Fulchand
Munda Vs. State of Bihar & Ors. [2008] Insc 86 (24 January 2008)
P.P.
Naolekar & Dalveer Bhandari P.P. Naolekar,J.
1. The
brief facts of the case necessary for deciding the questions involved are that
the land of plot Nos. 1695, 517 and 802 under Khata No. 288 within Khewat No.
6/1 of Village Hocher, P.S. Kanke, District Ranchi was recorded in the record
of rights as Bakast Bhuinhari land in the name of Chamtu Pahan & others as
landlords. In the record of rights in the remarks column, these lands were
shown in possession of Kolha Kumhar & others, the predecessors-in-interest
of the private respondents herein as Beyayani Bakbaje. The recorded bhumidar Chamtu
Pahan & others filed a title suit against Kolha Kumhar & others for
relief of declaration of title and recovery of possession.
The
said suit was decreed by the trial court and the appeal preferred by the
predecessors- in-interest of the respondents herein was dismissed. A second
appeal being Appeal from Appellate Decree No. 1909 of 1948 filed by the
defendants in the original suit was allowed by the High Court on 20.9.1951 and
the judgment & decree passed by the trial court and that of the first
appellate court was set aside. The Court came to the finding that the
appellants predecessors neither redeemed mortgage nor came in possession
of the land and that the suit for recovery of possession was not maintainable.
The Court recorded the finding that there was an oral usufructuary mortgage as
not yet been repaid and that mortgage, under Section 59 of the Transfer of
Property Act, is bad in law and as such the defendants possession as
mortgagees must be ignored. After commencement of the Bihar Scheduled Areas
Regulation, 1969 (Regulation 1 of 1969), successive applications were filed
under Section 71A of the Chota Nagpur Tenancy Act, 1908 (for short the CNT
Act) by the predecessors-in-interest of Chamtu Pahan bearing SAR Nos.
65/76, 82/77 and 543/83. All these applications were ultimately rejected by the
Special Officer, Scheduled Areas Regulation, in terms of the orders dated
16.9.1976, 7.7.1977 and 31.12.1983 respectively holding that the
predecessors-in-interest of the respondents had perfected their title and the
applications for restoration were barred by limitation.
Despite
rejection of the suit and the applications moved under Section 71A of the CNT
Act, a fresh application was moved by the appellant claiming himself to be the
heir of Chamtu Pahan alleging therein that he by caste is Munda and is a member
of the Scheduled Tribes and is the priest (Pahan) of his village and the land
in question measuring a total area of 6.38 acres is Bakast Bhuinhari Pahani
land recorded in the name of his grandfather Chamtu Munda/Pahan and others in
the record of rights.
It was
alleged that the land in question is community land, the usufruct of which is
used for the community feast at the time of Sarna Puja or Bhut Puja held by the
community members on several occasions of the agricultural year and the said
land cannot be transferred to a person other than the members of a Bhuinhari
family as provided under Section 48 of the CNT Act. It was further alleged that
although such land is non-alienable, the ancestors of the respondents by
playing fraud on the grandfather of the appellant, namely, Chamtu Munda, took
the same on oral zerpesgi (mortgage) for Rs.154/- for a period of 20 years as
mentioned in the record of rights in the year 1922 and, thus, the transfer
being in contravention of Section 46 of the CNT Act, possession of the land be
restored. The application moved by the appellant was allowed vide order dated
21.12.1987 by the Special Officer, Scheduled Areas Regulation, who directed
restoration of possession of the land in favour of the appellant. The private
respondents herein thereupon preferred an appeal before the Additional
Collector, Ranchi which was allowed by him.
Considering the judgment & order passed in the second appeal by the High
Court as also the orders passed on successive applications under Section 71A of
the CNT Act, he came to the conclusion that fresh application under Section 71A
was not maintainable. Consequently, the order of restoration of possession was
set aside. The appellant preferred a revision before the Divisional
Commissioner under Section 217 of the CNT Act, which was allowed and
restoration of possession order was restored. That was challenged by the
respondents by filing a writ petition in the High Court. Learned Single Judge
of the High Court while allowing the writ petition held that the revisional
authority committed an error in ignoring the findings arrived at by the High
Court in the second appeal and also the successive orders passed by the Special
Officer earlier rejecting the applications for restoration filed by the
predecessors-in-interest of the appellant. The Court also held that the
Commissioner totally ignored the effect of Section 27 of the Limitation Act and
failed to see that the application for restoration was barred by limitation as
also by the principle of res judicata. The order of the learned Single Judge
was upheld by the Division Bench in letters patent appeal. That is how the
matter has come before us.
2. It
is contended by Mr. S.B. Upadhyay, learned senior counsel for the appellant
that the orders of the High Court are contrary to the provisions, intendment,
letter and spirit of the Bihar Scheduled Areas Regulation, 1969 (Regulation 1
of 1969) which is a welfare legislation concerning the members of the Scheduled
Tribes, which is mainly intended, by insertion of Section 71A in the CNT Act,
for restoration of their lands transferred in favour of non-tribals
fraudulently or in contravention of Sections 46 and 48 and other provisions of
the CNT Act. It is further urged by the learned senior counsel that there is no
limitation prescribed for resorting to the provision of Section 71A of the CNT
Act; and that the earlier decision of the High Court will not operate as res judicata.
