[Cites 24, Cited by 0]
Jharkhand High Court
Mahendra Prasad Rai vs The State Of Jharkhand on 9 April, 2026
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
( 2026:JHHC:10478 )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1726 of 2007
1. Mahendra Prasad Rai, son of late most. Gaya Devi, wife of late Khartar
Rai, Resident of village-Dudhani No. 6, S.c. Dhoria, P.O. Dumka, P.S.
Dumka (T), District- Dumka
2. Birendra Prasad Rai, son of late most. Gaya Devi, wife of late Khartar
Rai, Resident of village-Dudhani No. 6, S.c. Dhoria, P.O. Dumka, P.S.
Dumka (T), District- Dumka
...............Petitioners
Versus
1. The State of Jharkhand
2. The Commissioner, Santhal Pargana Division, Dumka
3. The Settlement Officer, Dumka
4. The Assistant Settlement Officer, Dumka
5(a) Suna Devi
(b) Balram Mahto @ Tun Tun Mahto
(c) Damodar Mahto
(d)Umesh Mahto
(e) Poonam Devi
(f). Lalita Devi (substituted V.O.D 06.07.2009)
All residents of Mohalla Dudhani, Dumka Town, P.S. Dumka Town, P.O.
Dumka Town, District-Dumka.
6. (a) Manju Devi
(b) Uttam Mahto
(c) Anita Devi, wife of Murari Mahto
Residents of village Dakchin Bahal, P.O. and P.S. Jamtara, Dsitrict-Jamtara
6.(d) Anna Purna Kumari @ Putul, resident of Mohalla Goshala Road,
Dudhani, Dumka (T), P.O, P.S and District- Jamtara.
7. Mangli Mahatwain wife of late Kishun Mahto (Deleted vide order dated
16.04.2008)
8. Binod Mahto son of late Shiknath Mahto
9. Basudeo Mahto
10. Someshwar Mahto
11. Manoj Mahto
12. Anil Mahto
All residents of village Dudhani, No. 6, S.C. Dhoria, P.O. and P.S. Dumka
Town, District-Dumka.
...... ... Respondents
--------
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioners :Mr. Jay Prakash Jha, Sr. Advocate
Mr. Aishwarya Prakash, Advocate
For the State Ms. Shalini Shahdeo, A.C. to (L& C)-I
For the Respondent Nos. 5 and 6 : Mr. Ayush Aditya, Advocate
Mr. Avnish Prakhar, Advocate
Mr. Akash Deep, Advocate
...........
40/ 09.04.2026: Heard Mr. Jay Prakash Jha, learned senior counsel for the
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petitioners, Mr. Shalini Shahdeo, learned counsel appearing on behalf of the
respondent-State and Mr. Ayush Aditya, learned counsel for the respondent
nos. 5 and 6.
2. This petition has been filed for under Article 226 of the
Constitution of India for direction upon the respondents not to evict the
petitioner from the land bounded with house situated on current settlement
plot nos. 86, 92, 363, 424 (Khanapuri Khata No. 49/8) of mouza Dudhani
under Dumka District. Prayer has also been made to set aside the judgment
and order of the learned Commissioner, Santhal Pargana Division, Dumka in
R.M. R. No. 316/87-88 by which he has affirmed the order passed by the
Assistant Settlement Officer and Settlement Officer, Santhal Pargana Dumka
in R.E.A. No. 19/421 of 86-87 and R.E.A. No. 130/1987 whereby the order of
eviction has been passed against the petitioner and her family members from
the house and land, situated on the aforesaid plots of land.
