Jharkhand High Court
Chakaram Mahato Son Of Late Golo Mahato vs The State Of Jharkhand on 8 April, 2025
Author: Deepak Roshan
Bench: Deepak Roshan
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 318 of 2009
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1. Chakaram Mahato Son of Late Golo Mahato
2. Sarlu Mahato
3. Bonga Mahato
4. Chatru Mahato
5. Bhotha Mahato
6. Beno Mahato (All sons of Chakram Mahato)
7. Sudhir Mahato Son of Late khushi Mahato
8. Sohan Mahato Son of Late Golo Mahato
All resident of Village- Pachiyari Kothia, P.O.-Pachiyari
Kothia, P.S. Jasidih, Sub-Division, District-Deoghar
...Appellants
Versus
1. The State of Jharkhand.
2. The Commissioner Santhal Pargana Division, Dumka.
3. The Deputy Commissioner, Deoghar.
4. The Sub-Divisional Officer, Deoghar.
5. Smt. Lilawati Devi W/o Late Maru Mahato resident of Village-
Pachiyari Kothia, P.O P.S-Jasidih, Sub-Division, District-
Deoghar. ....Respondents
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CORAM: HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellants : M/s. Ritu Kumar, S.B.Deo, Raj, Advocates
For the Resp.-State : Mr. Ratnesh Kumar, S.C(L&C)-I
Mr. Rakesh Kumar Shahi, A.C to S.C(L&C)-I
For the Pvt.-Resp. : Mr. Lalit Yadav, Advocate
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Reserved on 24/03/2025 Pronounced on 08/04/2025
Per Deepak Roshan, J.
This Intra Court Appeal has been preferred by the
appellants against the order dated 01.07.2009 passed by the
Writ Court in W.P(C) No. 1401 of 2007, whereby the writ
application filed by the petitioners (appellants herein) has been
rejected by affirming the orders passed by the revenue
authorities.
2. The Writ application was preferred by the writ
petitioners-appellants for quashing the order dated 31.10.2006
passed by Divisional Commissioner, Santhal Pargana-Dumka in
Revenue Misc. Revision No. 67 of 2004-05 whereby the order
passed in Revenue Misc. Appeal No. 61 of 2004-05 by Deputy
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Commissioner, Deoghar against the order dated 13.08.2004
passed by Sub-Divisional Officer, Deoghar, evicting the
petitioners under Section 42 of the Santhal Pargana Tenancy
(Supplementary Provision) Act, 1949 have been affirmed.
3. The grievance of the appellants is that they were
possessing the land under Plot No. 922, Area-2.70 acres under
Mauza-Pachiya Kothi since the year 1936 and have constructed
a residential house over the same in which the family of the
appellants were residing; that the same was admitted by Maru
Mahato, husband of private respondent-Lilawati Devi in Title
Suit No. 33 of 1967 which ended in compromise; and thus the
appellants are residing over the plot without any encumbrance.
They contended that the plot was initially recorded in the name
of Horil Mahato, ancestor of appellants and private respondent
before 1936 and as such orders of eviction of the appellants
cannot be passed under Section 20 or 42 of the Santhal Pargana
Tenancy Act (hereinafter to be referred as the Act).
4. It has been submitted by Ms. Ritu Kumar, learned
counsel representing the appellants that exercise of power by the
Revenue Authorities under Section 42 of the Act for ejecting the
appellants was not valid and beyond jurisdiction as they were
not trespassers; on the contrary, they were in possession of the
land in question for over 12 years prior to 1949.
It has further been contended that the compromise
entered between the ancestors of the husband of the private
respondent in Title Suit No. 33 of 1967 was not even considered
and thus, the impugned orders passed by the authorities below
were illegal and unsustainable in the eyes of law and the writ
Court has failed to consider this aspect of the matter.
It has further been contended that the order of
ejectment under Section 42 is even otherwise impermissible
since they belong to the same family having common ancestor
and are not outsiders.
5. Per contra, learned counsel for the respective
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respondents have submitted that the appellants have not come
to the court with clean hands and they have suppressed
materials facts and thus, it deserves to be dismissed. It is
submitted that the Title Suit No. 33 of 1967 though ended in a
compromise, such compromise entered into was collusive and it
has no value in the eyes of law. It has also been contended that
Plot No. 922 stood recorded in the name of Kanhai Mahto, the
grand father-in-law of Lilavati Devi and the land being Raiyati
was not transferable and the claim of the appellants on the basis
of Kurfa document without producing any documentary evidence
is on the face of it illegal and unsustainable.
