Jawa Kachhap vs State Of Jharkhand And Ors

D.N. Patel, J.

This Letters Patent Appeal has been preferred by the original petitioner whose Writ Petition being C.W.J.C. No. 502 of 1999(R) was dismissed by the learned Single Judge vide judgment and order dated 23rd February, 2012 and, hence, the original petitioner has preferred the present Letters Patent Appeal.

Factual Matrix:

● This appellant is claiming to be ownership of the property in question through original owner namely Mahadeo Oraon bearing Plot no. 606, Khata no. 99, ad-measuring 1.02 acres of land situated at Village-Bagichatoli, Tupudana, District- Ranchi.

● Late Prakashmati Devi (respondent no.5-who died during the pendency of the case and now substituted by Atul Bhala) was claiming to be purchaser of the property from her predecessor-in-title (Banwari Lal Sharma).

● Mahadeo Oraon transferred the property to Banwari Lal Sharma somewhere in the year 1944, as alleged by respondent no.5.

● Later on, Title Suit No. 441 of 1959 was instituted by Banwari Lal Sharma in the court of Munsif, Ranchi. On the basis of compromise arrived at between the parties to the litigation, decree was passed on 9th February, 1960.

● The decree passed by the competent civil court was never challenged by any party. The decree passed by the competent civil court was thus accepted by the parties to the litigation right from 9th February, 1960 onwards, till, an application was preferred under Section 71-A of the Chota Nagpur Tenancy Act, 1908 (for the sake of brevity hereinafter to be referred to as "the Act, 1908"). This application was preferred by Bimal Kachhap, who is husband of the present appellant, for restoration of possession of the property in question on the ground that transfer of the property in the year 1944 and decree passed by the competent civil court are null and void because the property was transferred from tribal to non-tribal. This case was registered as SAR Case No. 138 of 1982-83. This case was instituted on 22nd August, 1982 in the court of Special Officer, Scheduled Area Regulation, Ranchi.

● This case was decided by the competent revenue authority vide order dated 6th March, 1986 (Annexure-1) wherein it has been held that Rs.20,000/- compensation shall be paid by respondent no. 5 to Bimal Kachhap. This order was passed under 2nd proviso to Section 71-A of the Act, 1908. Thus, restoration of land was not allowed.

● Bimal Kachhap, who is husband of the appellant, preferred an appeal bearing SAR Appeal No. 56(R)-15 of 1986-87 before the revenue appellate authority.

● The appeal preferred by the husband of this appellant was allowed vide order dated 6th January, 1987 (Annexure-2 to the memo of this Letters Patent Appeal).

● Being aggrieved and feeling dissatisfied by the appellate authority's order, revision application was preferred by Late Prakashmati Devi bearing Ranchi Revenue Revision No. 127 of 1987.

● Meanwhile as the appeal preferred by the husband of the appellant was allowed, possession was handed over to the appellant on 19 th October, 1994 (Annexure-3).

● The revisional authority allowed the revision application preferred by Late Prakashmati Devi vide order dated 6th October, 1998 (Annexure-4) and the matter was remanded for re-fixation of the compensation amount under 2nd proviso to Section 71-A of the Act, 1908.

● Being aggrieved and feeling dissatisfied by the revisional authority's order dated 6th October, 1998, this appellant preferred a Writ Petition being C.W.J.C. No. 502 of 1999(R).

● The aforesaid Writ Petition preferred by this appellant was dismissed by the learned Single Judge vide judgment and order dated 23rd February, 2012 and, hence, the original petitioner has preferred the present Letters Patent Appeal.

Arguments canvassed by the learned counsel for the appellant (original petitioner)

● Learned counsel appearing for the appellant submitted that originally the property was transferred from Mahadeo Oraon to Banwari Lal Sharma in the year 1944, which was based upon no written sale deed and which was oral transfer.