Whereas,
it is contended by Mr. Sunil Kumar, learned senior counsel for the private
respondents that when successive applications under Section 71A of the CNT Act
moved by the predecessors-in-interest of the appellant have been rejected, the
Special Officer committed an error in entertaining the fresh application moved
by the appellant. It is further urged that the earlier decision of the High
Court operates as res judicata and in any case the principle of constructive res
judicata would be applicable as all the questions available with the appellant
to be agitated before the court shall be deemed to have been adjudicated
against him.
3. To
better appreciate the arguments advanced by the counsel on both sides, it would
be pertinent to note the relevant provisions of the Chota Nagpur Tenancy Act,
1908(CNT Act). The relevant provisions of Section 46(1) of the CNT Act as it
stood in 1908 Act and substituted by Amendment Act of 1947 which came into
force with effect from 5.1.1948 read as under:
Restrictions
on transfer of their rights by raiyats:
(1) No
transfer by a raiyat of his right in his holding or any portion thereof
(a) by
mortgage or lease for any period expressed or implied which exceeds or might in
any possible event exceed five years, or
(b) by
sale, gift or any other contract or agreement, shall be valid to any extent:
xxx xxx
xxx
4. In
the CNT Act, Section 71A was inserted by the Bihar Scheduled Areas Regulation,
1969 (Regulation 1 of 1969). Later on, by the Bihar Scheduled Areas (Amendment)
Regulation, 1985 (Regulation 1 of 1985), after the word `raiyat, the words
`or a Mundari Khunt Kattidar or a Bhuinhar were inserted. Section 71A, as
amended by Bihar Scheduled Areas (Amendment) Regulation, 1985, reads as under:
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 Bhuinhar
who is a member of the Scheduled Tribes has taken place in contravention of
Section 46 or any other provision 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 transferee who is proposed to be evicted, to show
cause and after making necessary enquiry 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, resettle it with another raiyat belonging
to the Scheduled Tribes according to the village custom for the disposal of an
abandoned holding:
xxx xxx
xxx
5. As
per Section 46 of the CNT Act, 1908, as it stood in 1922, no transfer by a raiyat
of his right in his holding or any portion thereof by mortgage or lease for any
period expressed or implied would be effected which exceeds or might in any
possible event exceed five years.
It
further restricted transfer by way of sale, gift or any other contract or
agreement and such transfer shall not be valid to any extent. The suit of the
appellants predecessors for possession on the basis of oral mortgage was
culminated into a decision by the High Court in second appeal (AFAD
No.1909/1948) where a clear-cut finding was recorded that there could not have
been an oral usufructuary mortgage of immovable property for value of more than
Rs.100/- under Section 59 of the Transfer of Property Act, the same being bad
in law. Thus, the predecessors of the respondents could not be treated to be in
possession under the mortgage.
Under
the CNT Act as it stood in the year 1922, the transfer could have been
challenged as it contravenes Section 46 of the CNT Act, being a contract or
agreement of transfer. That plea having not been taken by the appellants
predecessors, the appellant and his predecessors were not entitled to raise the
question of transfer being invalid under Section 46 of the CNT Act as it stood
in 1922 on the principle of constructive res judicata. Section 46 of the CNT
Act, by virtue of its amendment with effect from 5.1.1948, restricts and
prohibits transfer by a raiyat of his right in his holding or any portion
thereof by mortgage or lease for any period expressed or implied, which exceeds
or might in any possible event exceed five years. It further restricts transfer
by a raiyat of his right in his holding or any portion thereof, apart from
mortgage etc., by way of sale, gift or any other contract or agreement and if
such transfer is effected it shall be invalid. Section 71A of the CNT Act
authorizes the Deputy Commissioner to evict the transferee from such land and
to restore possession to the raiyat if the transfer is being effected in
contravention of Section 46 or any other provision of the CNT Act.
Thus,
if there is contravention of Section 46, the Deputy Commissioner is authorized
to evict the transferee from such land and restore it to the transferor under
Section 71A of the CNT Act. The predecessors of the respondents could not be
treated to be in possession in contravention of Section 46 as possession of
land by them has been upheld by the High Court in its decision.
The
decision of the High Court cannot be reopened by taking advantage of amendment
in Section 46 which came into force with effect from 5.1.1948. Section 71A of
the CNT Act would be attracted only in case the Deputy Commissioner finds that
the impugned transfer was made in contravention of Section 46 or any other
provision of the CNT Act. The decision of the High Court comes in the way of
the Deputy Commissioner in arriving at any such findings. The possession having
been denied to the appellants predecessors holding that there was no
contravention of Section 46 as it stood in 1922, the appellant cannot be
permitted to take advantage under Section 46 on same having been amended by an
Act of 1947. That apart, although there is no period of limitation prescribed
for exercising the power under Section 71A by the Deputy Commissioner, the
party affected is called upon to approach the appropriate authority or the
power has to be exercised by the Deputy Commissioner within a reasonable period
of time. The gap of more than 50 years for challenging the transaction of 1922
cannot be said to be a reasonable time for exercising the power even if it is
not hedged in by a period of limitation.
6. For
the aforesaid reasons, the appeal is without substance and is dismissed.
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