Jharkhand High Court
Ajit Kumar Bariar vs The State Of Jharkhand Through The ... on 5 June, 2025
Author: Rajesh Shankar
Bench: Rajesh Shankar
2025:JHHC:14493-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 115 of 2024
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Ajit Kumar Bariar, son of Anant Prasad Bariar, resident of 771,
Bariar House, Devi Mandap Road, Hehal, Ratu Road, Near Devi
Mandap, P.O.- Sukhdeonagar, P.S.- Hehal, District- Ranchi
... ... Appellant
Versus
1. The State of Jharkhand through the Deputy Commissioner,
Ranchi
2. The Additional Collector, Ranchi
3. The Deputy Collector Land Reforms, Ranchi
4. The Circle Officer, Ratu Circle, Ranchi
5. The Circle Inspector, Ratu Circile, Ranchi
6. Revenue Karamchari, Ratu Circle, Ratu, Ranchi
7. Anil Kumar Singh, son of Late Nageshwar Singh, resident of
Ashok Bhavan, Radium Road, Ranchi, P.O.- G.P.O., P.S.- Kotwali,
District- Ranchi
.... ... Respondents
CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Appellant : Mr. Pandey Neeraj Rai, Advocate
Mr. Rishav Raj, Advocate
For the Resp. Nos. 1 to 6 : Mr. Sahbaj Akhtar, A.C. to A.A.G.-III
For the Resp. No. 7 : Mr. Vishal Kumar Rai, Advocate
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Reserved on 01.05.2025 Pronounced on 05.06.2025
Per : Rajesh Shankar, J. :
The present appeal is directed against the judgment/order
dated 11.01.2024 passed in W.P. (C) No.2493 of 2007 whereby the
learned Single Judge has allowed the writ petition filed by the writ
petitioner/respondent no. 7 and has directed the Circle Officer, Ratu
Circle, Ranchi (respondent no. 4) to issue rent receipts in his favour
on payment of rent with respect to the land admeasuring 0.46 acre
in Plot No.65, Khata No.30, Khewat No. 2, Mauza - Lalgutuwa, P.S.-
Ratu, Ranchi (hereinafter referred as the said land).
2. Learned counsel for the appellant submits that the said
land was purchased by the mother of the writ petitioner namely
Devkali Devi from one Lodhar Lohar by way of registered sale deed
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no. 5944 dated 09.09.1963. Mutation of the said land was also done
in favour of Devkali Devi vide Mutation Case No.26 R 27/1963-64
and rent receipts were also issued in her favour, however, the area
transferred to Devkali Devi was not subtracted from the area
recorded in the original khata of the recorded tenants.
3. It is further submitted that the said land was also sold by all
the legal heirs of the recorded tenants i.e., Jatu Lohar and 25 others
to the appellant and one Hiralal Tiwary by way of registered sale
deed no. 11392 dated 15.12.2000. The said land was mutated in the
name of the appellant and another purchaser vide Mutation Case
No.397 R 27/2001-02 and they started paying rent of the same.
4. It is also submitted that the father of the writ
petitioner/respondent no. 7 filed an application before the
respondent no. 4 on 24.06.2003 stating that the rent receipt of the
said land was still being issued in the name of the ex-owners/their
legal heirs and requested to take necessary action as per law and
the said application was registered as Misc. Case No. 3R8II/03-04.
5. The Revenue Karamchari/Circle Inspector submitted the report
in the matter stating that one jamabandi for the said land was
existing in the name of Devkali Devi and second jamabandi was
existing in the name of the appellant. It was further reported that
the appellant was in possession of the said land. The respondent no.
4, vide order dated 25.7.2003, suspended the issuance of rent
receipts in the name of Devkali Devi till any order was passed by
a competent court and sent the record of the case to the Land
Reforms Deputy Collector, Ranchi (the respondent no. 3). The
respondent no. 3 however remitted the matter to the respondent
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no. 4 and thereafter the matter was reheard by him, but once again
vide order dated 15.7.2004, issued a direction to stop issuance of
rent receipts in the name of Devkali Devi till an order was received
by a competent court and sent the record of the case to the
respondent no. 3.