3. Mr. Jai Prakash Jha, learned senior counsel for the petitioner
submits that the father of the petitioner got sub-lease from the original
tenant (KURFA) as far back as in the year 1936 and the thereafter occupied
the land all through paid rent to the original tenant and the landed property
got mutated in the name of the petitioner as far back as in the year 1974-75
through Mutation Case No.42/74-75, 30A/76-77 and the rent was being paid
to the State since thereafter. He further submits that a settlement proceeding
was going on in terms of Notification Under Section 9 of the Santhal Pargana
Settlement Regulation (3) 1872 in the whole of the Dumka District and in
course of the khanapuri proceeding of the settlement proceeding under the
Dudhani Mauza, the authorities under the settlement found that the
petitioner and her family members have possession of the landed property in
measuring 1 katha and 10 dhurs which was said to be khanapuri Khata
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no.49/8 Khanapuri, Khesra No. 84/52 86/52, 92/58, 366/279 and 367/279 as
transferred case No. 19/421 as such a proceeding Under Section 20 (5) and
42 of the Santhal Pargana Tenancy Act 1949 was started against the
petitioner, stating that the petitioner has illegal possession over the landed
property in question. He submits that thereafter a notice was served upon
the petitioner and the petitioner appeared before the Learned Assistant
Settlement Officer in the khanapuri proceeding and submitted her show
cause stating inter-alia that the father and husband of the petitioner had
good relationship with one Kishun Mahato, the father and grand-father of the
Respondent No.5 to 9 and out of love and affection the said Kishun Mahato
and his sons being the witness, had settled 10 Katha 6 chhatak and 6 dhurs
of land of Mauza Dudhani, being Plot No.279, 6 katha of Plot No.52 and 9
katha of Plot No. was made 58 and 9 katha of Plot No. 409, such settlement
was made through KURFA. He submits that this a prevalent practice in the
Santhal Pargana and on account of Kurfa settlement made as far back as
24.04.1936 and 05.05.1936, the father and husband of the petitioner and
thereafter the petitioner came in possession of the landed property in
question and thereafter the petitioner used to pay the rent to the heirs of the
recorded tenant as being sub-lessee. He then submits that the father and
the husband of the petitioner thereafter constructed their house and
bounded the entire landed property on 1 Bigha and 10 Katha which are
contiguous to each other and used it for domestic purposes and thereafter 2
Mutation Cases being 42/74-75 and 30/A/76-77 were separately started and
thereafter they were also paying rent to the State. According to him, the
original petitioner was a landlness lady and she had no other house. By
drawing the attention to the impugned orders the learned senior counsel
submits that the authorities have found that the house has been erected
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therein and the said KURFA through which the father of the petitioner came
over the possession of land was not question at any point of time. He
submits that the authorities concerned have not exercised their jurisdiction
so vested in them and passed the judgment of eviction by the cryptic orders
which is contrary to the principle of Santhal Pargana Settlement Regulation.
He also submits that the petitioners are in possession of the land and have
constructed house for a period of 12 years and in view of that also the
orders of the learned authorities are bad in law. He refers to section 56 of
the Santhal Pargana Tenancy Act and submits that the Deputy Commissioner
has power to permit the raiyat to remain in possession of the dwelling house
and to buttress this argument he refers to Kurfa annexed with the writ
petition and by way of drawing the attention of the Court to the rejoinder to
the counter-affidavit filed by the respondent no.5 and submits that the rent
receipts and order passed in mutation cases are annexed with said rejoinder.
He also submits that the rent receipts of the year 1974-75 have been
annexed. Mr. Jha, learned senior counsel submits that if the orders of the
authorities will sustain, the great prejudice will be caused to the petitioners
and to buttress this argument, Mr. Jha, learned senior counsel relied in the
case of "Andu Larwey and Another Vs. The State of Jharkhand and
Others" reported in 2010 (3) JLJR 384. He refers to para 11 of the said
judgment which is as under:-
"11. From the rival submissions the admitted facts
which emerge are as follows
(i) In the proceeding before the Settlement Officer, on being
called upon, the Assistant Settlement Officer submitted a report
after conducting an enquiry and after recording the state-ments of
the occupants of the lands adjacent to the disputed plots and also
of the heirs of the recorded tenant. The report confirmed that even
as per the admission of the heirs of the recorded Raiyat, the
ancestors of the petitioners had taken the settlement from the
original recorded tenant and had come into possession of the lands
in 1936-37. This fact was supplemented by the petitioners who had
produced rent receipt of the years 1937, 1939, 1940 and 1942.
(ii) The fact that the ancestors of the petitioners had taken
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possession of the land in question on the basis of the Kurfa
Settlement was also admitted by the surviving heirs of the recorded
ten-ant in his written statement filed in the Title Suit No. 47/1964,
Even if the documents pertaining to the Title Suit may be
questioned as collusive documents, but the fact remains that the
surviving heirs of the original recorded tenant have acknowledged
that the petitioners had come in possession of the land's on which
the ancestors of the petition-ers had constructed the house.
(iii) Admittedly, it was after considering these aspects of the
evidences brought on record, the Settlement Officer being satisfied
that the petition-ers, ever since the time of their ancestors, had
come in occupation and pos-session of the land over which they
had constructed the house, since 1936-37. Yet, even after accepting
the afore-said facts, the Settlement Officer has relied on the Full
Bench judgment of the Patna High Court in the case of Shaikh
Bande (supra) and ordered for the petitioners' eviction from the
land under Plot No. 1369 by applying the ratio which was decided in
the context of the provisions of the C.N.T. Act and without making
any reference whatso-ever to the law in relation to the Santhal
Parganas Tenancy Act."
