N. Subramanian @ Shri Mani Iyer vs The State of Bihar and Others

S.B. Sinha, J.—This writ application is directed against an order dated 29.9.1988 passed by Respondent No. 3 as, contained in Annexure-X to this writ application in purported exercise of his power conferred upon him u/s 90 of the C.N.T. Act and thereby rectifying an alleged error in the finally published record of rights in respect of plot Nos. 350, 351 352, 153, 354, 355, 356 and 357 of the Mouza Dimna, P.S. Mango, Dist-Singh bhum.

The facts of the case lie in a very narrow compass.

Admittedly by reason of a sale deed dated 25.6.1965, the lather of the Petitioner, late S.N. Iyer purchased 4 bighas of land out of the aforementioned plots and came in possession thereof. Allegedly the father of the Petitioner and after his death the Petitioner have been in possession of the entire 12 bighas of the land belonging to the predecessor in the interest of the Respondent Nos. 4 to 6 and acquired title in relation thereto by adverse possession.

Admittedly, in village Dimna, the survey settlement operations in terms of Chapter XII of the Chatangpur Tenancy Act, 1908, were initiated. In the said survey settlement operations the plot Nos. as indicated hereinbefore were remembered as 1730, 1732, 1755, 1740 1741 and 1742 in the finally published record of rights, in the finally published record of righte dated 10.8.197 the name of the Petitioners were recorded therein.

On or about 16.9.1984, the Respondents No. 4 to 6 being the successors in interest of the late V.C. Rivett, the vendor of the Petitioner''s father, filed an application before the Respondent No. 3 for correcting the error allegedly crept in the aforementioned record of rights in terms of Section 90 of the Chotanagpur Tenancy Act. By reason of the impugned order dated 29.9. 1988 the said application has been allowed.

Mr. M.Y. Eqbal, earned Counsel appearing on behalf of the Petitioner has raised a short question. According to the earned Counsel the jurisdiction of Collector under the said Act in terms of Section 90 thereof is a limited one and while exercising a power u/s 90 of the said Act, he cannot embark upon an inquiry into the disputed question of title and possession. In support of in aforementioned contention, Mr. Eqbal relied upon an unreported decision of this Court in Mewalul Nigam v. The State of bihar and Ors. in C.W.J.C.C. No. 1001/83 (R) disposed of on 4th February 1938 and order dated 3.7.1987 passed by a Division Bench of this Court in Sisir Kumar Sarkar v. The State of Bihar in C.W.J.C. No. 1855/86 (R). Relying on the aforementioned decisions Mr. M.Y. Bqbal submitted that Respondent No. 4 to 6 could have filed a civil suit if they intended to challenge the title or possession of the Petitioner in respect of the 8 bighas of land which they have acquired by prescription but the application u/s 90 of the Chotanapur Tenancy Act was not maintainable.

Mr. N.K. Prasad, earned Counsel appearing on behalf of the Respondent, Nos. 4 to 6, on the other hand, submitted that from a plain leading of Section 90 of the Act it would appear that the Respondent No. 3 was delegated with the power to adjudicate upon an application filed u/s 90 of the Act and was thus empowered to correct any material manifest error occuring in the record of rights. According to the learned Counsel, in this case, a manifest error has occurred, in view of the fact that admittedly the father of the Petitioner by reason of the aforementioned deed of sale dated 75 6.1965 (Annexure-B contained in the counter affidavit) purchased only 4 bighas of land and not the entire 12 bighas of land Earned Counsel further submits that the revenue authorities while preparing the record of rights could not have considered the question as to whether the Petitioners have acquired a title by adverse possession or not and is this view of the matter the Respondent No. 3 was competent to pass the impugned order as contained in Annexure-8 to the writ application.

Section 90 of the Chotanagpar Tenancy Act reads as fellows:

In case of discovery of bonafide or material error in record-of-rights within five years from the date of the certificate of its final publication under Sub-section (2) of Section 83, the Deputy Commissioner or any Revenue Officer specially empowered by the State Government in this behalf may, on his own motion, or on application made to him within the said period, after holding an enquiry in the prescribed manner, by order in writing. error shall be corrected in the manner specified in the order. Provided that no such correction shall be made--

(i) until reasonable notice has been given to the parties concerned to appear and be heard in the matter.

(ii) if a suit u/s 87 or clause (8) of Section 252 or an appeal under clause (10) of Section 11 or Section 253, affecting such an entry is pending.

From a plain reading of the aforementioned provision it is clear that the Deputy Commissioner or any revenue authority specially empowered by the State Government may take recourse to the aforementioned provision only in the event of discovery of bonafide or material error in the record of rights.

This Court in the case of Mewalal Nigam v. The State of Bihar held as follows:

From a perusal of the aforementioned provision, in my opinion, there cannot be any doubt that the authority concerned exercises a very limited jurisdiction. While exercising the purported jurisdiction u/s 90 of the Act, the authority cannot embark upon a disputed question of title and possession nor can it question the legality or propriety or otherwise of an order passed by a revenue authority or by the revisional authority which in this case was an authority higher than, Respondent No. 2. To me it appears that the impugned order was wholly unwarranted. On a plain reading of Section 90 of the said Act, it is evident that a settlement which has been made in favour of person by the ex-tenure holder whether legally or illegally can not be questioned in a proceeding u/s 90 of the said Act. Only the question of title can be gone into in a suit filed in terms of Section 87 of the said Act which again is subject to the judgment and decree passed by a civil court.

In Sisir Kumar Sarkar v. The State of Bihar also this Court has allowed the writ application holding therein that if a question of title arises the remedy of Respondents was to file a suit.

Under the said Act, the revenue authorities may carry on survey settlement operation in order to make entries in terms of Chapter XII of the Chotanagpur Tenancy Act, inter alia for entering in the record the name of such person who is a tenant or occupant in respect of the land in question. The word ''tenant'' occuring in chapter XII of the Act must be given the same meaning which is contained in Section 3 (XVI) of the Act.

There cannot be any doubt that a right to be recorded as a tenant in the record of rights may also arise when the tenant claims title by prescription. Such a question cannot be said to be a matter falling out side the scope of chapter XII of the said Act.

In fact as has been held in a Full Bench of this Court in Paritosh Maity v. Ghasiram Maity reported in 1987 P.L.J.R. 354 that ultimately such a question can only be adjudicated upon by civil court, it may be mentioned that even in Chapter XII of Act, in terms of Section 87(e) thereof of the Act, a suit before a revenue officer is maintainable for the purpose of determining a question of title.. Decrees passed in such a suit are appealable ones.

In this view of the matter, in my opinion, it cannot be said that the jurisdiction of the Respondent No. 3 while exercising his power conferred upon him u/s 90 of the Chotanagpur Tenancy Act was extended to decide disputed question of title based on adverse possession. A disputed question of title cannot be said to be a bonafide mistake or a material error. Such bonafide mistake or material error, must be found out on the basis of the records of the case itself and while doing so he cannot adjudicate upon a dispute involving serious question of title or possession in respect whereof, as indicated in Mewalal''s case as also Sisir Kumar Sarkar''s case the remedies have been provided for in the Chotanagpur Tenancy Act.

In the result this writ petition is allowed and the order dated 29.9.1988 as contained in Annexure-8 to the writ application is quashed. In the facts and circumstances of the case, there shall, however, be no order as to costs.