NAND LAL ORAON Vs. SURESH JHA

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and decree dated 16.8.1985 passed by the then 3rd Additional District Judge, Purnea in Title Appeal No. 1/81 whereby and whereunder the judgment and decree dated 13.10.80 passed by the 3rd Additional Subordinate Judge, Purnea in Title Suit No. 171/75 has been reversed.

(2.) THE plaintiff -respondents filed the above mentioned suit for declaration of their title and for confirmation of their khas cultivating possession over the suit lands described in the Schedule A of the plaint and also for declaration that the defendant first set have got no title and interest or possession over the lands and there is no relationship of landlord and tenant between the plaintiffs and the defendant first party and that the order passed in case No. 44 of 1974 -75 in a proceeding under section 69 of the B.T. Act on 22.12.1974 is illegal, without jurisdiction and not binding on the plaintiff with a further claim that a decree for recovery for a sum of Rs.1,710/ - on the defendant be passed as detailed in Schedule B of the plaint. There was also an alternative prayer for recovery of possession of the suit land if it is found that the plaintiff has been illegally dispossesed from the suit land during the pendency of the suit. The subject matter of the suit is 5.71 acres of agricultural land appertaining to R.S. Khata No. 883 of Mauja (village) Dibra Ghani P. S. Dhamdaha in the district of Purnea. The plot numbers and the break up of the areas plotwise have been given in the schedule A of the plaint. One Saini Uraon was the defendant in the suit as defendant first party but he died during the pendency of the suit and his heirs have been substituted who remained as defendant first party in the suit. The defendant second party are the Collector, Purnea, B.D.O. Barhara Kothi, Panchayat Sevak Dibra Panchayat and the then Co - operative Extension Officer, Barhara Kothi Block. The admitted position remains that the plaintiff is the recorded occupancy raiyat of the suit land alongwith the others, during the time of his forefather. The original defendant Saini Uraon at the instigation of a group to grab the land of land owners in the locality filed a petition before the B.D.O. Barahara Kothi under Section 69 of the B.T. Act on the allegation for division of Agahani paddy crop standing over the land in suit claiming that he was in possession over the land in dispute as a Sikmidar since the life time of Chakradhar Jha the father of the plaintiff and that also he moved for claiming of the tenancy under Section 48E of the B.T.Act and while the same was pending the plaintiff was not allowing to take share of the produce as a bataidar and hence the said petition was filed. It was numbered as case No. 44 of 1974. -75. The plaintiff also appeared in that case on 11.12.1974 and filed a petition for adjournment for filing objection. B.D.O. told him that a report has been called for from Panchayat Sevak and after getting the report he would be informed when he would file objection. According to the plaintiff Saini Uraon was never his bataidar and he had never grown paddy over the land in the year 1974. On 18.12.1974 Saini Uraon, filed a petition for withdrawal of the case and his claim of bataidar. The prayer of Saini Uraon was allowed and the B.D.O directed Panchayat Sevak to deliver the entire paddy crop to the plaintiff. Then the plaintiff got the paddy harvested from the labourers and left the same for being dried up. But on 22.12.1974 in the absence of the plaintiff, the D.S.P., Dhamdaha, B.D.O., Barhara Kothi and some members of the land grabbing group visited the spot and the B.D.O. asked the Area Magistrate, Dibra Camp to remove the harvested paddy lying in the field. It is said that Saini Uraon filed a petition for revival of the proceeding under Section 69 of the B.T. Act before the Collector, Purnea and the Collector asked the B.D.O. Dhamdaha to make division of the crop. It is the case of the plaintiff that proceeding under Section 69. of the B.T. Act was a total illegal one and any order passed by Collector or B.D.O. were behind the back of the plaintiff and, as such, such order is not only illegal but without jurisdiction and the so -called action taken by the defendants second set are contrary to law and hence the plaintiff is entitled to get recovery of the price of the crop. It has been stoutly denied that Saini Uraon or his heirs had ever taken the land in question as a Sikmidar from the father of the plaintiff. Hence the suit.

(3.) WHILE admitting the appeal vide . order dated 2.5.1991 a Bench of this Court has formulated the following substantial questions of law as contemplated under Section 100 of the C.P.C.: ''