HALISHA KHATOON Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard Mr. Saurav Arun, learned counsel for the petitioners, and Mr. Vineet Prakash, learned counsel for the respondent-State and Mr. Alok Lal, learned counsel for the respondent nos. 5 to 8.

(2.) This petition has been filed for under Article 226 of the Constitution of India for quashing the order dtd. 15/4/2008 passed in S.A.R. Revision No. 061/07 by which the Revision application preferred by the petitioner has been rejected and also for quashing of order dtd. 16/5/2007 passed in Case No. 133 R-15/2002-03 by the Deputy Commissioner, Ranchi by which the appeal preferred by the respondent Nos. 5 to 8 has been allowed and order dtd. 15/7/2002 passed by SAR court has been set aside and direction has been given to SAR court to ensure the restoration/possession of lands in favour of private respondent nos. 5 to 8.

(3.) Mr. Saurav Arun, learned counsel for the petitioners submits that the ancestor of private respondent nos. 5 to 8 on 3/5/1950 have surrendered the land of Mouza Pundag being Khata No. 249, Plot No. 682, 683, 622, 668, 685, measuring an area 0.03+0.23+0.95+0.19+0.55= 1.85 Acres by way of registered deed to the ex-landlord namely, Baralal Kanderp Nath Shahdeo and after surrernder of land which was accepted by the ex-landlord by registered deed of Kaubliat dtd. 11/1/1951 contained in annexure 2, 2/1 and 3 respectively of the writ petition. He further submits that on 27/2/1951 the petitioner's ancestor came in possession of the land in question and by virtue of said Hukumnama, the land was settled in favour of father of the petitioner namely Sheikh Elahi and thereafter the petitioner came in cultivating possession of the land and used to pay rent to the ex-landlord against grant of receipt and after vesting Zamindari, the state government recognized father of the petitioner as tenant and issued rent receipt in lieu of rent paid by him. He submits that the ancestor of the petitioner came in possession over the land since the date of settlement made by Ex-landlord and continuously paying rent. He submits that the said Hukumnama is annexed as Annexure 4 and 5 series respectively to the writ petition. He further submits that the private respondent no. 5 to 8 for the first time in the year, 2002 preferred an application for restoration of the land before the Special Officer, Schedule Area Regulation, Ranchi under Sec. 71-A of the Chhotanagpur Tenancy Act registered as SAR Case No. 164/2000-01. The said SAR case initiated at the instance of private respondent nos. 5 to 8 was rejected vide order dtd. 15/7/2002 by the Special Officer, Scheduled Area Regulation, Ranchi holding that the land in question was in the possession of the petitioner since last 50 years and the land was surrendered by way of registered deed and petitioner came in possession by registered deed of Kabuliat and thereafter rent was being paid by the father of the petitioner earlier to the Ex-land lord and thereafter to the State Government. He submits that the learned SAR Court has also considered the judgment of the Patna High Court in the case of "Card Bond Products & Others Vs. State of Bihar and others" reported in 1994 (1) PLJR 99 and held the said restoration case was barred by time as the limitation is said to be 30 years in view of said judgment. He further submits that the learned SAR Court has taken into consideration three witnesses examined by the respondent nos. 5 to 8 and found that they have admitted the possession of the petitioners. He submits that four witnesses have also been examined by the petitioners who have supported the case. He further submits that thereafter the respondent no. 5 to 8 preferred an appeal being case No. 133-R- 15/2002-03 before the Deputy Commissioner, Ranchi and the Deputy Commissioner, Ranchi vide his order dtd. 16/5/2007 set aside the order dtd. 15/7/2002 contained in Annexrue-1 to the writ petition and allowed the appeal preferred by private respondent No. 5 to 8 with direction to ensure restoration of land in question in favour of respondent No. 5 to 8. He then submits that the Deputy Commissioner has allowed the appeal only on the ground that provision of Sec. 46 of CNT Act has not been followed. He further submit that the petitioners herein above preferred Revision being S.A.R. Revision No. 061/07 before the Commissioner, South Chotanagpur Division, Ranchi and vide order dtd. 15/4/2008 the revision preferred by the petitioner has been rejected upholding the order of the Deputy Commissioner. In this background, he submits that the learned appellate court as well as learned revisional court have erred in allowing the appeal and rejecting the revision without considering the period of limitation wherein the SAR Court has considered that aspect of the matter and has rightly passed the said order. He further submits that since last 50 years the petitioners are in cultivating possession of the said land in the light of judgment relied by learned SAR Court as well as in the case of "Situ Sahu & others Vs. The State of Jharkhand and others" reported in AIR 2004 SC 4918 limitation is 30 years. He further submits that in the light of sub-sec. 2 of Sec. 83 of CNT Act, final publication of record of right has already been made. He also submits that fraudulent aspect has not been taken into consideration and by two of the courts only on the ground of Sec. 46 of C.N.T Act the order of the SAR Court has been reversed. He submits that fraudulent aspect has been considered by the Hon'ble Supreme Court with regard to Chhotanagpur Tenancy Act in the case of "Jai Mangal Oraon Vs. Smt. Mira Nayak and others" reported in AIR 2000 (SC) 2276 and the relevant paragraph of the said judgment is quoted below:-