JANAM SINGH KUDADA & ANR. versus STATE OF BIHAR & ORS. on 27 August 2019

1. After hearing learned counsel on behalf of the appellants forsome time, and after having gone through the relevant provisions ofthe Constitution of India, the Wilkinson Rules and the Full BenchJudgment in 'Mora Ho v. State of Bihar and Others' reported as AIR2000 Patna 101, we are of the view that it may not be necessary to gointo the applicability and/or validity of the Wilkinson's Rules in this matterfor two reasons.

2. First and foremost, as is correctly pointed out by the learnedcounsel appearing on behalf of the appellants/defendants in the Suit,what was claimed in the Suit was only half the Suit property and notthe entirety of the property as follows:

3. Paragraph 3 of the plaint states "Sura Ho died issueless andthe lines of the parties became entitled to half and half of these lands".This was the suit property over which the plaintiffs claimed adeclaration that they are rightful owners and for confirmation of theirpossession, and consequentially, correction of the entry made in theRecord of Rights of 1963.

4. Despite this being the claim in the plaint, by an order dated30.03.1977, the Additional Deputy Commissioner, Singhbhum, decreedthe Suit in accordance with the award of the majority members of thePanchayat, and held as follows:

A

B

C

DE

F

G

H

A

B

C

D

E

F

G

H

“I therefore come to the conclusion that the suit lands havebeen wrongly recorded in the names of the defendantsduring the recent survey and settlement operation. Thesurvey authorities have not considered the documents whichwere in favour of the plaintiffs.

When the plaintiffs come in possession of the suit lands afterthe demarcation on 5.10.20 by Kolai Ho, Amin no actionswere taken by the defendant no. 1 and the father ofdefendant no. 2 to go in appeal against the demarcation.They also did not go in appeal against the orders of mutation,of correction of Zamanbandi passed in case no. 1139/20-21. Therefore whatever orders have been passed in Civilcase no. 166-13, 893-14-15, 670/20-21 and 1139/20-21 stillhold good because they have not been either set aside ormodified by any competent court. After the plaintiffs camein possession of the suit lands in the year 1921 thereafterthere has been no evidence on record to show that theplaintiffs were ever dispossessed by the defendant no. 1 anddefendant no. 2 or his father. It is therefore presumed thatthe plaintiffs are still continuing in possession of the suit land.

There is definite documentary evidences is in favour of theplaintiffs to prove their right title and interest over the suitlands. There is also evidence that they are in possession ofthe suit lands since 1921. Under the circumstances discussedabove, the award of the two punches namely HarishChandra Deogam and Dogor Deogam is accepted and forthe reasons stated above the award of the minority punchis set aside because he has relied more upon the papers anddocuments which are of lessor value.

In the result the suit of the plaintiffs is decreed in theirfavour. They have a valid right, title and interest over thesuit lands and before their possession over the suit land isconfirmed. It is also hereby declared that the entries in thenames of the defendants in respect of the such lands inrespect of rights finally published in the year 1963 is wrongand erroneous.”

5. By an order dated 06.08.1979, the appellate authority viz., theCommissioner, dismissed the appeal filed by the appellants by holding:

“In the course of hearing, the learned lawyer for the appellantsargued that the learned Additional Deputy Commissioner wentbeyond the award of the majority punches to confirm thepossession of the respondents over the suit land which was wrongas the decree must be in conformity with the award and anythingbeyond it is ultra-virus. He also questioned the award of themajority punches.

Under Wilkinson's rules the acceptance of the award of themajority punches is mandatory unless the charges of corruptionhave been proved or unless the award is contrary to the customof the Hos. In the present case neither has been done.Therefore, that part of the Additional Deputy Commissioner'sorder which is in conformity with the award of the majoritypunches is up held. He has also given reasons why he helderroneous the entries in the records prepared during the recentsurvey as mentioned above, and has concluded that therespondent have been in possession of the land since 1921.

I, therefore, see no reason to interfere with the order. The appealis dismissed.”

6. The learned Single Judge, by his judgment dated 04.02.2000,dismissed the writ petition filed by the appellants herein, holding asfollows:

“On consideration of the reliefs claimed, I do not find that thecognizance taken of the suit by the respondents no. 2 and 3 waswithout jurisdiction when the title has been clouded between theparties on wrong entry in the record of rights. Moreover, theparty has got every right to go for a suit for declaration of titleand confirmation of possession. Thus on this score, there is noforce in the writ petition.