It has further been contended that there was no legal
possession for the land in question nor was it established by the
appellants that the alleged possession of the appellants was for
12 years before the Act 1949 came into effect. In this regard,
learned counsel has also referred to and relied upon the
judgment in the cases of J. Purshuttam Das & Co. Vs. R. R.
Brothrs and others reported in A.I.R 1973 Patna 1 and Umesh
Prasad Yadav & another vs. The State of Bihar & others reported
in 1985 PLJR 753 that a person cannot acquire a title by adverse
possession in a non-transferable Raiyati Land.
6. Having heard learned counsel for the parties and after
going through the documents available on record and the order
impugned, it is essential to go through few provisions of the Act
especially Section 42 of the Act which confers very wide powers
on the Deputy Commissioner to evict any unauthorized person
who was in possession of agricultural land in contravention to
the provision of Section 20 of the Act.
After preparation of the records of rights were
completed in the District of Santhal Pargana by the Santhal
Pargana Settlement (Amendment) Regulations 1908 (Regulation-
III) of 1908, Section 27 was incorporated in Regulation-III 1872
prohibiting transfer by the Raiyat of their Raiyati holdings in any
form of transfer by way of sale, gift, mortgage, lease or any other
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contract or agreement except where such transfer which was
recorded in the records of rights.
Thereafter, the Santhal Pargana Tenancy
(Supplementary, provisions) Act 1949, came into force on 1st of
November, 1949. This Act is supplemental to Regulation III of
1872 and has repealed some of its provisions. It has repealed
Section 27 of the Regulation and in lieu thereof enacted Section
20, which reads as under:
“20. Transfer of Raiyat’s rights:
1. No transfer by a Raiyat of his right in his holding of any portion thereof, by
sale, gift, mortgage will, lease or any other contract or agreement, express or
implied, shall be valid, unless the right to transfer has been recorded in the
record of rights, and then only to the extent to which such right is so recorded.
Provided that a lease of Raiyati land in any Subdivision for the purpose of
the establishment or continuance of an excise shop thereon may be validly
granted or renewed by a Raiyat, for a period not exceeding one year, with the
previous written permission of the Deputy Commissioner:
Provided further that where gifts by a recorded Santal Raiyait to a sister
and daughter are permissible under the Santal law, such Rajyat may, with the
previous written permission of the Deputy Commissioner, validly make such a
gift.
Provided also that an aboriginal Raiyat may, with the previous written
permission of the Deputy Commissioner make a grant in respect of his lands
exceeding one half of the area of his holding to his widowed mother or to his
wile for her maintenance after his death.
(2) Notwithstanding anything to the contrary contained in the record of rights no
right of an aboriginal Raiyat in his holding or any portion thereof which is
transferable shall be transferred in any manner to anyone but a bonafide
cultivating aboriginal Raiyat of the pargana or Taluk or Tappa in which the
holding is situated:
Provided that nothing in this Subsection shall apply to a transfer made by
an aboriginal Raiyat of his right in his holding or portion thereof in favour of his
Gardi Jamai or Gharjamai;
(3) No transfer in contravention of Sub-section (1) or (2) shall be registered or
shall be in any way recognized as valid by any court, whether in exercise of
civil criminal or revenue jurisdiction.
(4) No decree or order shall be passed by any Court or officer for the sale of the
right of a Raiyat in his holding or any portion thereof, nor shall any such right
be sold in execution of any decree or order, unless the right of the Raiyat to
transfer, has been recorded in the record of rights or provided in this Act and
then only to the extent to which such right is so recorded or provided.
(5) If at any time it comes to the notice of the Deputy Commissioner that a
transfer in contravention of Sub-section (1) or (2) has taken place he may in his
discretion evict the transferee and either restore the transferred land to the
Raiyat or any heirs of the Raiyat who has transferred it, or resettled the land
with another Raiyat according to the village custom for the disposal of anPage 4 of 7
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abandoned holding:
Provided that the transferee whom it is proposed to evict shall be given an
opportunity of showing cause against the order of eviction.”
Sub-section (5) of this Section has been substituted by the Bihar Scheduled
Areas Regulations, 1969 (Bihar Regulation 1 of 1969), by a new Sub-section(5),
and the scope of the new Sub-section is confined to cases of transfer in
contravention of Subsection (1) and (2) of Section 20 by members of the
Scheduled Tribes only, as specified in Part III of the Constitution, and, not to
Raiyats generally, and the new Sub-section will be referred to while considering
the question whether title by adverse possession could be acquired under the
Act.”
