IN THE HIGH COURT OF JHARKHAND AT RANCHI Misc Appeal No. 224 of 2011 Abdul Hamid and others... Appellants State of Jharkhand and others Versus Respondents Coram : 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. Pronounced on 11/2/2014 11/02/2014 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 Learned counsel appearing for the appellants has argued that the plaintiff/appellants have been enjoying peaceful possession over the land in question since the period of their ancestors in whose favour hukumnama was granted by the then landlord. The factum of 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, an order dated 28.11.2009 in Survey Revision 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 be decided. Ambastha/ ( D. N. Upadhyay, J.)