Sk Alim Vs District Administration

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2025: JHHC:19940

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C) No. 5375 of 2012

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Sk. Alim, son of Sk. Anwar

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(i) Sk. Dora Mohammad, son of late Sk. Gafoor aged about 38 years

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(ii) Sk. Asmohammad, son of late Sk. Gafoor aged about 32 years Both residents of village Pipra, P.O. & P.S. Kathikund, District Dumka

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(iii) Sehnaj Bibi, daughter of Late Sk. Gafoor, wife of Mohril Sheikh, aged about 42 years, resident of village Patra Kundi, P.O. Askajoda, P.S. Kathikund, District Dumka

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(iv) Menaj Bibi, daughter of late Sk. Gafoor, wife of Aajad Sheikh, aged about 28 years, resident of village Dudhani, P.O. P.S. and District Dumka

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(i) Sk. Hasim, son of Sk. Ali Hussain, aged about 61 years (ii) Sk. Salim, son of Sk. Ali Hussain, aged about 55 years Both resident of village Pipra, P.O. & P.S. Kathikund, District Dumka

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(iii) Aimun Bibi, daughter of Sk. Ali Hussain, wife of Sk. Harun, aged about 59 years, resident of village Patra Kundi, P.O. Askajoda, P.S. Kathikund, District Dumka

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(iv) Manju Bibi, daughter of Sk. Ali Hussain, wife of aged about Sk. Maqsood, resident of village Dudhani, P.O. P.S. and District Dumka

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Sk. Liyakat, son of late Sk. Habib

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Sk. Nijam, son of late Sk. Monir All residents of village Pipra, P.O. & P.S. Kathikund, District Dumka … … Petitioners

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Versus

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The State of Jharkhand

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The Commissioner South Paragna Division, Dumka

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The Deputy Commissioner, Dumka

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The Settlement Officer, Dumka

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The Assistant Settlement Officer, Dumka

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Md. Jahangir

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Md. Alam

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Md. Salam

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Md. Shamshad Respondents No.6 to 9 all sons of late Md. Idris

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10.Nejam Khan

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11.Nehal khan

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Respondents no.10 & 11 both sons of late Yakub Khan

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12.Aslam Khan

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13.Arshad Khan

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14.Raja Khan Respondents Nos.12 to 14 all sons of late Hanif Khan. Respondents No.6 to 13 residents of Kumharpara, P.O. & P.S. Kumharpara, District Dumka

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1

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… … Respondents ---

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioners : Mr. Vibhor Mayank, Advocate For the Respondents : Mr. Ashish Verma, Advocate For the State : Ms. Shalini Shahdeo, Advocate ---

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41 /17.07.2025 Heard the learned counsel appearing on behalf of the parties.

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2. This writ petition has been filed for the following reliefs:

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“a. For quashing the order dated 7.1.1987 passed by the Settlement Officer, Dumka in Fauti Case No.31 of 1986 in terms of which the concerned respondent authority has been pleased to direct for recording names of the private respondents 6 to 17 in respect of lands under J.B. No. 20 of Mauja Sri Amra No. 5, Thana No. 29, Sardari Circle - Digghi, Sub Division & District Dumka; and

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b. For quashing the order dated 25.05.2012 passed by the learned Commissioner, Santhal Paragna Division, Dumka in Rev. Misc. Appeal No. 27/1987-88 by which the appeal preferred by the petitioners against the order dated 7.1.1987 passed by the Settlement Officer, Dumka in Fauti Case No.31 of 1986 has been dismissed;

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and

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c. Upon quashing the impugned orders dated 7.1.1987 passed by the Settlement Officer, Dumka in Fauti Case No. 31 of 1986 as well order dated 25.05.2012 passed by the learned Commissioner, Santhal Paragna Division, Dumka in Rev. Misc. Appeal No. 27/1987-88 be further pleased to direct the concerned respondent authorities to enter the name of the petitioners with respect to the land in question.”

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3. The learned counsel for the petitioners has referred to the order dated 21.02.2023 and submitted that the entire argument of the petitioners has been recorded therein. He has in particular referred to paragraphs 3 to 7 which are quoted as under:

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“3. Learned counsel for the petitioners has submitted that the solitary issue involved in the present case is whether the findings

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recorded in judgment dated 18.06.1986 passed in Land Acquisition Case No.2 of 1983 under section 30 of the Land Acquisition Act deciding the only point in the reference case i.e who was the legal heir of Zahurjan Bibi, wife of Rasul Khan and daughter of Nazir Sheikh, is final and binding upon the petitioners and the private respondents and can operate as res judicata in the impugned proceedings. The learned counsel has submitted that in the aforesaid proceedings under the Land Acquisition Act it was decided that the predecessor in interest of the petitioners would be entitled to half share of the property. The learned counsel submits that in view of the findings recorded in the aforesaid case, the petitioners there can be no doubt that the petitioners would be entitled for entry of their name in the record of the respondents with regards to the property involved in the preset case initially recorded in the name of Zahurjan Bibi, wife of Rasul Khan and daughter of Nazir Sheikh.

