Allowed

Kailash Prasad Rout v. State of Jharkhand And Ors.

Jharkhand HC8 Jun 2022LPA/446/2011

Case brief

AI extract

What is this about?

This Letters Patent Appeal challenged a writ court dismissal of a petition seeking restoration of tribal lands. The High Court set aside the writ and revisional orders, directing the Commissioner to reconsider the appellant's plea regarding compensated acquired lands.

What did the court decide?

The order dated 10th August 2011 in W.P. No. 4075 of 2008 and the order dated 7th April 2008 in R.M.R No. 22 of 1989-90 are set aside. The Commissioner is directed to pass a fresh order.

Kailash Prasad Rout Vs State of Jharkhand And Ors. — Landlord and Tenant | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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(Letters Patent Appellate Jurisdiction)

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L.P.A No. 446 of 2011

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1/1) Kailash Prasad Rout, s/o late Govind Rout, r/o villageBaridiah S.C. Kasba, PO & PS-Hansadiha, District-Dumka.

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… Appellant/Petitioner

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Versus

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The State of Jharkhand.

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Commissioner, Santhal Pargna Division at Dumka, At, PO & PSDumka, District-Dumka.

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Settlement Officer, Santhal Pargna Division, At, PO & PSDumka, District-Dumka.

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Assistant Settlement Officer at Dumka, At, PO & PS-Dumka, District-Dumka.

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Kishan Raut, s/o late Ganeshi Raut, r/o village-Baridiah S.C Kasba, PO & PS- Handiha, District-Dumka.

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… Respondents/Respondents

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Most. Bajadi Dev, w/o late Kartik Raut.

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Gauri Shankar Raut, s/o late Kartik Raut.

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Mohan Raut, s/o late Hari Narayan Raut.

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Manoj Raut, s/o late Charan Raut.

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Rinku Raut, s/o late Charan Raut.

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All are r/o village-Baridiah S.C Kasba, PO & PS-Handiha, District-Dumka.

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… Performa Respondents/ Performa Respondents

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Makeshwar Raut, s/o late Sobit Raut.

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Jageshwar Raut, s/o late Sobit Raut since died after disposal of writ hence in this memo of appeal substituted by his wife Radha Devi and sons Bibhishan Rout and Manish Rout.

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Kamal Raut, s/o late Sobit Raut.

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All are r/o Baridih S.C Kasba, PO & PS-Hansdiha, DistrictDumka. … Petitioners/Performa Respondents

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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE RATNAKER BHENGRA

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For the Appellant : Mr. Rishi Pallava, Advocate For the State : Mr. Amitesh Kumar Geasen, AC to SC-I For the Respondent No.5 : None For the Respondent Nos. 6 to 10 : Mr. Rahul Kumar, Advocate

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Miss Apoorva Singh, Advocate

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Per, Shree Chandrashekhar, J.

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No one appears for the respondent no.5.

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2 L.P.A No. 446 of 2011

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2. Before the writ Court also neither respondent no.5 appeared nor he was represented through the learned counsel.

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3. The appellant is in appeal against the order dated 10^th August 2011 passed in W.P.(C) No. 4075 of 2008.

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4. As a consequence of the order dated 10^th August 2011 by which the order passed in R.M.R No. 22 of 1989-90 was affirmed by the writ Court, the lands comprised under J.B No. 38 old Plot No. 633 at village Baridih within PS Hansdiha in the district of Dumka shall be restored to the descendants of late Hari Naryan Raut.

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5. Briefly stated, R.E Case No. 5 of 1986 was registered on an application for restoration filed by Ganesh Raut. Govind Raut who was opposite party in the said proceeding claimed right, title and interest over the lands in question by virtue of Sada Kurfanama executed by the recorded tenant. He further pleaded that the lands in question belonged to his predecessor by virtue of a compromise decree in Title Suit No. 33 of 1959. The Assistant Settlement Officer observed that the compromise decree in Title Suit No. 33 of 1959 was a collusive decree and, therefore, had no sanctity in law. By an order dated 7^th June 1986, the restoration application filed by Ganesh Raut was allowed and a direction was issued for restoration of the lands comprised under J.B No. 38 to him.

