Bhuwan Lal vs Rukmani Bai and Others

Dhirendra Mishra, J.

The Petitioner by the instant petition under Article 227 of the Constitution of India, has impugned the order dated 16.1.1991 passed in Revenue Case No. 5/A-23 of 1990-91 by Sub Divisional Officer (Revenue), Respondent No. 5 herein, the order dated 31.1.1995 passed in Appeal Case No. 6A/23 of 1991-92 whereby the appeal prefered by the Petitioner against the order of the Sub Divisional Officer was dismissed and the order dated 9th February 1998 passed by Additional Commissioner, Raipur, Division-Raipur in Appeal Case No. 206/A-23/95-96, by which the learned Additional Commissioner treating the aforesaid appeal as revision u/s 50 of the Land Revenue Code, has dismissed the revision of the Petitioner.

Briefly stated facts necessary for the purpose of this petition are that the disputed land bearing Khasra No. 134/3, area 0.13 acre and Kahsra No. 135/2, area 0.72 acre, was recorded in the name of Ramoutinbai, wife of Balbadhdhar (scheduled tribe). On the basis of report dated 11.10.1982 of the Revenue Inspector, Gunderdehi, the Sub Division officer, Durg registered a case u/s 170B of the Land Revenue Code, 1959 and passed an order to restore the possession to the tribal owner with a finding that the transfer was illegal.

The Petitioner preferred appeal against the above order of Sub Divisional Officer before the Additional Collector, who allowed the appeal and set aside the order of the Sub Divisional Officer and remanded the matter for enquiry whether Appellant Bhuwanlal had filed his return u/s 170B of the Land Revenue Code within the prescribed period and to decide the matter afresh. The Sub Division Officer, accordingly, conducted enquiry after due notice to the Petitioner as also to the Respondents and passed the impugned order with a finding that the Petitioner got executed a sham sale deed dated 31.12.1974 in favour of Shivcharan, s/o Sadhuram Halba whereas the Land was, in fact, transferred to the Petitioner in the year 1976 itself as in Khasra Panchashala for the year 1975-76 to 1985-86 name of the Petitioner is recorded as person in possession over the disputed agriculture land. The sale deed was also executed by Shivcharan in favour of the Petitioner in the year 1983. The Petitioner also failed to file return in accordance with Section 170B of the Land Revenue Code (for brevity ''the Code'') within the prescribed period and therefore, as per provisions of Section 170B of the Code, transfer of the land in favour of the Petitioner is a fraudulent transfer of the land automatically reverts to aboriginal tribal owner or her successors. With the above findings, the learned Sub Division Officer directed the Naib Tehsildar, Gunderdehi to record name of the Respondents No. 1 & 2 in the revenue papers as Bhumiswami and further directed to put them in possession over the disputed land.

The Petitioner preferred appeal against the above order before the Additional Collector, Durg and the learned Additional Collector also dismissed the appeal and updated the order passed by the Sub Divisional Officer.

The learned Additional Commissioner, Raipur treating the second appeal preferred by the Petitioner against the aforesaid orders, as revision u/s 50 of the Code rejected the revision with an observation that the tribal owner Ramoutinbai transferred the land to Shivcharan vide registered sale deed dated 31.12.1974, however, possession of the Petitioner was recoded in Khasra Panchshala for the year 1976 and the land was subsequently transferred by Shivcharan to the Petitioner. Thus, the Petitioner was in possession over the disputed land belonging to the aboriginal tribe when the Land Revenue (Amendment) Act, 1980 (No. 15 of 1980) came into force and therefore, the provisions of Section 170B of the Code were applicable.

Learned Counsel for the Petitioner submitted that the Petitioner was a bonafide purchaser as he purchased the land from Shivcharan Halba, who sold the land to the Petitioner on 17.1.1983 (Annexure P/2) after seeking due permission from the Collector u/s 165(6) of the Code vide order dated 30.12.1982 (Annexure P/1). The land was transferred by Respondents No. 1 Remoutinbai to Shivcharan Halba, who belongs to aboriginal tribe, by registered sale deed in the year 1974. There is no enquiry as to under what circumstances the Petitioner came into possession in the year 1976, the date on which the land stood transferred in the name of Shivcharan. The Courts below considering that the Petitioner was in possession of the disputed land recorded in the name of tribal and he did not furnish return as required u/s 170B of the Code, have held that the Petitioner purchased the land fraudulently in the name of Shivcharan through sham sale deed though he was de facto purchaser and did not file return within the specified period. The above finding is arrived at without proper enquiry in this regard and therefore, the matter be remanded to the Sub Divisional Officer for conducting fresh enquiry.