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4. Learned counsel submits that by the impugned proceedings and orders, the petitioners have been totally deprived of their rights and the authority has observed that the respondents had inherited the property of the recorded tenant namely Zahurjan Bibi and their title have been perfected until it is reversed by a competent court of civil court. The learned counsel submits that the issue regarding legal heirs of Zahurjan Bibi having been decided in the earlier suit would operate as res judicata and therefore the property should have been recorded 2 jointly in favour of the present petitioners along with other co-sharers of the property.

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5. The learned counsel has relied upon the judgment passed by Hon’ble Full Bench of this Court reported in 1997 (1) PLJR 155 and has referred to para 46 thereof to submit that determination pursuant to reference made under Sections 18 and 30 of the Land Acquisition Act has the force of decree and has been held to be appealable under Section 96 of the CPC. The learned counsel has also relied upon the judgment reported in 1973 SCC online Pat 123. He has also relied upon judgment passed by Hon'ble Supreme Court reported in AIR 1953 SC 33 para 13 and 14 to submit that the point of res judicata as has been argued by the

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present petitioners in this case, is squarely covered by the said judgment.

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6. Learned counsel has also submitted that the determination of heirs to Zahurjan Bibi was essentially an issue which was decided in the aforesaid proceedings Land Acquisition Act while determining the share of compensation arising out of land acquisition proceedings. He submits that the property involved in this case is only a portion of the same property. The learned counsel submits that the entire basis of claim in the land acquisition proceedings and the present proceedings so far as heirs are concerned is one and the same and therefore there cannot be any occasion for the present petitioners to go again to the court and get their rights declared. He also submits that the order passed in the land acquisition case has attained finality. The learned counsel has provided the list of dates in the present case and he submits that the list of dates has also been forwarded to the State as well as to the private respondents.

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7. The learned counsel for the petitioners has also submitted that the learned court below has not even directed the petitioners to file a suit for declaration of the title rather by the impugned order, the authority has declared adverse possession in favour of the private respondents and such finding is ex facie without jurisdiction as no such declaration can be given by the respondent authority, which is the exclusive jurisdiction of the civil court.”

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4. The learned counsel has placed the judgement passed by the learned Sub-Judge, Dumka under Section 30 of the Land Acquisition Act wherein there was a dispute with regard to declaration of apportionment between the present petitioners, who are claiming through Sheikh Bhikhari and the private respondents, who are claiming through Rasool Khan. The learned counsel has also referred to the sole point for determination in the said proceedings, which has been mentioned in paragraph 5 of the judgment as follows “the only point for determination in this reference case is that who was the legal heir of Zahurjan Bibi, the recorded tenant”. He submitted that the

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parties had contested the case, and ultimately, a finding was recorded in paragraph 16 thereof that the claimants are entitled for compensation money as indicated. Sk. Gafur and other descendants of Sheikh Bhikhari are entitled to half of the compensation amount and half will go to the relations of Rasool Khan, i.e. the descendants of Alidad Khan. The finding in paragraph 16 is quoted as under:

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“16. Keeping into consideration, the above facts and circumstances of the case, I am of the opinion that the Rasol Khan’s relation Alidad Khan, two sisters Nabian and Rajan and accordingly their descendants are entitled for ½ share in the property of Zahorjan. The remaining half of the property will go to residuary. The residuary are heirs of Sk. Bhikhari i.e. Sk. Gafur and others. Sk. Siraj is not entitled for any compensation as he failed to prove the genealogy and also that what way he is related with Zahorjan. Hence it is ordered that the claimants are entitled for compensation money as indicated above. Sk. Gafur and other descendants of Sk. Bhikhari are entitled to ½ of compensation amount and that half will go to relations of Rasol Khan i.e. the descendants of Alidad Khan.”

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5. The learned counsel has submitted that the findings in the land acquisition proceeding between the parties with regard to the legal heirs and successors of recorded tenant Zahurjan Bibi is final and is binding on the parties.

