Jharkhand High Court
Respondent/ vs Abhinaw Kumar on 2 July, 2025
Author: Rajesh Kumar
Bench: Rajesh Kumar
( 2025:JHHC:17674-DB )
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.409 of 2018
Kamal Nath Karmali, aged about 71 year, son of Late
Haricharan Karmali, resident of Village-Chhotki Murram,
P.O. & P.S.-District-Ramgarh (Jharkhand)
...Respondent/Appellant
Versus
1.Abhinaw Kumar, son of Late Dr. K.P. Sinha, resident of
Village-Murram Kala, P.O. & P.S.-District-Ramgarh
(Jharkhand). ...Respondent 1ST/Petitioner
2.State of Jharkhand through the Secretary, Department
of Land and Revenue, Government of Jharkhand, Project
Building, Dhurwa, P.O. & P.S. -Dhurwa, District-Ranchi.
3.The Additional Collector, Ramgarh, P.O./P.S. & District-
Ramgarh.
4.The Sub Divisional Officer, Ramgarh, P.O./P.S. &
District-Ramgarh.
5.The Land Reforms Deputy Collector, Ramgarh, P.O./P.S.
& District-Ramgarh.
6.The Circle Officer, Ramgarh, P.O./P.S. & District-
Ramgarh.
... ...Respondents 2ND Set/Respondents
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CORAM: HON'BLEMR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Harendra Kumar Mahato, Adv.
Mr. Ahalya Mahato, Advocate
Ms. Jyotsna Mahato, Advocate
For the State : Mr. J.F. Toppo, G.A V.
Mr. Ajit Kumar, AC to GA V
For the Res. No. 1 : Mr. Anoop Kumar Mehta, Adv.
Mr. Atul Raj, Advocate.
----------------------------
CAV/Reserved on 26.06.2025 Pronounced on 02/07/2025
Per Sujit Narayan Prasad, J.
Prayer:
1. The instant appeal, under Clause 10 of the Letters Appeal, is
directed against order dated 3rd April, 2018 passed in
W.P.(C) No. 5724 of 2015, whereby and whereunder the writ
petition was allowed and order dated 21.01.2012 passed by
the Sub Divisional Officer, Ramgarh, by which the
1 LPA No. 409 of 2018
( 2025:JHHC:17674-DB )description of land from Khata No. 94 to Khata No. 77 was
rectified, has been quashed and set aside; and it has been
held that appellate order dated 15.10.2015 passed in Appeal
Case No. 15/2011-12 is of no consequence as the same was
not entertained by the appellate authority on the ground
that the appeal against the order of restoration was
dismissed vide order dated 14.12.2004 passed in Appeal
Case No. 8 of 1997.
Brief facts of the case:
2. The brief facts of the case, as per the pleading available on
record, needs to be referred herein, which reads as under:
3. The mother of writ petitioner-respondent no. 1, Smt. Uma
Sinha, wife of Late K.P. Sinha, purchased a piece of land
measuring an area of 0.22 acres out of 1.15 acres falling
under Khata No. 77, Plot No. 188 in Village Murram Kala,
P.S. Ramgarh, the then District-Hazaribagh [Now Ramgarh]
from Haricharan Mistri and Shivcharan Mistri, sons of
recorded tenant Hardayal Karmali, on payment of
consideration amount of Rs. 6500/- vide registered sale deed
dated 20.04.1982, who came in peaceful possession thereof.
The said land was mutated in the name of Smt. Uma Sinha
vide Mutation Case No. 266/84-85 and accordingly rent
receipt was issued.
4. On 19.01.1995, an application was filed by respondent no.
6, the appellant herein, before the Sub-Divisional Officer,
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Ramgarh which was registered as Restoration Case No.
1/1995 for restoration of 55 decimals of land out of 1.15
acres falling under Mouza Muramkala Khata No. 94, Plot No.
188, which was alleged to be purchased by the father of the
writ petitioner, namely, Dr. K.P. Sinha, on the ground that it
was purchased in gross violation of the provisions of CNT
Act. On being noticed, the father of the writ petitioner,
namely, Dr. K.P. Sinha appeared and filed show cause
stating that from the Khatian, it is evident that the recorded
tenant Hardayal Karmali, Ghujwa Karmali and Shobhwa
Karmali are „Lohar‟ by caste, which has been put under the
Backward Class, as per law laid down by Hon‟ble Supreme
Court in the case of Nityanand Sharma & Anr. Vs. State
of Bihar& Ors. [(1996) 3 SCC 576]. Accordingly, prayer
has been made that as per Section 46(4A) of the CNT Act
since the applicant who is seeking restoration of land is not
a member of Scheduled Tribe, the application for restoration
is liable to be dismissed. Further ground has been taken
that the application is liable to be dismissed on the ground
of mis-rejoinder and non-joinder of necessary party since the
land in question was not purchased by Dr. K.P. Sinha.
5. Thereafter, the SDO, Ramgarh passed the order dated
26.02.1997 in Land Restoration Case No. 1/1995 for
restoration of the land of village Murramkala falling under
Khata No. 94, Plot No. 188 measuring 55 decimals out of
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1.15 acres against Dr. K.P. Sinha recording the finding that
merely because in Khatian i.e., the record of rights, the caste
of the recorded tenant has been recorded as „Lohar‟ it cannot
be accepted that the appellant falls under the Backward
Caste Category.
6. Against order dated 26.02.1997 passed in Land Restoration
Case No. 1/1995, Dr. K.P. Sinha preferred appeal being
Appeal Case No. RAN-8/1997 before the appellate authority,
which was dismissed vide order dated 14.12.2004. It is
alleged that appeal was heard on 22.08.2002 and the matter
was posted for pronouncement of judgment on 18.09.2002
but the judgment was pronouncement on 14.12.2004, as
such said Dr. K.P. Sinha could not have information of the
order passed in appeal.
7. Thereafter, in the year 2011, the appellant-original
applicant, namely, Kamalnath Karmali filed an application
on 28.03.2011 before the Sub-Divisional Officer, Ramgarh
stating therein that the description of the property in the
application for restoration [Restoration Case No. 01 of 1995]
was incorrect, as such in the proceeding for restoration of
land, an application for rectification in the description of
property was filed on 15.11.1995 but the same was never
pressed by his counsel, therefore, prayer has been made for
modification of the final order dated 26.02.1997 by making
necessary correction of description of the land from Khata
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No. 94 to Khata No. 77 so that the possession of Khata No.
