The State of Jharkhand Vs Om Prakash Gupta

On Prakash Gupta, s/o late Gouri Shanker Sao, R/o Flat No. 3/1, Gangotri Conclave, Anil Surpath Utiyan, Kadma Jamshedpur, 831005, District- East Singhbhum

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Raj Kumar Gupta, s/o late Gouri Shanker Sao, R/o Durga Atta Chakki, Shanti Vihar Colony, P.O. Sundar Nagar, P.S. Dangnia, Raipur, D.D. Nagar, Chattisgarh.

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Vishal Raj Gupta, aged about 19 years, s/o late Dilip Kumar Gupta, R/o Durga Atta Chakki, Shanti Vihar Colony, Dangnia, Raipur, P.O. Sunder Nagar, P.S. D.D. Nagar, Chattisgarh.

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… … Petitioners/Respondents

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE ARUN KUMAR RAI

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For the Appellants : Mr. Ashutosh Anand, AAG-III For the Respondents : Ms. Amrita Sinha, Advocate

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12/Dated: 19^th June, 2024 Per Sujit Narayan Prasad, J.:

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I.A. No. 3288 of 2023:

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The instant interlocutory application has been filed for condonation of delay of 251 days which has occurred in the filing the instant appeal.

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L.P.A. No. 283 of 2022

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The explanation has been furnished that after the judgment having been passed on 06.06.2022 in W.P.(C) No. 3070 of 2008, the instant appeal has been filed on 12.07.2022 which is beyond the period of 30 days, i.e., after lapse of 06 days but on the basis of the web copy of the judgment passed by the learned Single Judge.

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Subsequently, the certified copy was obtained but due to inadvertence, the certified copy pertaining to the order passed in W.P.(C) No. 3070 of 2008 has not been filed due to bona fide mistake and when the same has come to the knowledge of the appellant, the certified copy of the order dated 06.06.2022, which was obtained on the basis of requisition dated 22.02.2023, was filed and hence, the office has reported the delay of 251 days.

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This Court, considering the reason assigned in the instant interlocutory application, is of the view that the delay occurred in filing the instant appeal deserves to be condoned

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Accordingly, the delay occurred in filing the instant appeal is hereby condoned, as such, the instant interlocutory application stands disposed of.

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L.P.A. No. 283 of 2022:

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Prayer:

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The instant appeal under Clause 10 of the letters patent is directed against the order dated 06.06.2022 passed by learned Single Judge of this Court in W.P. (C) No. 3070 of 2008 whereby and whereunder, the learned Single Judge has passed order while allowing the writ petition directing the revenue authority to grant rent receipt within the period of 30 days from production of the copy of the order as they have not preferred any appeal against the judgment passed in title suit by making the necessary correction in the revenue record by deleting the entry of Anabad Bihar Sarkar by substituting the name of the petitioners or his/her legal heirs, in accordance with law.

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Facts:

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The brief facts of the case, as per the pleadings in the writ petition reads as under.

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The writ petitioner is the absolute owner of the land measuring 12 Dhoor in Plot No. 815, Khata No. 413, Mouza Jugsalai, P.S. Jugsalai Town Jamshedpur, District East Singhbhum situated in Ward No. 4 of Jugsalai Municipality.

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It is the case of the writ petitioner that the land in question previously belonged to the tenant holder of a Estate Community known as Dhalbhum Raj namely, Sri Jagdish Chandra Deb who gifted a block of land measuring 5 Bigha 4 khatas I dhorr bearing survey plot no.1423 in Mouza Jugsalai to his daughter-in-law Smt. Krishna Kumari Devi on 24.07.1947 and said Smt. Krishna Kumari Devi came into the possession under the same right and interest, who sold an area measuring about 12 Dhoor vide deed of sale no.712 dated 22.12.1969.

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It is also the case of the writ petitioner that the gift in favour of Smt. Krishna Kumari Devi was cancelled on 22.03.1954 by the order of the Collector thereafter, she moved before the Patna High Court by filing petition being M.J.C. Case No. 173 of 1954 in which the order of the Collector dated 22.03.1954 was quashed with the direction not to interfere with the possession of Smt. Krishna Kumari Devi and her leasee with respect to such portion of land over which the kutchery building do not stand.

