Kurfanama Must Show 12 Years Possession Before 1949 Act To Resist Eviction: Jharkhand HC [Read Order]

Ranchi: The Jharkhand High Court has held that a person claiming rights over land on the basis of a Kurfanama must establish twelve years' possession prior to the coming into force of the Santhal Pargana Tenancy (Supplementary Provision) Act, 1949, in order to resist eviction under the Act.

Justice Sanjay Kumar Dwivedi was hearing a writ petition filed by Beni Madhav Jha challenging an order of the Commissioner, Santhal Pargana Division, Dumka, which had set aside a Deputy Commissioner's order and restored an eviction order passed against the petitioner by the Sub Divisional Officer, Godda.

The dispute arose out of an application filed by respondent no.5, Narendra Jha, under Sections 20 and 42 of the Santhal Pargana Tenancy Act (Supplementary Provision), 1949, alleging that the petitioner's father had encroached upon land measuring one Bigha ten katha in Mauza Dumaria. Narendra Jha claimed to be the adopted son of Tetru Jha, adopted at the age of six through a registered deed of adoption executed in 1965, and asserted that Tetru Jha, having inherited the land from his issueless uncle, was its sole owner.

The petitioner resisted the claim, asserting that the adoption was bogus and that his father had come into possession of the land through a Kurfanama executed by Tetru Jha's forefather in 1941, under which possession had continued uninterrupted through successive generations. The Sub Divisional Officer, by order dated 27th June 1979, directed the petitioner's eviction. The Deputy Commissioner, in appeal, reversed this finding in 1986, holding that the petitioner's father had remained in continuous possession on the strength of the Kurfanama settlement. On revision, however, the Commissioner, by the impugned order dated 21st October 2011, set aside the Deputy Commissioner's order and restored the eviction, holding that the respondent's title suit contesting the adoption remained pending and that the Kurfanama did not satisfy the requirements for a valid transfer.

Senior counsel for the petitioner, Mr. Jay Prakash Jha, argued that the registered adoption deed carried a presumption of validity, that the Kurfanama and accompanying rent receipts had not been properly appreciated by the authorities below, and that the impugned order deserved to be set aside and the matter remanded for a fresh determination of possession. He relied on Bhauri Lal versus S.D.O., Jamtara and Asharfi Mahaton and others versus The State of Bihar and others in support of the petitioner's case.

Counsel appearing for the State and for respondent no.5 opposed the petition, submitting that the adoption itself was collusive and unsupported by any court declaration, that the petitioner's title suit challenging the adoption had already been dismissed and upheld in appeal, and that the Kurfanama could not establish the requisite twelve years of possession prior to the Act coming into force on 1st November 1949.

Examining the Tasdik Niyamawali framed under the Santhal Pargana Tenancy Act for verifying the authenticity of Kurfanamas, the Court identified three conditions governing the effective date of such an instrument: where registered, it takes effect from the date of registration; where unregistered but judicially recognised, it takes effect from the date such recognition was accorded; and where merely exhibited before a court, it takes effect from the date of exhibition. The Court found that the petitioner's Kurfanama, dated 1941, satisfied none of these three conditions.

Since the Act came into force on 1st November 1949, the Court held that only about eight years of possession, and not the requisite twelve, could be said to have elapsed under the Kurfanama, rendering it doubtful and collusive in nature. The Court distinguished Bhauri Lal on facts, noting that the Kurfanama in that case had fulfilled the conditions under the Niyamawali, unlike the present one, and held that Asharfi Mahaton was of no assistance since the Niyamawali itself had not been placed before or considered by that Bench.

Referring to the Supreme Court's rulings in Ram Kisto Mandal and another versus Dhankisto Mandal and Jyoti Thakur and others versus Tarakant Jha and others, the Court reiterated that the prohibition against transfer of Raiyati land in Santhal Pargana was rooted in protecting the village community's special rights over its land, and that even a collusive compromise decree could not regularise a transfer made in contravention of Section 20 of the Act.

Holding that the petitioner had failed to prove twelve years' possession prior to the Act coming into force, and that the impugned order suffered from no illegality, the Court dismissed the writ petition.

Appearances: Mr. Jay Prakash Jha, Senior Advocate, and Mr. Aishwarya Prakash, Advocate, appeared for the petitioner; Mr. Mukul Kumar Singh, AC to GP-III, appeared for the State; and Mr. Kumar Nischay, Advocate, appeared for respondent no.5.

Case Title: Beni Madhav Jha versus State of Jharkhand & Ors.

[Read Order]