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Jharkhand High Court
Bishnu Kumar Aikat vs The State Of Jharkhand Through The … on 15 April, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:11357
IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No. 228 of 2012
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1. Bishnu Kumar Aikat
2. Mouna Dutta
3. Ranjana Bose
4. Krishnarati Ghosh
5. Panna Kanti Dhar
6. Ira Aikat wife of Late Ajit Kumar Aikat
All at present residing at Lalpur, P.O. and P.S. Lalpur, District Ranchi
through their authorized and constituted attorney Bishnu Kumar Aikat
vide registered power of attorney being number 1893 dated 08.03.2006
and 1890 dated 08.03.2006 and 1892 dated 08.03.2006
…. …. …. Appellants
Versus
1. The State of Jharkhand through the Deputy Commissioner, P.O. G.P.O.,
P.S. Kotwali, Ranchi
2. The Deputy Commissioner, Ranchi P.O. G.P.O., P.S. Kotwali, Ranchi
3. L.R.D.C., Ranchi, P.O. G.P.O., P.S. Kotwali, Ranchi
4. The Circle Officer, Town Anchal, Ranchi P.O. G.P.O., P.S. Kotwali, Ranchi
5(A) Arunvithi Chaturvedi son of Late Deepannita Chaturvedi and Sri
Rajendra Chaturvedi resident of Flat No.601, 6th Floor, Gharonda
Apartment, Dangra Toli Chowk, Purulia Road, P.O. G.P.O., P.S.
Lalpur, District Ranchi
5(B) Swaroop Chaturvedi son of Late Deepannita Chaturvedi and Sri
Rajendra Chaturvedi resident of Meghdoot-A 207/307, Lokhandwala,
opposite Joggers Park, Mumbai, P.O. Azad Nagar, P.S. Andheri (West),
District Mumbai
5(C) Rajendra Chaturvedi husband of Late Deepannita Chaturvedi and Dr.
K.K. Chaturvedi resident of Flat No.601, 6th Floor, Gharonda
Apartment, Dangra Toli Chowk, Purulia Road, P.O. G.P.O., P.S.
Lalpur, District Ranchi
6. Mrs. Chandra Mitra wife of Sunil Mitra, daughter of Late Ajit Kumar
Aikat, resident of Bithika, Lalpur, Ranchi at present resident of Flat No.A-
2/44, Iron Side Road Building, P.O. & P.S. Ballygunge, Kolkata
…. …. …. Respondents
CORAM: HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Appellants : Mr. Ajit Kumar, Sr. Advocate
: Mr. Rajiv Kumar Sinha, Advocate
For the Res.Nos.1-4 : Mr. Nawal Kishor Pandey, A.C. to S.C. (L&C)-I
For the Res. Nos.5&6 : Mr. Indrajit Sinha, Advocate
Ms. Puja Agarwal, Advocate
——
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2025:JHHC:11357
Reserved on: 05.03.2025 Pronounced On: 15.04.2025
1. Plaintiffs are in appeal against dismissal of Title Suit No. 377 of 2007
which was filed for the following declarations:
a. Title over the suit property.
b. Suit property was not the Khas Mahal Lease Hold Property of the
Defendant State.
c. Order of mutation passed in Mutation Case No.1614 R 27/07-08
dated 02.08.2007 to be null and void.
d. Perpetual injunction in favour of the Plaintiff and to restrain the
defendant from disturbing the peaceful possession of the Plaintiff
in view of the lease deed being no.174 dated 04/01/1972.
CASE OF PLAINTIFF
2. The appellants/plaintiffs’ case is that they are lawful owner and
have possession over the land and building in question standing over M.S.
Plot No. 1360, Sub Plot Nos. A, B, C, D & E measuring an area of 2.06 acres
under Municipal Holding No. 237 Lalpur, Hazaribagh Road, Ranchi. The
said land was originally recorded in the name of Kaviraj Jamni Bhushan Roy
in M.S. records of right in 1929 which was purchased by Fanindra Nath
Aikat on 27.08.1931, who came in possession over it. Fanindra Nath Aikat
gifted the said property on 13.05.1946 in favour of Mrs. Gauri Rani Aikat
and she was recognized as settled raiyat and her name was entered in
Register II. Gauri Rani Aikat died on 22.07.1975 and her property was
inherited by the Plaintiffs. Registered family partition with respect to the
suit property also took place on 19.10.1987 and suit property came in their
share and they had been paying rent to the State.