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Further, the land in question during the recent survey has wrongly been recorded in the name of Anabad Bihar Sarkar in plot No. 815 under Khata No. 413 in notified area committee Jugsalai and when the writ petitioner came to know about this record, he filed a Title Suit No. 30/1990 in the court of Sub-Judge at Jamshedpur. The suit has been decreed in favour of the writ petitioner wherein possession has also been confirmed and it has been further held that a wrong entry in survey Khatian stands in the name of State of Bihar though it should have been in the name of writ petitioner.

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The petitioner filed a fresh application before Deputy Commissioner for rent fixation and also for correction of records of Khata No. 413 in the name of Gouri Shanker Sao by deleting the name of Anabad Bihar Sarkar under Section 90 of the C.N.T. Act.

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Further, the Deputy Commissioner vide order dated 27.03.2008 rejected the application filed by the writ petitioner stating that the rent fixation cannot be done with the writ petitioner as the land in question is a Rasta and there is no such provision to fix rent for the land recorded as per the circular No. 307 dated 23.06.2004 issued by State of Jharkhand.

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Further, the writ petitioner being aggrieved by the aforesaid order has approached this Court by filing writ petition being W.P.(C) No. 3070 of 2008 which has been allowed with the direction to the revenue authority to grant rent receipt within a period of 30 days from production of copy of the order as they have not preferred any appeal against the judgment passed in Title Suit and necessary correction shall be made in revenue record by deleting the entry of Anabad Bihar Sarkar by substituting the name of the petitioners or his/her legal heirs in accordance with law, against which the present intra-court appeal has been preferred.

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It is evident from the factual aspect that the writ petitioner has claimed the title over the land in question and when the same was disputed by the State, a title suit was filed being Title Suit No. 30 of 1990 with respect to the right of the writ petitioner over the land of 12 dhurs of Plot No. 815, Khata No. 413, Ward No. 4 corresponding to old Plot No. 1423 of Old Khata No. 516, notified area P.S. Jugsalai, Town – Jamshedpur, District– East Singhbhum.

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The decree was prepared based upon the judgment dated 31.01.1991 passed in Title Suit No. 30 of 1990 said to be ex parte and the decree was signed on 11.02.1991.

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The dispute which revolved in the said suit was that the State has claimed the said land to be a public land which was being used by the general people as Rasta and as such the rent receipt cannot be issued.

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The writ petitioner after having got the decree/judgment in the said title suit by which the title pertaining to the land in question has been declared in favour of the writ petitioner, an application was filed for making the necessary correction in the revenue record, consequent upon the same for fixation of rent.

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The authority when taken no decision in exercise of the power conferred under Section 14 of the Bihar Tenant’s Holdings (Maintenance of Records) Act, 1973, a writ petition was filed being W.P. (C) No. 3070 of 2008.

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The State was called upon but the State has admitted the fact that in the title suit, the decree/judgment was passed against the State and the said decree/judgment had not been challenged before the higher forum.

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The learned Writ Court based upon the aforesaid admission on the part of the State has allowed the writ petition with a direction upon concerned revenue authority to grant rent receipt within the period of 30 days from production of the copy of the order as they have not preferred any appeal against the judgment passed in Title Suit and necessary correction shall be made in revenue record by deleting the entry of Anabad Bihar Sarkar by substituting the name of the petitioners or his / her legal heirs in accordance with law, which is the subject matter of the present appeal.

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Arguments on behalf of the appellant:

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Mr. Ashutosh Anand, learned counsel appearing for the State-appellant has submitted that the learned Single Judge has not appreciated the fact that land is being used by the general public by way of Rasta and if in such circumstances, the entry will be made in the revenue record in favour of the petitioner while deleting the name from the revenue record of the State where the insertion has been made to be the land in Anabad Bihar Sarkar but the direction for entering the name of the writ petitioner has been passed without considering the public inconvenience.