77 instead of Khata No. 94 be given to the applicant, the
appellant herein. The said application was allowed vide order
dated 21.01.2012 by which correction, as sought for, was
allowed to be carried out and direction was passed for
delivery of possession of the land in question in favour of
original applicant, the appellant herein
8. Against the order dated 21.01.2012 passed by the SDO,
Ramgarh, the writ petitioner-respondent no. 1 herein
preferred appeal being Land Restoration Appeal Case No.
15/2011-12 before the appellate-authority, the Additional
Collector, Ramgarh, which was disposed of vide dated
15.10.2015 refusing to interfere with the order passed by the
original authority stating that Appeal Case No. 8/1997 has
already been decided against the Dr. K.P. Sinha vide order
dated 14.12.2004.
9. After passing of the order dated 14.12.2004, the father of the
writ petitioner died, however, being aggrieved with the order
dated 21.01.2012 passed by the SDO, Ramgarh as also
appellate order dated 15.10.2015, the writ petitioner, the
respondent no. 1 herein, has approached this Court by filing
writ petition being W.P.(C) No. 5724 of 2015, which was
allowed vide order dated 3rd April, 2018 whereby and
whereunder order dated 21.01.2012 passed by the Sub
Divisional Officer, Ramgarh, by which the description of land
5 LPA No. 409 of 2018
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from Khata No. 94 to Khata No. 77 was rectified, has been
quashed and set aside; and it was held that appellate order
dated 15.10.2015 passed in Appeal Case No. 15/2011-12 is
of no consequence as the same was not entertained by the
appellate authority on the ground that the appeal against
the order of restoration was dismissed vide order dated
14.12.2004 passed in Case No. RAN- 8 of 1997.
10. Being aggrieved by the order passed by the learned Single
Judge, the respondent no. 6, the appellant herein has
preferred the instant intra-court appeal.
Submission of learned counsel for the appellant-respondent
no. 6:
11. Mr. H.K. Mahato, learned counsel for the appellant has
taken the following grounds in assailing the order passed by
the learned Single Judge.
12. Submission has been made that the learned Single Judge
has not appreciated the fact that the appellant is actually a
member of Scheduled Tribe belonging to the Karmali Caste,
which is scheduled tribe as notified in the Constitution
(Schedule Tribe) Order, 1950 and also according to the list of
Schedule Tribe appearing in Appx. Bihar Schedule Area
Regulation and as such initially the application was filed for
restoration of the land since the land in question was
transferred without necessary permission of the Deputy
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Commissioner of the concerned district, as required under
Section 46(4A) of the CNT Act, 2008.
13. It has further been contended that the learned SDO has
taken into consideration the fact about actual caste of the
writ petitioner to be „Karmali‟ on the basis of report
submitted by the Circle Officer, negating the claim of the
opposite party, the writ petitioner, that the appellant herein
and his ancestral belongs to „Lohar‟ Caste and accordingly
passed the order for restoration of land, which was affirmed
by the appellate authority also, however, due to wrong
reference of khata no. i.e. for Khata No. 94 to Khata No. 77,
the appellant again approached the competent authority i.e.,
SDO, Ramgarh, who after appreciating the matter has
rectified the same and ordered for restoration of land but the
said order has been quashed by learned Single Judge on the
ground that the concerned respondent(s) has failed to show
any provision of law under which the application has been
filed and any provision of law under which the Sub-
Divisional Officer, Ramgarh has rectified the description of
the land after the disposal of the case.
14. The learned counsel for the appellant has further taken the
ground that the application for restoration was filed within s
period of 12 years since the land was mutated in the year
1984-85 and the application for restoration was filed in the
year 1995 and as such it is a fit case for restoration of land.
7 LPA No. 409 of 2018
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15. Submission has been made that the sale deed executed in
the name of Smt. Uma Sinha wife of Dr. K.P. Sinha was
obtained by playing fraud by changing the name of the
executants, Haricharan Karmali and Shivcharan Karmali
and by omitting the title „Karmali‟ and introducing the title
„Mistri‟ against their names in order to conceal the true
identity of the vendors, who were members of the schedule
tribe community.
16. Further submission has been made that fresh application for
correction of khata no. was made on 28.03.2011 and before
that during pendency of the very first proceeding pending
before the SDO, Ramgarh application for rectification was
made on 15.11.1995, which could not be appreciated, as a
result of which though order of restoration of land was
passed but there was wrong reference of khata number.
Therefore, for the rectification of the same, the appellant has
filed application before the SDO, Ramgarh the original
authority who rectified the Khata by allowing the application
filed by the appellant. But the learned Single Judge did not
consider these aspects of the matter.
17. Learned counsel for the appellant, based upon the aforesaid
ground, has submitted that the impugned order passed by
the learned Single Judge, requires interference on the
grounds as agitated above.
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Submission on behalf of respondent no.1-writ petitioner:
18. While on the other hand, Mr. Anoop Kumar Mehta, learned
counsel appearing for the respondent No. 1, the writ
petitioner has defended the order passed by learned Single
Judge on the following grounds and submission has been
made that whatever order has been passed by the learned
Single Judge needs no interference by this Court.
19. Submission has been made that the application for
rectification was not proper to be entertained/allowed after
much delay of 14 years and further due to change in khata
number, the name of the khatiani raiyats also changes and
on that ground alone, the restoration application ought to
have been rejected. Furthermore, it is not the case where
only wrong khata number is said to be there rather in the
original application i.e., Land Restoration Case No. 01/1995
was filed against Dr. K.P. Sinha, whereas the land in
question after even rectification has been registered in the
name of Smt. Uma Sinha, wife of Dr. K.P. Sinha, therefore,
that application is liable is to be dismissed on the ground of
mis-joinder and non-joinder of necessary party. The learned
Single Judge has taken into consideration these aspects of
the matter, which led the learned Single Judge to allow the
writ petition filed by the writ petitioner-respondent no.1 and
it requires no interference by this Court.
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20. Submission has been made that the learned SDO, Ramgarh
has erred in passing the order of restoration even though the
appellant is by caste „Lohar‟ as mentioned in Khatain,
wherein the Caste of the appellant has been mentioned as
„Lohar‟, which falls under the category of Backward Class
and not the Scheduled Tribe and as per law laid down by
Hon‟ble Apex Court in the case of Nityanand Sharma Vs.
State of Bihar (supra), wherein it has been held that the
„Lohar‟ caste falls under the category of Backward Class.
Therefore, otherwise also, the orders passed by the original
authority and appellate authority is fit to be quashed and set
aside and as such the order passed by the learned Single
Judge requires no interference.
21. Further ground has been taken that the learned SDO,
Ramgarh on its own has come to the conclusion that
„Karmali‟ caste falls under Schedule Tribe Category and
based upon the aforesaid ground the land in question was
erroneously directed to be restored.