The second point urged by Mr. Khatri is that the suit washopelessly barred by limitation as Munda Jamabandi prepared inthe year 1918 and also in 1963 cannot be challenged in the year1970 when the same is totally barred by limitation as contemplatedunder Rule 3 of the Rules. Suit had been filed for declarationof right, title and interest over the suit land and the cause of action A

B

C

D

E

F

G

H

SUPREME COURT REPORTS

A

Afor the suit was due to trouble being created by the defendantsas there was wrong entry in the record of rights. It appearsthat the record of rights were definitely wrongly prepared givinggo-by to the decision arrived at earlier by the KolhanSuperintendent already mentioned above and the tile andpossession of the plaintiffs had already been established longBback in the year 1914-15, but the revenue records were notcorrected accordingly and this have a handle to the defendantsto create trouble about the possession and title of the plaintiffsand then the plaintiffs have no other alternative but to come inthe suit. I do not find that in the circumstances of the case, RuleC3 of the Wilkinson's Rule would create a bar in coming up fordeclaration of the title over the suit land. Moreover, it is anestablished principle of law that majority of the award should beaccepted unless it can be shown that the same suffers from theprocedural defect as contemplated under Rule 20 of theWilkinson's Rules or that the same is devoid of consideration ofDthe customs prevailing amongst troubles. There was no plea ofmisconduct against the majority members who gave their awardin favour of the plaintiffs. This aspect has been considered whenobjection was raised against the award by both the courts belowand came to the concurrent findings. There is no scope of thisEcourt to interfere with such concurrent findings unless the samesuffers from jurisdictional error or error apparent on the face ofit. It appears from the perusal of both the judgments as containedin Annexures 4 and 5 that both the respondents no. 3 and 2 hadtaken much pain and gone in depth into the cases of the partiesand the decision arrived at by the majority award and thenFaccepted the award rejecting the objections raised from the sideof the petitioners. Thus, the points raised in this writ petitionhave got no force.

B

C

D

E

In the result, this writ petition is dismissed, but in the facts andcircumstances of the case, no order as to costs.”

G

7. An appeal filed from this order was dismissed by the DivisionBench vide impugned order dated 27.07.2000 holding as follows:

“We have heard learned counsel for the appellant and perusedthe order under challenge. The findings recorded by the learnedsingle judge are based upon correct appraisal of evidence on H

record and as such, we are not inclined to interfere with thesame. Accordingly, this Letters Patent Appeal is dismissed.

8. In view of the fact that it is only half the property which wentto the plaintiffs, as referred to in paragraph 3 of the plaint, that wasthe subject matter of the Suit, the decree will have to be set aside tothe extent that it awards anything beyond this.

9. Also, we have been taken through the Bihar Kolhan CivilJustice (Regulating and Validating) Act, 1978. Section 2 states asfollows:

“2. Regulation and Validation of certain past action in the Kolhanwith the exception of Chaibassa Municipality in the SadarSubdivision of the District of Singhbhum.-(1) Notwithstandinganything contained in any other law for the time being in forceany judgment, decree or order of any Court, the officersmentioned in Column 1 of the Schedule shall, in regard to thetrial of civil suits and proceedings arising within the local limitsof the Kolhan with the exception of the areas comprised withinthe Municipality of Chaibassa in the Sadar Sub-division of theDistrict of Singhbhum and hearing of appeals or petitions forreview or revision arising therefrom, be deemed to have validlyexercised the powers which the officers, mentioned in thecorresponding entries in Column 2 thereof exercised under theWilkinson's rule and under Regulation XIII of 1838, and no order,judgment or decree passed by them shall be deemed to be invalidor shall be called in question in any Court or proceedingwhatsoever merely on the ground that they were not soempowered.

(2) Where any judgment, decree or order in any appeal orproceeding has been set aside by any Court merely on the groundthat the said officer had no power or authority to Act under thesaid Rule, the Court which set aside the judgment, decree ororder shall on an application made to it within six months fromthe date of the commencement of this Act shall set aside itsprevious order and shall proceed to hear the suit, appeal orproceeding again and in case there has been any order for remandon such ground all subsequent proceedings after the remand shallbe deemed to have terminated.”

A

B

CD

E

F

G

H

[2019] 11 S.C.R.

A10. In view of this section as well, which admittedly has not beenchallenged by the appellants before us, it is difficult at this point of timeto set aside the concurrent judgments which were made on the basisof application of Wilkinson's Rules.

The appeal stands disposed of accordingly.

B

Kalpana K. Tripathy

Appeal disposed of.

C

D

E

F

G

H