● It is further submitted by the learned counsel appearing for the appellant that in Title Suit No. 441 of 1959 between Banwari Lal Sharma and Mahadeo Oraon, a compromise decree was passed on 9th February, 1960, which is null and void based upon the decision rendered by the Division Bench of this Court reported in 1975 Bihar Bar Council Journal 433 and also based upon the decision reported in 2003 (4) JCR 206. Thus, no right, title and interest can be claimed by the successors of Banwari Lal Sharma. In view of the aforesaid decisions, it is submitted by the learned counsel appearing for the appellant that no error was committed by the appellate authority while deciding SAR Appeal No. 56(R)-15 of 1986-87 vide order dated 6th January, 1987 (Annexure-2 to the memo of this Letters Patent Appeal). These aspects of the matter have not been properly appreciated by the learned Single Judge and, hence, the judgment and order delivered by the learned Single Judge in C.W.J.C. No. 502 of 1999(R) dated 23rd February, 2012 deserves to be quashed and set aside.

● It is also submitted by the learned counsel appearing for the appellant that there was no super structure on the property in question whatsoever arises. There was no existence of Petrol Pump, at all on the property in question. Licenses were required to be taken before the establishment of the Petrol Pump and there is no such evidence on record of legally constructed Petrol Pump. These aspects of the matter have not been properly appreciated by the revisional authority while allowing Ranchi Revenue Revision No. 127 of 1987 vide order dated 6th October, 1998 nor it was properly appreciated by the learned Single Judge while dismissing the Writ Petition preferred by this appellant.

● It is further submitted by the learned counsel appearing for the appellant that after remand of the matter by the revisional authority for re-fixation of the compensation amount under 2nd proviso to Section 71-A of the Act, 1908, the competent revisional authority has not yet finalized the amount of the compensation after remand of the matter.

● It is also submitted by the learned counsel appearing for the appellant that all the revenue authorities have held that transfer of the property was illegal and, hence, 2nd proviso to Section 71-A of the Act, 1908 ought not to have been invoked. On the contrary, the possession ought to have been restored to this appellant. This appellant is claiming only 30 decimals of land out of total 1.02 acres of Plot no. 606, Khata no. 99, Village- Bagichatoli, Tupudana, District-Ranchi.

● It is further submitted by learned counsel appearing for the appellant that after the appellate authority has passed order dated 6th January, 1987, the possession of 30 decimals of land of the aforesaid property was already handed over to this appellant.

Arguments canvassed by the learned counsel for respondent no.5

● It is submitted by learned counsel appearing for respondent no.5 that property was transferred in the year 1944. The suit was filed in the year 1959 and compromise decree was passed on 9th February, 1960 by the court of Munsif at Ranchi. This decree was never challenged by the predecessors-in-title of this appellant. Even on today, the decree passed by the competent civil court is not challenged by this appellant. The title of the property cannot be decided by the revenue authority. The title of the property can be decided by the competent civil court and if any wrong decree is passed by the lower court, it is required to be challenged in the appeal and it is required to be quashed and set aside by the appellate authority, otherwise the decree passed by the competent civil court, so far as title of the property is concerned, is valid till it is declared as void by the appellate authority.

● It is further submitted by learned counsel appearing for respondent no.5 that as the title was vested in Banwari Lal Sharma and later on property was transferred by registered sale deed on 26th March, 1960 to Lalit Kumar Poddar and Nand Kumar Poddar, who started Petrol Pump upon the property in question which is Plot no. 606, Khata no. 99, Village- Bagichatoli, Tupudana, District- Ranchi. Later on, aforesaid land was transferred to Late Prakashmati Devi with super structure on 10th October, 1973 by registered sale deed.

● It is further submitted by learned counsel appearing for respondent no. 5 that the property, which was purchased by Lalit Kumar Poddar and Nand Kumar Poddar was partitioned and the property in question was allocated to Nand Kumar Poddar, who transferred the property to Late Prakashmati Devi.

