SHYAM MURMU And ANR vs STATE OF JHARKHAND And ORS

Court: Jharkhand High Court
Case type: WRIT PETITIONS
Decided on: 06-04-2026

<div> ( 2026:JHHC:9514 ) 2024:JHHC:11575 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (C) No. 631 of 2011 1. Shyam Murmu, son of Bhagat Murmu, resident of Banmakri, P.O. Munghakata, P.S. Ghorabandha, Circle Office, Baharagora, District- East Singhbhum 2. Ram Chandra Baskey, son of Late Suru Baskey, resident of Bengaria, P.O. Balijuri, P.S. Ghorabandha, District- East Singhbhum … Petitioners -Versus- 1. The State of Jharkhand 2. The Commissioner, Singhbhum (Kolhan), Sub-Division, Chaibasa 3. The Deputy Commissioner, East Singhbhum at Jamshedpur 4. The Sub-Divisional Magistrate, Ghatshila 5. Ram Chandra Santhal, son of Late Kala Santhal, resident of Agarpara, P.S. Ghorabandha, Circle Office Bahragora, Dist. East Singhbhum 6. Lakhan Santhal, son of Late Kala Santhal, resident of Agarpara, P.S. Ghorabandha, Circle Office Bahragora, Dist. East Singhbhum 7(a). Joba Santhal, wife of Late Mangal Santhal, resident of Agarpara, P.S. Ghorabandha, Circle Office, Bahragora, Dist. East Singhbhum 8. Suru Santhal, son of Mother Kari Santhal, resident of Agarpara, P.S. Ghorabandha, Circle Office, Bahragora, Dist. East Singhbhum … Respondents ----- CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ----- For the Petitioners : Mr. Kushal Kumar, Advocate Ms. Khushi Mahendru, Advocate Mr. Kshitij Priyanshu, Advocate For the State : Mr. Vineet Prakash, A.C. to S.C.-IV For Respondent Nos.5, 6 & 8 : Mr. Chandrajit Mukherjee, Advocate For Respondent Nos.7(a) : None ----- 13/06.04.2026 Heard Mr. Kushal Kumar, learned counsel appearing for the petitioners, Mr. Vineet Prakash, learned counsel appearing for the State and Mr. Chandrajit Mukherjee, learned counsel appearing for respondent nos. 5, 6 and 8. 2. Notice upon legal heir/successor of respondent no.7 has been effected, however, she has chosen not to appear. 3. This writ petition has been filed under Article 226 of the Constitution of India for quashing the order dated 05.12.2000 passed by the Sub-Divisional Officer, Ghatshila (respondent no.4) in S.A.R. Case No.18/1999-2000 by which W.P. (C) No. 631 of 2011 -1- ( 2026:JHHC:9514 ) 2024:JHHC:11575 he has passed the order for restoration of land measuring an area of 2.57 acres out of Plot Nos.118, 121, 150, 151, 1095, 1006 and Khata No.29, situated at Mauza Agarpara, P.S. Garbandha, East Singhbhum in exercising power under Section 71-A of the Chotanagpur Tenancy Act (hereinafter to be referred to as “CNT Act”). The prayer is also made for quashing of the order dated 06.09.2007 passed by the Commissioner, Singhbhum (Kolhan), Sub- Division, Chaibasa in S.A.R. Revision No.5/06, 6/06 and 7/06 allowing the revision filed by respondent nos. 5 and 6 by setting-aside the order dated 24.11.2005 passed by the Deputy Commissioner, East Singhbhum, Jamshedpur in S.A.R. Appeal Nos.157, 158, 159/2000-01. 4. Mr. Kushal Kumar, learned counsel appearing for the petitioners submits that the lands of Khata No.176 and 178 situated at Mauza Amrapara, P.S. Bahragora, Dist. Singhbhum was recorded in the revisional survey records of rights in the name of Surai Manjhi. He further submits that the said Surai Manjhi instituted Title Suit No.37/28-76/77 in the Court of the learned Sub- Judge, Jamshedpur against Kala Santhal and others i.e. the ancestors of respondent nos.5 and 6 praying therein a decree for declaration of title and confirmation of possession with respect to the land measuring an area of 6.28 acres comprised within Khata Nos.29 and 30 situated at Amrapara, P.S. Bahragora, District- East Singhbhum and the prayer was made for grant of injunction restraining the defendants from interfering with the possession over the suit land. He then submits that respondent nos. 5 and 6 contested the suit by filing written statement and the learned Sub-Judge, Jamshedpur after properly considering the materials available on records and the relevant provisions of law decreed the suit and permanently restrained the defendants W.P. (C) No. 631 of 2011 -2- ( 2026:JHHC:9514 ) 2024:JHHC:11575 to enter into the said property vide