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6. The aforesaid order passed by the Assistant Settlement Officer was challenged by Govind Raut and the legal heirs of Sobit Raut by filing R.E Appeal No. 305 of 1986-87 in which Ganesh Raut and his brothers Mohan Raut as well as Charan Raut were arrayed as party-respondents. Before the appellate authority a plea was raised on behalf of Govind Raut and others that they were in peaceful possession of the lands in question since last several years and were paying rent since 1955-56. In support of the aforesaid plea the appellants tendered in evidence the documents pertaining to L. A. Case No. 39 of 1955-56 in which the lands comprised under Khesra No. 633 admeasuring about 13 Dhur and under Khesra No. 240 admeasuring about 4 Dhur at Hansdiha

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3 L.P.A No. 446 of 2011

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were acquired for construction of road from Hansdiha to Godda and the appellants were paid compensation for the said acquisition.

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7. The appellate authority by an order dated 25^th February 1989 set-aside the order of the Assistant Settlement Officer by which restoration of the lands in question was ordered in favour of the applicant before him. The order passed by the appellate authority came to be challenged in R.M.R No. 22 of 1989-90 which as noticed above was allowed by an order dated 7^th April 2008.

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8. The learned writ Court has observed as under:

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“8. I have heard learned counsel for the petitioners and perused the facts, materials and documents on record. It is an admitted fact that Kurfanama is an unregistered document. Learned Commissioner has found that there is no supporting document on record even of continuous possession. The petitioners have relied heavily on the compromise decree passed in 1959. learned Assistant Settlement Officer, who is an statutory authority, as well as learned Commissioner, who is revisonal authority, have found that the compromise decree was fraudulent and on that basis, the private respondents, who are members of Scheduled Tribes, were dispossessed from their land. The transfer of possession is against the provisions of Section 20 of the SPT Act. Learned Assistant Settlement Officer, exercising the power under Section 20(5) of the SPT Act, has restored possession of the private respondents. The revisional court has also affirmed the said order. The orders passed by the Assistant Settlement Officer and the Commissioner are based on due consideration of facts and materials on record and they have recorded reasons in support of their findings.

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9. I find no error or illegality or any ground made out to interfere with the impugned order of the Commissioner. 10. The writ petition is, accordingly, dismissed.”

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9. Mr. Rishi Pallava, the learned counsel for the appellant has raised two-fold contentions: (i) the revisional order is a cryptic order which does not deal with effect of acquisition of lands and payment of compensation to the father of the present appellant and other co-sharers, and (ii) there is no decision of the Civil Court holding Kurfanama executed by the recorded tenant forged and fabricated and, therefore, the same could have been considered as evidence of transfer of land in favour of Govind Raut and his brothers.

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10. Santhal Pargana was constituted in the year 1855 by Act of XXXVII and the Rules and Regulations were introduced in 1765 to 1890. The Sonthal Parganas Act, 1855 came into force on

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L.P.A No. 446 of 2011

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22^nd December 1855 by which operation of general laws and regulations was excluded from certain districts inhabited by Sonthals and others. For peace and good governance of Santhal Parganas, the Sonthal Parganas Settlement Regulation, 1872 was enacted. Under Regulation 5 of the Sonthal Parganas Settlement Regulation, 1872 jurisdiction of Civil Courts during settlement was excluded if a notification under section 9 is published in the Official Gazette.

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11. The Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 amended the laws relating to landlord and tenant in the Santhal Parganas. Under section 20, all transfers by a Raiyat of his rights by sale, gift, mortgage, will, lease or any other contract or agreement, express or implied, are declared invalid subject to the right of transfer already recorded in the record of rights. There are certain other exceptions under section 20 with which we are not concerned at present and what is relevant is sub-section (5) which provides that any transfer of land belonging to a Raiyat who is a member of Scheduled Tribes in contravention of sub-section (1) or (2) or by any fraudulent method including decree obtained in suit by fraud or collusion if comes to the notice of the Deputy Commissioner after affording opportunity of hearing and conducting an enquiry the Deputy Commissioner can pass an order for restoration of the lands in favour of the recorded Raiyat or his legal heirs or re-settle the land with another Raiyat belonging to the Scheduled Tribe in accordance with the village custom.

