Date of CAV : 20.1.2014. Pronounced on 11/2/2014

IN THE HIGH COURT OF JHARKHAND AT RANCHI
Misc Appeal No. 224 of 2011
Abdul Hamid and others
....
Appellants
Versus
State of Jharkhand and others
Coram :
Respondents
HON’BLE MR. JUSTICE D.N.UPADHYAY
For the petitioner/ appellant (s): Mr Rhoit Roy
For the opp. party/ respondents : G.A.
Date of CAV : 20.1.2014.
11/02/2014
Pronounced on 11/2/2014
This Misc. Appeal has been preferred by the
appellants against the order dated 24.9.2011
passed by Learned
Sub Judge I Ranchi, in connection with Title Suit No. 477 of 2011
whereby the petition filed under Order XXXIX Rule 1 and 2, read
with Section 151 of the Code of Civil Procedure, was dismissed and
the prayer for grant of temporary injunction in favour of the appellants
was rejected .e, in brief is that the plaintiff appellants filed a suit (Title
Suit No. 477 of 2011) in the court of Sub Judge 1, Ranchi, making
averments in the plaint that late Mubaraq Hussain, father of the
plaintiffs was in employment of Ratu Maharaj and he was rendering
his services. Maharaja Pratap Uday Nath Sahdeo on being pleased
and satisfied with the services of
Mubaraq Hussain, settled 1.40
acres of land under Revisional Survey Khata No. 141, Plot No.09 of
village Bukru for agricultural purposes and granted hukumnama on
2.2.1936 and put him in possession. After settlement, rent was also
realized
from said Mubaraq Hussain who remained in possession
over the land in question till his death occurred in the year 1996 and
after that, the plaintiffs being legal heirs came in possession and the
property devolved upon them. It is further contended that even
assuming that initially, Mubaraq Hussain did not have the title over
the property described in the schedule of the plaint, the plaintiffs
acquired title over the same by way of adverse possession. It is
further mentioned that in the recent survey operation, draft record of
right was prepared in the name of State of Jharkhand. The plaintiffs
then filed petition under section 89 of the Chotanagpur Tenancy Act
and the Survey Settlement Authority, Ranchi
by his order dated
28.11.2009 passed in Survey revision No. 97 of 2007(Kanke)
directed for correction in the record of rights.
That
on
30.9.2011,
some
persons
suddenly
appeared on the scheduled land and wanted to occupy the same. On
objection raised by the plaintiffs, they informed that they are
employees of the State Bank of India. An Amin of Kanke Circle was
also present and they wanted to fix pillar in the land, but the protest
made by the plaintiffs did not allow them. Again, on 5.9.2011 Circle
Officer, Kanke Circle,
asked the plaintiff to vacate the land
immediately, otherwise, they would be implicated in a criminal case.
Since there was persisting threat, the plaintiffs sent notice to the
defendants on 6.9.2011 under section 80 C.P.C.
Apprehending
dispossession from the suit property, the plaintiffs filed separate
petition under section 80 (2) C.P.C. praying for
leave to file suit
without waiting for expiry of the period of sixty days of notice under
section 80(1) C.P.C. and filed suit and petition
for temporary
injunction restraining the defendants or their representatives from
coming over the suit property.
3.
That after rejection of the said petition and being
aggrieved by and dissatisfied with the impugned order dated
24.9.2011, this misc. appeal has been filed.
4
The respondents have appeared and filed counter
affidavit praying therein that the present misc appeal filed by the
appellants against the order dated 24.9.2011 passed by the learned
Sub Judge I in Title Suit No. 477 of 2011 is liable to be rejected for
the reasons that (i) the land in question in respect of mouza Bukru
P.S. no.54, khata no.141, plot no. 09 , area 2.09 acres are recorded
as gair mazarua malik land in the revisional survey record of right.
After vesting of zamindari, the entire gair mazarua land vested in the
State of Bihar under sections 3 and 4 of the Bihar Land Reforms Act,
1950 and the State Govt. is deemed to have come in possession by
way of its statutory rights. No one had legal or vested right to settle
the land after vesting of zamindari after 1955-56 i.e. the year of
vesting of zamandari. It is further contended that in case the lands of
gair majarua Khata has been settled prior to 1955-56 i.e. prior to
vesting of zamandari, then the ex landlord would have submitted
returns of the land in the State Govt in which name of the settlee
would have been recorded as raiyat in respect of said land after
vesting of zamandari and the names of said raiyats would have been
indicated in Register II and rent receipts would have been granted to
the raiyats and names of such raiyats would have been recorded in
the Tenants' Khatihan and the Tenants' Ledger Register prepared
according to section 3 of the Bihar Tenants Holdings (Maintenance of
Rent) Act, which is not the case here in this appeal. No zamabandi
in respect of the suit land is running in the name of the
plaintiff/appellants. It is submitted that the land of mouza Bukru, plot
no.9, Khata No. 141 measuring an area of one acre which is situated
in the southern side of the village road has been allotted on lease for
thirty years commencing from 10.8.2011 on token money of Re. 1/( rupee one only ) for establishing rural self employment training
institute vide Memo No. 209/LR, Ranchi
dated 18.6.2011 of the
Commissioner,South Chotanagpur Division, Ranchi; Zamabandi in
respect of the said land in question has been created in Register II in
the Rural Self Employment Training Institute, Ranchi, at page no.