4. Relying on above judgement, Mr. Jha, learned senior counsel
submits that on the ground of adverse possession the matter was remanded
back by this Court. He also relied in the case of " Uma Pada Choudhary
and Another Vs. Panchanand Coudhary and Others" reported in
2005(3) JCR 67 (Jhr). He refers to para 8 of the said judgment which is as
under:-
" 8. Having heard the learned counsel for the appellants and
perused the records, I find that the plaintiff had sought reliefs of
declarations of their right, title and interest and confirmation of
possession and for declaration that the order of the Circle Officer for
their eviction is illegal and without juris-diction. No declaration of title
and/or possession was sought for against the State of Bihar. Such
being the case there was no necessity of impleading the State of Bihar
as a defendant in the suit. The nature of the claim of the appellants
was purely relat-ing to title and possession with respect to the suit
land which were allegedly inter-fered with, by defendants, giving rise
to the cause of action for the suit. In that view. there was no necessity
to add the State of Bihar as a defendant as the issues involved were
the contesting claims of right, title between the plaintiffs and the
defendants. So far the order of the Circle Officer is concerned, the
same has not declared any right and title. The Circle Officer held that -
Kurfa settlement in favour of the father of the plaintiff No. 1 was
contrary to the provision of Santhal Parganas Tenancy Act without
taking into consideration that at the time of the said settlement, the
Act itself was not in existence and it was brought on statute book
much thereafter, There was no question of contravention of any
provision which was then not in existence, The Court below has thus
committed serious errors in arriving at the finding that the suit was
bad for non-joinder of the State of Bihar and on that ground
dismissing the plaintiffs suit and appeal. It is thus held that the State
of Bihar was not a necessary party to the suit and the reliefs prayed
for by the plaintiffs relating to declaration of their title and con-
firmation of possession should have been considered and decided even
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in absence of the Circle Officer or the State of Bihar."
5. Relying on the above judgment, Mr. Jha submits that the raised
practice was allowed considering the kurfanama. He also relied in the case
of " Asharfi Mahaton and others Vs. The State of Bihar and others"
reported in 1978 PBCJ 572. He refers to paras 6 and 7 of the said
judgment which is quoted hereinbelow:-
"5. Learned counsel for the petitioners Mr. Braj Kishore Prasad No. 2
has urged that on the findings recorded by the authorities, the
petitioners had been in possession of the lands in question since
1941 and that when the proceedings was started in the year 1969
they had perfected their title by adverse possession and as such no
orders for their eviction could be passed under Section 20 (5) of the
Act. In this connection reliance has been placed on the case of
Bhauri Lal Jain and another. Vrs. Sub-Divisional Officer Jam-tara and
others and on the unreported decision in Goda Mahato and others
Vrs. State of Bihar and others, decided on 2nd January, 1977.
Mr. Prasad submitted that on the findings the petitioners came in
possession of the disputed lands at least on 1st Baisakh 1348 1941)
and at a time when Regulation 3 of 1872, was in force. According to
the provisions as contained in Regulation 3 of 1872, title by adverse
possession could be acquired. There fore he submitted that the
process of acquisition of title by adverse possession has started in
the year 1941 itself and that the process so started continued even
after the enforcement of the Act. According to him, therefore the
orders as contained in Annexures 4, 5, 7 and 8 for eviction of the
petitioners from the lands in question were bad.
6.In the aforesaid case Bhauri Lal Jain and another (supra) it has been
held that the title by adverse possession could be acquired under an
invalid transfer in contravention of Section 27 (1) of Regulation 3 of
1872 and those who had acquired good title by adverse possession
under that Regulation could not be evicted. It is true that on 1st.
November 1949 the petitioners had not perfected their title by adverse
possession, but that is of no consequence so far as this case is
concerned. The petitioners had come in possession of the lands in
question in the year 1941 on the basis of a Kurfa settlement, which
was an invalid transfer being in contravention of Section 27 (1) of
Regulation 3 of 1872. It is also true that Section 69 (a) bars acquisition
of title by adverse possession on any land held or acquired in
contravention of provision of Section 20. But the petitioners did not
come in possession of the disputed lands or claim to have acquired
title in contravention of section 20. They claim to have core in
possession on the basis of acquisition of title by a Kurfa settlement.
This settlement, though illegal, was certainly not in contravention of
the provision of Section 20. Therefore, in my opinion, section 69 has
not application and therefore the process of acquisition of title in the
year, 1941, continued till after the enforcement of the Act."
6. Relying on the above judgment, he submits that the said case
was remanded back to consider the case afresh on the ground of adverse
possession. Lastly he relied in the case of "Bishwanath Ghirla Vs. The
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State of Bihar and others" reported in 1988 BBCJ 372.
7. Relying on the said judgment, he submits that it has been held
therein that if the house is there ejectment order will not sustain. On these
grounds, the submits that the writ petition may kindly be allowed.
8. On the other hand, Mr. Shalini Shahdeo, learned counsel for the
respondent-State submits that the petitioner was found in illegal occupation
over the non-transferable land of plot no. 424 of Mouza Dudhani no. 6, S.C.
Dhoriya, P.S. Dumka, District-Dumka which is governed by the provision of
Santhal Parganas Tenancy (Supplementarty Provision) Act, 1949. She submits
that in the light of provision 20(1) of the Santhal Pargana Tenancy Act, 1949
speaks about any transfer of non transferable land is ilelgal. She further
submits that the authorities have rightly passed the order in R.E. Case No.
120/87/1065, R.E. Appeal No. 398/87 and Rev. Misc. Revision No. 316/87-88.
