JANAM SINGH KUDADA & ANR.versusSTATE OF BIHAR & ORS.

1016                      [2019]
                SUPREME COURT    11 S.C.R. 1016
                              REPORTS                      [2019] 11 S.C.R.


 A                     JANAM SINGH KUDADA & ANR.
                                        v.
                           STATE OF BIHAR & ORS.
                         (Civil Appeal No. 2575 of 2001)
 B                              AUGUST 27, 2019
                     [R. F. NARIMAN, R. SUBHASH REDDY
                             AND SURYA KANT, JJ.]
             Suit:
 C            Suit for declaration that the plaintiffs were rightful owners
       of half share of the suit property - Suit decreed in respect of the
       entire suit property - Applying Wilkinson's Rule i.e. accepting the
       award passed by majority members of Panchayat - Appellate
       Authority affirmed the order - Writ petition was dismissed by Single
 D     Judge of High Court - Division Bench of High Court affirmed the
       order of Single Judge - Appeal to Supreme Court - Held: In the
       suit plaintiffs had claimed only half the suit property, hence decree
       awarding anything beyond the claim is liable to be set aside to that
       extent - In view of s. 2 of Kolhan Civil Justice Act also, the
       concurrent judgments, made on the basis of Wilkinson's Rule
 E     cannot be set aside - Bihar Kolhan Civil Justice (Regulation and
       Validation) Act, 1978 - s. 2.
             Disposing of the appeal, the Court
             HELD: In view of the fact that it is only half the property
 F     which went to the plaintiffs, as referred to in the plaint, that was
       the subject matter of the Suit, the decree will have to be set
       aside to the extent that it awards anything beyond this. In view
       of section 2 of Bihar Kolhan Civil Justice (Regulation and
       Validation) Act, 1978 as well, which admittedly has not been
       challenged by the appellants, it is difficult at this point of time
 G
       to set aside the concurrent judgments which were made on the
       basis of application of Wilkinson's Rules. [Paras 8, 10] [1021-
       A-B; 1022-A]
             Mora Ho v. State of Bihar and Others AIR 2000 Patna
             101 - referred to.
 H
                                       1016
JANAM SINGH KUDADA & ANR. v. STATE OF BIHAR & ORS. 1017


                          Case Law Reference                                     A
AIR 2000 Patna 101                     referred to             Para 1
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2575
of 2001.
     From the Judgment and Order dated 27.07.2000 of the High                    B
Court of Judicature at Patna, Ranchi Bench in L.P.A. No. 251 of
2000(R).
       Akhilesh Kumar Pandey, Adv. for the Appellants.
      Ms. Nandini Sen, Deba Prasad Mukherjee, Jayesh Gaurav, Gopal
                                                                                 C
Prasad, Advs. for the Respondents.
       The Judgment of the Court was delivered by
       R. F. NARIMAN, J.
       1. After hearing learned counsel on behalf of the appellants for
                                                                                 D
some time, and after having gone through the relevant provisions of
the Constitution of India, the Wilkinson Rules and the Full Bench
Judgment in 'Mora Ho v. State of Bihar and Others' reported as AIR
2000 Patna 101, we are of the view that it may not be necessary to go
into the applicability and/or validity of the Wilkinson's Rules in this matter
for two reasons.                                                                 E

      2. First and foremost, as is correctly pointed out by the learned
counsel appearing on behalf of the appellants/defendants in the Suit,
what was claimed in the Suit was only half the Suit property and not
the entirety of the property as follows:
                                                                                 F
       3. Paragraph 3 of the plaint states "Sura Ho died issueless and
the lines of the parties became entitled to half and half of these lands".
This was the suit property over which the plaintiffs claimed a
declaration that they are rightful owners and for confirmation of their
possession, and consequentially, correction of the entry made in the             G
Record of Rights of 1963.
      4. Despite this being the claim in the plaint, by an order dated
30.03.1977, the Additional Deputy Commissioner, Singhbhum, decreed
the Suit in accordance with the award of the majority members of the
Panchayat, and held as follows:                                                  H
1018   SUPREME COURT REPORTS                           [2019] 11 S.C.R.