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6. The learned counsel has relied upon the judgement passed by Hon’ble Supreme Court reported in (1952) 2 SCC 219 (Raj Lakshmi Dasi and Ors. Vs. Banamali Sen and Ors.) paragraphs 13 to 15 and also in the judgment passed by full Bench of Patna High Court reported in 1997 (1) PLJR 155 (The State of Bihar Vs. Smt. Sharda Devi) paragraph 40 and further the judgment passed by Hon’ble Patna High Court reported in 1973 SCC OnLine Patna 123 (Dhanusdhari Rai and Ors. Vs. Man Mohan Rai and Ors.) paragraph 7 and has submitted that the findings recorded in a proceeding under Section 30 of Land Acquisition Act, 1894, is binding on the parties. The learned counsel has again referred to the impugned judgment passed by the learned Commissioner and stated that the learned Commissioner could

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not have just brushed aside the findings recorded in the land acquisition proceeding, and therefore, the land involved in this case was to be also recorded in the name of the petitioners to the extent of 50% of the share.

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7. The learned counsel for the respondents, on the other hand, has opposed the prayer and relied upon the judgement passed by the Hon'ble Supreme Court reported in (1979) 3 SCC 135 (Hoshnak Singh Vs. Union of India and Ors.) and submitted that under Article 226 of the Constitution of India, res judicata will not apply. He has further submitted that the present petition has been filed under Articles 226 and 227 of the Constitution of India and Article 227 has been wrongly invoked. The learned counsel has also submitted that the petitioners cannot challenge the order dated 07.01.1987 passed in Fauti Case No.31 of 1986-87 as the order was already challenged before the learned Commissioner in Revision Miscellaneous Appeal No.27 of 87-88 and the reasoned order has been passed which is impugned in the present proceedings. He has also submitted that the petitioners have made a prayer that the entire land should be recorded in their name although the private respondents cannot be excluded as in terms of the argument of the appellants, they are only entitled to the extent of 50%. The learned counsel has also submitted that different genealogical table was prepared and submitted in the proceeding in the Fauti Case and LAR Case, and therefore, Civil Court, Dumka is the competent authority to decide as to who are the legal heirs and successors of Zahurjan Bibi, the recorded tenant if any such dispute occurs. The disputed questions of fact with regard to legal heirs of Zahurjan Bibi cannot be decided in writ proceedings.

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8. The learned counsel has further submitted that in impugned order of the Commissioner, the Commissioner has clearly observed that the petitioners could go to civil court for declaration of title, but in spite of such order, the petitioners have not chosen to go for such declaration. He submits that the Fauti case was initiated on the premise that there was no legal heirs and successors of Zahurjan Bibi in which altogether 4 sets of parties had participated which ultimately

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resulted in an order passed in favour of the private respondents. The learned counsel has also submitted that record of rights is final after 6 months from the date of publication in terms of Section 25 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949.

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9. The learned counsel has submitted that in two proceedings before the Fauti case and the Rev. Misc. Appeal, the claim of the petitioners was different. He has further submitted that in the writ petition, the petitioners did not mention as to under which section of the Land Acquisition Act, the LAR case was referred to the Subordinate judge. The learned counsel has submitted that he has brought on record the entire order sheet of the land acquisition proceedings and on the first page of the order-sheet, it has been mentioned that the land acquisition proceeding was referred under Section 18 of the Land Acquisition Act, and therefore, the recording in the judgment passed in LAR Case No.2 of 1983 (Annexure -1) to Section 33 is incorrect.

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10. The learned counsel has also submitted that there has been further land acquired in the year 2004 and in that case, compensation amount was disbursed in favour of the private respondent no.11. He has also submitted that in the original khatian, the name of respondent nos.6 to 14 was inserted and at the end, he has reiterated that disputed questions of fact cannot be decided under writ jurisdiction. 11. The learned counsel for the State has submitted that the learned Commissioner has held that the private respondents had perfected their title by adverse possession and there is no illegality and rent was paid by them and therefore there was no illegality in passing the impugned judgment by the learned Commissioner. She has submitted that her submission has already been recorded on the point of res judicata in the order dated 21.02.2023, which is quoted as under:

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“Learned counsel for the respondent – State has submitted that she has gone through the records and prima facie it appears that the 3 parties who are litigating in the present case, their predecessor in interest were parties in the proceedings before the Land Acquisition Officer and the entire case arises out of the property

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recorded in the name of Zahurjan Bibi, wife of Rasul Khan and daughter of Sheikh Nazir and therefore, the issue raised by the petitioners in the present case appears to be covered by the judgments relied upon by the petitioners”

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12. After hearing the learned counsel appearing on behalf of the parties and upon going through the records of this case, this Court finds that it is not in dispute that so far as LAR Case No.2 of 1983 is concerned, the petitioners/ their predecessor in interest and the private respondents/their predecessor in interest, were parties. It is further not in dispute that the said proceeding was also in connection with Jamabandi No.20 which is the same jamabandi, which is involved in the present case. It is also not in dispute that the judgement passed in LAR Case No.2 of 1983 has attained finality.