● It is further submitted by learned counsel appearing for respondent no.5 that originally the property was transferred in the year 1944 from Mahadeo Oraon to Banwari Lal Sharma and on 22nd August, 1982, successor-in-title, namely, Bimal Kachhap filed an application under Section 71-A of the Act, 1908 for restoration of the property. This application was filed after approximately 38 years. This application was not tenable at law being highest time barred. The application was numbered as SAR Case No. 138 of 1982-83. The land was not restored in favour of the predecessor-in-title of this appellant, but, 2nd proviso to Section 71-A of the Act, 1908 was invoked and compensation of Rs.20,000/- was ordered to be paid by respondent no.5 to Bimal Kachhap.

● The appeal preferred by Bimal Kachhap was allowed vide order dated 6th January, 1987 in SAR Appeal No. 56R-15 of 1986-87 and, hence, revision application was preferred by respondent no.5 being Ranchi Revenue Revision No. 127 of 1987, which was allowed by the Commissioner, South Chotanagpur Division, Ranchi vide order dated 6th October, 1998 (Annexure-4) and the matter was remanded for re-fixation of the compensation.

● This order was challenged in the Writ Petition by this appellant being C.W.J.C. No. 502 of 1999(R) which was dismissed by the learned Single Judge. No error has been committed by the learned Single Judge in dismissing the Writ Petition preferred by this appellant and, hence, this Letters Patent Appeal may not be entertained by this Court.

● It is also submitted by learned counsel appearing for respondent no.5 that the arguments canvassed by the learned counsel for the appellant that there was no existence of Petrol Pump, may not be accepted by this Court. The existence of Petrol Pump has been referred by the Special Officer, Scheduled Area Regulation, Ranchi in SAR Case No. 138 of 1982-83, order dated 6th March, 1986 (Annexure-1) as well as in the order passed by the Commissioner, South Chotanagpur Division, Ranchi dated 6th October, 1998 in Ranchi Revenue Revision No. 127 of 1987 (Annexure-4 to the memo of this Letters Patent Appeal) and, hence, against these finding of facts at the Letters Patent Appeal's stage, it may not be held that there was no Petrol Pump.

● It is also submitted by learned counsel appearing for respondent no. 5 that even in the registered sale deed between Nand Kumar Poddar and Late Prakashmati Devi dated 10th October, 1973, there was reference of Petrol Pump.

Reasons:

Having heard learned counsels for both the sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts, reasons and judicial pronouncements:-

(i) The property involved in this case is Plot no. 606, Khata no. 99, ad-measuring 1.02 acres situated at Village- Bagichatoli, District- Ranchi, out of which, dispute between the parties to this litigation is only for 30 decimals of land.

(ii) Looking to the facts and circumstances of the case, it appears that property in question was transferred in the year 1944. Title Suit No. 441 of 1959 was filed by Banwari Lal Sharma against Mahadeo Oraon before the competent civil court-in the court of Munsif, Ranchi. Respondent no. 5 is claiming right, title and interest in the property through Banwari Lal Sharma, whereas, this appellant is claiming right, title and interest in the property through Mahadeo Oraon.

(iii) The suit was decreed in favour of the plaintiff vide order dated 9th February, 1960 based upon compromise arrived at between the parties.

(iv) The predecessors-in-title of this appellant had never challenged the decree passed by the competent civil court dated 9th February, 1960. Even today also, there is no challenge to the said decree in any appellate forum. The decree passed by the competent civil court in Title Suit No. 441 of 1959 has attained its finality.

(v) It has been held by the Hon'ble Supreme Court in the case of Ittyavira Mathai v. Varkey Varkey reported in AIR 1964 SC 907 in paragraph 8, which reads as under:

"8. The first point raised by Paikedy for the appellant is that the decree in OS No. 59 of 1093 obtained by Anantha Iyer and his brother in the suit on the hypothecation bond executed by Ittiyavira in favour of Ramalinga Iyer was a nullity because the suit was barred by time. In assuming that the suit was barred by time, it is difficult to appreciate the contention of learned counsel that the decree can be treated as a nullity and ignored in subsequent litigation. If the suit was barred by time and yet, the court decreed it, the court would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. But it is well settled that a court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities . Learned counsel, however, referred us to the decision of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh and contended that since the court is bound under the provisions of Section 3 of the Limitation Act to ascertain for itself whether the suit before it was within time, it would act without jurisdiction if it fails to do so. All that the decision relied upon says is that Section 3 of the Limitation Act is peremptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. The Privy Council has not said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity."