3. The lawful owners executed power of attorney being nos.1890, 1892
and 1893 dated 08.03.2006 in favour of the Plaintiffs. The Plaintiff filed an
application for mutation after the death of Mrs. Gauri Rani Aikat which was
registered as Mutation Case No.1614R27/2007-08 which was rejected by the
Circle Officer, Town Anchal, Ranchi on the ground that it was Khas Mahal
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lease hold property.
4. It is case of the plaintiff that the suit land was not Khas Mahal land.
It is averred that lease deed was not executed by the State with regard to
K.M. Plot No.38, 39 corresponding to M.S. Holding No.103 not with
reference to M.S. Plot No.1360 and Holding No.237 as the particulars of
property for which application for mutation was filed, does not tally with
the said lease hold property. It is case of the plaintiff that the said lease deed
does not bear any recital as to how and when the said property was acquired
by the State.
CASE OF STATE
5. Land in question was not Raiyati land of the plaintiffs, rather it was
a lease hold right which was initially leased out to the Plaintiff. Lease was
with respect to M.S. Plot No.1360 corresponding to Khas Mahal Plot Nos. 38
and 39 leased out for 30 years on 29.09.1904 by the Secretary of the State
India in Council in favour of Nibaran Chandra Gupta and thereafter, the
lease was transferred to Fanindra Nath Aikat on 27.08.1931 with the
permission of Deputy Commissioner, Ranchi and it was renewed on 8 th
April, 1946 for 25 years till 31st March, 1966. The said Fanindra Nath Aikat
after obtaining permission from Deputy Commissioner, Ranchi vide Case
No.206/R-08 of 45/46 transferred the lease hold land by way of gift to his
wife namely Smt. Gouri Rani Aikat and it was renewed upto 1996 vide
registered deed of lease in 1972. It is further pleaded that after 1966, the lease
was renewed in 1972 till 1996.
6. The land in question is lease hold property and was Khas Mahal
property, as such the plaintiff had no right, title over the suit property. After
gift of the lease hold land by Fanindra Nath Aikat on 13.05.1946 in favour of
Gauri Rani Aikat, she came in permissible possession over the said property
and she had no absolute right. It was for this reason that mutation was
rejected in Mutation Case No.1614R27/2007-08.
7. Defendant Nos.5 and 6 are sisters of plaintiff no.1 and they are
claiming right, title and interest and have not supported the case of the
plaintiff so far as the relief claimed are concerned, but they claim separate
title and interest over the suit property.
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8. In order to appreciate the facts of the case, the list of dates as
appearing in the pleading is being set out as under: –
27.08.1931 – Fanindra Nath Aikat purchased the suit property by registered
sale deed from Kaviraj Jamni Bhushan Roy.
13.05.1946 – Fanindra Nath Aikat gifted the property to his wife Gouri Rani
Aikat vide registered deed of gift. Her name was accordingly entered in
Register II.
22.07.1975 – Gouri Rani Aikat died.
19.10.1987 – Registered deed of family partition was made by heirs and
descendants of Gouri Rani Aikat.
08.03.2006 – Plaintiffs got power of attorney by heirs and descendants of
Gouri Rani Aikat.
02.08.2007 – Plaintiff- Bishnu Kumar Aikat filed application for mutation in
Mutation Case No.1614/R 27/2007-08 which was rejected on the ground
that it was a Khas Mahal lease hold property and contrary to M.S. Record of
Right, 1929.
9. After the said order rejecting the application for mutation, instant
suit has been filed for declaring the suit property being not a Khas Mahal
lease hold property and declaring order passed by the Circle Officer to be
illegal and non-est in the eye of law.
10. On the basis of the pleadings of the parties, following issues were
framed.
I. Whether the suit is maintainable in its present form?
II. Have the plaintiff’s any cause of action for the suit?
III. Whether the suit is barred by law of Limitation?
IV. Whether the notice under Section 80 C.P.C. was properly served
upon the defendants?
V. Whether the suit land is the Khas Mahal land being lease hold
property of the State?
VI. Whether the plaintiffs or their predecessor in interest were in
permissive possession over the land?
VII. Whether the plaintiff have violated the terms of the lease?
VIII. Whether the suit property was acquired by Government from the
recorded tenant of M.S. record of right, 1929?
IX. Whether any compensation was paid to the recorded tenant of M.S.
record of right by the State Government?
X. Whether the defendants have acted beyond the law and claim
advanced is mala fide and barred by limitation?