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13. The perusal of the judgement reveals that the point as to who is legal heirs and successors of Zahurjan Bibi -recorded tenant was the only point for determination. Apparently, both the parties were fighting with regard to apportionment of the amount under land acquisition proceedings. The judgment reveals that it was hotly contested between both the parties and ultimately a finding has been recorded that both the parties were entitled to half share each.

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14. This Court finds the issue regarding legal heirs and successors of Zahurjan Bibi, the recorded tenant, was directly in issue in the proceeding in LAR Case No.2 of 1983. The perusal of the judgment reveals that it was essentially a reference under Section 30 of the Land Acquisition Act as the parties were fighting with regard to apportionment of the award.

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15. The further facts reveal that the private respondents herein had also filed Title Appeal No.49 of 1986 against the judgement passed in LAR Case No.2 of 1983 which was dismissed on 18.05.1990 and the judgment passed in LAR Case No.2 of 1983 attained finality.

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16. This Court finds that prior to passing of the final judgment in LAR Case No.2 of 1983 which was decided only on 18.06.1986, a proceeding bearing Fauti Case No.31 of 1986 was initiated and final order in the said proceedings was passed on 26.05.1986. The said

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proceeding was initiated assuming that Zahurjan Bibi had died without leaving any heir but the authority after hearing the parties was of the view that the private respondents herein were the heirs and successors of Zahurjan Bibi and accordingly directed for recording of the property in their name. The petitioners had filed appeal before the Commissioner which was numbered as Rev. Miscellaneous Appeal No.27 of 1987-88 and by that time the judgment in the Land Acquisition Case No.2 of 1983 was pronounced and consequently, they relied upon the said judgment. However, the learned Commissioner recorded that although the learned Sub-ordinate Judge, Dumka on 18.06.1986 declared the half share of the property but the amount of compensation could not be lifted by them as yet because as per the Collector’s opinion, unless the matter is finally disposed of in title suit, no amount of compensation can be given to anybody and the amount of compensation was still lying in the treasury.

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17. This Court finds that such observation made by the learned Commissioner is ex facie perverse in view of the fact that in the title suit, the issue regarding legal heirs and successors of Zahurjan Bibi was duly decided and the collection of compensation from the office of the Collector after decision of Land Acquisition Case No.2 of 1983 is immaterial. This Court also finds that the learned Commissioner was further of the view that the private respondents herein had perfected their title and unless it is reversed by a competent court of civil jurisdiction, no relief could be granted to the petitioners. This Court is of the view that the learned Commissioner had no jurisdiction to decide the point of adverse possession and such point can only be decided by the competent court of civil jurisdiction. The learned Commissioner exceeded his jurisdiction while recording such a finding and asking the petitioners to go to the competent court of civil jurisdiction to get such a finding reversed.

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18. Thus, the impugned judgement of the learned Commissioner cannot be sustained on both grounds; firstly , the learned Commissioner has wrongly ignored the judgment passed by the learned Sub-judge, Dumka in the Land Acquisition Case No.2 of 1983

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and secondly committed error of law in holding that the private respondents herein had perfected their title and asking the petitioners to go to the competent court of civil jurisdiction to get such a finding reversed.

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19. So far as the judgment which has been cited by the learned counsel for the private respondents reported in (1979) 3 SCC 135 (supra) is concerned, the same has no applicability to the facts and the circumstances of this case in view of the fact that the said judgment was dealing with the point of res judicata between petitions under Article 226 and 32 of the Constitution of India. It was held that where a petition under Article 226 is dismissed without a speaking order such dismissal would not constitute a bar of res judicata to a subsequent petition on the same cause of action. This Court is of the view that the issue as to who would be the legal heirs and successors of Zahurjan Bibi was directly in issue in LAR Case No.2 of 1983 and was hotly contested and decided through a competent court of civil jurisdiction and therefore the judgment which has been relied upon by the respondents otherwise also does not apply to the facts and circumstances of the case.

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20. Accordingly, it is held that the petitioners would be entitled to half share of the property equivalent to that which has been conferred upon the private respondents herein on the strength of the binding judgment between the parties passed in LAR Case No.2 of 1983.

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21. As a cumulative effect of the aforesaid findings, the impugned order dated 07.01.1987 passed by the Settlement Officer, Dumka in Fauti Case No.31 of 1986 and the order dated 25.05.2012 passed by the learned Commissioner, Santhal Paragna Division, Dumka in Rev. Misc. Appeal No. 27/1987-88 are hereby set aside.

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22. This writ petition is allowed in the aforesaid terms.

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23. Pending interlocutory application, if any, is dismissed as not pressed.

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(Anubha Rawat Choudhary, J.)

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Saurav

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Sk Alim v. District Administration

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Sk Alim v. District Administration

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