Smt. Rubi Rai Tirkey vs State Of Jharkhand
2025 Latest Caselaw 5813 Jhar

Jharkhand High Court

Smt. Rubi Rai Tirkey vs State Of Jharkhand on 15 September, 2025

Author: Anubha Rawat Choudhary

Bench: Anubha Rawat Choudhary

                IN THE HIGH COURT OF JHARKHAND AT RANCHI

                                    S.A. No. 241 of 2018

            Smt. Rubi Rai Tirkey, D/o late Joseph Tirkey, Resident of Gitilipi,
            Kulkumdungri, P.O. - Azadnagar, P.S. Mango, District- East
            Singhbhum           ...  ...      Plaintiff/Appellant/Appellant
                                   Versus
            1. State of Jharkhand
            2. The Secretary, Department of Forest, P.O. and P.S. Doranda,
               District Ranchi.
                  ...         ...     Defendants/Respondents/Respondents
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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Appellant : Mr. Rahul Kr. Gupta, Advocate : Mr. S.B. Gupta, Advocate : Mr. Navnit Prakash, Advocate For the Respondents : Mr. Sanjay Kr. Tiwari, SC-I : Mr. Krishna Kr. Bhatt, AC to SC-I

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14/15.09.2025 Heard the learned counsels appearing on behalf of the parties.

2. This appeal has been filed against the judgment dated 09.02.2018 (decree signed on 23.02.2018) passed by learned District and Additional Sessions Judge-X, Jamshedpur in Civil Appeal No. 03 of 2017 whereby the learned 1st appellate court dismissed the appeal preferred by the appellant. The trial court judgment is dated 20.12.2016 (decree signed on 03.01.2017) passed by learned Civil Judge (Senior Division)-I, Jamshedpur in Title Suit No. 11 of 2006 whereby the learned trial court had dismissed the suit of the plaintiff.

3. The suit was filed for the following reliefs:

"(a) For a decree declaring the right, title and interest of the plaintiff over the suit property.

(b) For decree declaring that the settlement entry in respect of the schedule land of the plaint in the records of right finally published on 10.08.1979 showing the Khata in the name of "Ban Bibhag Bihar Sarkar" is wrong and erroneous. (C) For permanent injunction restraining the defendants from interfering with the peaceful possession of the plaintiff over the schedule land in any manner whatsoever and also from taking forcible possession of same or any part therefrom. (D) For cost of the suit.

(E) For any other relief or reliefs to which the plaintiff be found entitled under the law and equity."

4. The following substantial questions of law were framed by this Court vide order dated 30.01.2023:

1.Whether learned First Appellate court has committed perversity by holding that the sale deed executed by Ladura Ho in favour of the mother of the plaintiff, is barred by provisions of the Chota Nagpur Tenancy Act, even though there is no such pleading of the parties?

2. Whether the First Appellate Court has committed gross illegality by observing that the plea of adverse possession can be used as a shield and not as a sword in view of principle of law settled by the Hon'ble Supreme Court of India in paragraph 64 of the judgment in the case of Ravinder Kaur Grewal & Ors. vs. Manjit Kaur and Ors.

reported in 2019 (8) SCC 729?

3. Whether learned First Appellate Court has committed perversity by excluding Exhibit 5, which is relevant material in arriving at the finding?

4. Whether learned First Appellate Court has committed gross illegality by holding that the suit is barred by limitation in view of the principle of law settled by Hon'ble Supreme Court of India in paragraph 18 of the judgment in the case of Daya Singh & Anr. vs. Gurdev Singh (Dead) by LRs. and Ors. reported in 2010 (2) SCC 194?

5. Learned counsel for the appellant has placed the facts from the trial court's judgment and has submitted that the plaintiff was claiming title by virtue of registered sale-deed no. 3518 dated 08.05.1956 who claimed to have purchased the suit property from Ladura Ho and claimed to be in possession of the property. The property was purchased by Masih Dhani Tirkey- the mother of the plaintiff. The learned counsel submits that the record-of-rights were finally published on 10.08.1979 wherein the suit property was shown to be recorded in the name of "Ban Bibhag Bihar Sarkar" and in the remarks column, the same was shown to be in illegal possession of Masih Dhani Tirkey- the mother of the plaintiff since 1971. Learned counsel submits that prior to final publication of record-of-rights, the defendant- State had filed a case under section 83 of Chotanagpur Tenancy Act, 1908 (hereinafter referred to as 'CNT Act') with respect to the suit property against Masih Dhani Tirkey and vide order

dated 24.08.1973, the Assistant Settlement Officer had confirmed the possession of the plaintiff and plaintiff's mother. The learned counsel submits that the plaintiff came to know about finally published record- of-rights dated 10.08.1979 only when one officer of the Forest Department had threatened the plaintiff to dispossess the plaintiff from the suit property in the year 2005 and thereafter, the plaintiff obtained the records of finally published record-of-rights and filed the suit seeking declaration of right, title and interest over the suit property and also seeking a declaration that the settlement entry in respect of schedule land of the plaint in the record-of-rights finally published on 10.08.1979 showing the Khata in the name of Ban Bibhag Bihar Sarkar was wrong and erroneous.

6. The learned counsel for the appellant has submitted that since the plaintiff was in possession of the suit property, there was no occasion to claim recovery of possession, rather no alternative relief was also claimed seeking recovery of possession, if the plaintiff is found dispossessed from the suit property. The learned counsel submits that mere entry in finally published record-of-rights on 10.08.1979 does not give the cause of action to file the suit, rather the cause of action arose when the authority of respondent- State threatened the plaintiff and therefore, the cause of action arose in the year 2005.

