2025:JHHC:16972-DB 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 40 of 2022 --- 1. Mofijuddin Ansari, son of Farasat Ansari 2. Md. Razaul Ansari @ Md. Razaul Haque, son of Dr. Siddique Ansari 3. Md. Sanaullah Ansari, son of Jamalludin Ansari 4. Azmuddin Ansari, son of Umed Ali 5. Md. Mahimuddin Ansari, son of Chand Ali 6. Sikander Ansari, son of Gaffur Ansari 7. Kuddesh Ansari, son of Rasul Ansari 8. Qusum Ansari @ Abdul Qayum, son of Najir Ansari 9. Md. Moinuddin Ansari, son of Late Nazamuddin Ansari 10. Noor Nahi, son of Safar Ali 11. Arjun Mahato, son of Late Bihari Mahato 12. Ram Kumar Mahato, son of Nakul Mahato 13. Balram Mahato, son of Durga Mahato All are residents of Village- Panchrukhi No. 403, P.O.- Godda, P.S.- Godda (M),Sub-Division and District-Godda … … Appellants Versus 1. Md. Samim Akhtar, son of Late Abdul Mannan, 2. Md. Arsad Hussain, son of Late Abdul Samad 3. Jiafatur Rahman, son of Nasudat Ali 4. Md. Mahmud Alam Rizvi, son of Late Mustakin Ali, 5. Yusuf, son of Abdul Subhan 6. Abdul Rahman, son of Late Abdul Sayeed 7. Rajaul Rahman, son of Late Sekhwat Rahman 8. Md. Haider Ali, son of Late Hazi Ahmad Gaffur, All are residents of Village- Panchrukhi, P.O. & P.S.- Godda, District- Godda 9. Additional Collector, Godda 10. The Commissioner, Santhal Pargana Division, Dumka …. … Respondents CORAM: HON’BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJESH SHANKAR --- For the Appellants : Mr. A. Allam, Sr. Advocate Mr. Faisal Allam, Advocate Ms. Sushmita Kumari, Advocate Ms. Asfiya Sultana, Advocate For the Resp. Nos. 1 to 8 : Mr. Gaurav Abhishek, Advocate (private respondents) For the Respondent-State : Mr. Gaurav Raj, A.C. to A.A.G.-II --- Reserved on 23.06.2025 Pronounced on 26.06.2025 Per : Rajesh Shankar, J. : The present appeal is directed against the judgment dated 01.11.2021 passed in W.P.(C) No. 2203 of 2007 whereby the writ 2025:JHHC:16972-DB 2 petition filed by the writ petitioners/private respondents was allowed giving liberty to the private respondents/appellants to file title suit under Regulation 5 of Santhal Parganas Settlement Regulation, 1872 challenging the right and title of the petitioners before the competent civil court. 2. Learned senior counsel for the appellants submits that the appellants had filed Revenue Misc. Case No. 01 of 1998-99 before the Additional Collector, Godda (the respondent no. 9) on behalf of “16 Anna Raiyats” against the ancestors of the writ petitioners for restraining them from catching and rearing fish as well as for allowing the “16 Anna raiyats” to use four tanks in question situated over Mc. Pherson’s Settlement Jamabandi No. 55, Plot No. 21, 104, 193 and 582 corresponding to Gantzer’s Settlement Jamabandi No. 8 Plot Nos. 53, 207, 279 and 727 of Mouza Panchrukhi, P.S.- Godda. The said Revenue Misc. Case was decided by the respondent no. 9 vide order dated 12.05.2003 whereby the “16 Anna Raiyats” were allowed to use the tanks in question. 3. It is further submitted that the writ petitioners filed appeal being Revenue Misc. Appeal No. 20 of 2003-04 before the Divisional Commissioner, Santhal Pargana Division, Dumka (the respondent no. 10), which was dismissed vide order dated 08.01.2007 observing that the tanks in question were though recorded in revenue records as jamabandi tanks of the writ petitioners, however the right to rear fish in the said tanks was not recorded anywhere. It was further held that the right of irrigation to the limited extent had already been proved to have been granted to the raiyats of the village and the same was ordered in the order dated 12.05.2003 passed by the 2025:JHHC:16972-DB 3 respondent no. 9. Moreover, it was finally observed by the respondent no. 10 in the order dated 08.01.2007 that the right of the writ petitioners granted by the entries in revenue records was not perceived to have been snatched away by the lower court’s order. 4. It is also submitted that the writ petitioners filed writ petition being W.P.(C) No. 2203 of 2007 challenging the order dated 08.01.2007 passed by the respondent no. 10 which was allowed by the learned Single Judge vide order dated 01.11.2021 observing that the entries made in the Mc. Pherson’s Settlement and Gantzer’s Settlement had neither been disputed by the appellants before the said respondent nor the order dated 08.01.2007 of the respondent no. 10 was challenged before any higher forum by filing an application, appeal or writ petition to the extent of the observation that the tanks in question were recorded as jamabandi tanks of the writ petitioners in revenue records and there was no serious contest on the point of title of the writ petitioners. It was further observed by learned Single Judge that the appellants may prefer title suit for declaration of their title or alternative right over the land in question before the competent court of civil jurisdiction. 5. It is further argued that the learned Single Judge has failed to appreciate that in view of Section 35 of the Santhal Pargana Tenancy Act, 1949 (in short, “the Act, 1949”) and under Section 108A of Bihar Survey and Settlement Manual, it is necessary to maintain the public character of the tanks in question. 6. It is also contended that the lands are recorded as ‘Khas Malik’ on which the tanks in question are situated and as such, after 2025:JHHC:16972-DB 4 vesting of Zamindari, the lands in question had vested with the State Government. 