22. Further ground has been taken that the issue of limitation
has also not been taken into consideration by the authorities
since after 14 years from the date of order of restoration
passed by the learned SDO, Ramgarh on 26.02.1997, the
appellant had filed application on 28.03.2011 for review of
order by rectifying the khata number, even though there is
no provision of review under the CNT Act but without having
10 LPA No. 409 of 2018
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such jurisdiction, the SDO, Ramgarh has reviewed original
order dated 26.02.1997 by making correction order in khata
number and also directed for delivery of possession, in utter
violation of law that the power of review can only be
exercised by the Statutory Authority if the statute provides
such power, as has been held by Hon‟ble Apex Court in the
case of Kalabharti Advertising Vs. Heman Vimalnath
Narichaniya & Ors. [(2010) 9 SCC 437].
23. Learned counsel for the respondent no. 1 further submitted
that as a matter of fact, the appellant has described himself
as Kamalnath Mistry, son of Haricharan Mistry in the
affidavit dated 29.04.1982 wherein he has clearly stated that
he belongs to Backward Class and by caste is „Lohar‟,
Bishwarkarma and not an Adivashi. In paragraph 2 of the
affidavit, he has further stated on oath that he has sold 22
decimals of land falling under plot no. 188 Khata No. 77 of
village Murramkala to Smt. Uma Sinha wife of K.P. Sinha.
24. Learned counsel further submitted that descendants of the
recorded tenants describing themselves as the members of
Backward Class community have sold out major part of
Khata No. 77 vide registered sale deeds to the persons who
are not the members of Schedule Tribe community and
accordingly mutation has been done in the name of
purchaser. In support of his claim he has filed copy of
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Register-II, which has been marked as Annexure 13 series to
the writ petition.
25. Learned counsel for the respondent no. 1 based upon the
aforesaid ground has submitted that the order passed by the
learned Single Judge requires no interference by this Court
Analysis:
26. We have heard learned counsel for the parties and gone
through the pleading available on record as also the finding
recorded by learned Single Judge as also the finding so
recorded by the revenue authorities, as appended with the
paper book and gone through the relevant provisions of law.
27. Admitted case herein is that a piece of land measuring an
area of 0.22 acres out of 1.15 acres falling under Khata No.
77, Plot No. 188 in Village Murram Kala, P.S. Ramgarh was
registered in the name of Smt. Uma Sinha, wife of Late K.P.
Sinha, the mother of writ petitioner-respondent no. 1, from
Haricharan Mistri and Shivcharan Mistri vide registered sale
deed dated 20.04.1982, which was mutated in the name of
Smt. Uma Sinha vide Mutation Case No. 266/84-85 and
accordingly rent receipt was issued.
28. Further admitted case is that on 19.01.1995, i.e., after 12
years of registry of the land in question, an application was
filed by respondent no. 6, the appellant herein, before the
Sub-Divisional Officer, Ramgarh which was registered as
Restoration Case No. 1/1995 for restoration of 55 decimals
12 LPA No. 409 of 2018
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of land out of 1.15 acres falling under Mouza Murramkala
Khata No. 94, Plot No. 188, which was stated to be
purchased by the father of the writ petitioner, namely, Dr.
K.P. Sinha.
29. On being noticed, the father of the writ petitioner, namely
Dr. K.P. Sinha appeared and filed show cause stating that
from the Khatian, it is evident that the recorded tenant
Hardayal Karmali, Ghujua Karmali and Shobhwa Karmali
are „Lohar‟ by caste, which has been put under the
Backward Class, therefore, as per Section 46(4A) of the CNT
Act since the applicant, who is seeking restoration of land, is
not a member of Scheduled Tribe, the application for
restoration is fit to be dismissed. Further ground has been
taken that the application is liable to be dismissed on the
ground of mis-rejoinder and non-joinder of necessary party
since the land was not purchased by Dr. K.P. Sinha.
30. However, learned SDO, Ramgarh vide order dated
26.02.1997 allowed the Land Restoration Case No. 1/1995
and directed for restoration of the land by recording the
finding that merely because in Khatian i.e., the record of
rights, the caste of the recorded tenant has been recorded as
„Lohar‟ it cannot be accepted that the applicant falls under
the Backward Caste Category.
31. Against order dated 26.02.1997 passed in Land Restoration
Case No. 1/1995, Dr. K.P. Sinha preferred appeal being
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Appeal Case No. RAN-8/1997 before the appellate authority,
which was dismissed vide order dated 14.12.2004.
32. After about 14 years, the appellant-original applicant,
namely, Kamalnath Karmali filed an application on
28.03.2011 before the learned Sub-Divisional Officer,
Ramgarh wherein prayer has been made for
modification/rectification of the final order dated 26.02.1997
by making necessary correction of description of the land
from Khata No. 94 to Khata No. 77 so that the possession of
Khata No. 77 instead of Khata No. 94 be given to the
applicant. The said application was allowed vide order dated
21.01.2012 by which correction, as sought for, was allowed
to be carried out and direction was passed for delivery of
possession in favour of original applicant, the appellant
herein.
33. Against the order dated 21.01.2012 passed by the SDO,
Ramgarh, the writ petitioner-respondent no. 1 herein
preferred appeal being Land Restoration Appeal Case No.
15/2011-12 before the appellate-authority, the Additional
Collector, Ramgarh, who refused to pass any order vide
order dated 15.10.2015 stating that Appeal Case No. 8/1997
has already been decided against said Dr. K.P. Sinha vide
order dated 14.12.2004.
34. Being aggrieved the order passed by the revenue authorities,
the writ petitioner, the respondent no. 1 herein, has
14 LPA No. 409 of 2018
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approached this Court by filing writ petition being W.P.(C)
No. 5724 of 2015, which was allowed vide order dated 3 rd
April, 2018, whereby and whereunder the order passed by
the revenue authorities have been quashed and set aside,
against which the present appeal has been filed.
35. The ground has been agitated on behalf of appellant that the
appellant is actually a member of Scheduled Tribe belonging
to the Karmali Caste, which is scheduled tribe as notified in
the Constitution (Schedule Tribe) Order, 1950 and also
according to the list of Schedule Tribe appearing in Appx.-IX
of the Bihar Schedule Area Regulation, 1969 and since the
land in question was transferred without necessary
permission of the Deputy Commissioner of the concerned
district, as required under Section 46(4A) of the CNT Act,
1908, therefore, the SDO, Ramgarh has rightly passed the
order for restoration of the land in favour of appellant, which
was affirmed by the appellate authority. However, due to
wrong description of land in original application i.e. in
Restoration Case No. 1 of 1995, the appellant filed
application for the rectification of description of khata
number of land i.e., from Khata No. 94 to Khata No. 77,
before the SDO, Ramgarh and was allowed, which was also
confirmed by the appellate authority. But the learned Single
Judge did not consider these aspects of the matter that there
is concurrent finding recorded by the authorities, which is
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passed as per mandate of CNT Act, 1908. The appellant has
also taken the ground that the sale deed executed in the
name of Smt. Uma Sinha wife of Dr. K.P. Sinha was obtained
by playing fraud by changing the name of the executants,
Haricharan Karmali and Shivcharan Karmali and by
omitting the title „Karmali‟ and introducing the title „Mistri‟
against their names in order to conceal the true identity of
the vendors, who were members of the schedule tribe
community.