6. The respondent no. 3, vide order dated 17.06.2006, dropped
the proceeding of Misc. Case No. 3R8II/03-04 on the ground that he
had no jurisdiction to declare right and title of the said land and
granted liberty to the writ petitioner to move before the competent
court on the issue of declaration of title. Aggrieved thereby, the writ
petitioner filed an appeal vide Misc. Appeal No. 13R15/2006-07
before the Additional Collector, Ranchi (respondent no. 2), however
the said appeal was also dismissed vide order dated 02.03.2007. The
writ petitioner, then filed writ petition being W.P.(C) No.2493 of 2007
which was allowed vide impugned judgement/order dated
11.01.2024 and the Respondent No. 4 was directed to issue rent
receipts with respect to the said land in favour of the writ petitioner.
7. Learned counsel for the appellant argues that though the sale
deed in favour of the mother of the writ petitioner namely Devkali
Devi was executed earlier, the question of mutation depends on the
factum of possession and on this count, the claim of the appellant
for mutation prevails over Devkali Devi's claim. Moreover, the said
land was recorded in the name of three persons i.e Lodhar Lohar,
Gandaur Lohar and Lodhwa @ Lodha Lohar and out of the said three
recorded tenants, Lodhwa @ Lodha Lohar died issueless. The
mother of the writ petitioner had purchased the said land only from
one of the recorded tenants i.e. Lodhar Lohar whereas the appellant
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along with Hira Lal Tiwari had purchased the said land from the legal
heirs of Lodhar Lohar and Gandaur Lohar.
8. It is also urged that jamabandi in the name of the appellant
was opened keeping in view non-subtraction of the area of land
transferred to the writ petitioner's mother from the area recorded in
the original Khata of the recorded tenants and the subsequent
transfer made in favour of the appellant was complete since the
same was made by all the legal heirs of Lodhar Lohar and Gandaur
Lohar.
9. Learned counsel for the appellant further contends that title of
a jointly owned property cannot be absolute and perfect at the
instance of only one of the co-sharers. The learned Single Judge,
while passing the impugned order dated 11.01.2024, has put much
reliance on Section 48 of the Transfer of Property Act, however the
same applies in a case where a property is transferred by a person
at different point of time to two different persons and in such case
the, precedence is to be given to the prior transfer, whereas in the
present case, the first transfer made to Devkali Devi was only by
one of the co-sharers namely Lodhar Lohar whereas the subsequent
transfer was made in favour of the appellant by all the legal heirs of
the recorded tenants. Therefore, the transfer made in favour of the
appellant was complete and absolute.
10. It is also submitted that though Gandaur Lohar was a witness
in the sale deed executed in favour of Devkali Devi, it cannot be
presumed that Gandaur Lohar had also transferred his share to
Devkali Devi. The learned Single Judge has committed an error in
ignoring the settled proposition of law that a writ court cannot
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decide title of a property in favour of one party that too with respect
to a mutation proceeding.
11. It is lastly contended that the appellant has already sold the
said land and as such the learned Single Judge should not have
recorded finding with respect to the title of the land prejudicial to
the interest of the transferees of the land without arraying them in
the writ proceeding. The learned Single Judge has also failed to
appreciate that the question of title was not an issue in the writ
proceeding, rather the limited issue was for cancellation of mutation
and since the appellant was in possession of the said land, the writ
petition was liable to be dismissed.
12. On the contrary, learned counsel for the writ
petitioner/respondent no. 7 submits that despite mutation of the
land in the name of the mother of the writ petitioner/respondent
no. 7, the same land was sold by the legal heirs and descendants of
Gandaur Lohar and Lodhar Lohar on 15.12.2000 in favour of the
appellant and one Hiralal Tiwary and consequently two jamabandi
were created for the said land; one in the name of Devkali Devi and
another in the name of the appellant.
