IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No.216 of 2014 1. Ram Prasad Mahaton 2. Premlal Mahaton, both S/o Late Chakradhar Mahato R/o village Paraspani, Dist. Godda 3. Gandhari Devi W/o Sarju Mahato and D/o Late Chakradhan Mahato R/o village Parthariya, P.S. Pathergama, Godda …...... Petitioners/ Appellants Versus 1. The State of Bihar now the State of Jharkhand 2. Commissioner, At Santhal Pargana, Dumka 3. Deputy Commissioner, Dumka 4. Charge Officer, Dumka 5. Settlement Officer, Dumka All respondent nos. 3 to 5 having office at Dumka 6. Assistant Settlement Officer, Godda 7.Chandmani Devi W/o Ramdhari Mahto R/o Village Tengar,P.S. Pathargama, Godda 8. Lalmani Devi W/o Budhu Mahto R/o village Pathra, Godda ..... Respondents ---------- CORAM: HON’BLE MR. JUSTICE VIRENDER SINGH, CHIEF JUSTICE HON’BLE MR. JUSTICE APARESH KUMAR SINGH For the Petitioner : Mr. Sachi Nandan Das For the Opposite Parties : Mrs. Shweta Singh, J.C to G.P.V07Dated:
03. d March, 2015 Per Aparesh Kumar Singh, J.
1. The writ petitioners are the appellants herein who are aggrieved by the judgment dated 6.3.2014 passed in C.W.J.C. No. 5147 of 1998(P) whereby while dismissing the writ petition the learned Single Judge observed that there is no illegality or infirmity in the order of Assistant Settlement Officer, Godda dated 7.6.1989 passed in Title(Partition) Suit No. 43 of 1983 and the order of the Charge Officer, Dumka dated 26.2.1998 passed in Title (Partition) Appeal No. 31 of 1989.
2. The private respondents herein had preferred Title(Partition)Suit No. 43 of 1983 against the co-sharer including the petitioners claiming 1/12th share in the property recorded in the name of Dinaram Mahto and Rupan Mahto. They also had taken a plea that the judgment and decree in Title(Partition)Suit No. 79 of 1965 preferred by one Chakradhar Mahto, father of one Ram Prasad Mahto (petitioner 2 No.1) rendered by learned Sub Judge, Godda was not binding on them as they were not parties to the said suit. The said partition suit was transferred to the Court of Assistant Settlement Officer, Godda as the survey settlement operation had commenced according to the provision of the Santhal Pargana Tenancy Act. By virtue of Section 5 of the Santhal Pargana Settlement Regulation, 1872 the jurisdiction of Civil Courts to entertain a suit in respect of any land or any interest in, or arising out of, land, or other matters enumerated therein were barred and such suit pending before the date of notification issued by the State Government shall be transferred to the Court of the Officer appointed by the State Government under Section 2 of Santhal Parganas Act, 1855 (37 of 1855), or Section 10 of Regulation of 1872 as the State Government may from time to time direct. The provisions of Section 5 of the Santhal Pargana Settlement Regulation, 1872 which is relevant for considering the issue raised herein is being quoted herein below:-
“5. Bar of jurisdiction of Civil Court during settlement (1) From the date on which under Section 9 of the State Government declares, by a notification in the Official Gazette, that a settlement shall be made of the whole or any part of the Sonthal Parganas, until the date on which such settlement is declared, by a like notification, to have been completed no suit shall lie in any Civil Court established under the Bengal, Agra and Assam Civil Courts Act, 1887 [12 of 1987] in regard to,- (a) any land or any interest in, or arising out of, land, or (b) the rent or profits of any land, or (c) any village hardship or other office connected with any land in the area covered by such first-mentioned notification nor shall any Civil Court proceed with the hearing of any such suit which may be pending before it. (2) Between the dates referred to in subsection (1), all suits of the nature therein described shall be filed before or transferred to an officer appointed by the State Government under Section 2 of Sonthal Parganas Act, 1855 (37 of 1855), or Section 10 of this Regulation according as the State Government may from time to time direct and such officer shall hear and, even though during the hearing the settlement may be declared to have been completed, determine them.”
3. It is not in dispute that the State Government had issued such 3 notification in the official gazette dated 5.8.1978 also mentioning therein that during the pendency of the settlement operation, all suits of the kind specified in Section 5 of Regulation III of 1872 shall be heard and determined by the Officers of Settlement, appointed under Section 10 of Regulation, 1872. The said notification (Annexure-4) was issued in exercise of power conferred by Section 10 of Santhal Parganas Settlement Regulation (Regulation 3 of 1872) and Section 30 of Santhal Parganas Rent Regulation (II of 1886) prescribing the rules for conduct of settlement proceedings under the said Regulation in super-session of the earlier notification dated 5.9.1995. Rule XXV of the aforesaid notification stipulated that during the pendency of settlement operation, all suits of the kind specified in Section 5 of Regulation III of 1872 shall be heard and determined by the Officers of Settlement, appointed under Section 10 of Regulation, 1872 and by the Civil Courts when entrusted to hear and dispose of the same by the Settlement Officer in accordance with the prescribed rules and the Commissioner, the Special Officer, the Settlement Officer, and Charge Officers within whose jurisdiction settlement is being made, were vested with appellate and revisional powers. That is how the Assistant Settlement Officers by the judgment dated 7.6.1989 declared the plaintiff/ private respondents herein entitled to 1/12 th share in the suit property and also for preparation of parcha on that basis in their favour. Defendants were also restrained by decree of permanent injunction for taking delivery of possession by virtue of Title Suit No. 79 of 1965 and the appeal arising therefrom.