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Therefore, the said aspect of the matter since has not been appreciated hence, the impugned order needs to be interfered with.

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He has tried to draw the attention of this Court by pointing out the illegality said to be there in the decree/judgment passed by the competent court of civil jurisdiction in the title suit.

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Argument on behalf of the Respondent:

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While on the other hand, Ms. Amrita Sinha, learned counsel appearing for the respondent-writ petitioner, while defending the impugned order, has submitted that once the decree has been passed by the competent court of civil jurisdiction in the title suit based upon that the application was made before the authority for entering the name in the revenue record by deleting the entry of Anabad Bihar Sarkar and in that pretext if the order has been passed by the learned Single Judge to that effect, the same cannot be said to suffer from an error, as such, submission has been made that the mutating authority although is not required to look into the issue of possession but certainly while entering the name in the revenue record based upon the decree passed by the competent court of civil jurisdiction, it is incumbent upon the revenue authority to issue due correction slip based upon the decree/judgment passed by the competent court of civil jurisdiction otherwise the decree/judgment passed by the competent court of civil jurisdiction will have no meaning.

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The learned counsel based upon the aforesaid argument has submitted that if on that pretext, the impugned judgment has been passed by the learned Writ Court, the same cannot be said to suffer from an error.

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Analysis :

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We have heard learned counsel for the parties, gone across the findings recorded by the learned Single Judge in the impugned order as also the pleadings appended with various documents including the decree/judgment passed by the competent court of civil jurisdiction in title suit being Title Suit No. 30 of 1990 dated 11.02.1991.

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The fact about the decree passed in the Title Suit No. 30 of 1990 dated 11.02.1991 with respect to the land in question (12 dhurs of Plot No. 815, Khata No. 413, Ward No. 4 corresponding to old Plot No. 1423 of Old Khata No. 516, notified area P.S. Jugsalai, Town – Jamshedpur, District–

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East Singhbhum) wherein the decree has been passed in favour of the writ petitioner declaring title of the writ petitioner over the said piece of land.

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It is the case of the writ petitioner that the writ petitioner is the absolute owner of the land measuring 12 Dhoor in Plot No. 815, Khata No. 413, Mouza Jugsalai, P.S. Jugsalai Town Jamshedpur, District East Singhbhum situated in Ward No. 4 of Jugsalai Municipality.

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The land in question previously belonged to the tenant holder of a Estate Community known as Dhalbhum Raj namely, Sri Jagdish Chandra Deb who gifted a block of land measuring 5 Bigha 4 khatas I dhorr bearing survey plot no.1423 in Mouza Jugsalai to his daughter-inlaw Smt. Krishna Kumari Devi on 24.07.1947 and said Smt. Krishna Kumari Devi came into the possession under the same right and interest, who sold an area measuring about 12 Dhoor vide deed of sale no.712 dated 22.12.1969.

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However, the gift in favour of Smt. Krishna Kumari Devi was cancelled on 22.03.1954 by the order of the Collector thereafter, she moved before the Patna High Court by filing petition being M.J.C. Case No. 173 of 1954 in which the order of the Collector dated 22.03.1954 was quashed with the direction not to interfere with the possession of Smt. Krishna Kumari Devi and her leasee with respect to such portion of land over which the kutchery building do not stand.

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Further, the land in question during the survey has wrongly been recorded in the name of Anabad Bihar Sarkar in plot No. 815 under Khata No. 413 in notified area committee Jugsalai and when the writ petitioner came to know about this record, he filed a Title Suit No. 30/1990 in the court of Sub-Judge at Jamshedpur. The suit has been decreed in favour of the writ petitioner and further it was directed that a wrong entry in survey Khatian stands in the name of State of Bihar should be in the name of writ petitioner.

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The petitioner filed a fresh application before Deputy Commissioner for rent fixation and also for correction of records of

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Khata No. 413 in the name of Gouri Shanker Sao by deleting the name of Anabad Bihar Sarkar.

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But the Deputy Commissioner vide order dated 27.03.2008 rejected the application stating that the land in question is a Rasta .

