Dismissed

Phuleshwar Mandal v. State of Jharkhand And Ors.

Jharkhand HC6 Sept 2018WPC/4292/2004

Case brief

AI extract

What is this about?

The court dismissed a writ petition challenging orders that dispossessed the petitioner of land. Upholding findings by lower authorities that a Khurfanama executed in 1938 was not genuine and unregistered, the court held no illegality or perversity existed to warrant interference under Article 226.

What did the court decide?

The writ petition for quashing of orders and issuance of directions to allow possession was dismissed.

Phuleshwar Mandal Vs State of Jharkhand And Ors. — Landlord and Tenant | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P. (C) No. 4292 of 2004

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Phuleshwar Mandal son of late Yugal Mandal, resident of villageDhanway, Police Station-Hansdiha, District-Dumka

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… … Petitioner

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Versus

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The State of Jharkhand

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The Commissioner, Santhal Pargana Division, Dumka

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Deputy Commissioner, Dumka

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Sub Divisional Officer, Dumka

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Arti Devi wife of late Janardan Singh @ Jamadar Singh, resident of Dhanbway, Police Station-Hansdiha, District-Dumka

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… … Respondents

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioner : Mr. D.C. Mishra, Advocate For the Respondents : Mr. A.K. Thakur, S.C. (L&C)

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11/06.09.2018

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Heard Mr. D.C. Mishra, counsel appearing on behalf of the petitioner.

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Heard Mr. A.K. Thakur, A.C. to S.C. (L&C) appearing on behalf of the respondent-State.

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This writ petition has been filed for the following reliefs:-

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“ For quashing of the order dated 20.01.2004 passed by the Commissioner, Dumka, whereby and whereunder the Revenue Misc. Revision No. 168 of 1993-94 filed by the petitioner against the order dated 31.5.1993 passed in R.M.A. No. 23 of 1985-86 and for issuance of direction upon the concerned respondent to not dispossess the petitioner and allow the petitioner to remain in possession of the land bearing Plot no. 290 and 297 measuring an area of 6 katha of mouza Dhanway, P.S. Hansdiha, DistrictDumka. ”

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Counsel for the petitioner submits that the property involved in this

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case is Gantzers plot no. 290 and 297 area 0.2 decimals corresponding plot no. 481 and 682 pertaining to Jamabandi No. 65 of Mouza Dhanbad No. 26, S.C. Kasba each stood recorded in the name of Sonu Singh in the Gantzer’s settlement. He submits that said Sonu Singh died leaving behind his widow and daughter and thereafter the widow made ‘Khurfanama’ in favour of the petitioner for construction of the house which was executed on 12.12.1938.

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The proceeding for eviction of the petitioner was initiated at the instance of the descendants of the Sonu Singh and initially the proceeding was allowed. Thereafter the petitioner filed appeal and in the appeal, matter was remanded with direction to conduct on the spot enquiry and pass fresh order. He submits that the enquiry was conducted and refers to the order dated 29.04.1985/30.04.1985 passed in aforesaid Eviction Case No. 348/1978-79 and submits that during the enquiry oral statement of some of the persons were recorded and it was found that the petitioner in possession of the property since 12.12.1938. He submits that in spite of that, the petitioner was directed to be evicted by the original authority against which appeal was filed which was dismissed and against which revision was also dismissed. Counsel for the petitioner submits that the petitioner is in possession of the property by virtue of Khurfanama dated 12.12.1938 which is an admitted document on record and therefore the petitioner being in possession of the property since 12.12.1938, could not have been evicted. He submits that this aspect of the matter has not been properly considered by the authorities below and therefore impugned orders are perverse and fit to be set aside.

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Counsel for the respondent-state submits that the story of Khurfanama has been disbelieved by the all the three authorities and there is consistent finding of facts in connection with the same. He submits that finding of facts cannot be re-appreciated under Article 226 of the Constitution of India. Counsel for the respondent submits that the petitioner having lost in all the three courts and there is no perversity or illegality in the impugned orders,

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accordingly, the same do not call for any interference. He further submits that the property involved in this case is non transferable under the provisions of Santhal Pargana Tenancy (Supplementary Provisions) Act, 1949. He further submits that the authorities have passed the order on the basis of factual enquiry which cannot be interfered under Article 226 of the Constitution of India.

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After hearing counsel for the parties and after considering the materials available on record this court finds that the original authority i.e. Sub Divisional Officer, who passed the order in Eviction Case No. 346/1978-79 had enquired into the claim of the petitioner and has given a finding that even if the story of Khurfanama of the petitioner is accepted as correct, then also period of 12 years had not expired prior to coming into force of the aforesaid Act of 1949. He also recorded a finding that Khurfanama is not a genuine document and further admittedly the so called Khurfanama is an un-registered document. This court finds that the order passed by the Sub Divisional Officer was considered by the appellate authority as well as revisional authority on merits and concurrent finding have been recorded by all the authorities. This court does not find any illegality or perversity in the impugned order so as to exercise any power under Article 226 of the Constitution of India. Accordingly, this writ petition is dismissed.

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(Anubha Rawat Choudhary, J.)

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Binit/

Phuleshwar Mandal v. State of Jharkhand And Ors.

Case brief

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Phuleshwar Mandal v. State of Jharkhand And Ors.

Case brief

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