judgment/decree dated 31.07.1978, contained in Annexure-1 of this petition. He next submits that against the said judgment, there was no appeal by the defendants and the same became final, conclusive and binding upon the parties. He also submits that the said Surai Manjhi remained in possession over the lands so long alive and after his death, his only daughter Hira Manjhian inherited the aforesaid property and came into possession of the same. He submits that Hira Manjhian on account of legal necessities, sold 1.13 acres of land out of plots of Khata Nos.29 and 30 by virtue of registered sale deed dated 20.02.1982 vide Sale Deed No.1507 and further 1.30 acres of land by virtue of another registered sale deed dated 20.02.21982 vide Sale Deed No.1506 and further 3.52 acres vide registered sale deed dated 20.02.1982 vide Sale Deed No.1508 after obtaining permission under Section 46 of the CNT Act passed in Misc. Case No.565/78- 79 and 566/78-79 and 567-78-79 and, thereafter, the petitioners came into possession over the same. He further submits that after purchase of the aforesaid lands, the petitioners got their names mutated in the revenue record and are regularly making payments of rent in their own name and the rent receipts are being issued by the revenue authorities, contained in Anexure-3 Series of this petition. He then submits that thereafter respondent nos. 5 and 6 filed an application under Section 71-A of the CNT Act for restoration of land measuring an area of 2.57 acres, 1.40 acres and 1.13 acres on the basis of which RC Case No.16/1999-2000, 17/1999-2000 and 18/1999- 2000 were instituted. He next submits that the petitioners filed their show- cause in the said case stating therein that there was no contravention either of the provision contained in Section 46 of the CNT Act or any other provisions W.P. (C) No. 631 of 2011 -3- ( 2026:JHHC:9514 ) 2024:JHHC:11575 of the CNT Act and the petitioners purchased the land after obtaining permission under Section 46 of the CNT Act and the ancestors of respondent nos. 5 and 6 had lost the Title Suit No.37/76 and in view of that, the restoration cannot be made in favour of respondent nos. 5 and 6. He also submits that all the three restoration cases were heard analogous and the learned S.D.O. passed the order for restoration of land is in favour of respondent nos.5 and 6, contained in Annexure-4 of this petition. He submits that aggrieved with the said order, the petitioners herein had preferred S.A.R. Appeal Nos.157, 158, 159/2000-01 before the Deputy Commissioner, East Singhbhum and all the appeals were heard analogous and the Deputy Commissioner after considering the material on record and relevant provisions of law allowed those appeals vide order dated 24.11.2002 and set-aside the order passed by the S.D.O. in S.A.R. Case Nos. 16, 17, 18/1999-2000. He further submits that respondent nos. 5 and 6 being aggrieved with the order passed in the said appeals, have preferred S.A.R. Revision Nos.5, 6 and 7 of 2006 before the Commissioner, Singhbhum (Kolhan), Chaibasa and the said revision cases were heard together and allowed vide order dated 06.09.2007 and set-aside the order passed by the Deputy Commissioner, contained in Annexure-6 of this petition. 5. In the aforesaid background, Mr. Kushal Kumar, learned counsel appearing for the petitioners elaborates his argument by arguing that the provision under Section 46 of the CNT Act has already been complied with in the aforesaid cases in favour of the petitioners. He submits that the Deputy Commissioner has given a cogent reason for setting-aside the order passed by the S.D.O. saying that the said Title Suit was decided on contest in favour W.P. (C) No. 631 of 2011 -4- ( 2026:JHHC:9514 ) 2024:JHHC:11575 of the plaintiff and he has also found that the result in the said Title Suit result was suppressed by the respondents herein in the said restoration cases and, thereafter, the order of restoration has been passed by the S.D.O. He next submits that in spite of that the Commissioner without appreciating that fact, has set-aside the order passed by the Deputy Commissioner in absence of any proof and held that in light of the custom prevailing in the Scheduled Tribes in the Kolhan region, the daughter is having no right of alienation in the property. He submits that this has been done in absence of any evidence adduced by the respondents herein. 