HAKIM MIAN Vs. COMMISSIONER BHAGALPUR DIVISION

JUDGEMENT

(1.) This is an application under Articles 226 and 227 of the Constitution of India by one Hakim Mian. A prayar has been made for quashing the orders contained in Annexures 10 and 11 passed by respondent No. 3, Additional Deputy Commissioner, Santhal Pargarnas and respondent No. 2 the Commissioner of Bhagalpur Division respectively.

(2.) This case has a checkered career and it may be relevant to state some of the basic facts. The question relates to 6 Bighas and 7 kathas of land of plot No. 364 situate in village Goakola in the district of Santhal Parganas. One Gopal Kisku filed a case for eviction of both petitioner Hakim Mian and respondent No. 6 Kalicharan Hembrom besides others from the land in question before as Case No. 21 of 1962-63. It was held that respondent No. 5 Kalicharan had obtained about 4 Bighas of land in Plot No. 354 in exchange from the recorded tenant sometimes in the year 1943 and held, therefore, acquired certain right. It was further held that petitioner Hakim Mian had not acquired any right and the application for eviction as against Hakim Mian was allowed. Two Miscellaneous appeals were filed, one by Gopal Kisku against Kalicharan Hombrom and the other by the petitioner Hakim Mian against the order of the Subdivisional Officer. The order passed by the Subdivisional Officer was confirmed by the Additional Deputy Commissioner in respect of Kalicharan on 20-6-1964. The appeal filed by the petitioner was allowed and it was held that Hakim Mian was also in possession of about 2 bighas and odd lands claimed by him for more than 12 years. The matter was taken by one Amila Devi to the Commissioner and by an order dated 18-1-1965 the case was remanded to the Subdivisional Officer, Jamtara to enquire as to who was exactly in possession of 2 bighas of land claimed by Hakim Mian, if Hakim Mian had actually been dispossessed according to the report of the Circle Officer. The matter as regards Kalicharan appears to have been closed as no application was filed against Kalicharan before the Commissioner. On remand the Subdivisional Officer by his order dated 14-2-1966 in Case No. 21 of 1962-63 held that about 6 bighas 16 katha of land were partly acquired by Damodar Valley Corporation for Mython dam and partly given to Kalicharan in exchange in 1350 B.C. It was also found that since JKalicharan's possession had been confirmed early by the Subdivisional Officer and the Deputy Commissioner as mentioned above, that chapter had been closed and further the Circle Officer had found Kalicharan to be in possession. It was held that Hakim Mian never got any land in exchange and he was never in possession of any land. Again an appeal seems to have been filed before the Additional Deputy Commissioner Santhal Parganas and the matter was remanded on 11.6.1966 for demarcation and measurement by an Amin to find out whether 4 bighas of land in Plot No. 354 was given to Kalicharan or whether Hakim Mian had also got 2 bighas of land. The case on remand was dismissed by the Sub-divisional Officer on 29-4-1967 for default that is to say, on the ground of absence of Gopal Kisku. It may be stated here that this land bearing Plot No. 354 was recorded in the names of Umesh Manjhi, Ishwar Manjhi and Bishwanath Manjhi and others and was claimed both by Hakim Mian and Kalicharan by exchange. Gopal Kisku had sought their eviction in the proceedings mentioned above. So far respondent Kalicharan is concerned his claim of exchange, possession and title was accepted, but the claims of the petitioner Hakim Mian was rejected. It may be mentioned here that the matter had come on remand to the Subdivisional Officer for demarcation and measurement by an Amin but the case was dismissed for default. At any rate, the matter rested there for the time being. It appears that so far Hakim Mian is concerned there was no definite or conclusive finding of his possession. In fact, it had been found that the lands claimed by Hakim Mian, which was said to have been given in exchange, lay within the submerged land for which Hakim Mian had received compenastion. Learned counsel for the petitioner at this stage submitted that that matter was disputed.

(3.) The present case seems to have been started on an application filed by respondent No. 5 Kalicharan before the Subdivisional Officer, Jamtara which was registered as Revenue Eviction Case No. 296 of 1970-71. He filed this application for eviction of petitioner Hakim Mian from the plot in question. The application was dismissed by the Subdivisional Officer on 28-11-1970 on the ground that Kalicharan had not clarified as to how he got the land in question. Kalicharan filed an appeal and the learned Additional Deputy Commissioner by his order dated 18-6-1975 set aside the order of the Subdivisional Officer and ordered eviction of Hakim Mian. This order is contained in Annexure-10. The petitioner filed a revision application before the Commissioner which was dismissed by the learned Commissioner on 2-9-1981 by the order contained in Annexure-11. The learned Commissioner has found that possession of respondent Kalicharan over the land in question was clearly established. He further found that so far Hakim Mian was concerned the order of the learned Subdivisional Officer dated 20-12-1963 referred to above indicated that Hakim Mian had obtained compensation from Damodar Valley Corporation for the land which he had exchanged in lieu of Plot No. 354. His ultimate finding was that the entire story that petitioner Hakim Mian had obtained the land in exchange and came in possession was untrust worthy.