7. Thus, Section 20(1) of the Act in unequivocal term
prohibits transfer by a Raiyat of his holding, except in cases
where the right to transfer was recorded in the record of rights
and that too only to the extent it was so recorded. Section 20(2)
contained further restriction in case of aboriginal Raiyats,
restricting their right of transfer in case of transferable holdings
only to bona-fide cultivating aboriginal Raiyat of the Pargana of
Taluk or Tappa, in which the land is situated.
Further, Section 42 and also Sub-section (5) of
Section 20(old) authorizes the Deputy Commissioner to evict
persons having acquired land in contravention of the above
provisions. The scope of the amended Sub-Section (5) of Section
20 is confined to cases of contravention of Sub-sections (1) and
(2) of that Section and fraudulent transfer by scheduled tribes
only since 8 February, 1969.
8. At this stage, it is pertinent to refer the finding of the
Writ Court which has given a specific fact finding that in the
instant case, the petitioners have not even produced any
documentary evidence to prove their possession over the land in
question for 12 years prior to coming into force the 1949, Act
and thus they were liable to be ejected under the provisions of
Section 42 of the Santhal Pargana Tenancy (Supplementary
provisions) Act, 1949.
9. Coming to the question whether title by adverse
possession can be acquired after the 1949 Act came into
operation, it will be relevant to refer Section 69 of the Act which
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reads as under:
“69. Notwithstanding anything contained in any law or anything having
the force of law in the Santhal Parganas, no right shall accrue to any
person in-
(a) land held or acquired in contravention of the provisions of Section 20, or,
(b) land acquired under the Land Acquisition Act, 1894, for the Government
of for any local authority of for railway company, while such land
remains the property of the Government or of any focal authority or
of a railwау company, or,
(c) land recorded or demarcated as belonging to the Government or to a
local authority which is used for any public works, such as a road canal or
embankment, or is required for the repair of maintenance of the same while
such land continues to be so used or required, or,
(d) a vacant holding retained by a village headman, Mul Raiyat and
members of their family, or a landlord, or,
(e) village Headman’s official holding, grazing land, Jaherthan and burning
and berial grounds.”
After perusing the aforesaid provision, it is evident
that Section 69(a) has made it clear beyond doubt that
notwithstanding anything contained in any law or anything
having the force of law in the Santhal Parganas, no right shall
accrue to any person in any land held or acquired in
contravention to the provisions of Section 20 of the Act. Section
20 has already been quoted hereinabove and it prohibits
transfer, settlement or lease in any manner, unless the right to
transfer is recorded in the record of rights, in respect of any
Raiyati holding.
10. Even otherwise, the fact remains that all the three
authorities have given fact findings which have been accepted
by the Writ Court against the petitioners-appellants and the law
is now no more res integria that the Writ Court exercising its
jurisdiction under Article 226 of the Constitution of India
should not interfere with the findings arrived at by the
authorities in a summary proceeding, unless there is a
statutory violation.
The learned Writ Court has taken into consideration
the findings given by the statutory authorities and further
mentioned in the concluding part that before initiating action
against the petitioners report was called for by the Circle
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Officer, and upon the report given by the Circle Officer, it was
found that the appellants have concealed material facts about
all earlier proceedings and moreover they failed to produce even
a chit of paper/document which could support their contention
about being in possession since 1936 over the land in question
and as stated hereinabove, Section 20(3), (4) & (5) of Santhal
Pargana Tenancy Act clearly stipulate that in absence of any
documentary evidence, the possession cannot be held to be
legal.
11. At the cost of repetition, learned Writ Court has not
committed any error in accepting the fact findings given by the
statutory authority and rightly held that the petitioners have
failed to produce any documentary evidence to prove their
possession over the property in question prior to coming into
force of the 1949 Act and thus they were liable to be ejected
under the provisions of Section 42 of the Act, 1949.
12. Having regard to the aforesaid discussions we don’t
find any error in the order passed by the Writ Court and
accordingly, this appeal is dismissed; however, there shall be no
order to cost. Pending I.As, if any, also stands disposed of.
(M. S. Ramachandra Rao, C.J.)
(Deepak Roshan, J.)
Jk
AFR
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