TMI Blog1997 (4) TMI 520X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of land revenue in times of British rule. The proprietor landlord was called Ghatwal . Requisite rent of the land was to be banded over by the Moll Raiyat to the Ghatwal. Mool Raiyat had two types of land tenures. Mool Raiyat ka Jote was alianable and personal. Mool Raiyat Jote was inalienable and was attached to his office. It was called official jote. it is not in dispute between the parties that official jote admeasured 1 acre 81 decimals while Mool Raiyat of the village in place of his farther in Revenue Miscellaneous Case No.99 of 1938-39 of the Court of sub-Divisional officer, Deoghar. the said appointment was duly approved by the Deputy commissioner of Santhal parganas. It is the case of the appellants that as the entire family of Sarju Singh @ Bhatu Singh was heavily indebted and was in need of money, the said 8 annas interest in Mool Raiyat comprising 38 acres 9 decimals representing his share in Nij Jote came to be sold by said Bhatu Singh and his brothers to one Bimal Kanti Roy Choudhury on 22nd March 1939. The further case of the appellants is that the said vendors had been in possession of 38.09 acres of land in lieu of their 8 annas interest in Mool Raiyat by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.67 of 1970-71. They sought the aforesaid relief under the provisions of Section 20 sub-Section (5) read with Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949 [hereinafter referred in as the Act ]. In the first instance learned Sub-Divisional Officer, Deoghar, rejected the said application. Respondent Nos.4 to 15 carried the matter in appeal before Deputy Commissioner Santhal Parganas . It was transferred to the file of Additional Deputy Commissioner, Dumka, who by his order dated 30th September 1972 allowed the appeal and ordered eviction of the appellants. It was held by the Additional Deputy Commissioner that the original sale transaction by Bhatu Singh in favour of Bimal Kanti Roy Choudhury dated 22nd March 1939 was violative of provisions of Section 27(1) of the Santhal Parganas Settlement Regulation, 1872 (hereinafter referred to as the Regulation ) which applied at the relevant time and consequently the subsequent sale by Shri Bimal Kanti Roy Choudhury in favour of appellants father was equally violative of the provisions of Section 20(1) of the Act. Hence the appellants were liable to be evicted from the land. The aforesaid decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of his decision he was disinclined to permit or advert to the ancillary contentions sought to be urged in the alternative for the first time in the writ jurisdiction by the appellants. Thus there was a unanimous decision of the Full Bench that prescriptive period of 12 years fro perfecting the title by adverse possession in connection with the transactions entered into in contravention of Section 27 of the Regulation would stop running from 1st November 1949 being the date of enforcement of the Act. However on the question of relief to be granted under the circumstances the majority of the learned Judges took the view that the orders of the learned Commissioner and the Additional Deputy Commissioner directing settlement of land with respondent no.10 must be set aside meaning thereby according to the majority the land should be place at the disposal of the State Government for being dealt with in accordance with law. We may note at this stage that the contesting respondents who had moved a separate Special Leave Petition to the extent they were aggrieved by the decision of the majority of the High Court setting aside the direction fro restoration of the land in their possess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned holding: Provided- (a) that the transferee whom it is proposed to evict has not been in continuous cultivating possession for twelve years; (b) that he is given an opportunity of showing cause against the order of eviction; and (c) that all proceedings of the Deputy Commissioner under this section shall be subject to control and revision by the Commissioner. It is not in dispute and was not rightly disputed by learned senior counsel for the appellants that the said transaction prima facie appeared to be violative of Section 27(1) of the Regulation as Bhatu Singh who was a Raiyat sought to transfer his 8 annas share in the Mool Raiyat when the right to transfer which was recorded in the Record of Rights enabled the Mool Raiyat to transfer, if at all, his entire rights in the mauza consisting of his alienable Mool Raiyat ka Jote as he was the Mool Raiyat. But learned senior counsel for the appellants submitted that by a family partition prior to the transaction of sale 8 annas share in the Mool Raiyat comprising of 38 acres and 9 decimals feel to the share of Bhatu Singh and it was his entire share in the Mool Raiyat that was transferred by the transactio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ool Raiyat. Matter