Ratnaker Bhengra JUDGMENT
1. Heard learned counsel for the appellants, learned counsel for the State as well as learned counsel for the private respondents, who were the petitioners in C.W.J.C. No. 4232 of 1995(P).
2. The appellants herein, claiming to be the 16 anna raiyats of Mouza Billari in the district of Godda, have challenged the order dated 13.10.2003, passed by the Hon'ble Single Judge of this Court, in C.W.J.C. No. 4232 of 1995(P), whereby the Hon'ble Single Judge has allowed the writ application, quashing the orders passed by the Sub Divisional Officer and the Deputy Commissioner, Godda, and also the Commissioner, Santhal Pargana Division, Dumka, cancelling the mutation of the land in dispute, done in favour of the predecessor-in-interest of the writ petitioners (private respondents herein), as far back as in 1972, vide Mutation Case No. 62/1971-72.
3. The facts of the case lie in a narrow compass. The dispute relates to 6 Bighas 14 Kathas and 2 Dhurs of land in Jamabandi No. 16 of Mouza Billari in the district of Godda. The disputed land was originally recorded in the name of one Mostt. Champa, wife of Bhukhan Chamar, in the last survey settlement record. Mostt. Champa died issueless in the year 1937 and the land become a Fauti land. As it is a Pradhani village, it was claimed by the writ petitioners that the land was settled by the Pradhan, with one Bhelu Harijan and Rohin Harijan, who were of the same community of the said village and the rent was also fixed by the Pradhan. After the death of Bhelu Harijan, his son Raju Harijan and Rohit Harijan filed an application before the Circle Officer, Godda, for mutating the land and opening of Khata in their names. The Circle Officer after holding an inquiry mutated the land in favour of Raju Harijan, son of Bhelu Harijan, vide mutation case No. 62 of 1971-72. The writ petitioners, claiming to be the legal heirs and successors of Raju Harijan, claimed that they were in possession of the land and exercised all acts of possession without any objection from any person. The grievance of the writ petitioners was that all of a sudden, in the year 1990, on the basis of a report, submitted by the Circle Officer, Godda, the Sub Divisional Officer, Godda, initiated a proceeding for cancellation of the order of mutation done in the year 1972, and the impugned order of cancellation of the mutation was passed by the Sub Divisional Officer, Godda, which was affirmed by the Deputy Commissioner, Godda, in appeal, and also by the Commissioner of Santhal Pargana Division, Dumka, in revision filed against the order. Aggrieved by these orders, the writ petitioners filed C.W.J.C. No. 4232 of 1995 before the then Hon'ble Patna High Court.
4. During the pendency of the writ application, the appellants herein, intervened in the said writ application and vide order dated 6.1.1998, they were allowed to intervene and they were also allowed to file counter affidavit, maintaining the status quo between the petitioners and interveners. After bifurcation of the State of Bihar, the said writ petition stood transferred to Jharkhand High Court and it was finally heard and allowed by the Hon'ble Single Judge, vide order dated 13.10.2003. Appellants herein, are aggrieved by the fact that at the time of disposal of the said writ application, they were not given the hearing in the case and without hearing them, the Hon'ble Single Judge allowed the said writ application. It is the case of the appellants that the land in question was wrongly mutated in favour of the predecessor-in-interest of the writ petitioners and in fact, the intervener appellants are in possession over the land in dispute.
5. Before entering into the rival contentions of the respective parties, it would be appropriate to take note of the findings given by the Hon'ble Single Judge, while allowing the writ application. The Hon'ble Single Judge has found that the Circle Officer, while submitting his report in the year 1990, as contained in Annexure-4 to the writ application, had stated that during inquiry he had interrogated the Pradhan of the village, who confirmed that the land in question was settled in favour of the predecessor-in-interest, and their names were entered in the Jamabandi record maintained in the office of the Pradhan. The Pradhan also admitted about the issuance of rent receipts. However, the Circle officer questioned the power of the Pradhan to make the settlement of the Fauti land in favour of the jamabandi raiyats. The Hon'ble Single Judge has held in the impugned order dated 13.10.2003 passed in C.W.J.C. No. 4232 of 1995(P), that the mutation of the land was done in the year 1972 on the basis of the settlement, which was made by the Pradhan in the year 1937. Santhal Parganas Tenancy Act was enacted in the year 1949 and accordingly, settlement, which was done in the year 1937, could not have been cancelled, or declared irregular, invoking the provisions of Section 29 of the Santhal Parganas Tenancy Act, 1949. Accordingly, the impugned order cancelling the mutation done in the year 1972, and the orders passed by the Appellate and Revisional Authorities, affirming the same, were quashed by the Hon'ble Single Judge.
6. Learned counsel appearing for the intervener appellants submitted that the impugned order dated 13.10.2003 passed by the Hon'ble Single Judge is absolutely illegal and cannot be sustained in the eyes of law. It is submitted that in view of the fact that intervention petition of the appellants was allowed by the Hon'ble Patna High Court on 6.1.1998, and the appellants were asked to file counter affidavit in the matter, the writ application could not be decided without hearing the appellants. However, the learned counsel for the appellants admits that no counter affidavit was filed in the writ application after 6.1.1998, till 13.10.2003, when the writ petition was finally decided by the Hon'ble Single Judge.