She submits that the land in question is non-transferable and land is
governed by the provision of Santhal Parganas Tenancy Act, 1949. She also
refers to sections 20 and 42 of the Santhal Parganas Tenancy Act, 1949 and
submits that in the light of said sections the land in question has been
rightly restored in favour of the recorded tenant. She further submits that in
the present survey settlement operation, petitioner was found illegal
occupation over the land in question and in view of that these proceedings
have been initiated. She also submits that the petitioner was never in
possession over the land in question since 1936. She submits that the Circle
Officer was not competent authority to grant mutation of non transferable
land. She submits that in view of Clause XV of Santhal Parganas Settlement
Notification No. S.O. 1079 dated 08.08.1978, Settlement Officer of Santhal
Parganas has been vested with the power of Deputy Commissioner under
Bihar Act 14 of 1949 is under the provision of Santhal Parganas Tenancy
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(supplementary Provisions) Act, 1949 for the purpose of the said rule and for
the purpose of the proper conduct of the survey operation. She also submits
that the Assistant Settlement Officer camp at Dumka who were conducting
his case was specially vested with the power of the Deputy Commissioner
under the provision of Santhal Parganas Tenancy Act, 1949. She submits
that the learned authorities have rightly passed the impugned orders and
there is no illegality in the said orders and in view of that the writ petition
may kindly be dismissed.
9. Mr. Ayush Aditya, learned counsel for the respondent nos. 5 and 6
submits that the State authorities in RE Case No. 120/2015 of 1987 by
order dated 25.05.1987 and R.E. Case No. 19/421 of 1986 by order at
6.03.1987 in the Survey Process during the Khanapuri Proceeding, it was
found out that the petitioner herein is in illegal possession of the property
mentioned and pursuant to the said proceeding started in the year 1986-
1987 by order dated 25.05.197 and 06.03.1987, the order was passed in
terms of Section 20 (5) read with Section 42 of the Santhal Pargana Tenancy
Act for eviction of these petitioners. He also submits that the said orders, two
appeals being 393/87 and 130/1987 were filed which were also dismissed
by order dated 29.11.90/10.01.1991 and 28.08.1987 and, thereafter,
Revision was also filed which was numbered as 316/1987-88, which was
dismissed on 08.01.2007. He further submits that the revision has been
rightly dismissed by the learned Divisional Commissioner, Santhal Pargana
vide order dated 08.01.2007 and the learned Commissioner has rightly
considered each and every aspects of the matter and have taken note of the
fact that the lands are Zamabandi land, which are non-transferable in the
area of Santhal Pargana which is evident from Gentzer Settlement and copy
of Khatian, which is annexed in the counter affidavit. He further submits that
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the learned Commissioner has also taken note of the fact that kurfanama, on
the basis of which the petitioners are claiming possession was never
produced in any legal proceedings and, therefore, the same could not be
relied upon and as per the Tasdik Niyamawali under the Santhal Pargana
Tenancy Act in which has been clearly mentioned that what should be the
basis on which Kurfanama should be accepted and the said Tasdik
Niyamawali has been annexed as annexure-B to the counter affidavit. He
draws the attention of the Court to said Tasdik Niyamawali and submits that
only three conditions mentioned therein, wherein kurfanama can be
considered. He submits that none of the conditions provided therein have
been fulfilled and in view of that the learned Commissioner has rightly
passed the said order. He submits that sections 20 and 42 of of Santhal
Pargana Tenancy Act has been considered by the a Co-Ordinate Bench of this
Court in the case of " Chakaram Mahato & others Vs. The State of
Jharkhand and others" reported in 2009 0 Supreme (Jhk) 897. He
refers to para 8, 9, 10, 11 and 12 of the said judgment which is quoted
hereinbelow:-
"8. Section 20(1) of the Act prohibits transfer by a Raiyat of his
holding, except in cases where the right to transfer was recorded in the
record of rights and that also only to the extent it was so recorded.
Section 20(2) contained further restriction in case of ab-original Raiyats,
restricting their right of transfer in case of transferable holdings only to
bona-fide cultivating ab-original Raiyat of the Pargana of Taluk or Tappa,
in which the land is situated. Section 42 and also Sub-section (5) of
Section 20(old) authorized the Deputy Commissioner to evict persons
having acquired land in contravention of the above provisions. The scope
of the amended Sub-Section(5) of Section 20 is confined to cases of
contravention of Sub-sections (1) and (2) of that Section and fraudulent
transfer by scheduled tribes only since the 8th February, 1969.
9. The Hon'ble Supreme Court in AIR 1969 SC 204 also considered AIR
1963 SC60S and held that the prohibition against the transfer of Raiyati
land situated in Santhal Pargana has its root in the peculiar way of life of
Santhal villages which favour the emergence of powerful village
community with its special rights over all the land of the village. It also
held that once the land was allowed to lose their Raiyati character which
was certain that village may find, in the course of a few years the total
stock of land available for settlement to residents, Raiyats dwindling
before they arise, it was this state of thing that the alienation of Raiyati
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holding in any form was interdicted by the Government orders since
1887. These orders had the effect of checking the practice of open
transfers. But transfers in disguised form and collusive manner continue
which will be clear from the notice of the Mac parson to the settlement
report of the Santhal Pargana wherein he warns any disguised transfer.