7. It is further urged that the writ petitioners are not the owners of the tanks in question. The learned Single Judge has failed to appreciate that the ancestors of the writ petitioners being the Pradhan of Mouza Panchrukhi dishonestly got the said four tanks recorded in their favour in the last Survey Settlement Records but in fact they never possessed the same. 8. According to learned senior counsel for the appellants, the learned Single Judge has also failed to appreciate that the opinion of the Law Secretary-cum-Law Remembrance, Department of Law, Bihar, Patna has been incorporated in the order of the respondent no. 9 wherein it has been stated that the tanks in question are public tanks pertaining to the villagers and as such the same cannot be settled either in favour of the writ petitioners or any individual raiyat even by the State. The said four tanks are lifeline for agriculture and cattle of the entire village population as they use water of the said tanks for irrigation purpose as well as for fishing, farming, bathing, cattle bathing etc. The ancestors of the writ petitioners had already entered into compromise with “16 Anna Raiyats” as far back as on 28.08.1926 and as such they cannot be allowed to change their stand resiling from the terms of compromise. 9. Learned counsel for the respondent-State submits that the learned Single Judge has already given liberty to the appellants to challenge the right, title and interest of the writ petitioners by filing a title suit before the competent civil court. Hence, the impugned 2025:JHHC:16972-DB 5 order needs no interference. 10. Learned counsel for the writ petitioners/private respondents submits that in the order dated 08.01.2007, the respondent no. 10 has clearly observed that the tanks in question are recorded in the revenue records as jamabandi tanks of the writ petitioners/private respondents and the said observation has attained finality since the same has not been challenged by the appellants in any higher forum and as such the appellants cannot restrain the writ petitioners from rearing fish in the said tanks. 11. Heard learned counsel for the parties and perused the materials available on record. 12. The appellants are claiming right of use over the tanks in question restraining the writ petitioners from rearing and catching fish contending that the public character of the tanks in question cannot be changed. 13. In support of the aforesaid contention, learned counsel for the appellants puts reliance on Section 35 of the Act, 1949. Sub-section (1) of the said section provides that bandhas, aharas, tanks and other water reservoirs or channels, which are used either for the purposes of protection from flood or for irrigation, bathing, washing or drinking, shall not be settled for or converted to any other purpose without the consent of the raiyats and the village headman or mulraiyat, or the landlord in khas village, and the approval of the Deputy Commissioner. It is further provided that no one shall bring under cultivation any such water reservoir or channel. Further, sub- section (2) of Section 35 of the said Act provides that no proprietor or landlord shall be entitled to levy any charge for the use of water 2025:JHHC:16972-DB 6 reservoirs and channels mentioned in sub-section (1) for irrigation, bathing, washing or drinking purposes. 14. Thus, Section 35 of the Act, 1949 protects the rights of the “16 Anna Raiyats” of any village to use any bandh, ahara, tank and other water reservoirs or channels pertaining to a proprietor or landlord for the purposes of protection from flood or for irrigation, bathing, washing or drinking without being levied any charge for the same. The said Section also prohibits settlement or conversion of such bandhs, aharas, tanks and other water reservoirs or channels for any other purpose without the consent of the raiyats and the village headman or mulraiyat or the landlord in Khas village and the approval of the concerned Deputy Commissioner. 15. On bare perusal of the record of the case, it transpires that the tanks in question were the jamabandi tanks of the writ petitioners upon which the appellants were given irrigation right only to the limited extent and the main source of irrigation was from river Bhesia. Thus, Section 35 of the Act, 1949 is not applicable in the present case since the tanks in question have no public character. 16. The appellants have also challenged the title of the writ petitioners over the said tanks in question. It is well settled principle of law that title dispute cannot be adjudicated either by the revenue courts or under writ jurisdiction and as such, the learned Single Judge has rightly granted liberty to the appellants to prefer title suit before the competent court of law. Moreover, the factual observation of the respondent no. 10 to the extent that the tanks in question were recorded as jamabandi tanks in the name of the ancestors of the writ petitioners in the revenue record, has not been disputed by 2025:JHHC:16972-DB 7 the appellants and as such, no relief can be granted to the appellants under extraordinary writ jurisdiction. 17. So far the claim of the appellants to restrain the writ petitioners/private respondents from rearing and catching fish from the tanks in question is concerned, since it is not in dispute that the said tanks have been recorded as jamabandi tanks of the writ petitioners and no fishery right has been given to the appellants and other “16 Anna raiyats” in the said tanks, we find no substance in the said claim of the appellants. 18. In view of the aforesaid discussion, we do not find any infirmity in the order dated 01.11.2021 passed in W.P.(C) No. 2203 of 2007. 19. The present appeal is, accordingly, dismissed. (M.S. Ramachandra Rao, C.J.) (Rajesh Shankar, J.) N.A.F.R. Ritesh/