7. Learned counsel for the appellants has also drawn our attention to various orders passed by the concerned authorities and has tried to impress upon us that the appellants herein are in actual possession of the land in dispute and the settlement in favour of the predecessor-in-interest of the writ petitioners were made by the Pradhan by ante dating documents. Learned counsel accordingly, submitted that the settlement and the subsequent mutation in favour of the predecessor-in-interest of the writ petitioners were absolutely illegal, which were rightly set aside by the Sub Divisional Officer, Godda, whose order was confirmed even by the Deputy Commissioner, Godda, and the Commissioner of Santhal Parganas. Learned counsel pointed out that the Sub Divisional Officer has held that Pradhan had no authority to settle the Fauti land and accordingly, mutation was cancelled which was upheld by the Appellate and Revisional Authorities. Learned counsel accordingly, submitted that impugned order passed by the Hon'ble Single Judge cannot be sustained in the eyes of law.
8. Learned counsel for the State as well as learned counsel for the private respondents (writ petitioners) have submitted that even though intervention application of the appellants herein, was allowed by the Hon'ble Patna High Court, but admittedly, they did not file any counter affidavit in the matter and they did not take interest in the case thereafter. Learned counsels also submitted that finding given by the Revenue Officers that the Pradan had no authority to settle the land in question, has no leg to stand, inasmuch as, under section 29 of the Santhal Parganas Tenancy Act, there is prohibition to the Mulraiyat and Pradhan, only for making the settlement, either in their own favour, or in the favour of their co-mulraiyats. In the present case, the writ petitioners had no relationship with the Pradhan, who had settled the land and accordingly, the Pradhan had the authority to settle the land in question. Learned counsel has submitted that this question is no more res-integra and is fully settled by a decision of this Court in Asha Devi Vs. State of Bihar (Now Jharkhand) & Ors., reported in MANU/JH/0102/2006 : 2008 (2) JCR 726 (Jhr), wherein the law has been laid down as follows:-
"9. As regards the first question, it is not disputed that the mauza Gunghasa was a Pradhani mauza and the village pradhan was competent under the law to make the settlement of the waste lands in favour of the persons who qualify for settlement as per the principles laid down under Section 28 of the Santhal Parganas Tenancy Act, 1949. Admittedly, the village pradhan had made the settlement of the land in favour of the petitioner and had also granted patta of settlement to her. The settlement of the land was made by the pradhan after inviting objections from the 16 annas raiyats of the village and when no objection was received from any corner against the proposed settlement, he settled the land in favour of the petitioner. Learned counsel for the respondents has not shown any provision of law under the Santhal Parganas Tenancy Act to indicate that the settlement made by the village pradhan needed to be confirmed by the Sub-divisional Officer. Though Section 29 of the Act, provides that the previous sanction in writing of the Deputy Commissioner would be necessary in cases whether (where) the village pradhan makes settlement of the waste lands either with himself or with any co-mulraiyat, but it is not the case of the respondents that the petitioner was a co-mulraiyat".
9. Placing reliance on this decision, learned counsel submitted that since the land was duly settled by the Pradhan, and it was subsequently mutated in favour of the predecessor-in-interest of the writ petitioners after following the due process, there is no illegality in the impugned order passed by the Hon'ble Single Judge, holding that the mutation done on the basis of the settlement made as far back as in the year 1937, could not be cancelled or declared irregular by invoking the provisions of Santhal Parganas Tenancy Act, 1949.
10. Having heard counsels for both the sides and upon going through the record, we find that the contention of learned counsel for the appellants that the village Pradhan had no authority to settle the Fauti land to the predecessor-in-interest of the writ petitioners, cannot be accepted. The law is well settled in this regard in Asha Devi's case (supra). The case of the writ petitioners cannot be said to be hit by Section 29 of the Santhal Parganas Tenancy Act, as there is prohibition to the Mulraiyat and Pradhan, only for making the settlement, either in their own favour, or in the favour of their co-mulraiyats. In the present case, it is not the case of the appellants that the writ petitioners are the co-mulraiyats of the Pradhan, who had settled the land and accordingly, it cannot be held that the Pradhan had no authority to settle the land in question with the predecessor-in-interest of the writ petitioners.
11. The other submissions of the learned counsel for the appellants gives rise to the disputed questions of facts. Firstly, the appellants herein have disputed the possession of the writ petitioners over the land in dispute and it is claimed that the appellants are in possession of the land in question. Secondly, it is the specific case of the appellants that settlement in favour of the predecessor-in-interest of the writ petitioners was illegally made by the Pradhan, not in the year 1937, but sometimes about the year 1972, by ante dating the documents. Both these questions are disputed questions of facts which could not be decided by the Writ Court. Any finding on these disputed questions of facts could be given only upon appraisal of the evidence adduced by the respective parties in a suit filed by the aggrieved party, which has not been done by the appellants herein.
12. The Hon'ble Single Judge has clearly held that the mutation was done in favour of the predecessor-in-interest of the writ petitioners in the year 1972 on the basis of the settlement made by the Pradhan in the year 1937, which could not be annulled invoking the provisions of Santhal Parganas Tenancy Act, 1949. We do not find any illegality in this proposition of law settled by the Hon'ble Single Judge.
13. For the foregoing reasons, we do not find any merit in this Letters Patent Appeal and the same is accordingly, dismissed. There shall however, be no order as to costs.
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