6. Mr. Kushal Kumar, learned counsel appearing for the petitioners also submits that once the matter of custom is involved, it is required to be proved by way of leading evidence and that has not been done in the case in hand. He submits that the customs are required to be proved with respect to the tribes. To buttress this argument, he relied upon the judgment passed in the case of Laxmibai (Dead) through LRS and another v. Bhagwantbuva (Dead) through LRS and others , reported in (2013) 4 SCC 97 . He refers paragraphs 12, 13 and 14 of the said judgment, which read as under: “12. Custom is an established practice at variance with the general law. A custom varying general law may be a general, local, tribal or family custom. A general custom includes a custom common to any considerable class of persons. A custom which is applicable to a locality, tribe, sect or a family is called a special custom. Custom is a rule, which in a particular family, a particular class, community, or in a particular district, has owing to prolonged use, obtained the force of law. Custom has the effect of modifying general personal law, but it does not override statutory law, unless the custom is expressly saved by it. Such custom must be ancient, uniform, certain, continuous and compulsory. No custom is valid if it is illegal, immoral, unreasonable or opposed to public policy. He who relies upon custom varying general law, must W.P. (C) No. 631 of 2011 -5- ( 2026:JHHC:9514 ) 2024:JHHC:11575 plead and prove it. Custom must be established by clear and unambiguous evidence. 13. In Surajmani Stella Kujur v. Durga Charan Hansdah [(2001) 3 SCC 13 : 2001 SCC (Cri) 1305 : AIR 2001 SC 938] this Court held that custom, being in derogation of a general rule, is required to be construed strictly. A party relying upon a custom, is obliged to establish it by way of clear and unambiguous evidence. (Vide Salekh Chand v. Satya Gupta [(2008) 13 SCC 119] .) 14. A custom must be proved to be ancient, certain and reasonable. The evidence adduced on behalf of the party concerned must prove the alleged custom and the proof must not be unsatisfactory and conflicting. A custom cannot be extended by analogy or logical process and it also cannot be established by a priori method. Nothing that the courts can take judicial notice of needs to be proved. When a custom has been judicially recognised by the court, it passes into the law of the land and proof of it becomes unnecessary under Section 57(1) of the Evidence Act, 1872. Material customs must be proved properly and satisfactorily, until the time that such custom has, by way of frequent proof in the court become so notorious, that the courts take judicial notice of it. (See also Effuah Amissah v. Effuah Krabah [(1936) 44 LW 73 : AIR 1936 PC 147] , T. Saraswathi Ammal v. Jagadambal [(1953) 1 SCC 362 : AIR 1953 SC 201] , Ujagar Singh v. Jeo [AIR 1959 SC 1041] and Siromani v. Hemkumar [AIR 1968 SC 1299]. ” 7. Relying on the above judgment, Mr. Kushal Kumar, learned counsel appearing for the petitioners submits that unless alleged custom not having been established by judicial pronouncements and not having been proved, it cannot be given effect. He submits that in view of this well- settled proposition of law, the Commissioner has erred in passing the impugned order. 