13. It is further submitted that the order of mutation in favour of
the appellant and said Hiralal Tiwary was illegal as the jamabandi of
the said land was already running in the name of Devkali Devi and
the same was also in her physical possession as well as she was
paying rent to the State.
14. It is also submitted that there is a recital in the sale deed
executed in favour of the appellant and one Hiralal Tiwary on
15.12.2000 regarding entry of the fact in the Khatiyan that the said
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land was in the possession of Lodhar Lohar from whom the mother
of the writ petitioner/respondent no. 7 had purchased the said land.
15. Heard learned counsel for the parties and perused the
materials available on record.
16. Thrust of the argument of the learned counsel for the appellant
is that the appellant has purchased the said land by way of
registered sale deed from all the legal heirs of the recorded tenants
and he is in possession of the same which is a condition precedent
for opening of jamabandi. As such, the respondent no. 4 had rightly
ordered to stop issuing rent receipt in favour of the writ petitioner
(the respondent no. 7 herein) which was not interfered by the
respondent no. 3 and 2. It is further contended that the learned
Single Judge, while passing the impugned order dated 11.01.2024
has committed serious error in entering into the question of title of
the land in the matter of mutation proceeding observing that
subsequent sale of the said land did not transfer its title.
17. We have perused the impugned judgment dated 11.01.2024
wherein the learned Single Judge has observed that Lodhar Lohar
had executed the sale deed in favour of the writ petitioner's mother
in the year 1963 which was witnessed by Gandaur Lohar. It has
further been observed that the title of the said land passed on in
favour of the purchaser in the year 1963 and thereafter the land was
mutated in her name and she started paying rent to the State.
18. The learned Single Judge has put reliance on the judgment of
the Hon'ble Supreme Court rendered in the case of Kaliaperumal
vs. Rajagopal reported in (2009) 4 SCC 193 wherein it has been
held that normally, ownership and title of the property passes to the
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purchaser on registration of the sale deed with effect from the date
of execution of the sale deed.
19. The learned Single Judge, in the impugned judgement, has
also referred section 48 of the Transfer of Property Act, 1882 which
provides priority of rights created by transfer. The said Section
states - "where a person purports to create by transfer at different
times rights in or over the same immoveable property, and such
rights cannot all exist or be exercised to their full extent together,
each later created right shall, in the absence of a special contract or
reservation binding the earlier transferees, be subject to the rights
previously created". It has finally been observed by the learned
Single Judge that the subsequent sale of the property did not
transfer any title over the land in question and as such opening of
parallel jamabandi was illegal.
20. The appellant has not disputed transfer of the said land vide
registered sale deed dated 09.09.1963 executed by one of the
recorded tenants namely Lodhar Lohar in favour of the writ
petitioner's mother. He has also not challenged the mutation of the
same vide Mutation Case No. 26R27 of 1963-64 and issuance of rent
receipts in her favour.
21. The title of the said land was transferred in favour of the writ
petitioner's mother in the year 1963 itself and the said transfer was
never challenged by any person including the other recorded tenants
before any competent court of law. However, due to mistake of the
revenue authorities, the area of the land transferred in favour of the
writ petitioner's mother was not subtracted from the original Khata
of the recorded tenant and the legal heirs of the recorded tenants
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including the sons of Lodhar Lohar taking advantage of the said
lapse, sold the said land again to the appellant on the basis of which
a parallel jamabandi was created in his favour.
22. In view of Section 48 of the Transfer of Property Act, 1882, if a
vendor executes two sale deeds for the same property, the first
executed deed takes precedence. The second deed is generally
considered void, and the second purchaser cannot claim right over
the property on the basis of the second sale deed. In the present
case, since the title of the said land had already passed in favour of
the writ petitioner's mother in the year 1963 itself, subsequent
transfer of the same to the appellant by way of sale deed
dated 15.12.2000 was void ab-initio and the appellant cannot
deserve valid title over the same.