 A      “I therefore come to the conclusion that the suit lands have
        been wrongly recorded in the names of the defendants
        during the recent survey and settlement operation. The
        survey authorities have not considered the documents which
        were in favour of the plaintiffs.
 B      When the plaintiffs come in possession of the suit lands after
        the demarcation on 5.10.20 by Kolai Ho, Amin no actions
        were taken by the defendant no. 1 and the father of
        defendant no. 2 to go in appeal against the demarcation.
        They also did not go in appeal against the orders of mutation,
 C      of correction of Zamanbandi passed in case no. 1139/20-
        21. Therefore whatever orders have been passed in Civil
        case no. 166-13, 893-14-15, 670/20-21 and 1139/20-21 still
        hold good because they have not been either set aside or
        modified by any competent court. After the plaintiffs came
 D      in possession of the suit lands in the year 1921 thereafter
        there has been no evidence on record to show that the
        plaintiffs were ever dispossessed by the defendant no. 1 and
        defendant no. 2 or his father. It is therefore presumed that
        the plaintiffs are still continuing in possession of the suit land.
 E      There is definite documentary evidences is in favour of the
        plaintiffs to prove their right title and interest over the suit
        lands. There is also evidence that they are in possession of
        the suit lands since 1921. Under the circumstances discussed
        above, the award of the two punches namely Harish
 F      Chandra Deogam and Dogor Deogam is accepted and for
        the reasons stated above the award of the minority punch
        is set aside because he has relied more upon the papers and
        documents which are of lessor value.

        In the result the suit of the plaintiffs is decreed in their
 G      favour. They have a valid right, title and interest over the
        suit lands and before their possession over the suit land is
        confirmed. It is also hereby declared that the entries in the
        names of the defendants in respect of the such lands in
        respect of rights finally published in the year 1963 is wrong
 H      and erroneous.”
        JANAM SINGH KUDADA & ANR. v. STATE OF                                   1019
            BIHAR & ORS. [R. F. NARIMAN, J.]

    5. By an order dated 06.08.1979, the appellate authority viz., the          A
Commissioner, dismissed the appeal filed by the appellants by holding:
      “In the course of hearing, the learned lawyer for the appellants
      argued that the learned Additional Deputy Commissioner went
      beyond the award of the majority punches to confirm the
      possession of the respondents over the suit land which was wrong          B
      as the decree must be in conformity with the award and anything
      beyond it is ultra-virus. He also questioned the award of the
      majority punches.
      Under Wilkinson's rules the acceptance of the award of the
      majority punches is mandatory unless the charges of corruption            C
      have been proved or unless the award is contrary to the custom
      of the Hos. In the present case neither has been done.
      Therefore, that part of the Additional Deputy Commissioner's
      order which is in conformity with the award of the majority
      punches is up held. He has also given reasons why he held
      erroneous the entries in the records prepared during the recent           D
      survey as mentioned above, and has concluded that the
      respondent have been in possession of the land since 1921.
      I, therefore, see no reason to interfere with the order. The appeal
      is dismissed.”
                                                                                E
      6. The learned Single Judge, by his judgment dated 04.02.2000,
dismissed the writ petition filed by the appellants herein, holding as
follows:
      “On consideration of the reliefs claimed, I do not find that the
      cognizance taken of the suit by the respondents no. 2 and 3 was           F
      without jurisdiction when the title has been clouded between the
      parties on wrong entry in the record of rights. Moreover, the
      party has got every right to go for a suit for declaration of title
      and confirmation of possession. Thus on this score, there is no
      force in the writ petition.
                                                                                G
      The second point urged by Mr. Khatri is that the suit was
      hopelessly barred by limitation as Munda Jamabandi prepared in
      the year 1918 and also in 1963 cannot be challenged in the year
      1970 when the same is totally barred by limitation as contemplated
      under Rule 3 of the Rules. Suit had been filed for declaration
      of right, title and interest over the suit land and the cause of action   H
1020            SUPREME COURT REPORTS                         [2019] 11 S.C.R.


