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 to resist eviction under the Act.

The Court further held that a Kurfanama which does not satisfy the requirements under the Tasdik Niyamawali cannot be relied upon to defeat eviction proceedings.

A Single Judge Bench of Justice Sanjay Kumar Dwivedi was hearing a writ petition challenging an order of the Commissioner, Santhal Pargana Division, Dumka, setting aside an appellate order passed by the Deputy Commissioner, Godda, and restoring the order of eviction passed by the Sub-Divisional Officer in proceedings under Sections 20 and 42 of the Santhal Pargana Tenancy (Supplementary Provision) Act, 1949.

The petitioner submitted that respondent no. 5 had initiated proceedings under Sections 20 and 42 of the Act alleging encroachment over portions of plots situated at Mauza Dumaria. According to the petitioner, respondent no. 5 claimed title as the adopted son of Tetru Jha on the basis of a registered deed of adoption executed in 1965.

The petitioner, however, disputed the claim of adoption and asserted that his father had been put in possession of the disputed land under a Kurfanama executed in 1941. It was submitted that the petitioner's father had remained in continuous possession during the lifetime of Tetru Jha and that after his father's death, the petitioner continued to cultivate and possess the land. The petitioner further argued that the authorities had failed to consider the Kurfanama and rent receipts while directing eviction. It was contended that the matter ought to be remanded for consideration of the petitioner's possession.

The State opposed the writ petition, submitting that the Commissioner had correctly interpreted Sections 20 and 42 of the Act. It was argued that since the petitioner had failed to establish twelve years' possession after the Act came into force, the eviction order was valid.

The High Court framed the principal issue as whether the petitioner had completed the requisite period of twelve years' possession after the enforcement of the Santhal Pargana Tenancy (Supplementary Provision) Act, 1949.

Examining the record, the Court noted that although the petitioner relied upon a Kurfanama of 1941, the Act came into force only on November 1, 1949. The Bench observed that the petitioner had completed only eight years of possession by 1961 and, therefore, had failed to establish the statutory requirement of twelve years' possession.

The Court further examined the validity of the Kurfanama relied upon by the petitioner. It observed that under the applicable Tasdik Niyamawali, three situations are recognised for according legal effect to a Kurfanama: where it is registered; where an unregistered (Sada) Kurfanama has been considered by a court of law; or where such Kurfanama has been exhibited before a court.

The Court found that none of these conditions had been satisfied in the present case. The Bench observed that the Kurfanama appeared to be collusive and did not fulfil the requirements prescribed under the Santhal Pargana Tenancy Act.

Rejecting the petitioner's contention that non-registration alone could not invalidate the Kurfanama, the Court held that even the conditions applicable to an unregistered Kurfanama had not been fulfilled.

The Court also referred to the customary law relating to adoption in the Santhal Pargana region and the Supreme Court's decisions recognising the object of the restrictions on transfer of raiyati land under the 1949 Act.

Holding that the petitioner had failed to establish twelve years' possession prior to the relevant period and that the Kurfanama could not be relied upon, the Court found no illegality in the Commissioner's order restoring the eviction proceedings.

Accordingly, the writ petition was dismissed.

Case Title: Beni Madhav Jha v. State of Jharkhand and Ors.

Case Number: W.P.(C) No. 3922 of 2012

Appearance: Senior Advocate Mr. Jay Prakash Jha, assisted by Mr. Aishwarya Prakash for the Petitioner. Mr. Mukul Kumar Singh and Mr. Kumar Nischay for the Respondents.

Click Here To Read/Download Order