36. While, on the other hand, the writ petitioner-respondent no.
1 has taken the ground that it is not the case wherein only
the issue of wrong khata number is there i.e., Khata No. 94
or Khata No. 77 but besides that the area of land is different
as also the case is barred by mis-joinder and non-joinder of
necessary party since Dr. K.P. Sinha was made party instead
of Smt. Uma Sinha. Further ground has been taken that the
learned SDO, Ramgarh has wrongly decided the case of the
appellant since appellant is by caste „Lohar‟ as mentioned in
khatian, which falls under the category of Backward Class
and not the Scheduled Tribe. Further ground has been taken
the learned SDO, Ramgarh on its own has come to the
conclusion that „Karmali‟ caste falls under Schedule Tribe
Category and based upon the aforesaid ground the land in
question was erroneously directed to be restored in favour of
appellant. The issue of limitation has also been taken stating
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that after 14 years from the date of order of restoration
passed by the SDO, Ramgarh on 26.02.1997, the appellant
had filed application on 28.03.2011 for review of order by
rectifying the khata number, even though there is no
provision of review under the CNT Act but without having
such jurisdiction, the SDO, Ramgarh has reviewed original
order dated 26.02.1997 by making correction order in khata
number and also directed for delivery of possession, in utter
violation of law that the power of review can only be
exercised by the Statutory Authority if the statute provides
such power.
37. This Court, on appreciation of the aforesaid factual aspect as
also the grounds taken by the parties, needs to consider
following question for adjudication of the lis:
“(i).Whether the caste of the appellant will be allowed to prevail
on the basis of the reference made in the khatian wherein the
caste of the appellant has been referred to be „Lohar‟ or merely
on the basis of the Constitution (Schedule Tribe) Order, 1950,
wherein the reference of the caste „Karmali‟ is there , can the
claim of the appellant of belonging to „Karmali‟ Caste is allowed
to be prevail upon the reference made in the „Khatian‟ showing
the writ petitioner to be „Lohar‟ Caste?
(ii).Whether the original proceeding and consequential
proceedings i.e., Restoration Case No. 01 of 1995 and R.A.N.
8/97 is barred by the principle of non-joinder and mis-joinder
of necessary party?
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(iii).Whether on allowing to rectify the Khata Number from 94
to 77 can the appellant get an advantage if he does not belong
to a Schedule Caste Category as per description of his caste in
Khatian?”
38. Since all the issues are inter-linked, as such they are taken
up together.
39. This Court, before proceeding further, needs to refer herein
the object of the CNT Act, 1908, as such the object and
intent of the Act, 1908 and the relevant provisions for
adjudication of the lis is mentioned as under.
40. It needs to refer herein the very object of the Chota Nagpur
Tenancy Act, 1908. The CNT Act, 1908, is a land rights
legislation that was created to protect the land rights of the
tribal. Major feature of the C.N.T. Act is that it prohibits the
transfer of land to non-tribals to ensure community
ownership. The areas of North Chotanagpur, South
Chotanagpur and Palamau Division are included in the
jurisdiction of C.N.T. Act. The Act is listed in the 9th
Schedule of the Constitution.
41. The position of law is that if any beneficial piece of
legislation has been made to protect the interest/right of a
particular community, the same is to be taken note by
following liberal approach and not on the basis of
technicality.
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42. The CNT Act has been enacted by keeping the principle that
the tribal people are novice and as such, in each and every
proceeding, the Deputy Commissioner has been made to be
a necessary party so that they may not be subjected to any
exploitation. The CNT Act has got mandatory provision as
under Section 46 wherein the land can be transferred in
between tribal to tribal but with prior sanction of the Deputy
Commissioner if the land falls within the same police
station. For ready reference, the provision of Section 46 is
being referred as under:
“[46. Restrictions on transfer of their right by Raiyat. –
(1) No transfer by a Raiyat of his right in his holding or any
portion thereof,-
(a) by mortgagte or lease for any period expressed or implied
which exceeds or might in any possible event exceed five
years, or
(b) by sale, gift or any other contract or agreement, shall be
valid to any extent: Provided that a Raiyat may enter into a
‘bhugut bundha’ mortgage of his holding or any portion thereof
for any period not exceeding seven years or if the mortgagee
be a society registered or deemed to be registered under the
‘Bihar and Orissa Co-operative Societies Act, 1935 (B&O Act
VI of 1935) for any period not exceeding fifteen years:]
Provided further that,- (a) an occupancy-Raiyat, who is [a
member of the Scheduled Tribes] may transfer with the
previous sanction of the Deputy Commissioner his right in his
holding or a portion of his holding by sale, exchange, gift or
will to [another person, who is a member of the Scheduled
Tribes and], who is a resident within the local limits of the
area of the police station within which the holding is situate;
(b) an occupancy-Raiyat, who is a member of the [Scheduled
Castes or Backward Classes] may transfer with the previous
sanction of the Deputy Commissioner his right in his holding19 LPA No. 409 of 2018
( 2025:JHHC:17674-DB )or a portion of his holding by sale, exchange, gift, will or lease
to another person, who is a member of the [Scheduled Castes
or, as the case may be, Backward Classes] and who is a
resident within the local limits of the district within which the
holding is situate;
[(c) any occupancy-Raiyat may, transfer his right in his
holding or any portion thereof to a society or bank registered
or deemed to be registered under the ‘Bihar and Orissa
Cooperative Societies Act, 1935 (Bihar and Orissa Act VI of
1935), or to the State Bank of India or a bank specified in
column 2 of the First Schedule to the Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970 (5 of
1970) or to a company or a corporation owned by, or in which
less than fifty-one per cent of the share capital is held by the
State Government or the Central Government or partly by the
State Government, and partly by the Central Government, and
which has been set up with a view to provide agricultural
credit to cultivators; and (d) any occupancy-Raiyat, who is not
a member of the Scheduled Tribes, Scheduled Castes or
Backward classes, may, transfer his right in his holding or
any portion thereof by sale, exchange, gift, will, mortgage or
otherwise to any other person.] (2) A transfer by a Raiyat of
his right in his holding or any portion thereof under subsection
(1) shall be binding on the landlords.