35/5 and a photo copy of the memo has been filed as Annexure A. It
was also submitted that the present lessee, the State Bank of India
has not been made a party and, therefore, the case of the appellants
also suffers with non-joinder of necessary party.
5
It is further submitted that the plaintiffs have never
come in possession over the land in question. No zamabndi in
respect of the land in question stands in their names, nor the previous
land-lord had filed returns disclosing name of either the ancestors or
any of the plaintiffs.
6
argued
Learned counsel appearing for the appellants has
that the plaintiff/appellants have been enjoying peaceful
possession over the land in question since the period of their
ancestors in whose favour
landlord. The factum of
hukumnama was granted by the then
possession stands corroborated from the
order passed by the Settlement Officer and the report submitted by
the Surveyor.
On objection raised under section 89 of the
Chotanagpur Tenancy Act,
Revision
an order dated 28.11.2009 in Survey
No. 97/2007 (Kanke) was
passed by the Survey
Settlement Officer directing correction of the record of right. Even
assuming that the appellants are not having prima facie valid title
over the land in question, the fact remains that they are having their
possession over the said land from decades and they cannot be
evicted or dispossessed forcibly by using muscle power.
Further
more, they are enjoying their physical possession over the land in
question to the knowledge of all concerned, even the landlord, and
therefore they have acquired title by virtue of adverse possession.
Learned Sub Judge 1 did not consider all these aspects and rejected
the prayer illegally. The appellants are having good prima facie case,
balance of convenience lies in their favour and they shall suffer
irreparable loss if evicted from the land in question prior to
adjudication of the suit filed by them. Learned counsel has relied
upon the judgment reported in 2004(1) SCC 769 ( Rame Gowda Vs.
M.Varadappa Naidu). Learned counsel has gone to the extent of
submitting that the right to property is human right and the right to
hold property cannot be taken away except in accordance with the
provisions of the Statute. In this context, judgment reported in
2007(10) SCC 448 has been referred.
7
On the other hand, learned counsel for the State
has submitted that the appellants are not having prima facie case.
They did not have right, tile or possession over the suit land which
has already vested in the State and the possession of the State can
well be presumed. The appellants by creating certain documents
and that too, in the year 2007, have been claiming possession over
the suit land and they have failed to prove any kind of possession
over the land in question. No averment has been made as to how
they are enjoying
physical possession over the suit land and
therefore none of the ingredients required to be considered for grant
of injunction is attracted and the learned Sub Judge has rightly
refused to grant temporary injunction.
8
After hearing counsels for the parties and perusal of
the documents, it is evident that after vesting of zamandari, all gair
majarua land vested in the State Govt. If there had been any
settlement prior to 1955-56 by the previous land lord in favour of
father of the appellants, that should have been reflected in Returns
and for that names of such raiyat would have been appearing in
Register II which is lacking in the present case. The plaintiffs have
made out a prima facie case that they have been enjoying physical
possession over the land in question for more than 50 years, but
they have failed to bring on record as to how physical possession
over the land in question is being enjoyed by them. Save and except
the
order of the settlement officer passed in the year 2007
for
correction of the record of right, there is nothing to show that the
appellants have been enjoying possession over the suit land. The
learned Sub Judge 1 has discussed the provisions for
grant of
injunction in the impugned order. It is settled law that if balance of
convenience lies in favour of party concerned, an order for grant of
injunction restraining the other side can be passed. It is common
phenomenon to encroach Government lands and create documents
with the connivance of the officer of the revenue department. From
the pleadings and the documents on record, I do not find that the
balance of convenience lies in favour of the plaintiffs and they shall
suffer irreparable loss in absence of any order of injunction. The
facts and circumstances appearing in the judgments cited above are
not available in the case in hand and therefore those judgments are
of no help to the appellants.
9
For the reasons aforesaid, I do not find any merit in
this appeal. The appeal is, accordingly, dismissed. However, the
defendant/ respondents are directed to appear before the trial court
and file their written statement, if any. After filing of the
written
statement, the trial court shall proceed further in accordance with law
to dispose of the matter,
so that rights of the parties may
decided.
Ambastha/
( D. N. Upadhyay, J.)
be

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