SITA RAM NARSARIA AND MADAN GOPAL NARSARIA @ MADANLAL GOPAL NARSARIA Vs. STATE OF BIHAR THROUGH DEPUTY COMMISSIONER

JUDGEMENT

(1.) LEGALITY and validity of the order dated 23.3.1999 passed by the Commissioner of South Chhotanagpur Division, Ranchi in Gumla S.A.R. Revision No. 122 of 1996 (Annexure -6) has been called in question by the present petitioners, whereby the revisional authority after reversing the judgments of the court of first instance and that of the appellate authority directed the restoration of the land in favour of respondent No. 5. Before dwelling upon the issues involved in this writ petition, it is useful to recapitulate the factual background emerging from the record.

(2.) PLOT No. 1494 measuring 0.39 acres under khata No. 84 of Mouza -Gumla was recorded as raiyati holding of one Tipu Kharia son of Deba Kharia father of respondent No. 5 herein. This plot of land measuring 0.39 acres was under the Zamindari of one Baraik Deokinandan Singh, who was Khewatdar of Khewat No. 3. The recorded raiyat Tipu Kharia surrendered 0.09 acres of land out of 0.39 acres in the aforesaid plot to the Khewatdar. Being unable to pay the rent, remaining area of 0.30 acres was also surrendered thereafter in favour of Deokinandan Singh and a Deed of Surrender dated 8.2.1946 was brought into existence duly executed by the parties in respect to the land referred to above. Thus the total holding under the raiyatship of Tipu Kharia came in possession of Deokinandan Singh. It is alleged that though no consideration for surrender was settled, however, a sum of Rs. 400/ - was paid to the raiyat as compassionate financial assistance, which fact was duly recorded in the Surrender Deed dated 5.2.1946. It is also averred in the writ petition that pursuant to taking over of the possession Khewatdar enjoyed the property on the strength of title and possession to the knowledge of everyone including erstwhile raiyat. Baraik Deokinandan Singh entered into a Chhaparbandi settlement in favour of one Ayodhya Prasad with respect to 0.30 acres of land comprising R.S. plot No. 1494, khata No. 84 of Mauza -Gumla by executing a registered Kabaliat (Counter part lease) dated 15.3.1946. On securing the land from the land holder the settlee began paying stipulated rent and cess to the landlord against proper receipts. Settlee, namely, Ayodhya Prasad sold a portion of land under his possession measuring about 11.25 decimals equivalent to 7.0 kathas from out of his Chhaparbandi holding measuring 30 decimals in R.S. Plot No. 1494, khata No. 84 of Mouza -Gumla to Balabux Narsaria vide registered deed of Sale dated 16.1.1948 and the said purchaser was put in possession of the land. It is further alleged that Balabux Narsaria and his brother, namely, Ram Ballabh Narsaria constituted a Joint Hindu Family and the purchased land was for and on behalf of joint family. It is further stated that both the brothers constructed a pucca house upon 11.25 decimals of plot No. 1494 of Mouza -Gumla somewhere in the year 1948 -49. The house still exists and has been converted into a commercial -cum - residential complex. Presently this property is said to have come within Gumla Municipality and its valuation at the time of promulgation of Bihar Schedule Area Regulation, 1969 was not less than Rs. 5,00,000/ - and at the time of filing of this writ petition it was about 20,00,000/ -. The land was also mutated in the name of Balabux Narsaria and Ram Ballabh Narsaria after the purchase in the year 1948. It is alleged that after the partition between the two brothers comprising the joint family, the land in question had fallen to the share of Ram Ballabh Narsaria father of the petitioners herein. While property was being enjoyed by Ram Ballabh Narsaria, the erstwhile raiyat - Tipu Kharia filed an application on 9.5.1991 under Section 71A of the Chota Nagpur Tenancy Act (hereinafter referred to as the Act) seeking restoration of possession of 19.5 decimals from out of R.S. Plot No. 1494 on the allegation that he has been dispossessed from the said land by virtue of a compromise decree in a collusive title suit. This application came to be registered as S.A.R. Case No. 2 of 1991 -92 and was heard by Sub -Divisional Magistrate, Gumla exercising power as Special. Officer under the Bihar Schedule Area Regulation. This application was dismissed vide order dated 18.5.1993. The Special Officer passed the order dismissing the application after holding inquiry. He recorded a finding that the applicant failed to produce any document in support of his case. It has also been recorded by the Special Officer that the land was surrendered by Tipu Kharia -recorded raiyat in favour of Zamindar and also executed the Surrender Deed on 11.3.1946. The landlord thereafter transferred the land in favour of Ayodhya Prasad by executing a patta dated 16.1.1948. Purchaser further sold portion of land to the respondents, who raised construction over the land. This order became subject matter of challenge before the appellate authority in S.A.R. Appeal No. 21 R 15 of 1993 -94 filed by Tipu Kharia. During pendency of the appeal, the sons of Balabux Narsaria were impleaded as parties, who submitted in writing that after partition in the family they have no connection with the property which belongs to Ram Ballabh Narsaria. During the pendency of this appeal, Tipu Kharia, original applicant died and respondent No. 5, his daughter, was substituted as applicant. Ram Ballabh Narsaria also died and the present petitioners were also substituted as his legal representatives. The appellate authority, after hearing the parties, concurred with the findings of Special Officer and dismissed the appeal holding that there had been no transfer in violation of provision of the Act. Aggrieved by this order, respondent No. 5 filed a revision under Section 217 of the Act before the Commissioner, South Chhotanagpur Division being S.A.R. Revision No. 122 of 1996. The revisional authority vide order impugned dated 23.3.1999 set aside the order passed by the forums below and directed restoration of possession of the land in favour of respondent No. 5 and held that since surrender dated 5.2.1946 was made after taking Rs. 400/ - as consideration money, such surrender amounted to transfer in violation of Section 46 of the Act. Revisional authority also recorded that the application for restoration was filed after a lapse of 45 years. Accordingly, revisional authority vide impugned judgment directed respondent No. 5 to pay compensation to the petitioners and remanded the case to the trial court for determination of the compensation. Operational part of the judgment reads as under: The petition for restoration has been filed in the year 1991 i.e. after a period of about 45 years from the date of transfer of the lands. Thus the petition has been filed after the limitation period and the lands can be restored only under the third proviso of Section 71 -A of the C.N.T. Act. In the present case I am satisfied that the lands should be restored to the petitioner provided he pays the compensation to be decided by the learned lower court to the O.Ps. Under the above circumstances the revision is allowed. The orders passed by learned court below are set aside. The lands in question are ordered to be restored to the petitioner provided the petitioner pays compensation to the C.P. and for the determination of compensation the case is remanded to the trial court who after hearing the parties concerned will pass the order for the determination of compensation.