8. Mr. Kushal Kumar, learned counsel appearing for the petitioners further relied upon the judgment passed in the case of Ram Charan and others v. Sukhram and others , reported in 2025 INSC 865 (Civil Appeal No.9537 of 2025) . He refers paragraphs 13 and 14 of the said judgment, which read as under: “13. Since the Hindu Law has no application, the next possibility to be considered is that of the application of the custom. For the application of a custom to be shown, it has to W.P. (C) No. 631 of 2011 -6- ( 2026:JHHC:9514 ) 2024:JHHC:11575 be proved, but it was not in the present case. In fact, the Courts below proceeded, in our view, with an assumption in mind and that assumption was misplaced. The point of inception regarding the discussion of customs was at the exclusion stage, meaning thereby that they assumed there to be an exclusionary custom in a place where the daughters would not be entitled to any inheritance and expected the appellant-plaintiffs to prove otherwise. An alternate scenario was also possible where not exclusion, but inclusion could have been presumed and the defendants then could have been asked to show that women were not entitled to inherit property. This patriarchal predisposition appears to be an inference from Hindu law, which has no place in the present case. 14. The Chhattisgarh High Court in Mst. Sarwango and others v. Mst. Urchamahin and others has observed: “10. In the present case, both the parties have failed to prove any law of inheritance or custom prevailing in their Gond caste i.e. member of Scheduled Caste whom Hindu law or other law governing inheritance is not applicable. In absence of any law of inheritance or custom prevailing in their caste governing the inheritance the Courts are required to decide the rights according to justice, equity and good conscience in term of Section 6 of the Act. Plaintiffs Sawango and Jaituniya are daughters of Jhangal, nearest relative rather the respondents, who were daughter-in-law of brother of Jhangal and legitimate or illegitimate son of Balam Singh, son of Dakhal. 11. In these circumstances, plaintiffs Sawango and Jaituniya would be the persons' best entitlement to inherit the property left by their father. The Courts below ought to have decreed the suit for partition to the extent of share of Jhangal, but the Court below i.e. the lower appellate Court has allowed the appeal and dismissed the suit in absence of any law or custom for inheritance for a member of Schedule Tribe. The Courts below are required to decide their rights of inheritance in accordance with the provisions of Section 6 of the Act applicable to the State of Chhattisgarh and undivided State of Madhya Pradesh” (Emphasis supplied) ” 9. Relying on the above judgment, Mr. Kushal Kumar, learned counsel appearing for the petitioners submits that the learned Courts are required to decide the rights of inheritance in accordance with the provisions made in the CNT Act. 10. On these grounds, Mr. Kushal Kumar, learned counsel appearing for the W.P. (C) No. 631 of 2011 -7- ( 2026:JHHC:9514 ) 2024:JHHC:11575 petitioners submits that the impugned order may kindly be set-aside and the writ petition may kindly be allowed in favour of the petitioners. 11. Mr. Vineet Prakash, learned counsel appearing for the State submits that the Commissioner has rightly passed the order and there is no illegality in the impugned order. 12. Mr. Chandrajit Mukherjee, learned counsel appearing for respondent nos.5, 6 and 8 vehemently opposed the prayer and submits that the petitioners herein have not appeared before the Commissioner despite issuance of notice and that order was passed in their absence. He further submits that the Commissioner relying the materials on record, has rightly passed the order. He next submits that the Hindu Succession Act does not apply to the member of the Scheduled Tribes in the matter of inheritance or alienation of the property and the daughter is having no right of alienation being the member of Scheduled Tribes. To buttress this argument, he relied upon the judgment passed in the case of Manohar Singh and another v. Munni Lal Singh , reported in 1999 Supreme (Pat) 485 . He refers paragraph 14 of the said judgment, which reads as under: “14. In this way, Hindu Succession Act, 1956 does not apply to the members of any Scheduled Tribe in the matter of inheritance or alienation of the property. In the result, Dhaneshwari Devi who was the member of Scheduled Tribe is also not entitled to inherit the property of her husband after his death but she is entitled to be maintained as per provisions of the law. A widow or other limited heir has no power to alienate the estate inherited by her from the deceased owner except for the following purposes, namely: (i) Religious or charitable purposes ; and (ii) Other purposes amounting to legal necessities. ” 13. Relying on the above judgment, Mr. Chandrajit Mukherjee, learned W.P. (C) No. 631 of 2011 -8- ( 2026:JHHC:9514 ) 2024:JHHC:11575 counsel appearing for respondent nos.5, 6 and 8 submits that the Commissioner has rightly passed the impugned order and in view of that, this writ petition may kindly be dismissed. 