23. We do not find any substance in the claim of the appellant that
the sale deed executed in favour of the writ petitioner's mother was
defective on the ground of being not executed by all the recorded
tenants particularly keeping in view that the sale deed executed in
favour of the writ petitioner's mother has not been declared void by
any competent court of law and the said sale deed is still valid and
effective. Moreover, it was stated in the sale deed dated 15.12.2000
executed in favour of the appellant that the said land was in
possession of Lodhar Lohar from whom the writ petitioner's mother
had purchased the same. Otherwise also, out of the three recorded
tenants, Lodhwa @ Lodha Lohar had died issueless and another
surviving recorded tenant namely Gandaur Lohar had appeared as
witness in the said sale deed which reflected that he had given his
consent in execution of the said sale deed by Lodhar Lohar.
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24. In the case of Shrinivas Krishnarao Kango Vs. Narayan
Devji Kango & Others reported in (1954) 1 SCC 544, it has
been held that proof of the existence of a Hindu joint family does
not lead to a presumption that a property held by any member of
the family is joint and the burden to establish the fact rests upon the
one who asserts that any item of property was joint. Thus, on the
mere fact that the said land was recorded in the name of Lodhar
Lohar, Gandaur Lohar and Lodhwa @ Lotha Lohar does not
ipso facto raise presumption of jointness of property and the burden
of proof was upon the appellant as well as the other recorded tenant
to establish that the property was joint.
25. Jamabandi is created under the provisions of the Bihar Tenants
Holdings (Maintenance of Records) Act, 1973 wherein no such power
has been conferred to any authority of the State to cancel the
jamabandi and in absence of any such power conferred by statute
upon the revenue authorities, the jamabandi cannot be cancelled. If
a revenue authority takes a decision in absence of any such
provision in the statute, the same will be nullity in the eye of law
being without jurisdiction. Moreover, long running jamabandi cannot
be got cancelled, except by filing a suit before the competent court
of civil jurisdiction. In the present case, a parallel jamabandi created
in favour of the appellant was a serious lapse on the part of the
revenue authorities and the writ petitioner cannot be made to suffer
for the same.
26. On bare perusal of the orders passed by the respondent
nos. 2, 3 and 4, it appears that the respondent no. 4 directed to stop
issuance of rent receipt in favour of the writ petitioner's mother
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which was not interfered by the respondent nos. 3 and 2. It was
observed by the respondent nos. 2 to 4 that title of the said land
could not be decided by the revenue courts but by a competent civil
court.
27. Another argument of learned counsel for the appellant is that
the appellant is in possession of the said land which is a primary
requirement for opening of jamabandi and as such the respondent
no. 4 had rightly passed the order in favour of the appellant
stopping issuance of rent receipt to the writ petitioner's mother.
28. It is well settled principle of law that mutation of a property in
the revenue record does not create or extinguish title nor it has any
presumptive value on title. It only enables the person in whose
favour mutation is ordered, to pay the land revenue in question.
Since the execution of the sale deed as well as opening of parallel
jamabandi in favour of the appellant was itself void, the respondent
no. 4 was not right in directing to stop the issuance of rent receipt in
favour of the writ petitioner's mother which was not interfered by
the respondent nos. 3 and 2. The said respondents were also not
right in directing the writ petitioner to take recourse before the
competent court seeking declaration of his right, title and interest as
he had clear right, title and interest over the said land. Thus, the
learned Single Judge has rightly allowed the writ petition filed by the
petitioner/respondent no.7.
29. In view of the aforesaid discussion, we do not find any infirmity
in the order dated 11.01.2024 passed in W.P.(C) No.2493 of 2007.
The present appeal deserves to be dismissed with cost. The
appellant is directed to pay cost of Rs. 10,000/- to the writ
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petitioner/respondent no. 7 within six weeks since he has been
unnecessarily dragged in litigation.
30. The present appeal is, accordingly, dismissed.
31. I.A No. 9844 of 2024 is also disposed of accordingly.
(M.S. Ramachandra Rao, C.J.)
(Rajesh Shankar, J.)
A.F.R.
Ritesh/