XI. To what relief or reliefs, the plaintiffs are entitled to?
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11. Learned Court below has decided this issue against plaintiff on the
ground that it was a Khas Mahal land on the basis of entry in Exhibit 11
wherein M.S. Plot No.1360, Holding No.237 stood in the name of Kaviraj
Jamni Bhushan. It was noted by the trial Court that K.M. Plot Nos.38 & 39
corresponds with municipal survey plot no.1360/2453 as averred by the
plaintiff. With respect to plot nos.38 and 39 from Exhibit A, it was evident
that lease deed was executed by the Deputy Commissioner, Ranchi
representing the Governor of Bihar in favour of Fanindra Nath Aikat on
08.04.1946, who was the predecessor-in-interest of the Plaintiffs. This was
accepted as clinching evidence of plot being a leasehold land.
ANALYSIS
12. The central issue to the adjudication of the present lis between the
parties is Issue No.V, whether the suit land was Khas Mahal being lease
hold property of the State, and if so, if the Circle Officer had the authority to
refuse mutation when the parties were in settled possession and suit
property had been duly transferred in favour of the plaintiffs?
13. After hearing the submission raised at Bar, the following points for
determination arises: –
i. Whether the plaintiff has succeeded to prove that it was a
Raiyati land and not a lease hold land?
ii. Whether the burden of proof that it was a Khas Mahal land as
pleaded by the State, has been discharged on their part?
iii. Whether learned Court below has omitted to record a finding
on the issue no. X regarding claim by adverse possession?
iv. Whether the order of Circle Officer in not mutating the land,
is sustainable in the eyes of law?
v. Whether the said lease was a lease in perpetuity?
14. It is difficult to be persuaded by the argument on behalf of the
appellant, that it was a Raiyati or a freehold land and not a leasehold land.
Exhibit A, which specifically refers to the execution of registered deed of
lease by the Deputy Commissioner in favour of Fanindra Nath Aikat in 1946
with respect to plot nos.38 and 39, Chhaparbandi Holding No.103 of Village
Lalpur, P.S. Ranchi. The lease was for Khas Mahal and the total area was
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2.02 acres. The term of lease was for 25 years and the lessee on confirming all
the terms and conditions of the lease, was entitled to renewal for a further
term of 30 years at such rent, not exceeding twice the rent payable under the
original deeds. It also stipulated that lessee shall not be entitled to any
compensation for any building structure for improvement made.
15. Exhibit 12 adduced on behalf of plaintiff is a deed of gift dated 13th
May, 1946 by Fanindra Nath Aikat in favour of Gauri Rani Aikat with
respect to Holding No.785 under Ward No.7 of the Ranchi Municipality,
Khas Mahal Holding No.103, Thana No.197, Khas Mahal Plot Nos.38 and 39
and Municipal Survey Plot No.1360 for 2.02 acres of land is an admission in
the form of evidence to show that the suit land was a lease hold land. There
is no contrary evidence brought on record to hold that at any point of time it
was converted into a freehold land.
16. Therefore, so far, the first and second point for determination are
concerned, there cannot be a scintilla of doubt that suit land was not a
Raiyati land and was a lease hold land and constituted part of Khas Mahal
property of the State.
17. In view of the finding that it was a lease hold property, possession
of the land becomes permissive, and therefore the question of acquiring title
by adverse possession does not arise.
18. Now the question is whether the Circle Officer had the authority to
deny mutation in favour of the plaintiff on the ground that it was a Khas
Mahal land?
19. For the reasons discussed in foregoing paragraphs, there can be
little doubt that the land in question was a Khas Mahal land. From the list of
dates, it will be evident that land in question several times changed hands,
and the transfer was duly entered into Register II. Fanindra Nath Aikat
gifted the property to Gouri Rani Aikat vide registered deed of gift in
13.05.1946. There is no denial that her name was accordingly entered in
Register II. In 22.07.1975, Gouri Rani Aikat died. Registered deed of family
partition was made by heirs and descendants of Gouri Rani Aikat in
19.10.1987.
20. When there was a long term Jamabandi, the mutation could not
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have been denied by the Circle Officer merely on the ground that it was a
leasehold land. Law is settled that order in mutation proceedings are
confined to the possession from whom the rent is to be collected. In the
present case the original lease was granted as per the case of the State in
29.09.1904 and had been renewed from time to time extending upto 1996.
21. The long duration of lease, time to time renewal of lease, and its
transfer, clothed it with the character of a perpetual lease. Such lease cannot
be terminated without an order passed by Civil Court under Rule 21 and 22
of the Khas Mahal Manual.