14. In view of the above submissions of the learned counsel for the parties, the Court has gone through the materials on record and finds that the assertions have been made after having permission under Section 46 of the Act in Misc. Case No.565/78-79, 566/78-79 and 567/78-79 and the said transfer has been made to the vendor of these petitioners and finding of the first Court on that issue is absent. It is further admitted position that Title Suit No.37/28-76-77 was instituted by Surai Manjhi, who is predecessor of respondent nos. 5 and 6 and the said suit was decreed in favour of the plaintiffs vide judgment dated 31.07.1978, contained in Annexure-1 of this petition. By the said decree, the defendants were permanently restrained from the land in question. 15. The Deputy Commissioner has appreciated all these aspects in its right perspective and has found that the fact of the said title suit has been suppressed by the respondents herein in obtaining the order passed by the SAR Court. The Deputy Commissioner has also found that five witnesses have been examined by the respondents in the said title suit and, thereafter, they have lost and no appeal was preferred against the said title suit. It is well- settled that once no appeal is filed to higher court against the order/judgment, the said order/judgment attained finality. This aspect of the matter has been rightly appreciated by the Deputy Commissioner, Jamshedpur and the order of the S.A.R. Court has been set-aside, however the Commissioner, Singhbhum (Kolhan), Chaibasa in the aforesaid revision cases, has set-aside W.P. (C) No. 631 of 2011 -9- ( 2026:JHHC:9514 ) 2024:JHHC:11575 the order of the Deputy Commissioner and restored the order of the S.A.R. Court. 16. The Commissioner although has given finding that the daughter is having no right of alienation over property, however, that is in absence of any evidence led by the respondents herein. Even if the said order was being passed ex-parte, the Commissioner was required to deal with that aspect of the matter, which is absent in the impugned order. In this way, the judgments relied by the learned counsel appearing for the petitioners in the cases of Laxmibai (Dead) through LRS v. Bhagwantbuva (Dead) through LRS and Ram Charan v. Sukhram (supra) are helping the petitioners. 17. How the Commissioner, Singhbhum (Kolhan), Chaibasa has held that the decree in the said title suit was obtained fraudulently, that is also not clear and further the said order has been passed by the Commissioner ex- parte against the petitioners herein and in that view of the matter, the impugned order passed by the Commissioner cannot sustain in the eyes of law. 18. In view of the aforesaid facts, reasons and analysis, the order dated 06.09.2007 passed by the Commissioner, Singhbhum (Kolhan), Sub- Division, Chaibasa in S.A.R. Revision No.5/06, 6/06 and 7/06 are, hereby, set- aside. 19. Consequently, the said revision cases being S.A.R. Revision No.5/06, 6/06 and 7/06 are restored to their original file. The Commissioner is required to give fresh finding after providing opportunity of hearing to both the sides and in light of the law laid down by the Hon’ble Supreme Court, as discussed W.P. (C) No. 631 of 2011 -10- ( 2026:JHHC:9514 ) 2024:JHHC:11575 herein above. The petitioners herein and respondent nos. 5 to 8 shall appear before the Commissioner, Singhbhum (Kolhan), Chaibasa on 20.04.2026. The Commissioner will proceed further in accordance with law. Seeing that the matter is old one, the Commissioner will decide the said revision cases expeditiously. 20. Accordingly, this writ petition is disposed of in above terms. (Sanjay Kumar Dwivedi, J.) th Dated: 6 April, 2026 Ajay/ A.F.R. Uploaded on th 7 April, 2026 W.P. (C) No. 631 of 2011 -11- </div>