- (1.) THE present writ petition has been preferred for issuance of an appropriate writ,order or direction for quashing the order dated 31.10.2006 passed by Divisional - Commissioner,Santhal Pargana - Dumka in Revenue Misc. Revision No. 67 of 2004 -05 passed in Revenue Misc. Appeal No. 61 of 2004 -05 passed by Deputy Commissioner - Deoghar against the order dated 13.8.2004 passed by Sub -Divisional Officer,Deoghar, evicting the petitioners under Section -42 of the Santhal Pargana Tenancy(Supplementary Provision)Act,1949 on the basis of petition filed by rsp - Lilawati Devi,from mauza -Pachaiya Kothi, Thana -Deoghar, Plot No. 922, area 2.70 acres in which petitioners have constructed their house and thus on the basis of application filed by Lilawati Devi under Section 42 of the Santhal pargana Tenancy(Supplementary Provision)Act,1949, the Courts below wrongly passed the order of eviction and pursuant thereto the Sub -Divisional Officer,Deoghar has issued eviction warrant on 13.2.2007 directing the petitioners to remove the same within a fortnight without considering the fact that earlier husband of the Lilawati Devi namely,Maru Mahto had filed Title Suit No. 33 of 1967 in the court of Shri J.P.Sharma,Deputy Collector, Deoghar with regard to Plot No. 922, Area -2.70 decimals of Mauza -Pachaiya Kothi for declaration of title and recovery of possession for the same against Raghu Mahato and Khusi Mahato, ancestor of the petitioners, which was ultimately dismissed in terms of compromise dated 10.1.1968 admitting the land in favour of the ancestor of the petitioner and thus again after 33 years Lilawati Devi filed a petition under Section 42 of the S.P.T.Act, suppressing her interse relationships with the petitioner and without considering, the Courts below, have passed the order of eviction of the petitioners and thus eviction warrant has been issued on 13.2.2007 by the Sub -Divisional Officer -Deoghar.
(2.) THE facts,in brief, are set out as under: The petitioners are legal heir and successor of Raghu Mahato who was legal heir and successor of one of the son of Horil Mahato namely Govind Mahto, whreas private respondent, Lilawati Devi is widow of Maru Mahato, the grand son of Kanhaiya Mahato, i.e. brother of Govind Mahato. It appears that that in the year 1967a Title Suit No. 33 of 1967 was filed by Maru mahato for declaration of title and recovery of possession, which ended in compromise in terms of order dated 10.1.1968. The private respondent Lilawati Devi initiated a proceeding in the year 1988 which was dropped vide order dated 25.4.1988 by Sub - Divisional Magistrate, Deoghar.The petitioners are possessing the land of Mauza -Pachiya Kothi, Plot No. 922, Area -2.70 acres since year 1936 and have constructed a residential house over the same in which the family of the petitioners are residing and the same was admitted by Maru Mahato, husband of private respondent Lilawati Devi in Title Suit No. 33 of 1967 which ended in compromise and thus the petitioners are residing over the plot which was initially recorded in the name of Horil Mahato, ancestor of petitioners and private respondent before 1936 and as such eviction of the petitioners cannot be passed under Section 20 or 42 of the Santhal Pargana Tenancy Act (in short S.P.T. Act).The private respondent Lilawati Devi filed a petition of eviction of the petitioners from the land in question vide Revenue Misc. Case No. 53 of 2001 -02 before the Court of Sub - Divisional officer, Deoghar (in short S.D.O.,Deoghar) for eviction of the petitioners under Section 42 of the S.P.T.Act. The petitioners also filed their show cause stating therein that they are in possession of the land since 1936, after the last survey settlement, as parties have common ancestor and after spending huge money, they have developed the land and also constructed house and the matter was compromised in Title Suit No. 33 of 1967 and thereafter a proceeding was initiated vide Misc. Case No. 87 of 1988 which was dropped and thus, the possession of the petitioners are known to the private respondent Lilawati Devi and without mentioning the date, time regarding illegal possession of the petitioners the private respondent Lilawati Devi filed application under Section 42 of the S.P.T. Act which is not applicable in the facts and circumstances of the case. The learned S.D.O.,Deoghar without considering the fact of the case on the basis of the report submitted by Circle Officer, Deoghar passed order dated 13.8.2004 under Section 42 of the S.P.T. Act . The petitioners being constrained preferred a Revenue Misc. Appeal No. 61 of 2001 before the Court of learned Deputy Commissioner, Deoghar challenging the order passed by the S.D.O., Deoghar and learned Deputy Commissioner affirmed the order of S.D.O. Deoghar vide its order dated 10.3.2005. A revision was filed before the Court of Divisional Commissioner, Dumka challenging the aforesaid order and the learned Divisional Commissioner passed the order of eviction and dismissed the Revenue Misc. Revision vide its order dated 31.10.2006 and thereafter the S.D.O. Vide its order dated 13.2.2007 passed the order of eviction by issuing an eviction warrant and the same are the subject matter of the challenge in this writ petition. The main contention raised by the learned counsel for the petitioners is that Section 42 of the Act is not maintainable for ejectment as they were not trespassers instead they were in possession of the land in question for over 12 years prior to 1949. It has further been contended that the compromise entered between the ancestor of the husband of the private respondent in Title Suit No. 33 of 1967 was not even considered and thus, the impugned orders passed by the authorities below were illegal and unsustainable in the eyes of law. It has further been contended that the order of ejectment under Section 42 is even otherwise impermissible since they belong to the same family having common ancestor and are not outsiders.
(3.) THE learned counsel for the respondents submits that the writ petitioners have not come to the court with clean hands and they have suppressed materials facts and thus, it deserves to be dismissed. It is submitted that the Title Suit No. 33 of 1967 followed by compromise entered into was collusive and it has no value in the eyes of law. It has further been contended that Plot No. 922 stood recorded in the name of Kanhai Mahto,the grand father -in -law of Lilavati Devi and the land being Raiyati was not transferable and the claim of the petitioner on the basis of Kurfa document without producing any chit of documentary evidence is on the face of it illegal and unsustainable. It has further been contended that there was no legal possession for the land in question nor was it established by the petitioners that the alleged possession of the writ petitioners was for 12 years before S.P.T. Act 1949 came into effect. In this regard he has also referred to and relied upon AIR 1973 Patna 1 and 1985 PLJR 753 that a person cannot acquire a title by adverse possession in a non transferable Raiyati Land.;