4. These petitioners preferred the appeal against the said judgment and decree in the Court of Charge Officer, Dumka in Title Appeal No. 31 of 1989 also questioning the jurisdiction of the Assistant Settlement Officer, Godda to pass such judgment and decree. The said 4 Title Appeal was however dismissed and by the order dated 26.2.1998 it was held that the plaintiff/ private respondents herein are entitled to 1/12th share of the suit property. These orders passed by the Assistant Settlement Officer, Godda in Title (Partition) Suit No. 43 of 1983 and order dated 26.2.1998 by the Charge Officer, Dumka in Title Appeal No. 31 of 1989 came to be challenged by the defendants/ writ petitioners.
5. The writ petitioners raised the plea of res-judicata on the ground that all the issues raised were earlier decided in Title (Partition) Suit No. 79 of 1965 in which their brothers were parties. Petitioners also challenged the jurisdiction of the Assistant Settlement Officer in entertaining and deciding the suit and also the order of Appellate Authority in upholding the said judgment and decree on the ground of suit being not maintainable in the Court of Assistant Settlement Officer as being wholly without jurisdiction.
6. On both counts, learned Single Judge found the plea untenable in law as well as on facts . So far as the question of maintainability and res-judicata is concerned, learned Writ Court clearly held that the Assistant Settlement Officer after thorough consideration of facts and provisions of law has rightly held that in Title Suit No. 79 of 1965 though the plaintiffs were co-sharer and were necessary parties but were not impleaded and as such the judgment and decree was not binding on them. Therefore, the learned Writ Court came to the conclusion that a collusive suit filed between the co-sharer in the year 1965 cannot bind the plaintiffs / defendants herein. We do not find any infirmity in the findings rendered by the learned Single Judge on that score.
7. Learned counsel for the Appellants – writ petitioners has however laid more emphasis on the plea of jurisdiction of the Court of Assistant Settlement Officer in deciding the Title Suit No. 43 of 1983 5 instituted by the plaintiff's / private respondents herein. The learned Writ Court after noticing the provisions of Section 5 of the Regulation, 1872, as quoted herein above as well, came to a definite conclusion that on issuance of notification by the State Government on 5.8.1978 (Annexure-4) under the provisions of Regulation, 1872, there was a complete bar on the jurisdiction of Civil Courts during the Settlement proceedings. Learned counsel for the appellants however has while relying upon the rules framed under the notification dated 5.8.1978, more specifically Clause XXV endeavoured to drive home the point that the Court of Settlement Officer did not have the jurisdiction to try and dispose of the suit, instead the Civil Courts established under the Bengal, Agra and Assam Civil Courts Act, 1887 [12 of 1987] has the jurisdiction to decide the same.
8. We are afraid such plea is not in consonance of the provision of Section 5 of the Regulation of 1872 as referred to herein above and neither under the rules notified by the State Government on 5.8.1978 in exercise of powers conferred under Section 10 of the Regulation of 1872 and Section 30 of Santhal Parganas Rent Regulation (II of 1886). From the bare perusal of the rules which admittedly have been framed in exercise of power conferred under the Regulation of 1872 itself by the State Government, it is clear that during the pendency of the settlement operation, all suits of the kind specified in Section 5 of Regulation III of 1872 shall be heard and determined by the Officers of Settlement, appointed under Section 10 of Regulation, 1872. It further appears that only when the Settlement Officer entrusts the matter to the Civil Courts for trial and disposal, could the Civil Courts entertain the same for adjudication. The provision of Regulation of 1872 are in the nature of specific provisions made in the areas covered under the Santhal Parganas. The provisions of Regulation of 1872, specifically Section 5 bars the 6 jurisdiction of Civil Courts during the Settlement proceedings are no where under challenge in the writ petition by the appellants herein. Therefore, in the light of aforesaid provision of Section 5 of Regulation of 1872 and rules framed vide notification dated 5.8.1978(clause XXV), which follows as a natural corollary, it is the Court of Assistant Settlement Officer as notified by the State Government, which had the jurisdiction to decide any suit pending on the date the settlement operation commenced. It is not in dispute that the Title (Partition)Suit No. 43 of 1983 preferred by the plaintiffs/ private respondents herein were transferred to the Court of Assistant Settlement Officer as the settlement operation had commenced by virtue of the Government notification. Therefore, the plea of the writ petitioners relating to the jurisdiction of the Court of Assistant Settlement Officer in entertaining the title suit and deciding the same is wholly untenable in law. The findings rendered by the learned Writ Court against the writ petitioner on that count does not suffer from any infirmity so as to warrant interference in our appellate jurisdiction.
9. We do not find any merit in the appeal and the same is accordingly, dismissed. (Virender Singh, C.J.) (Aparesh Kumar Singh, J.) A. Mohanty 7