-76 and R.M.A. No. 51 of 2001-02
respectively?"
10. The learned counsel submits that the said issue has been
ultimately decided in favour of the appellant and consequently the
judgments passed by both the trial court as well as the appellate court
impugned in the said case have been set aside.
11. The learned counsel has referred to the order passed by the
Deputy Commissioner in Miscellaneous Appeal No.19 of 1987-88 and
submitted that before the Deputy Commissioner also, the private
respondents were claiming adverse possession, but no materials were
produced before the Deputy Commissioner and the order of the
Deputy Commissioner became final, which could not have been
subject matter of consideration in the earlier Title Suit No.24 of 1989.
He submits that the plea of bar under Section 63 has been considered
by the learned trial court at internal page No. 10 of the trial court's
judgment, but the trial court held that a judgment was already passed
in Title Suit No. 24 of 1989 and the court was not hearing any appeal
against the said suit. The trial court also observed that there is a
provision of setting aside ex parte order by way of filing
miscellaneous case within time, but neither such petition was filed nor
any appeal was filed against the decree passed in the year 1995 in
Title Suit No. 24 of 1989 and after 11 years, the present suit was filed
and the trial court also recorded that the present suit itself was barred
by limitation. The learned counsel submits that once it is found that
the Title Suit No.24 of 1989 was itself barred by provision of law, the
same is void ab initio, illegal, without jurisdiction and a nullity and
therefore, there was no occasion to hold that the present suit was
barred by limitation. He has also submitted that the first appellate
court also did not consider this aspect of the matter properly and
dismissed the appeal.
12. The learned counsel for the appellant has also placed the entire
judgment and decree, which was passed in Title Suit No. 24 of 1989,
and upon perusal of the same, it reveals that it was stated by the
plaintiffs of the said Title Suit No.24 of 1989 that the revenue courts
failed to appreciate that provisions of Section 42 of the aforesaid Act
of 1949 can only be attracted in case of non-transferable land but in
no circumstances on the suit land, which are transferable in nature by
seeking permission of the Sub-Divisional Officer. Besides it may have
also failed to appreciate that the plaintiffs have long perfected their
right, title and possession over the suit land by their continuous
peaceful possession much prior to the death of the recorded tenant in
the year 1935-36.
13. The learned counsel has submitted that the Title Suit No.24 of
1989 was barred by Section 63, and therefore, the present suit was
filed seeking a declaration that the ex parte decree passed in Title Suit
No.24 of 1989 is void, illegal, inoperative, without jurisdiction and
against the provisions of law. He submits that the suit was fit to be
decreed in favour of the present appellants. He submits that the two
questions of law which have been framed are fit to be answered in
favour of the appellants.
14. Arguments concluded.
15. Post this case on 27.01.2025 for "Judgement".
(Anubha Rawat Choudhary, J.)
Saurav/