(3) No transfer of contravention of sub-section (1), shall be
registered or shall be in any way recognised as valid by any
Court, whatever in exercise, of civil, criminal or revenue
jurisdiction.
[(3-A) Notwithstanding anything contained in any other law for
the time being in force, the Deputy Commissioner shall be a
necessary party in all suits of a civil nature relating to any
holding or portion thereof in which one of the parties to the
suits is a member of the Scheduled Tribes and the other party
is not a member of the Scheduled Tribes.] (4) At any time
within three years after the expiration of the period or which a
Raiyat has under clause (a) of sub-section (1) transferred his
right in his holding or any portion thereof, the Deputy
Commissioner shall on the application of the Raiyat put the
20 LPA No. 409 of 2018
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Raiyat into possession of such holding or portion in the
prescribed manner.
[(4-A) (a) The Deputy Commissioner may, of his own motion or
on an application filed before him by an occupancy-Raiyat,
who is a member of the Scheduled Tribes, for annulling the
transfer on the ground that the transfer was made in
contravention of clause (a) of the second proviso to sub-section
(1), hold an inquiry in the prescribed manner to determine if
the transfer has been made in contravention of clause (a) of
the second proviso to sub-section (1):
Provided that no such application be entertained by the
Deputy Commissioner unless it is filed by the occupancy-
tenant within a period of twelve years from the date of
transfer of his holding or any portion thereof:
Provided further that before passing any order under clause
(b) or clause (c) of this subsection, the Deputy Commissioner
shall give the parties concerned a reasonable opportunity to
be heard in the matter.
(b) If after holding the inquiry referred to in clause (a) of this
sub-section, the Deputy Commissioner finds that there was no
contravention of clause (a) of the second proviso to sub-section
(1) in making such transfer, he shall reject the application and
may award such costs to the transferee to be paid by the
transferor as he may, in the circumstances of the case, deem
fit.
(c) If after holding the inquiry referred to in clause (a) of this
sub- section, the Deputy Commissioner finds that such
transfer was made in contravention of clause (a) of the second
proviso to sub-section (1), he shall annul the transfer and eject
the transferee from such holding or portion thereof, as the
case may be and put the transferor in possession thereof:
Provided that if the transferee has constructed any building or
structure, such holding or portion thereof, the Deputy
Commissioner shall, if the transferor is not willing to pay the
value of the same, order the transferee to remove the same
within a period of six months from the date of the order, or
within such extended time not exceeding two years from the
date of the order as the Deputy Commissioner may allow
failing which the Deputy Commissioner may get such building21 LPA No. 409 of 2018
( 2025:JHHC:17674-DB )or structure removed: Provided further that where the Deputy
Commissioner is satisfied that the transferee has constructed
a substantial structure or building on such holding or portion
thereof before the commencement of the Chota Nagpur
Tenancy (Amendment) Act, 1969 (President’s Act 4 of 1969)
he may, notwithstanding any other provisions of this Act,
validate such a transfer made in contravention of clause (a) of
the second proviso to sub-section (1), if the transferee either
makes available to the transferor an alternative holding or
portion of a holding, as the case may be, of the equivalent
value, in the vicinity or pays adequate compensation to be
determined by the Deputy Commissioner for rehabilitation of
the transferor.
(5) Nothing in this Section shall affect the validity of any
transfer (of otherwise invalid) of a Raiyats right in his holding
or any portion thereof made bona fide before the first day of
January 1908 in the Chota Nagpur Division except the district
of ‘Manbhum’, or before the first day of Januaury 1909, in the
district of ‘Manbhum’. [(6) In this Section [and in Section 47],-
(a) “Scheduled Casted” means such castes, races or tribes as
are specified in Part II of the Scheduled to the Constitution
(Scheduled Castes) Order, 1950;
(b) “Scheduled Tribes” means such tribes or tribal communities
or parts of or groups within such tribes or tribal communities
as are specified in Part II of the Scheduled to the Constitution
(Scheduled Tribes) Order, 1950; and
(c) “Backward classed” means such classes of citizens as may
be declared by the State Government, by notification in the
Official Gazette, to be socially and educationally backward.]”
43. The aforesaid provision also provides by putting embargo of
transfer of land from tribal to non-tribal and for such
transfer, the permission of the Deputy Commissioner is
required as per the provision of Section 46(1). At the time
when the CNT Act was enacted there was no provision for
restoration of land save and except the provision as under
22 LPA No. 409 of 2018
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Section 46(4-A), therefore, an act has come known as The
Scheduled Area Regulation Act, 1969 by virtue of the same,
Section 71-A has been inserted conferring power upon the
Deputy Commissioner that if at any time it comes to the
notice to the Deputy Commissioner or any application is
being made before the Deputy Commissioner, he on his own
motion can proceed for restoration of the land. For ready
reference, Section 71-A is being referred as under:
“71A. Power to restore possession to member of the Scheduled
Tribes over land unlawfully transferred. – If at any time, it
comes to the notice of the Deputy Commissioner that transfer
of land belonging to a Raiyat or a Mundari Khunt-Kattidaror a
Bhuinhari who is a member of the Scheduled Tribes has taken
place in contravention of Section 46 or Section 48 or Section
240 or any other provisions of this Act or by any fraudulent
method, including decrees obtained in suit by fraud and
collusion he may, after giving reasonable opportunity to the
transfer, who is proposed to be evicted, to show cause and
after making necessary inquiry in the matter, evict the
transferee from such land without payment of compensation
and restore it to the transferor or his heir, or, in case the
transferor or his heir is not available or is not willing to agree
to such restoration, re- settle it with another Raiyat belonging
to Scheduled Tribes according to the village custom for the
disposal of an abandoned holding:
Provided that if the transferee has, within 30 years from the
date of transfer, constructed any building or structure on such
holding or portion thereof, the Deputy Commissioner shall, if
the transferor is not willing to pay the value of the same, order
the transferee to remove the same within a period of six
months from the date of the order, or within such extended
time not exceeding two years from the date of the order as the
Deputy Commissioner may allow, failing which the Deputy
Commissioner may get such building or structure removed :
23 LPA No. 409 of 2018
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Provided further that where the Deputy Commissioner is
satisfied that the transferee has constructed a substantial
structure or building on such holding or portion thereof before
coming into force of the Bihar Scheduled Areas Regulation,
1969, he may, notwithstanding any other provisions of the
Act, validate such transfer where the transferee either makes
available to the transferor an alternative holding or portion
thereof as the case may be, of the equivalent value of the
vicinity or pays adequate compensation to be determined by
the Commissioner for rehabilitation of the transferor:
Provided also that if after an inquiry the Deputy Commissioner
is satisfied that the transferee has acquired a title by adverse
possession and that the transferred land should be restored
or re-settled, he shall require the transferor or his heir or
another Raiyat, as the case may be, to deposit with the
Deputy Commissioner such sum of money as may be
determined by the Deputy Commissioner having regard to the
amount for which the land was transferred or the market
value of the land, as the case may be and the amount of any
compensation for improvements effected to the land which the
Deputy Commissioner may deem fair and equitable.”