(emphasis supplied)

(vi) It has been held by the Hon'ble Supreme Court in the case of Rafique Bibi v. Sayed Waliuddin reported in (2004) 1 SCC 287 in paragraph 8, which reads as under:

"8. A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings."

(emphasis supplied)

(vii) It has been held by the Hon'ble Supreme Court in the case of Balvant N. Viswamitra v. Yadav Sadashiv Mule reported in (2004) 8 SCC 706 in paragraphs 15 and 16, which read as under:

"15. From the above decisions, it is amply clear that all irregular or wrong decrees or orders are not necessarily null and void. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings.

More than a century ago, in Malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa the executing court wrongly held that a particular person represented the estate of the deceased judgment-debtor and put the property for sale in execution. Drawing the distinction between absence of jurisdiction and wrong exercise thereof, the Privy Council observed:

"He contended that he was not the right person, but the Court, having received his protest, decided that he was the right person, and so proceeded with the execution. In so doing the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed."

(emphasis supplied)

In view of the aforesaid decisions, the decree passed by the competent civil court is required to be declared as void, otherwise, the decree passed by the competent civil court will be valid one till it is declared as void by the competent appellate forum. There cannot be any presumption of the fact that the decree passed by the civil court is void.

(viii) The property was thereafter transferred from Banwari Lal Sharma to Lalit Kumar Poddar and Nand Kumar Poddar vide registered sale deed dated 26 th March, 1960, who started Petrol Pump upon the property in question.

(ix) Thereafter, there was partition between Lalit Kumar Poddar and Nand Kumar Poddar and the property was given to Nand Kumar Poddar.

(x) Nand Kumar Poddar transferred the property in question by the registered sale deed dated 10 th October, 1973 to respondent no.5- Prakashmati Devi. In this sale deed also, there is reference of existence of Petrol Pump upon the property in question.

(xi) Neither the transfer deed was ever challenged for several years by this appellant nor the sale deed was challenged by the predecessors-in-title of this appellant. Several years have passed by now from 1944 onwards.

(xii) On 22nd August, 1982, an application was preferred by Bimal Kachhap under Section 71-A of the Act, 1908 for restoration of the possession, which was preferred after approximately three decades. For the ready reference, Section 71-A of the Chota Nagpur Tenancy Act, 1908 reads as under:

"71-A. 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 [or a Mundari Khunt-Kattidar or a Bhuinhari] who is a member of the Scheduled Tribes has taken place in contravention of Section 46 [or Section 48 or Section 240] or any other provisions 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 transfer, who is proposed to be evicted, to show cause and after making necessary inquiry 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 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 Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate such 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 of the vicinity or pays adequate compensation to be determined by the Commissioner for rehabilitation of the transferor :

Provided also that if after an inquiry 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 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."

(emphasis supplied)

(xiii) It further appears from the facts of the case that such application for restoration of possession, ought to have been preferred within 30 years, as stated in Bihar Scheduled Areas Regulation, 1969 especially Clauses 3 and 4 thereof. The Bihar Scheduled Area Regulation, 1969 has been enacted as per paragraph 6 of Schedule-V which is enacted under Article 244 of the Constitution of India. Thus, the very application was beyond the period of limitation.

(xiv) Moreover looking to the provisions of Section 71-A of the Act, 1908 especially 2nd proviso thereof, it appears that powers have been vested to pass an order of compensation, if the possession is not to be restored and, therefore, Special Officer in SAR Case No. 138 of 1982-83 passed an order on 6th March, 1986 (Annexure-1) that the compensation worth Rs.20,000/-will be paid by respondent no.5 to Bimal Kachhap, who preferred an application under Section 71-A of the Act, 1908.