On the other hand, learned Counsel for the Respondents argued that the revenue tribunals, on the basis of Khasra entries for the year 1976 onwards, arrived at the conclusion that the Petitioner was in possession of the disputed agriculture land, which belonged to a member of aboriginal tribe Ramoutinbai and he failed to notify the Sub Divisional Officer within two years of the commencement of Land Revenue Code (Amendment) Act as to how he came in possession of such land and in these circumstances, a presumption has been drawn under Sub-section (2) of Section 170B of the Code that the Petitioner is in possession of the disputed land without any lawful authority and the impugned order was passed after conducting due enquiry as contemplated under Sub-section (3) of Section 170B of the Code.

Reliance is placed on the orders passed in the matter of Dhirendra Nath Sharma v. State of M.P and Anr. 1986 JLJ 190 and Atmaram and Anr. v. State of M.P., 1995 Revenue Nimay 124.

I have heard learned Counsel for the parties and perused the orders passed by the Courts below.

The relevant facts and pleadings of the respective parties have already been mentioned in detail in the foregoing paragraphs. Before considering the rival submissions made by the parties, it would be appropriate to advert to the provisions of Section 170B of the Code. Section 170B of the Code was inserted by M.P Amendment No. 15 of 1980 (24.10.1980). Section 170B reads as under:

170-B Reversion of land of members of aboriginal tribe which was transferred by fraud - (1) Every person who on the dote (sic) commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1980 (hereinafter referred to as the Amendment Act of 1980) is in possession of agricultural land which belonged to a member of a tribe which has been declared to be an aboriginal tribe under Sub-section (6) of Section 165 between the period commencing on the 2nd October, 1959 and ending on the date of the commencement of Amendment Act, 1980 shall, within (Subs, by M.P. 19 of 1982 [23-10-1981J) two years] of such commencement, notify to the Sub-Divisional Officer in such form and in such manner as may be precribed, all the information as to how he has come in possession of such land.

(2) If any person fails to notify the information as required by Sub-section (1) within the periods; decided therein it shall be presumed that such persion has been in possession of the agricultural land without any lawful authority (sic) the agricultural land shall, on the expiratid of the period a(sic) revert to the person to whom it originally (sic) longed and if that person be dead to his legal heirs.

In the matter of Dhirendra Nath sharma (supra) in paragraph 12 of the order it has been held thus:

Section 170B was inserted (sic)ter for the some purpose with a view to cove(sic) th remaining transfers of agricultural land belonging to tribals under which they had been exploited (sic) from their unequal (sic) ning capacit at he time of (sic) any action. By enacting Section 170-B, a duty as astonevery person in possession of agricultural and,which being (sic)to a tribal (sic)any time between 2nd October 19(sic)9 and the date of commencement of the Amendment Act of 1980 to notify the Sub divisional Officer within the period specified in the prescribe member all the information a to how he had come in possession of such land. Obviously, the provision enacted in Section 170-A for (sic)nitia on of the(sic) roceedings was not found sufficient and, therefor suc(sic) a provision became necessary to ensure that very such transaction of transfor of land belonging to a tribal at any time after (sic)nd October, 1959 when the M.P. Land Revenue Code 1959 came into force was brought to the notice of the Sub-I revisional Officer to enable examination of its alidity on the basis of information supplied by the person in posses ion. Sub-section (sic) provides that on the receipt of such information, the Sub-Divisional Officer shall make such enquiry as maybe deemed necessary about all such transactions of transfer and if he finds that the tribal transferor has been defrauded, the transaction shall be declared null and void and an order would be made revesting the agricultural land in the tribal transferor or his legal heirs, as the case may be. The order contemplated by Sub-section (3) is to be passed only as a consequent of a finding reached after due enquiry that in the transaction of trasfer, the tribal transferor had been defrauded of his legitimate right. Unless such a conclusion is reached, no question arises of declaring the transaction null and void and passing an order revesting the agricultural land in the tribal transferor or his legal heirs.