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12. The restoration application filed by Ganesh Raut was allowed on the ground that the decree in Title Suit No. 33 of 1959 was collusive and Kurfanama was not executed by late Hari Narayan Raut with his free will and consent. Even assuming that the plea of fraud and collusion set up by Ganesh Raut as regards the compromise decree in Title Suit No. 33 of 1959 could not have been decided without a trial, the case pleaded by the appellant and others that their predecessor came in possession by virtue of Kurfanama should have been examined. No doubt after coming

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5 L.P.A No. 446 of 2011

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into force of section 20 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 a Raiyat has no right to transfer his rights in the holding or any portion thereof by sale, gift, mortgage, will, lease or any other contract or agreement, but then, Kurfanama is said to have been executed before 1949 Act came into existence. The genuineness or otherwise of Kurfanama executed by late Hari Narayan Raut is not discussed by any of the orders passed in the present proceeding and only on the ground that it is not a valid instrument being unregistered in terms of the provisions under the Indian Registration Act, in our opinion, its invalidity cannot be inferred.

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13. We find that the revisional authority did not advert to the plea raised by Govind Raut and sons of Sobit Raut who were appellants in R. E Appeal No. 305 of 1986-87 that a part of the lands comprised under Kurfanama executed by late Hari Narayan Raut in favour of Govind Raut and Sobit Raut was acquired in the L. A. Case No. 39 of 1955-56 and compensation was paid to them. Mr. Rishi Pallava, the learned counsel for the appellant has referred to a decision in “Bhauri Lal Jain & Anr. v. Sub-Divisional Officer of Jamtara & Ors.” AIR 1973 Patna 1 to submit that possession of the lands in question by the appellant and his brother stands confirmed by virtue of payment of compensation to them in L. A. Case No. 39 of 1955-56 and once this fact is not denied by the State or the descendants of the recorded Raiyat , restoration of the lands by operation of sub-section (5) to section 20 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 could not have been ordered.

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14. At this stage we are not inclined to adjudicate the aforesaid issues primarily for the reason that the revisional authority which would have benefit of perusing all the records would be in a better position to examine the issues raised by the appellant. However, we are inclined to interfere in this matter because the writ Court has dismissed the writ petition observing that the orders passed by the Assistant Settlement Officer and the Commissioner are based on due consideration of the facts and

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6 L.P.A No. 446 of 2011

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materials brought on record. As noticed above, the Commissioner who is the revisional authority committed error in law in not considering the relevant materials which were laid in evidence by the appellant before the appellate authority – proceedings in L. A. Case No. 39 of 1955-56 and payment of compensation. Except observing that there is no evidence as regards continuous possession of the land by Govind Raut and Sobit Raut and/or his legal heirs the genuineness of Kurfanama was doubted by the revisional authority without assigning any reason which has made the revisional order further susceptible.

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15. Accordingly, the order dated 10^th August 2011 passed in W.P.(C) No. 4075 of 2008 is set-aside.

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16. The order dated 7^th April 2008 passed in R.M.R No. 22 of 1989-90 is also set-aside. Consequently, R.M.R No. 22 of 1989-90 is restored to its original position. The Commissioner who is the revisional authority shall pass a fresh order on the basis of the materials already on record.

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17. L.P.A No. 446 of 2011 stands allowed to the aforesaid extent.

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(Shree Chandrashekhar, J.)

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(Ratnaker Bhengra, J.)

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Jharkhand High Court, Ranchi Dated: 8^th June 2022 Amit/ N.A.F.R

Kailash Prasad Rout v. State of Jharkhand And Ors.

Case brief

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Kailash Prasad Rout v. State of Jharkhand And Ors.

Case brief

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