44. Here, admittedly, in the Khatian i.e., the record of rights,
published in the year 1916, the caste of the appellant has
been mentioned as „Lohar‟ which has never been challenged
by the appellant meaning thereby it is admitted by them.
45. The Hon‟ble Apex Court in the case of Nityanand Sharma
Vs. State of Bihar [(1996) 3 SCC 576], while considering
the issue of caste of „Lohar‟ whether it is Schedule Tribe or
not has come to the conclusion that Lohars are an Other
Backward Class/Backward Class. They are not Scheduled
Tribes. For ready reference, the relevant paragraph of the
judgment is quoted as under:
24 LPA No. 409 of 2018
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“12. According to Hisley, Lohars are large and heterogeneous
aggregate comprising members of the several different tribes
and castes, who in different parts of the country took up the
profession of working in iron. Of the various sub-castes … the
Kanaujia claim to be the highest in rank, and they alone have a
well-marked set of exogamous sections. They regard Vishwani
as their legendary ancestors, and worship him as the tuolary
deity of their tracts. The Magahaiya seems to be the indigenous
Lohars of Bihar, or opposed to the Kanaujia and Motiniya, who
profess to have come in turn from the North-West Provinces. The
Kamia Lohars found in Champaran have immigrated from
Nepal and are regarded as ceremonially unclean…. The
Manhhum Lohars acknowledge three sub-castes — Lohar
Manjhi, Danda Manjhi and Begdi Lohar, names which suggest
a connection with the Begdi castes. Lastly, in Lohardagga we
have the Sed-Lohars, claiming to be immigrant Hindus; the
Manjha Turiyas who may well be a branch of the Turi caste;
and the Munda Lohars who are certainly Mundas. In Andhra
Pradesh, blacksmiths are known as Kammara, who work on
preparing iron articles for agricultural operations and Kamsalis
prepare gold ornaments. They are OBCs. Their names are
different from region to region. It would thus be clear that
Lohars are blacksmiths, while Loharas/Lohra are Scheduled
Tribes.
18. It is seen that in the Second Schedule in Part III of the Act,
as extracted hereinbefore, Lohar was not included as a
Scheduled Tribe. It is only, as evidenced from the translated
version, that the community „Lohar‟ came to be wrongly
translated for the word „Lohra‟ or „Lohara‟ and shown to have
been included in the Second Schedule, Part III, applicable to
Bihar State. Mr B.B. Singh, therefore, is right in placing before
us the original version in English and the translated version.
19. Article 348(1)(b) of the Constitution provides that
notwithstanding anything in Part II (in Chapter II Articles 346
and 347 relate to regional languages) the authoritative text of all
Bills to be introduced and amendments thereto to be moved in
either House of Parliament … of all ordinances promulgated by
the President… and all orders, rules, regulations and bye-laws
issued under the Constitution or under any law made by
Parliament, shall be in the English language. By operation of
25 LPA No. 409 of 2018
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sub-article (3) thereof with a non obstante clause, where the
Legislature of a State has prescribed any language other than
the English language for use in Bills introduced in, or Acts
passed by, the Legislature of the State or in Ordinances
promulgated by the Governor of the State or in any order, rule,
regulation or bye-law referred to in paragraph (iii) of that sub-
clause, a translation of the same in the English language
published under the authority of the Governor of the State in the
Official Gazette of that State shall be deemed to be the
authoritative text thereof in the English language under this
article. Therefore, the Act and the Schedule thereto are part of
the Act, as enacted by Parliament in English language. It is the
authoritative text. When the Schedules were translated into
Hindi, the translator wrongly translated Lohara as Lohar
omitting the letter „a‟ while Lohra is written as mentioned in
English version. It is also clear when we compare Part XVI of
the Second Schedule relating to the State of West Bengal, the
word Lohar both in English as well as in the Hindi version was
not mentioned. Court would take judicial notice of Acts of
Parliament and would interpret the Schedule in the light of the
English version being an authoritative text of the Act and the
Second Schedule.
20. Accordingly, we hold that Lohars are an Other Backward
Class. They are not Scheduled Tribes and the Court cannot give
any declaration that Lohars are equivalent to Loharas or Lohras
or that they are entitled to the same status. Any contrary view
taken by any Bench/Benches of Bihar High Court, is erroneous.
It would appear that except some stray cases, there is a
consistent view of that Court that Lohars are not Scheduled
Tribes. They are blacksmiths. We approve the said view laying
down the correct law.”
46. Since we are dealing with the issue wherein the
provision of Act, 1908 is applicable which contains provision
of making rectification, if there is any error crept up in the
record of right. The relevant provision is under Sections 80
to 84, which are referred herein below:
26 LPA No. 409 of 2018
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“80. Power to order survey and preparation of record-of-
rights – (1) The [State] Government may make an order directing
that a survey be made and a record-of-rights be prepared, by a
Revenue Officer in respect of the lands in any local area, estate,
or tenure or part thereof. (2) A notification in the [* * *] [Official
Gazette] of an order under sub-section (1) shall be conclusive
evidence that the order has been duly made. (3) The survey shall
be made and the record-of-rights shall be prepared in the
prescribed manner.