was put up for orders on 02nd November 1939 vendee was present. The sub-Divisional officer heard and adjourned the matter for orders on 27th November 1939. On 27th November 1939 co-sharers of the late Mool Raiyat did not appear or object. He, therefore, held that mutation was required to be allowed. He, therefore, submitted the matter to the Deputy Commissioner for orders. Submitted the matter to the Deputy commissioner approving the transaction and the mutation in favour of the vendee Bimal Kanti Roy Choudhury. Accordingly mutation was carried out on 24th January 1940 and papers were corrected. The aforesaid facts which have been brought on record and on which learned counsel for the authorities could not obviously offer any objection, leave no room for doubt that the first transaction of sale dated 22nd March 1939 was duly scrutinised by the competent authorities and the Deputy Commissioner who approved the same. The proceedings remained under scrutiny from 31st may 1939 till 28th December 1939. Thus for seven months the enquiry went on and ultimately the aforesaid decision was rendered. It must, therefore, be held that there was ample opportunity for the Deput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specified in the fourth column thereof. When we turn to Schedule A to the Act we find listed as one of the Acts the Regulation of 1872 and the extent of the repeal of the Regulation was in connection with Sections 27 and 28. Once Section 27 of the Regulation stood repealed by the Act, question arises whether the right which had accrued to vendee Bimal Kanti Roy Choudhury under the Regulation in connection with the operation of Section 27 sub-Sections(1) and (3) of the Regulation was saved or not despite the repeal of the said Section 27. A mere look at the relevant provisions of the Act shows that there is no express provision in the Act which lays down that notwithstanding the orders passed or actions taken in connection with transactions under the Regulation. and notwithstanding any rights which might have accrued thereunder fresh scrutiny of the said transaction could be made under the relevant provisions of the Act which corresponded to the earlier repealed Section 27 of the Regulation. When such a contrary intention does not appear from the scheme of the Act, the effect of the repeal of Section 27 of the Regulation squarely attracts the provisions of Section 8 of the Bihar Ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction by all the authorities below and which came to be accepted by the High Court in the impugned judgment cannot be sustained on account of these salient tell-tale facts which have remained undisputed on record of the case. The Second transaction which is on the anvil of scrutiny is the sale dated 26th June 1950 by Bimal Kanti Roy Choudhury in favour of Radha Prasad Singh, father of the appellants. so far as this Sale Deed is concerned it stands on a a still stronger footing. By the said Sale Deed the entire right, title and interest of Bimal Kanti Roy Choudhury in 38.09 acres of land got conveyed to Radha Prasad Singh. Consequently it could not be said to be a transfer which was hit by Section 20 of the Act. The relevant provisions thereof read as under : 20. Transfer of Raiyat s rights.- (1) No transfer by a Raiyat of his holding or any portion thereof, by sale, gift, mortgage, will, lease or any other contract or agreement express or implied, shall be valid, unless the right to transfer has been recorded in the record of rights, and then only to the extent to which such right is so recorded. Provided that a lease of Raiyati land in any subdivision for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he authorities to invoke Section 20(5) of the Act read with Section 42 thereof in connection with this latter transaction of sale dated 26th June 1950. In fact in fairness to the respondents it must be submitted that all authorities below as well as the High Court by the impugned judgment have considered the invalidity of the first transaction of sale dated 22nd March 1939 and in that light they have voided the second transactions a consequential transaction. once the nexus between the two sales gets snapped and the earlier transaction by itself cannot be found fault with from any angle, then there would remain no occasion for the respondent-authorities to invoke the provisions of Section 20(1) read with sub-section (5) and section 42 of the Act in connection with even the second sale transaction dated 26th June 1950. once that conclusion is reached the result becomes obvious. On these peculiar facts there is no escape from the conclusion that the possession of the appellants as heirs of deceased vendee Radha Prasad Singh can be said to have been validly obtained and a valid title that was convoyed in land admeasuring 38.09 acres, to their father Radha prasad Singh under the second ..... X X X X Extracts X X X X X X X X Extracts X X X X
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