Jharkhand High Court
Mofijuddin Ansari vs Md. Samim Akhtar on 26 June, 2025
Author: Rajesh Shankar
Bench: Rajesh Shankar
2025:JHHC:16972-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 40 of 2022
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1. Mofijuddin Ansari, son of Farasat Ansari
2. Md. Razaul Ansari @ Md. Razaul Haque, son of Dr. Siddique
Ansari
3. Md. Sanaullah Ansari, son of Jamalludin Ansari
4. Azmuddin Ansari, son of Umed Ali
5. Md. Mahimuddin Ansari, son of Chand Ali
6. Sikander Ansari, son of Gaffur Ansari
7. Kuddesh Ansari, son of Rasul Ansari
8. Qusum Ansari @ Abdul Qayum, son of Najir Ansari
9. Md. Moinuddin Ansari, son of Late Nazamuddin Ansari
10. Noor Nahi, son of Safar Ali
11. Arjun Mahato, son of Late Bihari Mahato
12. Ram Kumar Mahato, son of Nakul Mahato
13. Balram Mahato, son of Durga Mahato
All are residents of Village- Panchrukhi No. 403, P.O.- Godda,
P.S.- Godda (M),Sub-Division and District-Godda
... ... Appellants
Versus
1. Md. Samim Akhtar, son of Late Abdul Mannan,
2. Md. Arsad Hussain, son of Late Abdul Samad
3. Jiafatur Rahman, son of Nasudat Ali
4. Md. Mahmud Alam Rizvi, son of Late Mustakin Ali,
5. Yusuf, son of Abdul Subhan
6. Abdul Rahman, son of Late Abdul Sayeed
7. Rajaul Rahman, son of Late Sekhwat Rahman
8. Md. Haider Ali, son of Late Hazi Ahmad Gaffur,
All are residents of Village- Panchrukhi, P.O. & P.S.- Godda,
District- Godda
9. Additional Collector, Godda
10. The Commissioner, Santhal Pargana Division, Dumka
.... ... Respondents
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Appellants : Mr. A. Allam, Sr. Advocate
Mr. Faisal Allam, Advocate
Ms. Sushmita Kumari, Advocate
Ms. Asfiya Sultana, Advocate
For the Resp. Nos. 1 to 8 : Mr. Gaurav Abhishek, Advocate
(private respondents)
For the Respondent-State : Mr. Gaurav Raj, A.C. to A.A.G.-II
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Reserved on 23.06.2025 Pronounced on 26.06.2025
Per : Rajesh Shankar, J. :
The present appeal is directed against the judgment dated
01.11.2021 passed in W.P.(C) No. 2203 of 2007 whereby the writ
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petition filed by the writ petitioners/private respondents was allowed
giving liberty to the private respondents/appellants to file title suit
under Regulation 5 of Santhal Parganas Settlement Regulation, 1872
challenging the right and title of the petitioners before the
competent civil court.
2. Learned senior counsel for the appellants submits that the
appellants had filed Revenue Misc. Case No. 01 of 1998-99 before
the Additional Collector, Godda (the respondent no. 9) on behalf of
"16 Anna Raiyats" against the ancestors of the writ petitioners for
restraining them from catching and rearing fish as well as for
allowing the "16 Anna raiyats" to use four tanks in question situated
over Mc. Pherson's Settlement Jamabandi No. 55, Plot No. 21, 104,
193 and 582 corresponding to Gantzer's Settlement Jamabandi No. 8
Plot Nos. 53, 207, 279 and 727 of Mouza Panchrukhi, P.S.- Godda.
The said Revenue Misc. Case was decided by the respondent no. 9
vide order dated 12.05.2003 whereby the "16 Anna Raiyats" were
allowed to use the tanks in question.
3. It is further submitted that the writ petitioners filed appeal
being Revenue Misc. Appeal No. 20 of 2003-04 before the Divisional
Commissioner, Santhal Pargana Division, Dumka (the respondent
no. 10), which was dismissed vide order dated 08.01.2007 observing
that the tanks in question were though recorded in revenue records
as jamabandi tanks of the writ petitioners, however the right to rear
fish in the said tanks was not recorded anywhere. It was further
held that the right of irrigation to the limited extent had already
been proved to have been granted to the raiyats of the village and
the same was ordered in the order dated 12.05.2003 passed by the
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respondent no. 9. Moreover, it was finally observed by the
respondent no. 10 in the order dated 08.01.2007 that the right of
the writ petitioners granted by the entries in revenue records was
not perceived to have been snatched away by the lower court's
order.
4. It is also submitted that the writ petitioners filed writ petition
being W.P.(C) No. 2203 of 2007 challenging the order dated
08.01.2007 passed by the respondent no. 10 which was allowed by
the learned Single Judge vide order dated 01.11.2021 observing that
the entries made in the Mc. Pherson's Settlement and Gantzer's
Settlement had neither been disputed by the appellants before the
said respondent nor the order dated 08.01.2007 of the respondent
no. 10 was challenged before any higher forum by filing an
application, appeal or writ petition to the extent of the observation
that the tanks in question were recorded as jamabandi tanks of the
writ petitioners in revenue records and there was no serious contest
on the point of title of the writ petitioners. It was further observed
by learned Single Judge that the appellants may prefer title suit for
declaration of their title or alternative right over the land in question
before the competent court of civil jurisdiction.
