Aditya Sahu vs The State of Jharkhand and Others

Narendra Nath Tiwari, J.—This second appeal Is against the judgment and decree of learned District Judge, Lohardaga, who has dismissed the Appellant''s appeal and concurred with the findings of the learned Trial Court.

The Appellant was the Defendant No. 5 In the suit.

The Plaintiffs/Respondents had filed the suit In the court of learned Munsif, Lohardaga, seeking declaration of their right, title and Interest over the suit land and for recovery of possession as well as permanent Injunction, restraining the Defendant No. 5 from disturbing possession of the Plaintiffs. They had also prayed for declaration that the order of settlement of the suit land by Issuing Wasg it Parcha dated 28th September, 1984 In favour of Defendant No. 5 is Illegal, void and without jurisdiction and the same is not binding on the Plaintiff''s.

The case of the Plaintiffs, in brief, Is that the lands of Municipal Survey Plot No. 812 under Khata No. 1 and Plot No. 247 under Khata No. 223 of village Kuru, P.S. Kuru, District Lohardaga were held and possessed by ex. Landlord-Ranchi Zamindari Properties Ltd. The said lands were managed, supervised and controlled by one Gauri Dutt Mandelia, who happened to be the Manager of Ranchi Zamindari Properties Ltd. With the consent of the then landlord, the said Manager had created a trust for the purpose of management of Shiv Temple, standing over Plot No. 247. The deed was executed and registered on 30th March, 1950. After creation of trust, the trustees used to manage the affairs of the said Shiv Temple, standing over an area 0.13 acres. The trust throughout remained In possession of the land. In course of time, trustees died one after the other, The last surviving trustee, namely, Shankar Sahu had made the Plaintiff Nos. 3 to 9 as tenure trustees by registered deed dated 4th June, 2001.

The father of Defendant No. 5, namely, Jagdeo Sahu was permitted to stay over two decimals of land towards southern side of Plot No. 247 at a nominal rent of Rs. 15/- per month. Jagdeo Sahu died leaving behind his son-Defendant No. 5, who Is now In occupation of the land, given to his father on rent.

When the land under occupation of Defendant No. 5 was required for the purpose of extension of temple, the Defendant No. 5 was asked to vacate and hand over the land. The Defendant No. 5 Instead of vacating the suit land claimed his right and possession by virtue of Wasgit Parcha dated 28th September, 1984 Issued by the Circle Officer. The Circle Officer had no authority to settle the land with the Defendant No. 5, as the land never belonged to the State of Bihar. No notice was ever served on the Plaintiff regarding the said settlement. The alleged Parcha was obtained by the father of the Defendant No. 5 by suppressing the real facts and by practicing fraud on the Court.

Two sets of written statements were filed. One set by the Defendant/Respondent Nos. 1 to 4 and another set by the Defendant/Respondent No. 5.

The Defendants Nos. 1 to 4, representing the State, contested the suit on the ground, inter alia, that the land was recorded as ''Gairmajarua Malik'' of Raja Baldeo Das Birla who was the tenure holder. After coming Into force of the Bihar Land Reforms Act, 1950, the Intermediary light had vested in State.

There is a temple of Lord Shiva over an area of 7 decimals and the Defendant No. 5 is in possession of 2 decimals of land. In recent survey, a portion of Plot No. 247 has been recorded In the name of the State Government and in the remarks column, Illegal possession of family members of Aditya Sahu has been recorded.

The Defendant No. 5 also contested the suit and pleaded, Inter alia, that the suit land was ''Gairmajarua Malik'' land and Jagdeo Sahu was In possession over 2 decimals of land. The area of 2 decimals of Plot No. 247 was settled in favour of the Defendant No. 5 by virtue of Wasgit Parcha dated 28th September, 1984. The Appellant has constructed his house over the land and he has been residing In the house. In the recent survey record, Illegal possession of family member of Aditya Schu was shown In remarks column of Khata No. 422, Plot No. 710. It has been further asserted that the said land, which was ''Gairmajarua Malik'', was vested in the State under the provisions of Bihar Land Reforms Act.

On the basis of the said pleadings, several issues were framed by the learned Trial Court. Both parties adduced their oral and documentary evidences. On conclusion of the trial, learned Trial Court held that the suit land, which is part and parcel of the land of R.S. Plot No. 247 of Khata No. 223 of village Kuru, was ''Gairmajarua Malik'' land of ex-landlord. The said land was settled for the purpose of Shiv Temple and a trust was created for looking after and managing the same. The trust was de facto owner of the land. The said land was not vested in the State. The State authorities had no jurisdiction to settle two decimals of land in favour of Respondent No. 5 or issuing Wasgit Parcha. The settlement Is not binding on the Plaintiff. Learned Trial Court decreed the suit, declaring that the Plaintiff has right, title and interest over the suit land and restraining the Defendant No. 5 permanently from disturbing possession of the Plaintiff.