 A           for the suit was due to trouble being created by the defendants
             as there was wrong entry in the record of rights. It appears
             that the record of rights were definitely wrongly prepared giving
             go-by to the decision arrived at earlier by the Kolhan
             Superintendent already mentioned above and the tile and
             possession of the plaintiffs had already been established long
 B
             back in the year 1914-15, but the revenue records were not
             corrected accordingly and this have a handle to the defendants
             to create trouble about the possession and title of the plaintiffs
             and then the plaintiffs have no other alternative but to come in
             the suit. I do not find that in the circumstances of the case, Rule
 C           3 of the Wilkinson's Rule would create a bar in coming up for
             declaration of the title over the suit land. Moreover, it is an
             established principle of law that majority of the award should be
             accepted unless it can be shown that the same suffers from the
             procedural defect as contemplated under Rule 20 of the
             Wilkinson's Rules or that the same is devoid of consideration of
 D
             the customs prevailing amongst troubles. There was no plea of
             misconduct against the majority members who gave their award
             in favour of the plaintiffs. This aspect has been considered when
             objection was raised against the award by both the courts below
             and came to the concurrent findings. There is no scope of this
 E           court to interfere with such concurrent findings unless the same
             suffers from jurisdictional error or error apparent on the face of
             it. It appears from the perusal of both the judgments as contained
             in Annexures 4 and 5 that both the respondents no. 3 and 2 had
             taken much pain and gone in depth into the cases of the parties
             and the decision arrived at by the majority award and then
 F
             accepted the award rejecting the objections raised from the side
             of the petitioners. Thus, the points raised in this writ petition
             have got no force.
             In the result, this writ petition is dismissed, but in the facts and
             circumstances of the case, no order as to costs.”
 G
            7. An appeal filed from this order was dismissed by the Division
       Bench vide impugned order dated 27.07.2000 holding as follows:
             “We have heard learned counsel for the appellant and perused
             the order under challenge. The findings recorded by the learned
 H           single judge are based upon correct appraisal of evidence on
         JANAM SINGH KUDADA & ANR. v. STATE OF                               1021
             BIHAR & ORS. [R. F. NARIMAN, J.]

      record and as such, we are not inclined to interfere with the          A
      same. Accordingly, this Letters Patent Appeal is dismissed.
       8. In view of the fact that it is only half the property which went
to the plaintiffs, as referred to in paragraph 3 of the plaint, that was
the subject matter of the Suit, the decree will have to be set aside to
the extent that it awards anything beyond this.                              B
      9. Also, we have been taken through the Bihar Kolhan Civil
Justice (Regulating and Validating) Act, 1978. Section 2 states as
follows:
      “2. Regulation and Validation of certain past action in the Kolhan     C
      with the exception of Chaibassa Municipality in the Sadar
      Subdivision of the District of Singhbhum.-(1) Notwithstanding
      anything contained in any other law for the time being in force
      any judgment, decree or order of any Court, the officers
      mentioned in Column 1 of the Schedule shall, in regard to the
      trial of civil suits and proceedings arising within the local limits   D
      of the Kolhan with the exception of the areas comprised within
      the Municipality of Chaibassa in the Sadar Sub-division of the
      District of Singhbhum and hearing of appeals or petitions for
      review or revision arising therefrom, be deemed to have validly
      exercised the powers which the officers, mentioned in the              E
      corresponding entries in Column 2 thereof exercised under the
      Wilkinson's rule and under Regulation XIII of 1838, and no order,
      judgment or decree passed by them shall be deemed to be invalid
      or shall be called in question in any Court or proceeding
      whatsoever merely on the ground that they were not so
      empowered.                                                             F

      (2) Where any judgment, decree or order in any appeal or
      proceeding has been set aside by any Court merely on the ground
      that the said officer had no power or authority to Act under the
      said Rule, the Court which set aside the judgment, decree or
      order shall on an application made to it within six months from        G
      the date of the commencement of this Act shall set aside its
      previous order and shall proceed to hear the suit, appeal or
      proceeding again and in case there has been any order for remand
      on such ground all subsequent proceedings after the remand shall
      be deemed to have terminated.”                                         H
1022             SUPREME COURT REPORTS                          [2019] 11 S.C.R.


 A            10. In view of this section as well, which admittedly has not been
       challenged by the appellants before us, it is difficult at this point of time
       to set aside the concurrent judgments which were made on the basis
       of application of Wilkinson's Rules.
              The appeal stands disposed of accordingly.
 B
       Kalpana K. Tripathy                                        Appeal disposed of.




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