- (1.) The matter come up before this Court on reference by the learned Single Judge vide order dated 18th August,2006 and following questions of law have been referred for decision of the Division Bench: (i) Whether a person can hold land in dual capacity i.e. as a tenure holder and as a Raiyat and whether the superior right will prevail over the inferior right ? (ii) Whether the dual right of a person as of tenure holder which he was having prior to 1920 can be said to have been taken away by the subsequent amendment by Section 20 of the Chotanagpur Tenancy Act which came into force in the year 1920 and whether the said provision has retrospective effect ?
(2.) To decide the above questions of law, it will be appropriate to narrate the facts. Respondent Nos. 5 to 15's ancestor Prem Singh Bhumij and others submitted a petition under Section 71A of the Chotanagpur Tenancy Act, 1908, claiming that the land in dispute was recorded in the name of the applicant in the Cadestral Survey, 1909 and the applicants are members of the Schedule Tribe. The Petitioners' ancestors got the land entered in their name in the survey of 1964 and took the possession of the land. The Petitioners being members of Scheduled tribe and their land having been illegally occupied by the Petitioners' ancestors, therefore, prayed in their petition under Section 71A of the Act of 1908 that the possession of the land in dispute may be redelivered to the applicant, ancestor of the Respondent Nos. 5 to 15. The Deputy Collector(Land Reforms), Dhalbhum, Jamshedpur registered a case being R.P. No. 151 of 197879 and after hearing the parties and after considering the relevant land records held that there was change in the original khata number which correspondence to new number, however, there is no dispute with respect to the identity of the land and the said land was originally recorded in the name of Muchi Ram Bhumij, the ancestor of the Respondent Nos. 5 to 15. However, the learned Deputy Collector(Land Reforms) held that the said Muchi Ram Bhumij was not the raiyat but was the tenure holder and former Jagirdar gave its land by Patta dated 16th June, 1903 to Muchi Ram Bhumij. The said Muchi Ram Bhumij died leaving behind the four sons as his heirs. The Petitioners' ancestor, non applicant before the first court, obtained the Patta from the tenure holder on 28th June, 1943 and then on 13th November, 1945 and vide Chakbandobasti of the year 1953 the land was recorded in the name of the ancestor of the Respondent Nos. 5 to 15 and since then the ancestor of the Petitioner and thereafter the Petitioners came in possession. The first court also considered the return submitted by the former Jagirdar about his land and also considered the certified copy of the said Return submitted in the Compensation Case No. 6 of 195960 and on the basis of these evidence, held that Muchi Ram Bhumij was the tenure holder and was not the raiyat and consequently his application under Section 71A was rejected.
(3.) The said Prem Singh Bhumij, the ancestor of the Respondent No. 5 to 15 preferred an appeal before the Deputy Commissioner, East Singhbhum, Jamshedpur, upon which appeal, S.A.R. No. 69 of 198990 was registered. The first appellate court allowed the appeal and consequently allowed the application for eviction of the Respondent Nos. 5 to 15's ancestor, Prem Singh Bhumij.;