7. Learned counsel for the appellant has referred to the judgment passed by the Hon'ble Supreme Court reported in (2010) 2 SCC 194 [Daya Singh and Another Vs. Gurdev Singh (Dead) By Lrs. and others] and has referred to paragraph 18 thereof to submit that the High Court in the judgment impugned in the said case had fallen in grave error in holding that the suit was barred by time and ignored to appreciate that the rights of the appellants of the said case to have the revenue record accrued and first arose in 1990 when the appellants came to know about the wrong entry and the respondents failed to join the appellants in getting it corrected. The Hon'ble Supreme Court has held that mere existence of a wrong entry in the revenue records does not, in law, give rise to a cause of action within the meaning of Article

58 of the Limitation Act. The learned counsel submits that in view of the aforesaid judgment, the point of limitation is not to be counted from 1979 i.e., date of final publication of record-of-rights, but from the date of cause of action as disclosed in the plaint. He submits that the substantial question of law no. (4) is fit to be answered in favour of the appellant and against the respondents.

8. While referring to the 1st substantial question of law, the learned counsel for the appellant has submitted that there was no foundational pleading that the transfer of property by Ladura Ho in favour of mother of the plaintiff was barred by section 46 of CNT Act. The learned counsel has submitted that the State was claiming tittle over the property and if the transfer was barred by virtue of section 46 of CNT Act, then the property would have reverted back to the original owner and not to the State. Since the State was claiming the property, recourse to section 46 of CNT Act was completely out of the frame of the suit and therefore, such findings recorded by the Court without any foundational pleading that the case was barred on account of absence of permission under section 46 of CNT Act is not in accordance with law and such findings are perverse. The learned counsel has submitted that the State cannot dispute that it was their specific claim that the property belongs to the State and such entry in the record-of-right was challenged by the plaintiff in the present suit and not by the State. The learned counsel submits that the 1st substantial question of law is also fit to be answered in favour of the appellant and such findings are perverse.

9. With respect to the 2nd substantial question of law, the learned counsel for the appellant has placed the trial court's judgment as well as the 1st appellate court's judgment and has submitted that the learned trial court has considered the claim of adverse possession on various aspects of the matter, but the learned 1st appellate court has rejected the same by observing that the plea of adverse possession can be used only as a shield and not as a sword and such observation of the learned 1st appellate court is contrary paragraph 64 of the judgment passed by the Hon'ble Supreme Court in the case of "Ravinder Kaur Grewal &

Ors. vs. Manjit Kaur and Ors." reported in 2019 (8) SCC 729 which judgment has been cited while framing the 2nd substantial question of law.

10. Learned counsel for the appellant has further submitted that even if everything is taken against the appellant, then also the entry in record-of-rights showed that the plaintiff was in possession of the property since 1971 and the suit was filed in the year 2006 which was beyond the period of 30 years. He submits that the plaintiff had filed the suit seeking declaration of right, title and interest over the property and the State neither took any action to evict the plaintiff nor disturbed the possession of the plaintiff in any manner although it was in full glare of the State that the plaintiff was in possession of the property since 1971. In such circumstances, the plaintiff had perfected the title by way of adverse possession since their possession was undisputed, open and hostile to the title of the State for more than 30 years. This would be in view of the provisions of Article 65 of the Limitation Act.

11. While referring to the 3rd substantial question of law, the learned counsel submits that the State made an attempt to get the entry in record-of-rights which was in favour of the plaintiff to the extent it was shown that the plaintiff was in possession of the property since 1971 but that plea was rejected vide exhibit- 5. He also submits that since such a plea was rejected, the entry in record-of-rights continued to show that the plaintiff was in possession of the suit property at least since 1971. He submits that even exhibit- 5 clearly shows that there was a contest with regard to the possession of the plaintiff shown in the record-of-rights since 1971 and taking exhibit- 5 into consideration, the undisputed fact which comes up from the records of the case is that the plaintiff remained in possession of the property at least since 1971 and therefore, there can be any doubt that the plaintiff had perfected the title by way of adverse possession being in possession for more than 30 years and the basic ingredients of adverse possession were otherwise duly satisfied.

12. The learned counsel for the appellant has relied upon the judgment passed by the Hon'ble Supreme Court reported in (2009) 13

SCC 229 (L.N. Aswathama and another Vs. P. Prakash) and has referred to paragraph 17 and 18 of the said judgment to submit that the circumstances under which a plaintiff can take both the plea of claiming title and also adverse possession have been duly considered by the Hon'ble Supreme Court. He has submitted that since the entry in the record-of-rights has a presumptive value, the learned courts have recorded that the plaintiff has failed to prove his title by way of registered deed of the year 1956 on the grounds mentioned therein, therefore, the claim of title on the basis of the sale-deed does not survive anymore in view of the findings recorded by the learned trial court.

13. Learned counsel for the appellant, while referring to the aforesaid judgment reported in (2009) 13 SCC 229 (Supra), has submitted that both the learned courts have held that the plaintiff had taken inconsistent plea by claiming title over the property through Ladura Ho and also claiming adverse possession against the State. He submits that such finding is contrary to the law laid down by the Hon'ble Supreme Court reported in (2009) 13 SCC 229 (Supra) and accordingly, the finding recorded by the learned courts is contrary to the settled law.

14. Learned counsel for the respondents has prayed that the matter be taken up on 18th September 2025.

15. Post this case on 18th September 2025 to be taken up at 10:30 a.m. as the first case.

(Anubha Rawat Choudhary, J.) Pankaj 15th September, 2025