Brisa Munda
Vs. Chanoo Kumari @ Most Dumari & Ors [1995] INSC 697 (16 November 1995)
G.N.
Ray, G.T. Nanavati
ACT:
HEAD NOTE:
O R D
E R
Leave
granted.
Heard
learned counsel for the parties. In this appeal the appellant who is admittedly
a tribal residing in Chhotanagpur Division made an application under Section 46
(4)(a) under Chhotangpur Tenancy Act for getting back possession of the
disputed land which according to the appellant was surrendered by the father of
the appellant and on such surrender the said land was settled to the respondent
Chando Kumari @ Most Dumari and Ors. Such application was made on 12th January.
1976 before the Deputy Commissioner. Land Reforms. The application was rejected
by the Deputy Commissioner. The appellant thereafter preferred an appeal before
the Additional Collector and the case was remanded back to the Deputy
Commissioner. Land Reforms but the matter was again dismissed by the said
Deputy Commissioner by order dated 29th January. 1994. The appellant again
preferred an appeal before the Additional Collector land Reforms. But
Additional Collector again passed an order of remand before the Deputy
Commissioner.
Such
order of remand was challenged by the appellant in revision. By an order dated 8th October, 1986. the Commissioner allowed the
revision application. The Commissioner inter alia came to the finding that the
appellant was in possession within a period of 12 years from the date of making
the said application under Section 46(4)(a) and as such there was no occasion
to remand the matter for decision by the Deputy Collector.
It
appears that in coming to said finding about the possession of the appellant
within 12 years from the date of making the application under Section 46
reliance was made to the entry in the Bhujarat Record of Rights of 1960 where
the possession of the appellant was noted. The Commissioner also took into
consideration the fact that the opposite parties had produced rent receipts
only from 1961 onwards.
Against
the said decision of the Commissioner in favour of the appellant, the opposite
parties preferred a W.P. before the Ranchi Bench of Patna High Court and by an
order dated 23rd April. 1991, the single Judge of the Patna High Court allowed
the said W.P. relying on a Full Bench decision of the Patna High Court in the
case of Sam Chandra Sahu versus State of Bihar. It was held in the said
decision that forcible possession did not amount to transfer.
The
appellant thereafter preferred an appeal before the Division Bench of the High
Court but such appeal was also dismissed. Thereafter a special leave petition
was filed before this Court out of which this appeal arises.
It may
be stated here that the decision of the Full Bench of Patna High Court in Ram Chander
Sahu and Ors. Versus State of Bihar has been set aside by this Court on an
appeal filed by one of the respondents in the said case namely, Pandey Oraon
and the decision of this Court is reported in 1992 (2) Suppl. SCC 77 (Pandey Oraon
Versus Ram Chander Sahu and Ors.). It has been held by this Court that the
expression transfer appearing in Section 71 (a) of the Chhotanagpur Tenancy Act
must be interpreted liberally in the context of the beneficial legislation for
protection of a member of the Scheduled Tribe and it has been held that the
transfer as understood in Transfer of Property Act should not be applied for
the purpose of deciding the case of transfer under the Chhotanagpur Tenancy
Act. It has been held that surrender by a tenant will also amount to transfer
for getting relief under the said Act.
Mr. Raju
Ramchandran, learned counsel appearing for the appellant has contended that in
the instant case the finding of the revisional authority namely the
Commissioner that the application under Section 46(4)(a) was made within 12
years from the date of dispossession has been made very objectively by placing
reliance on the Bhujarat Record of Rights of 1960 and such finding should be
accepted by this Court to be correct. He has submitted that although the
decision of this Court in Pandey Oraon's case was made relating to a case under
Section 71-A of Chhotanagpur Tenancy Act but this Court has clearly indicated
in the said decision that transfer for the purpose of this Act should be
liberally construed and a similar case of surrender has been held to be a
transfer within the meaning of the said Act. He has therefore submitted that
the impugned judgment must be set aside and the application made by the
appellant under Section 46 of the Chhotanagpur Tenancy Act should be allowed.
Mr. Jha.
learned counsel appearing for the respondent has however disputed the said
contention of Mr. Ramchandran and it has been contended by Mr. Jha that Section
71-A was inserted by amendment of Chhotanagpur Tenancy Act and said section has
been made applicable donly in respect of area specified in the Schedule. The
disputed land is situated outside the area under the said Schedule. Hence,
Section 71- A of the Chhotanagpur Tenancy Act has no manner of application in
respect of land in question. He has also submitted that although the
Commissioner had come to a finding that the applicant had made an application
within 12 years from the date of dispossession but such finding has not been
accepted by the High Court. The High Court has come to the finding that the
respondents had been in possession of the property for a long time and as such
the application for annulling by transfer was parred by limitation.
After
taking into consideration the facts and circumstances of the case and the
contentions made by the learned counsel for the parties, it appears to us that
the Commissioner in disposing of the revisional application had placed reliance
on Bhujarat Record of Rights made in 1960 where the name of the applicant was
recorded as in possession of the land in question. The presumption arising from
the said record of right, therefore, clearly stood in favour of the appellant.
We are of the view that the finding of the Commissioner that the appellant had
made the said application under Section 46 within 12 years from the date of dispossession
need not be disturbed and we accept such finding to be correct. In this case an
application under Section 46(4)(a) has been made. It is therefore not at all
necessary whether Section 71 A incorporated by amendment is applicable in
respect of the land in question.
It
appears to us that Mr. Ramchandran is justified in his contention that the
decision rendered in Pandey Oraon's case by this Court clearly indicates that
the expression transfer appearing in Chhotanagpur Tenancy Act must be liberally
construed and the surrender made by a tribal should be construed as a transfer
under the said Tenancy Act. Accordingly, the said application under Section
46(4)(a) under the Chhotanagpur Tenancy Act of the appellant was within time
and in the facts of the case, the application should be allowed. We order
accordingly by setting aside the impugned judgment.
It
however appears that the respondents have come out with a case that substantial
structure had been constructed by them on the said land. What is the nature of
the said structure and what should be the value of such structure requires to
be decided in accordance with the proviso to Sub-section 4 A(c) of Section 46
of Chhotanagpur Tenancy Act by the Deputy Commissioner Land Reforms. We,
therefore, direct the Deputy Commissioner to decide the claim of the
respondents for relief under the proviso to Sub-Section 4A(c) of Section 46 of Chhotanagpur
Tenancy Act. Since the matter is pending for a long time, the Deputy
Commissioner is circuited to dispose of such claim within a period of six
months from the date of the communication of this order. The appeal is
accordingly disposed of without any order as to cost.
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