In Paragraph-13 it has been held that Sub-Section 2 of Section 170-B merely lays down rule of evidence where a person in possession fails to notify the information within the specified period, a presumption is available that the possession of the agricultural land is without any lawful authority and the land stands reverted to the transferor or his legal heirs, as the case may be. The rule of evidence contained in Sub-section (2) provides for such a presumption which dispenses with any further enquiry and the final order as contemplated in Sub-section (3) is required to be made on the basis of presumption arising under Sub-section (2). However, it has been further held that in all the cases including the cases in which the presumption under Sub-section (2) is available, the final order as contemplated by Sub-section (3) has to be made and only after such order is passed, results in declaration that the transfer is null and void and the agricultural land re-vests in transfer or his legal heirs.

In the matter of Atmaram and others while dealing with Section 4 of the Evidence Act of 1872 it has been held that Sub-section (2) of Section 170-B of the Code merely uses the world "shall be presumed" and does not indicate that it shall amount to conclusive proof and therefore, it does not bar any evidence being adduced for the purpose of disproving it. The presumption under Sub-section (4) must, therefore, be regarded as a rebuttable presumption. Referring to Dhirendra Nath Sharma''s case it has been held that in a case governed by Sub-section (2) of Section 170-B of the Code also enquiry after show cause notice is necessary where in reply to the show cause notice the vendee appears before the Court and adduces evidence in support of his contention that his possession is by lawful authority and if the Sub Divisional Officer is satisfied on the material before him as was produced by the vendee or received from the sources that the vendee''s possession is based on lawful authority, the presumption is rebutted.

I am in full agreement with the principle of law laid down in the above cited judgments.

If we apply the principles of law laid down in the aforesaid matters in the facts of the present case, it is observed that Ramoutinbai, a person belonging to aboriginal tribe, was the recorded owner of the disputed agricultural land between 2nd October 1959 and the commencement of the Act of 19830. The revenue tribunals considering the entries in the Khasra Panchshala of the revenue records wherein the Petitioner is shown to be in possession over the disputed land belonging to the aboriginal tribe since 1976 and also considering the facts that the Petitioner has failed to notify about such possession within the specified period to the Sub Divisional Officer, commenced the proceedings u/s 170-B of the Code and issued notice to the Petitioner to explain his possession. The Petitioner has taken a stand that he purchased the land through registered sale deed from its recorded owner Shivcharan on 17th January 1983, who transferred the land after obtaining due permission u/s 165(6) of the Code vide order dated 27.11.1982 from the Collector, Durg. However, the Petitioner could not explain as to how his name appears in the Khasra Panchshala for the year 1976 and onwards as the person in possession over the disputed land. He has also failed to explain as to why he did not notify about his possession in accordance with Section 170-B of the Code to the Sub-Divisional Officers. For the aforesaid reasons, the Sub Divisional officer drawing a presumption under Sub-section (2) of Section 170B of the Code held that the Petitioner was in fact purchaser of the disputed land, who fraudulently purchased the land belonging to Ramoutinbai in the name of Shivcharan through sham sale deed and subsequently, got the said sale deed executed from Shivcharan in his favour in the year 1983.

From the above facts it is clear that there is evidence that the Petitioner was in possession over the disputed agricultural land from the year 1976 till 1980 when the Amendment Act of 1980 came into force, he did not notify the Sub Divisional Officer about his possession within the specified period and filed his return only on 18.8.1989. The S.D.O after conducting due enquiry and after affording opportunity of hearing to the Petitioner, has passed the impugned order as the Petitioner failed to rebut the presumption available under Sub-section (2) of Section 170-B of the Code and declared that the transaction between the Petitioner and the tribal land owner was fraudulent and directed the Naib Tehsildar to record the disputed agricultural land in the name of the Respondents No. 1 & 2, the triabals, and also restore their possession.

On the basis of aforesaid discussion, this Court is of the considered opinion that there is no illegality or infirmity in the impugned order, which warrants interference in exercise of powers under Article 227 of the Constitution of India. Accordingly, the instant petition being devoid of substance is hereby dismissed.