5. It is further argued that the learned Single Judge has failed to
appreciate that in view of Section 35 of the Santhal Pargana Tenancy
Act, 1949 (in short, "the Act, 1949") and under Section 108A of
Bihar Survey and Settlement Manual, it is necessary to maintain the
public character of the tanks in question.
6. It is also contended that the lands are recorded as 'Khas Malik'
on which the tanks in question are situated and as such, after
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vesting of Zamindari, the lands in question had vested with the State
Government.
7. It is further urged that the writ petitioners are not the owners
of the tanks in question. The learned Single Judge has failed to
appreciate that the ancestors of the writ petitioners being the
Pradhan of Mouza Panchrukhi dishonestly got the said four tanks
recorded in their favour in the last Survey Settlement Records but in
fact they never possessed the same.
8. According to learned senior counsel for the appellants, the
learned Single Judge has also failed to appreciate that the opinion of
the Law Secretary-cum-Law Remembrance, Department of Law,
Bihar, Patna has been incorporated in the order of the respondent
no. 9 wherein it has been stated that the tanks in question are
public tanks pertaining to the villagers and as such the same cannot
be settled either in favour of the writ petitioners or any individual
raiyat even by the State. The said four tanks are lifeline for
agriculture and cattle of the entire village population as they use
water of the said tanks for irrigation purpose as well as for fishing,
farming, bathing, cattle bathing etc. The ancestors of the writ
petitioners had already entered into compromise with "16 Anna
Raiyats" as far back as on 28.08.1926 and as such they cannot be
allowed to change their stand resiling from the terms
of compromise.
9. Learned counsel for the respondent-State submits that the
learned Single Judge has already given liberty to the appellants to
challenge the right, title and interest of the writ petitioners by filing
a title suit before the competent civil court. Hence, the impugned
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order needs no interference.
10. Learned counsel for the writ petitioners/private respondents
submits that in the order dated 08.01.2007, the respondent no. 10
has clearly observed that the tanks in question are recorded in the
revenue records as jamabandi tanks of the writ petitioners/private
respondents and the said observation has attained finality since the
same has not been challenged by the appellants in any higher forum
and as such the appellants cannot restrain the writ petitioners from
rearing fish in the said tanks.
11. Heard learned counsel for the parties and perused the
materials available on record.
12. The appellants are claiming right of use over the tanks in
question restraining the writ petitioners from rearing and catching
fish contending that the public character of the tanks in question
cannot be changed.
13. In support of the aforesaid contention, learned counsel for the
appellants puts reliance on Section 35 of the Act, 1949. Sub-section
(1) of the said section provides that bandhas, aharas, tanks and
other water reservoirs or channels, which are used either for the
purposes of protection from flood or for irrigation, bathing, washing
or drinking, shall not be settled for or converted to any other
purpose without the consent of the raiyats and the village headman
or mulraiyat, or the landlord in khas village, and the approval of the
Deputy Commissioner. It is further provided that no one shall bring
under cultivation any such water reservoir or channel. Further, sub-
section (2) of Section 35 of the said Act provides that no proprietor
or landlord shall be entitled to levy any charge for the use of water
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reservoirs and channels mentioned in sub-section (1) for irrigation,
bathing, washing or drinking purposes.
14. Thus, Section 35 of the Act, 1949 protects the rights of the "16
Anna Raiyats" of any village to use any bandh, ahara, tank and other
water reservoirs or channels pertaining to a proprietor or landlord for
the purposes of protection from flood or for irrigation, bathing,
washing or drinking without being levied any charge for the same.
The said Section also prohibits settlement or conversion of such
bandhs, aharas, tanks and other water reservoirs or channels for any
other purpose without the consent of the raiyats and the village
headman or mulraiyat or the landlord in Khas village and the
approval of the concerned Deputy Commissioner.
15. On bare perusal of the record of the case, it transpires that the
tanks in question were the jamabandi tanks of the writ petitioners
upon which the appellants were given irrigation right only to the
limited extent and the main source of irrigation was from river
Bhesia. Thus, Section 35 of the Act, 1949 is not applicable in the
present case since the tanks in question have no public character.
16. The appellants have also challenged the title of the writ
petitioners over the said tanks in question. It is well settled principle
of law that title dispute cannot be adjudicated either by the revenue
courts or under writ jurisdiction and as such, the learned Single
Judge has rightly granted liberty to the appellants to prefer title suit
before the competent court of law. Moreover, the factual observation
of the respondent no. 10 to the extent that the tanks in question
were recorded as jamabandi tanks in the name of the ancestors of
the writ petitioners in the revenue record, has not been disputed by
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the appellants and as such, no relief can be granted to the
appellants under extraordinary writ jurisdiction.
17. So far the claim of the appellants to restrain the writ
petitioners/private respondents from rearing and catching fish from
the tanks in question is concerned, since it is not in dispute that the
said tanks have been recorded as jamabandi tanks of the writ
petitioners and no fishery right has been given to the appellants and
other "16 Anna raiyats" in the said tanks, we find no substance in
the said claim of the appellants.
18. In view of the aforesaid discussion, we do not find any infirmity
in the order dated 01.11.2021 passed in W.P.(C) No. 2203 of 2007.
19. The present appeal is, accordingly, dismissed.
(M.S. Ramachandra Rao, C.J.)
(Rajesh Shankar, J.)
N.A.F.R.
Ritesh/