His note was accepted by the Government and the result was the
amendment of the Regulation by which initially Section 27 was inducted
followed by Section 20(1) of the Santhal Pargana Act, 1949. Thus, it will
be evident that even the collusive compromise in a title suit to get an
illegal transfer regularized by Court of law was in contravention to
Section 20 of the Santhal Pargana Tenancy(Supplementary Provisions)
Act, 1949.
10. In the instant case, the petitioners have not even produced a chit of
paper or any documentary evidence to prove their possession over the
land in question for 12 years prior to coming into force the 1949 Act and
thus they were liable to be ejected under the provisions of Section 42 of
the Santhal Pargana Tenancy (Supplementary Provision) Act. 1949.
Coming to the question whether title by adverse possession can be
acquired after the 1949 came into operation it will be relevant to refer
Section 69 of the Act which reads as under:-
80 Notwithstanding anything contained in any low or anything having
the force of law in the Santhal Parganas, no right shall accrue to any
person in-
(a) land held or acquired is contravention of the provisions of Section
wo or,
(b) land acquired under the Land Acquisition Act, 1894, for the
Government on local authority or for railway company, while such land
remains the property of the Government or of any local authority or of a
railway company, or
(c) land recorded or demarcated as belonging to the Government or in a
local authority which is used for any public works, such as a road canal
or embankment, or is required for the repair of maintenance of the same
while such land continues to be so used or required, or,
(d) a vacant holding retained by a village headman, Mul Raryat and
members of then family, or a landlord, or,
(e) village Headman's official holding, grazing land, Jaherthan and
burning and burial grounds.
11. Analysing the aforesaid provisions, it is manifest that Section 69(a)
has made it clear beyond doubt that not withstanding anything
contained in any law or anything having the force of law in the Santal
Parganas, no right shall accrue to any person in any land held or
acquired in contravention of the provisions of Section of the Act Section
20 has already been quoted and it prohibits transfer, settlement or lease
in any manner, unless the right to transfer is recorded in the record of
rights, in respect of any Ratyati holding. Therefore, although the law of
limitation has been made applicable by Section 3 of Regulation 111 of
1872, which provision has not been repeated by the Act, still Section 69
makes it clear beyond any shadow of doubt that no right will be acquired
of accrue in contravention of Section 20 of the Act. The provision in
Section 64 that there will be no periud of limitation for filing an
application under Section 42 of the Act also seems to achieve the same
object. Therefore, the application of acquisition of title by verse
possession under Section 28, read with Articles 142 and 144, of the
Limitation Act is explicitly excluded in the Act. Contravention of
provisions of Sub-sections(1) and (2) of Section 20 will be a continuing
wrong because of Section 69. Similar bar against accrual of any right in
case of lands mentioned in Clauses (b). (c). (d) and (e) of Section 69,
as quoted above, clearly points out that no right by adverse possession
could be acquired by encroachment also on the lands mentioned. The
bar contained in Section 69 (a) is comprehensive enough to include
cases of encroachment as well as, a case of encroachment could not be
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put in higher pedestal than a case of an invalid transfer, the idea behind
Section 69 being to prohibit accrual of adverse possession in those lands
in Santhal Parganas.
12. In any event, the fact remains that all the three authorities below
have given a concurrent findings against the petitioners and it has been
time and again held that the High Court in its writ jurisdiction should not
interfere against the findings arrived at by the authorities below in a
summary proceedings unless there is a statutory violation. It is further
an admitted fact that before initiating action a report was also called for
by the Circle Officer based on which it was found that the petitioners
had concealed the material facts about the earlier proceedings and there
was not a single piece of documentary evidence produced by them to
support the contention of possession since 1936 over the land in
question and Section 20(3), (4) and (5) of the Santhal Pargana Tenancy
Act clearly contemplates that in absence of any documentary evidence
produced the possession cannot be legal."
10. Relying on the above judgement, he submits that adverse
aspect has also been dealt with by the Co-ordinate Bench of this Court and it
has been held that that the claim on the basis of adverse possession is
barred under the Santhal Pargana Tenancy Act.
11. Learned counsel for the respondent nos. 5 and 6 also relied in
the case of " Jiwan Prasad Sah and others" Vs. The State of
Jharkhand and others" reported in 2018 0 Supreme (Jhk) 921. He
refers to para 11 of the said judgment which is quoted hereinbelow:-
"11. Point regarding applicability of Section 20 read with
Section 42 of Santhal Pargana Tenancy (Supplementary Provisions)
Act, 1949 as the petitioner has claimed that the property in question
is not agricultural property.