81. Particulars to be recorded – Where an order is made
under Section 80, the particulars to be recorded shall be
specified in the order and may include, either without or in
addition to other particulars, some or all of the following, namely
:- (a) the name of each tenant or occupant; (b) the class to which
each tenant belongs, that is to say, whether he is a tenure-
holder, ‘Mundari khunt-kattidah’, settled ‘Raiyat’, occupancy
‘Raiyat’, non-occupancy-Raiyat khunti’ having ‘khuntkati’ rights,
or under-‘Raiyat’ and, if he is a tenure-holder, whether he is a
permanent tenure-holder or not and whether his rent is liable to
enhancement during the continuance of his tenure; (c) the
situation and quantity and one or more of the boundaries of the
land held by each tenant or occupier; (d) the name of each
tenant’s landlord; (e) the name of each proprietor in the local area
or estate; (f) the rent payable at the time the record-of-rights is
being prepared; (g) the mode in which that rent has been fixed-
whether by contract, or by order of a Court, or otherwise; (h) if
the rent is a gradually increasing rent, the time at which and the
steps by which it increases; (i) the rights and obligations of each
tenant and landlord in respect of,- (i) the use, by tenants, of
water for agricultural purposes, whether obtained from a river,
‘jhil’ tank or well or any other source of supply, and (ii) the repair
and maintenance of appliances for securing a supply of water for
the cultivation of the land held by each tenant, whether or not
such appliances be situated within the boundaries of such land;
(j) the special conditions and incidents (if any) of the tenancy; (k)
any easement attaching to the land for which the record-of-rights
is being prepared; (l) if the land is claimed to be held rent-free-
whether or not rent is actually paid, and, if not paid, whether or
not the occupant is entitled to hold the land without payment of
rent, and, if so entitled, under what authority; (m) [the existence,
27 LPA No. 409 of 2018
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nature and extent of] the right of any person whether a landlord
or tenant or not, to take forest-produce from jungle-land or waste-
land, or to graze cattle on any land [or to take fish from any
water, or of any similar right] in any village in the area to which
the record-of-rights applies; (n) the right of any resident of the
village to reclaim jungle-land or wasteland, or to convert land
into korkar.
82. Power to order survey and preparation of record-of-
rights as to water – The [State] Government may, for the
purpose of settling or averting disputes existing or likely to rise
between landlords, tenants, proprietors, or persons belonging to
any of these classes, regarding the use or passage of water,
make an order directing that a survey be made and a record-of-
rights be prepared by a Revenue Officer, in order to ascertain
and record the rights and obligations of each tenant and landlord
in any local area, estate or tenure or part thereof, in respect of,-
(a) the use by tenants of water for agricultural purposes, whether
obtained from a river, ‘jhil’, tank or well or any other source of
supply; and (b) the repair and maintenance of appliances for
securing a supply of water for the cultivation of the land held by
each tenant, whether or not such appliance be situated within
the boundaries of such land.
83. Preliminary publication, amendment and final
publication of record-of-rights. – (1) When a draft record-of-
rights has been prepared under this Chapter, the Revenue Officer
shall publish the draft in the prescribed manner and for the
prescribed period and shall receive and consider any objections
which may be made to any entry therein, or to any omissions
therefrom, during the period of publication. (2) When such
objections have been considered and disposed of in the
prescribed manner, the Revenue Officer shall finally frame the
record, and shall cause it to be finally published in the
prescribed manner, and the publication shall be conclusive
evidence that the record has been duly made under this Chapter.
(3) Separate draft or final records may be published under sub-
section (1) or subsection (2) for different local areas, estates,
tenures or parts thereof.
84. Presumptions as to final publication and correctness
of record-of-rights – (1) In any suit or other proceedings in
which a record-of-rights prepared and published under this
28 LPA No. 409 of 2018
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Chapter or a duly certified copy thereof or extract therefrom is
produced, such record-of-rights shall be presumed to have bean
finally published unless such publication is expressly denied and
a certificate, signed by the Revenue Officer, or by the Deputy
Commissioner of any district in which its local area, estate or
tenure or part thereof to which the record-of-rights relates is
wholly or partly situate, stating that the record-of-rights has been
finally published, under this Chapter shall be conclusive
evidence of such publication. (2) The [State] Government may, by
notification, declare with regard to any specified area, that a
record-of-rights has been finally published for every village
included in that area; and such notification shall be conclusive
evidence of such publication. (3) Every entry in a record-of-rights
so published shall be evidence of the matter referred to in such
entry and shall be presumed to be correct until it is proved, .by
evidence, to be incorrect.
47. It is thus evident from the aforesaid provisions that
after draft publication, the liberty has been given to the
party if there is any error in the publication of record of
rights to make an objection for its consideration and taking
decision after inviting objection by the other affected party.
The provision of appeal, the revision, the suit and finally the
appeal before this Court, as per the provision as contained
in the Act, 1908.
48. The admitted fact herein is that the khatian is the
original record of rights, which is the basis to identify the
nature of land and the description of caste of the raiyat. It is
the admitted case that in the khatian the reference of the
caste of the ancestral of the appellant is „Lohar‟. The same
entry has been made, as has been submitted by learned
counsel for the appellant, on the basis of cadastral survey
29 LPA No. 409 of 2018
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made sometimes in the year 1916. However, as per pleading
available on record, no endeavour has ever been made for
making necessary correction/rectification in the khatian so
as to rectify the reference of caste of the appellant showing of
the „Lohar‟ caste. As such the element that the appellant
belong to the „Lohar‟ caste as per khatian is admitted one
particularly in absence of objection ever been made, as per
the statutory remedy available under the Act, 1908.
49. The appellant has tried to make out a case that he
belong to Karmali Caste and Karmali caste, under the Order,
1950, falls under Schedule Tribe and hence, there is
illegality committed in transfer of land in question due to
want of permission of the Deputy Commissioner of the
concerned district, as required under Section 46(4A) of the
CNT Act, 1908.
50. The appellant has claimed himself to be Karmali,
which is contrary to the caste description shown in the name
of Khatian. The SDO, Ramgarh has accepted the said
version accepting the caste of the appellant to be „Karmali‟,
which falls under Schedule Tribe, on the so-called report of
the Circle Officer, without verifying the content of the
Khatian and on its own by making a finding that it is known
to everybody that Karmali caste falls under the Schedule
Tribe Category. The law is well settled that the adjudicator
whether quasi-judicial or judicial in nature is to go by the
30 LPA No. 409 of 2018
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admitted document and not on presumption, but herein no
document has ever been placed before the authority to
establish the caste of „Karmali‟.
51. This Court has also perused the affidavit dated
29.04.1982 filed by the appellant wherein he has described
himself as Kamalnath Mistry, son of Haricharan Mistry
clearly stating therein that he belongs to Backward Class
and by caste is Lohar, Bishwarkarma and not an Adivashi. In
paragraph 2 of the affidavit, he has further stated on oath
that he has sold 22 decimals of land falling under plot no.
188 Khata No. 77 of village Murramkala to Smt. Uma Sinha
wife of K.P. Sinha.
52. This Court has also gone through the copy of Register-II,
which has been marked as Annexure 13 series to the writ
petition, wherefrom it is evident that descendants of the
recorded tenants describing themselves as the members of
Backward Class community have sold out major part of
Khata No. 77 vide registered sale deeds to the persons who
are not the members of Schedule Tribe community and
accordingly mutation has been done in the name of
purchaser.
