Kishun Barai and Others vs Huro Pandey and Others

Mahabir Prasad, J.—This appeal is by the plaintiffs from a decision of the Additional District Judge of Dumka confirming a decision of the Subordinate Judge of Deoghar dismissing their suit for recovery of possession of plot No. 1026 lying in mouza Rohni.

The plaintiffs claim to have been in possession of the land in question for more than 12 years and to have acquired right of occupancy therein. It is alleged that at the instigation of their enemies the tenants who were wrongly recorded as being in possession of this land filed Title suit No. 17 of 1941 against the plaintiffs in the Court of the Deputy Collector, Deogbar, for recovery of possession of the disputed land. That suit was, however, compromised on 26th April 1941. In the petition of compromise which was made a part of the decree the possession of the plaintiffs over this very land was acknowledged, and it was stated that the plaintiff of that suit, father of the present defendant 3, was wrongly recorded as tenant of this land although he never had possession over it. It appears that after this compromise was recorded and Title Suit No. 17 of 1941 was dismissed on 28th July 1941, defendant 1, Huro Pandey, filed an objection before the Sub-divisional Officer, Deoghar, under Regulation III of 1872 for eviction of the plaintiffs on the ground that they had illegally got the land sold to them by the recorded tenants. That objection was registered as an eviction case under the said Regulation, being case No. 203 of 1941-42. On enquiry being made by a Kanungo, the Sub-divisional Officer recommended to the Deputy Commissioner, Santal Parganas, for the eviction of the plaintiffs from the plot in suit and settlement of the same with some other deserving raiyat. The Deputy Commissioner, however, set aside the Sub-divisional Officer''s recommendation, and did not pass the order of eviction. It appears that Huro Panday, defendant 1, then moved the Commissioner of the Bhagalpur Division who, exercising his revisional jurisdiction, set aside the order of the Deputy Commissioner, and directed the Sub-divisional Officer of Deoghar to evict the plaintiffs and settle the plot with defendant 1. The plaintiffs'' case is that they have been wrongly evicted from the land in suit and the order of eviction passed by the revenue authorities was ultra vires and with, out jurisdiction.

Defendant l, Huro Pandey only, contested the suit. His evidence is that the order passed by the Commissioner under Regulation III of 1872 evicting the plaintiffs is final and conclusive and cannot be set aside by the civil Court. He also alleges that the plaintiffs were not in possession of the land for more than 12 years and had not acquired a right of occupancy therein, that the compromise petition and the decree passed in title suit of 1941 were collusive and fraudulent, and as such nullity and did not confer any title on the plaintiffs.

The Court of first instance held that the compromise decree passed in Title Suit No. 17 of 1941 was fraudulent and collusive and was brought into existence with a view to defeat the provisions of Section 27 of Regulation III of 1872, as also that the plaintiffs were not in possession of the land in suit for more than 12 years and had not acquired a right of occupancy therein, and accordingly dismissed the suit.

The learned District Judge on appeal confirmed the findings of the learned Subordinate Judge and upheld the decree passed by him dismissing the suit of the plaintiffs.

5-a. For the appellants what has been urged before us is this. The compromise decree in Title Suit No. 17 of 1941 did not purport to create any right in favour of the defendants of that suit (the plaintiffs). It merely, as stated therein, affirmed, as the fact was, that the defendants of that suit were in possession of the land from before the settlement operations, and that the plaintiffs of that suit (the defendants 2nd party of the present suit) had no sort of claim over the land in suit in spite of the fact that the names of the plaintiffs of that suit were entered in the record of rights. The argument is that if this compromise was validly arrived at and was not vitiated by any fraud or collusion, as the case of the plaintiff is, it was not a transaction which could be construed as a transfer of an interest by a raiyat in his holding by sale, gift, mortgage, lease or any other contract or agreement, which could attract the operation of Section 27 of Regulation III of 1872. Secondly, it is argued that if, on the other hand, this compromise was as held by both the Courts below, fraudulent and collusive, it did not and could not operate to transfer any right from a raiyat to any other person, that even so, the revenue authorities could not exercise the jurisdiction vested in them by Section 27 of the Regulation to evict a transferee in the circumstances mentioned therein. Defendant l, therefore, in any event as a settlee from the Deputy Commissioner has no right to remain on the land, and the plaintiffs having been wrongfully dispossessed of the land of which they were in possession on the date of the proceedings under Regulation III of 1872, are entitled to be put back in the same position which they occupied before the proceeding under the Regulation were initiated.

The contention raised on behalf of the appellants seems well founded. Section 27 of the Regulation is:

(1) No transfer by a raiyat of his right in his holding or any portion thereof by sale, gift, mortgage, lease or any other contract or agreement shall be valid unless the right to transfer has been recorded in the. record of rights, and then only to the extent to which such right is so recorded.

(2) No transfer in contravention of Sub-section (1) shall be registered, or shall be in any way recognised as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction.

(3) If at any time it comes to the notice of the Deputy Commissioner that a transfer in contravention of Sub-section (1), has taken place he may, in his discretion, evict the transferee and either restore the transferred-land to the raiyat or any heirs of the raiyat who has transferred it, or resettle the land with another raiyat according to the village custom for the disposal of an abandoned holding: Provided (a) that the transferee whom it is proposed to evict has not been in continuous cultivating possession for twelve years; (b) that he is given an opportunity of showing cause against the order of eviction; and (c) that all proceedings of the Deputy Commissioner under this section shall be subject to control and revision by the Commissioner.

It will appear, therefore, that the jurisdiction of the Deputy Commissioner to evict a person in possession of a holding is dependent upon there being a transfer of the holding in contravention of Sub-section (1). Unless, therefore, there is an invalid transfer of a right of a raiyat in his holding and the person in possession comes on the land as a result of the transfer, proceedings u/s 27 of the Regulation cannot be initiated. It is not every person who comes into possession of this holding in the place of the recorded tenants against whom proceedings under the Regulation can be started; for instance, if a person succeeds in wrongfully evicting a recorded tenant and be in possession of the holding as a trespasser, it is clear that he cannot be evicted by the revenue authorities by proceedings u/s 27 of the Regulation. The plaintiffs in the present case on the findings of the Courts below that the compromise was collusive and fraudulent must be deemed to have come into possession of this holding without any right whatsoever and are trespassers and as such they could not be evicted by a proceeding u/s 27 of the Regulation. The revenue authorities certainly acted in excess of their jurisdiction in so evicting the plaintiffs. It appears that the view taken by the Deputy Commissioner who set aside the recommendation of the Sub-divisional Officer for eviction of the plaintiffs from the holding in question was correct. The Commissioner was certainly wrong in passing the order of eviction on the finding that the plaintiffs did not succeed in proving that they were in possession of this holding for more than 12 years and therefore, not entitled to the benefits of proviso (a) to Section 27. It is to be seen that even a transferee from the recorded tenant if he is allowed to remain in possession for 12 years cannot be evicted. The proviso in question is more in the nature of a bar against eviction of transferees who from the date of the transfer completed possession for 12 years. A person who is not in possession of the holding as a transferee is not within the mischief of the section and is not liable to be evicted whether he has been in possession for twelve years or not. In view of these considerations it must be held that the order of the revenue authorities under Regulation III of 1872 was ultra vires and without jurisdiction and could not validly operate to evict the plaintiffs.

In the result, the appeal is allowed, the judgment and decree passed by the Courts below are set aside, and the plaintiffs'' suit is decreed with costs throughout.

Manohar Lall J,

I agree.