(3.) WITH a view to appreciate the contentions of the parties urged in this case, it is useful to refer to some of the provisions of Chota Nagpur Tenancy Act, 1908. It is also relevant to refer to Article 65 of the Limitation Act, 1963. Relevant extracts of Sections 46, 71 -A, 72 of the Chota Nagpur Tenancy Act and Article 65 of the Limitation Act are quoted hereunder: 46. Restrictions on transfer of their rights by raiyats. -(1) No transfer by a raiyat of his right in his holding or any portion thereof - (a) by mortgage 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.. Provided further that.. (2) A transfer.. (3) No transfer.. (3A) Notwithstanding.. (4) at any time within three years after the expiration of the period for 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 raiyat into possession of such holding or portion in the prescribed manner. (4A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by occupancy -raiyat who is a member of the Scheduled Tribe, 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.. Provided further that.. (b) If after holding.. (c) If after holding.. Provided that.. Provided further that.. 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 who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or any other provision 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 transferee who is proposed to be evicted, to show reasonable opportunity to the transferee who is proposed to be evicted, to show cause and after making necessary enquiry 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 the 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: 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 Area Regulation, 1969, he may notwithstanding any other provisions of the Act, validate such a 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 in the vicinity or pays adequate compensation to be determined by the Deputy commissioner for rehabilitation of the transferor: Provided also that if after an enquiry 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 the 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. Explanation. - In this section substantial structure or building means structure or building the value of which on the day of initiation of enquiry, was determined by the Deputy Commissioner to exceed Rs. 10,000/ - but does not include structure or building of any value, the material of which can be removed without substantially impairing the value of. 72. Surrender of land by raiyat. - (1) a raiyat not bound by a lease or other agreement for a fixed period may, at the end of any agricultural year surrender his holding with the previous sanction of the Deputy Commissioner in writing. 65. For Twelve years When the possession of possession of immovable the property or any but 30 years defendant interest therein in respect of becomes based on title immovable adverse to property the plaintiff belonging to a member of the Schedule Tribes as specified in Part III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950"