22. The word “Khas Mahal” is nothing but what is known in English as
“Government Estate”. That is defined in the Khas Mahal Manual as
follows:–
“Meaning of “Government estates”:– The term “Government estates”
is used to mean estates under the direct management of Government
whether these are the property of Government or are the estates of private
individuals brought under direct management of Government. It may
also mean any land, which is the property of Government and as such
would include estates owned by Government which have been let in farm
and leased for periods and also the waste lands but would not include
lands belonging to other departments of Government, e.g., roadside
lands, so long as they are not relinquished by the department concerned
to the Collector for management. This Manual unless it so appears from
the context deals with the principles, policy and procedure for Khas
management of estates under the direct management of Government.”
23. From the above, what follows is that Khas Mahal is the Estate of the
Government and was leased by the Government and renewed from time to
time. Lease deed in question can neither be cancelled nor possession of the
land in question be resumed unilaterally and the respondents are required
to take recourse to the due process of law under the Rule 21 and 22 of
the Khas Mahal Manual by invoking the jurisdiction of the competent civil
court by filing appropriate suit and not otherwise. Resumption of such a
land by the State cannot be made without following the procedure as laid
down in Rule 21 and Rule 22 of the provisions of Khas Mahal Manual which
reads as follows:–
“21. Resumption should be for public purposes only.–When a
tenant holds land from Government under a lease containing a clause
which authorises the lessor to resume possession of the whole or part
of the lands of the tenancy, this power of resumption shall only be7
2025:JHHC:11357exercised if the land is required for a public purpose, and the power of
resumption shall not be exercised without the sanction of Government
obtained through the Board of Revenue.
9. If such land be required for the use of the persons other
than Government e.g. for a local body, it should ordinarily be acquired
under the provisions of the Land Acquisition Act, and not under the
power of resumption given by the lease.
“22. Khas possession can only be taken through Civil Court if
lessee objects.–When in a lease it is provided that, in the event of
certain contingencies occurring, the Collector will enter upon and take
khas or direct possession of the property, it must be understood that,
where the settlement-holder objects, possession cannot be taken save
under the orders of a competent Civil Court.
24. From perusal of the aforementioned provisions, it would be
evident that even in a case where leases under the provision of Khas Mahal
Manual are to be resumed, the same can be done only if a public purpose
exists and that too with the sanction of the Government obtained through
the Board of Revenue. Even in such a case Khas possession can only be taken
through the Civil Courts if the lessee objects thereto and such power cannot
be exercised by executive fiat arbitrarily. (Jaleshwar Mistry v. State of
Bihar, 1989 PLJR 402 at page 403)
25. Moreover, the lease in the present case to all intent and purpose
partook the character of a perpetual lease which creates a vested legal right
in the lease holders to the exclusion of others, and shall be binding on
parties until it is determined by a court of law under Section 111 of the
Transfer of Property Act, and any resumption of possession of the leasehold
lands can only be done by taking recourse to the due process of law.
However, there can be no forcible dispossession contrary to the law by
assuming powers that the law does not vest in the Corporation in a
relationship of lesser or lessee or sub-lessee. Thus, before exercising the right
of resumption of possession of a leased land, lease is required to be first
determined under Section 111 of the Transfer of Property Act and only
thereafter, resumption of possession of a leased land can be done by taking
recourse to the due process of law. (See Uday Sinha v. State of Bihar, 2021
SCC OnLine Pat 5696).
26. Denying mutation in favour of a bona fide transferee of lease hold
property, amounted to denying the renewal of lease and consequently
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possession, which could not have been done by the Circle Officer, if the
lessee had paid the rent of the land for the lease hold area. As discussed in
the foregoing paragraphs, the lease could have been determined by a proper
order passed under Rule 21 and 22 of the Khas Mahal Manual read with
Section 111 of the T.P. Act. In the absence of such order, denying mutation
on the ground that it was a Khas Mahal property of the State, is not
sustainable. Specific provision is made in Chapter IV of the Khas Mahal
Manual, 1953 for maintaining register to make entries in the relevant register
in the name of the lessee, and further details like rent etc. So long as the lease
is not terminated the entries of the lessee or his transferee, who is in
possession of the Khas Mahal property, cannot be denied. Refusing
mutation in this manner without going into facts and law, would open the
door to corruption. The Government in its functioning has to be transparent
and fair. This is basic of administrative justice and rule of law.
27. Under the circumstance, the order passed in Mutation Case
No.1614 R 27/07-08 dated 02.08.2007 is declared to be null and void and the
Circle Officer is directed to pass order afresh after giving the right of
hearing to the parties. Defendants are injuncted from interfering with the
peaceful possession of the Plaintiffs/Appellants so long they pay rent to
the State in terms of the lease and so long the lease is not determined as
per the procedure established by law.
First Appeal is accordingly, partly allowed. Interlocutory
Application, if any, is disposed of.
(Gautam Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi
Dated 15th April, 2025
Anit
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