(a) The petitioners claim to have constructed house on the property
involved in this case. From the records of this case, this Court finds
that the petitioners have never raised this plea before any of the
authorities and even in this writ petition and accordingly this Court
is not inclined to permit the petitioners to raise this point for the
first time during the course of the arguments.
(b) That apart from aforesaid technical aspect of the matter, the
fact remains that admittedly the property in question has been
recorded as Jamabandi property and admittedly the private
respondents herein or their predecessors were the recorded tenant
of the property and admittedly there is no order converting the
nature of land from agricultural to nonagricultural by any of the
competent authority.
(c) This Court is of the considered view that merely because some
construction has been made over the property involved in this case
that does not change the nature of land from agricultural land to
non-agricultural land so as to deny the benefit of the provisions of
Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949 to
the recorded tenant of the property.
(d) So far as the judgment which has been relied upon by the
petitioners reported in 1988 BBCJ 372 is concerned, this Court finds
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that admittedly the property involved in the said case was converted
into a non-agricultural property by virtue of the fact that the
authorities under the provisions of Bihar Privileged Persons
Homestead Tenancy Act, 1947 declared the petitioners of the said
case as privileged tenant and in view of the specific order under the
provisions of Bihar Privileged Persons Homestead Tenancy Act,
1947, the property was no longer agricultural property. In the
instant case the property in question continues to be recorded in
the record of rights as agricultural land and there is no such
supervening circumstances. Accordingly the reliance on this
judgment by the petitioners does not help the petitioners in any
manner and the same is clearly distinguishable.
(e) So far as the other judgment reported in 2003(3) JCR 230 is
concerned, admittedly the property in question in the said case was
converted into Basauri property by virtue of the provisions under
Santhal Pargana Regulations and as the nature of the land was
changed from agricultural land to Basauri land, it was held by this
Hon'ble Court that Basauri land become transferable and such
transfer do not fall within Section 20 of Santhal Pargana Tenancy
(Supplementary Provisions) Act, 1949. In the instant case, this
Court does not find any material on record and it is not even case of
the petitioners that the nature of the land was changed from
agricultural to non- agricultural by any competent authority.
Accordingly the reliance on this judgment by the petitioners does
not help the petitioners in any manner and the same is clearly
distinguishable.
(f) Therefore the contention of the petitioners that merely because
some construction has been made over the property, the same
takes it out of the purview of section 20 and 42 of Santhal Pargana
Tenancy (Supplementary Provisions) Act, 1949 is devoid of any
merits. Thus, the second contention of the petitioners is also
rejected.
(g) From the perusal of the impugned order, this Court finds that
the Commissioner has recorded specific findings and doubted the
genuineness of the kurfa itself and admittedly the nature of land
was never changed by any competent authority."
12. Relying on the said judgment, he submits that in absence of any
proper order of the competent authority, the nature of the land cannot be
changed. On these grounds, he submits that the writ petition may kindly be
dismissed.
13. In reply, Mr. Jha, learned senior counsel for the petitioners
submits that those judgments relied by the learned counsel for the
respondent no.5, the judgments relied on behalf of the petitioners has not
been considered.
14. In view of above submissions of the learned counsel for the
parties, it is an admitted position that on the basis of kurfanama the
petitioners herein are claiming their possession over the land as noted
( 2026:JHHC:10478 )
hereinabove in the argument of the learned senior counsel for the petitioners
as well as learned counsel for the respondent nos. 5 and 6 and respondent-
State. The concerned authorities have found that the said Kurfanama was not
subject matter of any proceeding before any court. With regard to kurfa the
Tasdik Niyamawali under the Santhal Pargana Tenancy Act are there which is
brought on record by the respondent no.5 in the counter-affidavit wherein
three conditions are put therein to take into consideration any kurfanama.