Against the said judgment and decree of the learned Trial Court, Defendant No. 5 preferred appeal in the court of learned District Judge, Lohardaga, which was registered as Title Appeal No. 13 of 2007. The said appeal was dismissed by the Impugned judgment and decree, upholding and affirming the findings and judgment and decree of learned Trial Court.

In this second appeal, learned Counsel for the Appellant assailed the aforesaid judgment of the learned Lower Appellate Court on the ground that the same is based on Improper consideration of the facts and wrong Interpretation of law. Learned courts below failed to take Into consideration that after coming Into force of the Bihar Land Reforms Act, 1950, all the intermediary rights in tenures were vested in the State. The courts below have also not considered the provision of the Trust Act and has not decided as to whether Induction of the new trustees by one of the original trustees is legal and valid.

I have heard learned Counsel for the Appellant and considered his submissions. I have also perused the judgments of the learned Trial Court as well as learned Lower Appellate Court. I find that the learned Trial Court has discussed the evidences in detail and after due consideration of all relevant aspects has come to the findings that the Plaintiffs have got right, title and interest over the land and that the settlement claimed by the Defendant Is fraudulent, Illegal and void, Learned Lower Appellate court has also scrutinized the evidences Independently and has concurred with the findings of fact arrived at by the learned Trial Court, The findings of facts by the two Courts are binding on this Court.

So far as the point of vesting the suit land is concerned, I find no evidence on record to establish that the suit land was vested in the State under the provision of Bihar Land Reforms Act.

Section 3 of the said Act provides for vesting of an estate or tenure In the State and Its consequence. The said Section reads as under:

Notification vesting an estate or tenure In the State- (1) The State Government may from time to time, by notification declare that the estates or tenures of a proprietor or tenure holder, specified In the notification, have passed to and become vested In the State.

(2) The notification referred to in Sub-section (1) shall be published In the Official Gazette. A copy of such notification shall be sent by registered post, with acknowledgment due, to the proprietor to the estate recorded In the general register of revenue-paying or revenue-free lands maintained under, he Land Registration Act, 1876 (Ben, Act 7 of 1876) or In case where the estate Is not entered in any such registers and in the case of tenure-holders to the proprietor of the estate or to the tenure-holder of the tenure if the Collector is in possession of a list of such proprietors or tenure-holders together with their addresses, and such posting shall be deemed to be sufficient service of the notification on such proprietor or, where such notification is sent by post to the tenure-holder, on such tenure-holder for the purposes of this Act.

(3) The publication of such notification In the official Gazette shall be conclusive evidence of the notice of the declaration to such proprietors or tenure-holder whose Interests are affected by ''he notification.

It Is clear from the said provision that the State has to issue notification declaring any estate or tenure of a proprietor or tenure holder having been passed to and become vested in the estate. No such notification has been brought on record to establish that the suit land was vested.

So far as the question of entry of a new trustee Is concerned, the same is beyond the scope of the suit. Section 92 of the CPC provides institution of a suit for such purpose in a particular manner and by particular persons.

Section 92 of the CPC runs as follows:

Public charities- (1) in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court Is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentions or not in the principal Civil Court of original jurisdiction or In any other Court empowered In that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is suitable to obtain a decree-

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(cc) directing a trustee who hcs been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;

(d) directing accounts and Inquiries;

(e) declaring what proportion of the trust property or of the Interest therein shall be allocated to any particular object of the trust;

(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the ''Religious Endowments Act 1863 (20 of 1863), or by any corresponding law In force In the territories which, Immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the relief. specified In Sub-section (1) shall be Instituted In respect of any such trust as Is therein referred to except In conformity with the provisions of that Sub-section.

(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely:

(a) where The original purposes of the trust. In whole or In part,-

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given In the Instrument creating the trust or, where there Is no such instrument, according to the spirit of the trust; or

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whose or In part, were laid down by reference to an area which there was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes. In whose or In part have, since they were laid down.-

(I) been adequately provided for by other means, or

(II) ceased, as being useless or harmful to the community, or

(III) ceased to be in law, charitable, or

(IV) ceased In any other way to provide a suitable and effective method of using the property available by virtue of the trust, regarding being had to the spirit of the trust.

As provided Section 92 of the Code of Civil Procedure, any declaration regarding the matter of appointment of new trustee has to be sought within the provisions of the said Section by filing a suit In conformity with the said provision of law.

I find no scope for testing the said Issue In the instant suit. No question, as such, much less, as, has been raised by the Appellant, thus, gives rise to any substantial question of law to be framed and decided by this Court in Second appeal.

This appeal is, accordingly, dismissed.