(xv) This order was absolutely in consonance with the provisions of the Act, 1908 because there was super structure upon the property in question, namely, Petrol Pump and, therefore, at the highest compensation can be paid to successor-in-title of the property, who is claiming to be owner of the property in the year 1944.

(xvi) Much has been argued out by the learned counsel appearing for the appellant that there was no existence of Petrol Pump at all and, therefore, the land was to be restored. We are not in agreement with this contention mainly for the reasons that:

(a) The Special Officer in SAR Case No. 138 of 1982-83 has concluded that there was existence of Petrol Pump.

(b) Revisional authority in Ranchi Revenue Revision No. 127 of 1987 vide order dated 6th October, 1998 (Annexure-4) has also concluded that there was existence of Petrol Pump.

(c) The appellant's witness has also accepted the existence of Petrol Pump.

(d) Even in the sale deed between Nand Kumar Poddar and respondent no.5 dated 10th October, 1973, there was reference of existence of a Petrol Pump.

Thus, in view of these consistent findings, we are not inclined to hold that there was no Petrol Pump upon the property in question.

(xvii) The order passed in SAR Case No. 138 of 1982-83 was challenged by Bimal Kachhap in the appeal being SAR Appeal No. 56R-15 of 1986-87. This appeal was allowed by Additional Collector, Ranchi vide order dated 6th January, 1987 (Annexure-2) and the possession was restored to predecessor-in-title of this appellant from respondent no.5 on 19th October, 1994 (Annexure-3).

(xviii) This appellate order was challenged by respondent no.5 by way of Ranchi Revenue Revision No. 127 of 1987 before the Commissioner, South Chotanagpur Division, Ranchi. This revision application was allowed vide order dated 6th October, 1998 and the matter was remanded for re-fixation of the compensation amount.

(xix) Thus, it appears that because of substantial structure upon the property in question from several decades, the property was not ordered to be restored, but, compensation was to be paid under 2nd proviso to Section 71-A of the Act, 1908. Thus, there was no error committed by the Special Officer, while deciding SAR Case No. 138 of 1982-83 especially to the effect that property cannot be restored. Same finding has been continued by the revisional authority in Ranchi Revenue Revision No. 127 of 1987 vide order dated 6th October, 1998 because of substantial structure of Petrol Pump upon the property in question. These aspects of the matter have been properly appreciated by the learned Single Judge while dismissing the Writ Petition preferred by this appellant being C.W.J.C. No. 502 of 1999(R) vide judgment and order dated 23rd February, 2012.

(xx) It further appears from the facts of the case that decree was passed by the competent civil court in Title Suit No. 441 of 1959 on 9th February, 1960. This decree was never challenged by the predecessors-in-title of this appellant. The title of the property cannot be decided by the revenue authority. The predecessors-in-title of this appellant have never challenged the decree on the ground that fraudulent decree was obtained in any collusive suit. Never any appeal has been preferred with this allegation by the appellant nor by the predecessors-in-title of this appellant.

As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we see no reason to entertain this Letters Patent Appeal. No error has been committed by the learned Single Judge while dismissing the Writ Petition being C.W.J.C. No. 502 of 1999(R) vide judgment and order dated 23rd February, 2012. This Letters Patent Appeal is, therefore, dismissed.

The State Government shall decide the amount of the compensation as the matter was remanded by the Commissioner, South Chotanagpur Division, Ranchi vide order dated 6th October, 1998 (Annexure-4) as early as possible and practicable. It is now high time for the high ranking administrative officers of the Revenue Department, State of Jharkhand to initiate action against those lethargic officers, who have not yet re-fixed the amount of compensation, despite the order passed by the Commissioner, South Chotanagpur Division, Ranchi dated 6th October, 1998. Departmental action may be initiated against such type of lethargic officer by the State Government.

Registry of this Court is directed to send a copy of this order to the Secretary, Revenue Department, State of Jharkhand, Ranchi.