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The writ petitioner being aggrieved by the aforesaid order has approached this Court by filing writ petition being W.P.(C) No. 3070 of 2008 which has been allowed.

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The writ court while appreciating the said issue has formulated two questions, i.e.,

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“(a) Whether the judgment and decree passed by the Sub Judge in Title Sit No. 30 of 1990 is binding upon the State or not?

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(b) Whether the State has preferred any legal remedy under the law available to them? If not, then why the judgment and decree has not been honoured till date?”

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The State has come out with the stand by filing counter affidavit duly sworn by the Deputy Commissioner, Singhbhum East (Jamshedpur) wherein the ground has been taken as under Para No. 26, 27 and 28 with respect to the query (a) which has been taken note in the order passed by the learned Single Judge but for better appreciation of the issue, the same is being referred herein also, which reads as under:

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“ 26. That in reply to above question query in para (a) of the order dated 27.09.2021, it is humbly submitted that the judgment and decree of the learned Sub Judge-V, Jamshedpur passed in Title Suit No. 30/1990 is binding upon the State respondents.

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27. That in reply to above question query in Para-(b) of the order dated 27.09.2021, it is humbly submitted that the state authority had remedy for assailing the decree and judgment passed in Title Suit No. 30/1990, which has decided ex-parte against the State. But the state authority could not avail the legal remedy available under the law available to.

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28. That in reply to above question query in Para-(b) of the order dated 27.09.2021, it is further submitted that although decree and judgment of Title Suit No. 30/1990 is decided in favour of the writ petitioners and exparte against the state respondents. But considering the interest of public or community at large said decree and judgment has become not

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executable due to the land in dispute has been used by public or community at large as RASTA since long.”

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The learned Writ Court based upon the aforesaid averment made in the counter affidavit wherein the fact about passing the decree in the Title Suit No. 30 of 1990 has not been disputed, however, the question of execution of the decree has been said to be a ground which led the revenue authority in not issuing the rent receipt.

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The learned writ court has disagreed with the said stand while allowing the writ petition with a direction to grant rent receipt within a period of 30 days from production of copy of this order as they have not preferred any appeal against the judgment passed in Title Suit and necessary correction shall be made in revenue record by deleting the entry of Anabad Bihar Sarkar by substituting the name of the petitioners or his / her legal heirs in accordance with law.

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The stand which has been taken that the decree passed in the year 1991 cannot be executed was the stand by the State in the counter-affidavit, as would be evident from paragraph-8 of the counter affidavit, which has been referred hereinabove.

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The law is well-settled that the issue of execution is not to be looked into by the revenue authority. The revenue authority is to see the document pertaining to title and the possession.

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It is also settled position of law that merely by issuing the rent receipt, the title cannot be said to be created in favour of the person concerned or the title also cannot be extinguished.

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Herein the title has been declared in favour of the writ petitioner by way of a declaration given by the competent court of civil jurisdiction vide judgment/decree dated 11.02.1991 passed in title suit being Title Suit No. 30 of 1990. Hence when the title of the State has already been negated, as such, the consequence would be that the necessary correction is to be made by the revenue authority in the Register-II by inserting the name of the writ petitioner after deleting the entry of Anabad Bihar Sarkar.

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The aforesaid requirement is there because the moment the title was declared in favour of the writ petitioner then the question would be that on what basis the entry of Anabad Bihar Sarkar will be allowed to be there in the Register-II. If such insertion will be allowed to be there, then what would be the effect of the decree passed in Title Suit No. 30 of 1990 based upon the same, the title of the State has already been refused to be granted in favour of the State by holding the title in favour of the writ petitioner.

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Conclusion:

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This Court based upon the aforesaid consideration and adverting to the finding recorded by the learned Single Judge in the impugned order wherein the learned Single Judge has given consideration of the decree passed in the title suit being Title Suit No. 30 of 1990 and based upon the same if such direction has been passed by directing the revenue authority for making a necessary correction in the revenue record by deleting the entry of Anabad Bihar Sarkar by substituting the name of petitioner or his/her legal heirs, in accordance with the law, which cannot be, according to our considered view, said to suffer from an error.

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