PAIRIA Vs. COMMISSIONER OF BHAGALPUR DIVISION

JUDGEMENT

(1.) The sole petitioner under Articles 226 and 227 of the Constitution of India has made a prayer for the quashing of the order of the Commissioner of Bhagalpur Division, respondent no. 1, dated 25th of January, 1972, as contained in Annexure 3 to the application.

(2.) There is no controversy with regard to the facts in this case. Plots 386 and 387 of village Sarkanda within Police Station Godda in the district of the Santhal Parganas, were recorded in the name of one Mostt. Paria in the last survey record of rights. The petitioner is the daughter of the recorded tenant and is her legal heir. Phulchand Ram Marwari (Respondent no. 4) is alleged to have taken possession of the said two plots on the basis of Kurfanama sometime in April, 1949. Thereafter under the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949 (hereinafter to be referred to as the Act) which came into force with effect from 1.11.1949, the petitioner filed an application before the Subdivisional Officer, Godda respondent no. 3), for eviction of respondent no. 4, under section 42 of the Act. By an order, dated 9.2.1971 the learned Subdivisional Officer ordered eviction of respondents 4 and 5, both of whom claimed to have taken possession under Kurfa settlement, from the aforesaid plots 386 and 387. A copy of the order of the Subdivisional Officer, has marked Annexure '1' to this application. Respondent No. 4 preferred an appeal before the Deputy Commissioner, Santal Parganas, who, by his order, dated 2 6.1971 (Annexure 2) upheld the order passed by the Subdivisional Officer, Respondent no. 4 thereafter filed a revision before tke Commissioner (Respondent no. 1) who, by the impugned order, allowed the application in revision and set aside the order passed by the Deputy Commissioner, and the Subdivisional Officer. The learned Commissioner in the impugned order (Annexure 3) has held that since respondent no. 4 had come in possession of the plots in question before the coming into force of the Act he had perfected his title by adverse possession on the date when the application for his eviction had been filed by the petitioner. Admittedly, under section 27 of Regulation 3 of 1872, a person coming in illegal or unauthorised possession of land in contravention of section 27 could perfect his title by adverse possession by remaining in possession for twelve years since Respondent no. 4 admittedly came in illegal possession in April, 1949 in contravention of the provisions of section 27 of Regulation 3 of 1872 it was held by the learned Commissioner that there was no bar to his acquisition of title by remaining in adverse possession for twelve years irrespective of the fact that in the interim period the Act came into force. The point at issue in this case is concluded by a Full Bench decision of this Court in Bhauri Lal Jain v. Subdivisional Officer of Jamtara, (AIR 1973 Patna 4). It is only with regard to the intpretation of the ratio of that case that the parties are at logger heads. Mr. S. C. Sinha, learned Counsel for the petitioner, submitted that the Full Bench had actually decided that a person could be protected in his illegal possession only if he had perfected his title by remaining in adverse possession for twelve years before the Act of 1949 came into force. It was contended that if title had not been so perfected by prescription before the commencement of the Act, then in view of the provision of section 20, section 42, proviso to section 64 and section 69 of the Act, there could be no period of limitation to bar the eviction of such unauthorised occupants. On the contrary, Mr. Ray Parasnath, learned counsel for the contesting respondents, submitted that what the Full Bench in the case of Bhauri Lai Jain (Supra) actually laid down was that if a person came in illegal or unauthorised possession of any land in contravention of the provisions of section 20 of the Act, then only there could be no question of limitation. On the contrary, if the act of illegal possession had commenced contravention of the provisions of section 27 of Regulation 3 of 1872 then merely because twelve years had not been completed before the commencement of the Act, there is nothing in the Act to preclude the title by prescription even after the Act came into force. Learned counsels for both the parties took us again and again through the Full Bench decision of this Court in all its aspects and ramifications. Mr. Ray Parasanath also invited our attention to a Bench decision of this Court in Gado Mahto v. State of Bihar (CWJC 953 of 1969, decided on 2.1.1973). The Bench deciding this case had also taken the view that if illegal possession commenced at a date prior to the enforcement of the 1949 Act, then title by adverse possession could be perfected even after the coming into force of the Act. The Judgment in that case was delivered by Sarwar Ali, J. with whom the learned Chief Justice concurred. Sarwar Ali J. was a party to the Full Bench Judgment itself. Apart from that fact, from the Full Bench decision itself it appears that while dealing with one point for decision by the Full Bench in paragraphs 41 to 43 of that decision the date of commencement of the illegal possession being less than twelve years from the commencement of the 1949 Act, it was held that title could be acquired by twelve years' adverse possession. K. B. N. Singh, J., who delivered the Judgment in the Full Bench case, while dealing with the case of a Kurfa settlement claimed to have been taken in the year 1938, applied the law thus :

(3.) In the result, this application fails and is, dismissed, but in the circumstances, of the case there will be no order as to costs. Application dismissed.