For ready reference of the case the same is incorporated hereinbelow:-
1&dqQkZ] 2&vkilh le>kSrk dk VkbZVy lwV] 3&foy }kjk lEifÙk dk
gLrkukUrj.k] 4&lknk nku i= }kjk lEifÙk dk gLrkukUrj.k] 5&lknk
dkxtkr ij vkilh cnysu] 6&----- vLi"V ----- tekcUnh jS;r ds lkFk
QkSrh&fQjkjh ;k vukokn tehu dh iz/kku }kjk nh xbZ cUnksoLrh] 7&iz/kku
}kjk vius lkFk QkSrh&fQjkjh ;k vukokn tehu dh cUnksoLrh] 8&iz/kku ;k
vU; O;fDr;ksa }kjk fcuk cUnksoLrh ds n[ky dh xbZ QkSrh ;k fQjkjh
tehuA
19%&dqQkZ esa nh xbZ tehu%&
,sls cgqr ls ekeys gSa ftlesa [kkrk jS;r us lknk dkxt
fy[kdj tehu dk gLrkukUrj.k fd;k gSA bu yksxksa us jS;rksa dks fyf[kr
jlhn Hkh fn;k gS ;k cgqr ekeys esa ;s ekQZrh jlhn Hkh ljdkj ls izkIr dj
jgs gSaA bl rjg dk gLrkukUrj.k laFkky ijxuk jS;rh dkuwu 1949 dh
/kkjk 20 dk mYya?ku djrk gSA
ftl ekeys esa n[ky dh iqf"V 1&11&49 ds iwoZ u gks lds
rks oSls n[kydkj dks tehu ls mPNsn fd;k tk;xk ,oa bl lEcU/k esa
lgk;d cUnksoLr inkf/kdkjh viuk izfrosnu nsxa s ,oa cUnksoLr inkf/kdkjh
dk vkns'k izkIr dj mPNsnh dh dkjZokbZ djuh gksxhA
dqQkZ fy[kus dh frfFk dh fo'oluh;rk dh tkap esa cgqr
lko/kkuh cjrus dh vko';drk gSA blds fu/kkZj.k ds fy, fuEufyf[kr
funs'k dk vuqikyu fd;k tk;xk%&
1- ;fn dqQkZ iathd`r gks rks iath;u dh frfFk dks dqQkZ
dh frfFk le>k tk;xkA
2- ;fn dqQkZ lknk gks ,oa fdlh U;k;ky; }kjk mldh
frfFk dh ekU;rk nh xbZ gks rks mlds vuqlkj gh dqQkZ dh frfFk le>h
tk;xhA
3- ;fn dqQkZ lknk gks vkSj fdlh U;k;ky; }kjk mls izn'kZ
ds :i esa Lohd`r fd;k x;k gks rks ml Lohd`fr dh frfFk gh dqQkZ dh
frfFk ekuh tk;xh u fd ml dqQkZ esa ntZ frfFk dksA ;g Lej.k j[kuk
gksxk fd dqQkZ vius vki esa tehu ij O;fDr dk LiRo LFkkfir djus esa
egRoghu gSA ;g dsoy ,d lk{; ds :i esa n[ky ds lEcU/k esa O;ogkj
fd;k tk ldrk gSA n[ky dh vof/k lEcU/kh tkap foLr`r :i esa gksuh
pkfg, ftlesa FkksMh+ Hkh 'kadk dh xqatkbZ'k u gksA
20&vkilh le>kSrk dk VkbZfVy lwV%&
cgqr ls ekeys esa voS/k :i ls gLrkarfjr Hkwfe ij [kkrk
jS;r us n[ky okilh ds fy, O;ogkj U;k;ky; esa eqdnek nk;j fd;k FkkA
mlds ckn ,d le>kSrk vkosnu nsdj f}rh; i{k dh yEch vof/k dk
n[ky Lohdkj dj fy;k x;k gS ,oa mlh vk/kkj ij eqdnesa [kkfjt fd,
x, gSaA dqN ekeyksa esa jkthukek 'krksZa ds vuqlkj Hkh eqdnek [kkfjt fd;k
x;k gSA dqN ekeyksa esa ,d ;k nks xokg dk c;ku ysdj vf/kd fnuksa dk
f}rh; i{k dk n[ky cgky j[krs gq, eqdnes dks [kkfjt dj fn;k x;k gSA
,sls eqdneksa ds vk/kkj ij nkf[ky [kkfjt gks x, gSa ,oa jlhn Hkh jkT; ls
dV jgh gSA
( 2026:JHHC:10478 )
;s ekeys Hkh voS/k gLrkukUrj.k dh Js.kh esa gh vkrs gSa ,oa
bldk Hkh fuLrkj fu;e&19 esa mfYyf[kr izfØ;k ds vuqlkj fd;k tk;xkA
21&lknk dkxt ds }kjk ;k ekSf[kd vkilh cnySu%&
larky ijxuk jS;rh dkuwu 1949 ds izko/kkuksa ds vUrxZr
tehu cnySu dh Lohd`fr ds fy, /kkjk 23 ds vuqlkj mik;qDr gh l{ke
gSaA blds iwoZ yksx vkil esa tehu cnysu djrs Fks ;k 1&11&1949 ds ckn
Hkh yksxksa us vkilh cnySu lknk dkxt ;k ekSf[kd :i esa fd;k gSA
,sls ekeys esa ;g ns[kuk gS fd cnysu okys i{k tekcUnh
jS;r gSaA cnysu dh xbZ tehu dk leku ewY; gSA cnySu vkilh lqfo/kk ds
fy, fd;k x;k gS ,oa ;g fNih fcØh ugha gS rFkk tehu ,d gh ekStk ;k
lfUudV ekStk esa vofLFkr gSA bu ckrksa dks lqfuf'pr dj ysus ds ckn ;g
ns[kuk gksxk fd nksuksa i{k cnysu dh xbZ tehu ij n[kydkj gSa ,oa nksuksa
dk n[ky [kkukiqjh vfHkys[k esa izfo"V gS rFkk fdlh Hkh i{k dks bl cnysu
ls dksbZ vkifÙk u gks rks lgk;d cUnksoLr inkf/kdkjh dks ,sls cnysu dh
lEiqf"V dk vkns'k cUnksoLr inkf/kdkjh ls izkIr djuk gksxkA ij ;fn bu
ckrksa dh iqf"V u gks rks ;g voS/k gLrkukUrj.k dk ekeyk ekuk tk;xk ,oa
fu;e&19 ds vuqlkj mPNsnh dh dkjokbZ dh tk;xhA
22&xSj tekcUnh jS;r ds lkFk vukokn] QkSrh] fQjkjh tehu dh
cUnksoLrh%&
cgqr ls ekeys esa xSj tekcUnh jS;r ds lkFk iz/kku us
tehu dh cUnksoLrh dh gSA cgqr ls oSls ekeys esa vuqeaMy inkf/kdkjh }kjk
lEiqf"V Hkh dh xbZ gSA ,sls ekeys esa ;fn cUnksoLrnkj tehu ij n[kydkj
gksa ,oa dksbZ vkifÙk u gks rks [kkrk cUnksoLrnkj ds uke ls cuk;k tk;xkA
vkifÙk ,oa fcuk n[ky okyh tehu ds lEcU/k esa lgk;d cUnksoLr
inkf/kdkjh viuk izfrosnu cUnksoLr inkf/kdkjh dks vkns'k ds fy, Hkstxsa sA
vkns'k izkfIr ds i'pkr gh dkjokbZ gksxhA
15. In view of above there are three conditions to consider
kurfanama and all those are if it is registered then it will be from the date of