53. Furthermore, admittedly the Khatian is said to have
been prepared in the year 1916 and admittedly, no
endeavour has ever been taken for rectifying the entry made
in the Khatian, if it is wrong, as per the claim made by the
31 LPA No. 409 of 2018
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appellant that the predecessor-in-interest of the appellant
belong to „Karmali‟ caste, which falls under Schedule Tribe
category. Even accepting that there was error in the record
of rights, then also it was the bounden duty of the appellant
to make an application before the competent authority for
making necessary correction in the Khatian, which is the
original record of rights. If no endeavour has been taken for
making necessary correction the record of rights then
whatever is being reflected in the record of rights that is to
be accepted by the adjudicator.
54. This Court, taking into consideration the aforesaid
fact in particular the Khatian wherein the caste of the
appellant has been mentioned as „Lohar‟, which as per the
law laid down by Hon‟ble Apex Court is Backward Category
as also taking into consideration the affidavit sworn by the
appellant wherein he has specifically stated on oath that he
belongs to Backward Class and by caste is Lohar,
Bishwarkarma and not an Adivashi and considering the fact
that in Register-II relating to Khata No. 77, the land has
been transferred in the purchasers who are not falling under
schedule tribe, is of the view that the appellant does not fall
under the category of Schedule Tribe.
55. The issue of limitation has also been agitated by the
parties on the ground that the sale deed was executed on
20.04.1982 whereas on 19.01.1995 application for
32 LPA No. 409 of 2018
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restoration has been filed i.e., after more than 12 years of
execution of the sale deed, the application for restoration
was filed. Whereas the appellant has taken the ground since
the mutation was done in the year 1984-85, as such the
period of limitation has not expired.
56. The learned SDO has come to the conclusion that
since the mutation has been done in the year 1984-85, as
such it cannot be said that the writ petitioner was in
possession since 1982 the date when he purchased the land
in question. On the basis of aforesaid finding, the
application for restoration was allowed.
57. On this issue, this Court has gone through the
provision of Section 46(4A) of the Act, 1908 which contains a
proviso that application is to be filed before Deputy
Commissioner of the concerned district, which shall be
entertained by the Deputy Commissioner unless it is filed
under Occupancy of Tenant within a period of 12 years from
the date of transfer of his holding or any portion thereof;
meaning thereby the application must be filed within a
period of 12 years from the date of transfer. The aforesaid
provision thus suggest that the application is to be filed
within a period of 12 years, which is to be established by the
claimant who is seeking restoration of the land but the
aforesaid aspect of the matter has not been taken into
consideration rather the learned SDO, Ramgarh has gone
33 LPA No. 409 of 2018
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into the issue of possession of the land instead of going to
the issue of date of transfer. Thus, on this score also, the
order passed by the learned SDO, Ramgarh suffers from
error since the land has been transferred by way of
registered sale deed dated 29.04.1982 and the application
has been filed after 12 years on 19.01.1995. Furthermore,
the concerned SDO, in order to negate the registered sale
deed 29.04.1982 ought to have led the evidence in order to
disprove the element of possession/transfer over the land in
question or dispossession of the appellant but no such
endeavour has been taken.
58. Further, it is evident from the record that even after
correction of khata number from Khata No. 94 to Khata No.
77, the Land Restoration Case No. 01/1995 and the all
consequential proceedings before the revenue authorities are
barred by mis-joinder and non-joinder of necessary party
since the land in question admittedly was registered in the
name of Smt. Uma Sinha, wife of Dr. K.P. Sinha, for which
mutation has been done and her name reflects in Register II,
but the case i.e., Land Restoration case and all other
consequential proceedings have been initiated against Dr.
K.P. Sinha. Therefore, on that ground also application is
liable is to be dismissed on the ground of mis-joinder and
non-joinder of necessary party.
34 LPA No. 409 of 2018
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59. It needs to refer herein that “necessary party” is a
person who ought to have been joined as a party and in
whose absence no effective decree could be passed at all by
the court. If a “necessary party” is not impleaded, the suit
itself is liable to be dismissed. If a person is not found to be
a proper or necessary party, the court has no jurisdiction to
implead him, against the wishes of the plaintiff. In the
context of the aforesaid paragraph-15 of the judgment
passed by Hon‟ble Supreme Cou Mumbai International
Airport Private Limited vs. Regency Convention Centre
and Hotels Private Limited and Ors., (2010) 7 SCC 417 is
being referred as under:
“15. A “necessary party” is a person who ought to have been
joined as a party and in whose absence no effective decree
could be passed at all by the court. If a “necessary party” is
not impleaded, the suit itself is liable to be dismissed.
60. Therefore, the proceeding before the revenue
authority is barred by the principle of non-joinder and mis-
joinder of necessary party and even after allowing the
modification/rectification application for rectification of the
Khata Number from 94 to 77 the appellant cannot get an
advantage.
61. Accordingly, all the issues are answered.
62. The fact that the description of the caste as
admittedly available in the khatain and the issue of
limitation which although has been agitated before the
35 LPA No. 409 of 2018
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learned Single Judge but has not been considered but
merely on the aforesaid ground the order passed by the
learned Single Judge cannot be said to suffer from an error
due to simple reason that if the law points are available then
even the same can be considered at the intra-court appeal
stage since it is settled that the intra-court appeal is in
furtherance of the proceeding of the writ proceeding and if
any pleading has been taken by the parties and it has not
been considered then there is no difficulty in considering the
same. Reference in this regard be made to the judgment
rendered in the case of Baddula Lakshmaiah v. Sri.
Anjaneya Swami Temple, (1996) 3 SCC 52. Relevant
paragraph of the said judgment reads as under:
“2. … A letters patent appeal, as permitted under the Letters
Patent, is normally an intra-court appeal whereunder the
Letters Patent Bench, sitting as a Court of Correction, corrects
its own orders in execise of the same jurisdiction as was
vested in the Single Bench. …”
63. This Court, applying the said principle and coming
to the conclusion that as per Khatain, the caste of the
appellant is „Lohar‟ which comes under Backward Category
and also the proceedings initiated before the revenue
authorities are barred by limitation as also barred by mis-
joinder and non-joinder of the necessary party, is of the view
that orders passed by the revenue authorities has rightly
been quashed and set aside by the learned Single Judge,
which requires no interference by this Court.
36 LPA No. 409 of 2018
( 2025:JHHC:17674-DB )
64. This Court, in view of the aforesaid discussion, is of
the view that the order passed by the learned Single Judge
so far its outcome is concerned needs no interference.
However, the same is being improved, as per discussions
made hereinabove.
65. With the aforesaid observations, the instant intra-
court appeal stands dismissed.
66. Pending Interlocutory Application, if any, stands
disposed of.
67. Let the record of Land Reformation Case No. 1/1995
be returned to the concerned forthwith.
I agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
Alankar/A.F.R.
37 LPA No. 409 of 2018