registration and further if kurfanama is sada and if it has been considered
by the any court of law then from the date of giving consideration of the
kurfanama by the court of law that they will be considered of that
kurfanama and lastly if kurfanama is exhibited by any court of law.
16. In light of above Rule, said kurfanama on which reliance has
been placed heavily by the learned senior counsel for the petitioners, cannot
be taken into consideration. It is an admitted position that in the survey
settlement proceeding it has come to the knowledge of the authorities that
non-transferable land is in possession of the petitioners, thereafter aforesaid
proceedings have been initiated against the petitioners.
17. Section 20(1) of the Santhal Pargana Tenancy Act prohibits
transfer by a raiyat of his holding, except in cases where the right to transfer
was recorded in the record of rights and that also only to the extent it was so
( 2026:JHHC:10478 )
recorded. Section 42 and also sub-section (5) of Section 20 (old) of Santhal
Pargana Tenancy Act, 1949 authorized the Deputy Commissioner to evict
persons having acquired land in contravention of the above provisions.
Further section 69(a) of the Act clearly stipulates that notwithstanding
anything contained in any law or anything having the force of law in the
Santhal Parganas, no right shall accrue to any person in any land held or
acquired in contravention of the provisions of Section 20 of the Act. In the
light of Section 64 of the said Act there will not be period of limitation for
filing an application under Section 42 of the Act.
18. Further in the case in hand, the authorities who have done
the survey settlement have found the illegal occupation and thereafter
initiated proceeding against the petitioners. There are findings of three
authorities that are concurrent. It is well settled that the High Court sitting
under Article 226 of the Constitution of India in the routine way can not
interfere unless there is statutory violation.
19. The judgments relied by Mr. Jha, learned senior counsel
for the petitioners are concerned, those were decided in the facts and
circumstances of those cases. So far the case of "Andu Larwey" (supra)
is concerned, that was remanded back to consider the adverse possession
aspect of that petitioner. What has been discussed hereinabove and
considering the sections 20, 42 and 69 of the Act that adverse possession is
already barred under law and in view of that said judgment relied by Mr. Jha
is not helping the petitioners.
20. The case of "Uma Pada Choudhary" (supra) relied by Mr. Jha,
in that case only subject matter was for adding State of Bihar as party and
in that case it has been held that title suit there against particular person in
absence of State, title suit can be decided. In the present case there is no
( 2026:JHHC:10478 )
suit in the Civil Court and in that view of the matter this judgment is not
helping the petitioners.
21. The judgment relied by Mr. Jha in the case of Asharfi
Mahaton (supra) that was also on the basis of adverse possession. What
has been discussed hereinabove under the Act the aspect of adverse
possession is already closed and in view of that the said judgment is also not
helping the petitioners.
22. So far the judegment relied by Mr. Jha in the case of
"Bishwanath Ghirla(supra) is concerned, in that case agriculture land
and the house was the subject matter and in the case in hand it has not
been disclosed that whether by any valid order the nature of land has been
changed or not and that aspect has been recorded in the case of Jiwan
Prasad Sah (supra).
23. In view of above facts, reasons and analysis and considering that
all the three authorities have given concurrent findings against the
petitioners and further there is no paper of possession with effect from
1936 and that has not been annexed either in the present writ petition or
with the authorities concerned. The Court finds that no case of interference is
made out as such this writ petition is dismissed. Pending I.A, if any, stands
disposed of.
Dt.09.04.2026
Satyarthi/A.F.R. ( Sanjay Kumar Dwivedi, J.)
