Anubha Rawat Choudhary, J
1. Heard the learned counsel for the appellants.
2. This Second Appeal has been filed against the judgement passed by learned District Judge IV cum M.A.C.T., Dhanbad dated 31.01.2020 passed under Section 87 of the Chota Nagpur Tenancy Act in Misc. Appeal No.205 of 2010.
3. The learned counsel for the appellants has submitted that the second appeal is maintainable under the provisions of Section 87 of Chota Nagpur Tenancy Act itself before this Court and the provision of law has been wrongly mentioned as Section 100 of the Code of Civil Procedure. The learned counsel submits that it is a statutory appeal under the provisions of Chota Nagpur Tenancy Act. He submits that the appellants before this Court were the applicants before the learned Revenue Officer seeking rectification of the record of rights, which was recorded in the name of the respondents.
4. The learned counsel has submitted that though the case was filed against dead persons, namely Fulmani Mahtain and Gouri Mahtain, both wives of Ram Chandra Mahto, and the notices were issued against the dead persons, but after the service report, the Revenue Officer had passed an order to publish a substituted notice in the newspaper called “Bihar Observer”. He submits that the same newspaper has wide circulation in the locality, but it has been wrongly observed that it was not widely circulated in the district of Dhanbad. Admittedly, the proceeding before the Revenue Officer was ex parte and the defendants were the appellants before the learned District Judge in Misc. Appeal No.205 of 2010.
5. After hearing the learned counsels for the appellants, this Court finds that a suit under Section 87 of Chota Nagpur Tenancy Act was filed against the dead persons and when notice was issued it returned unserved and thereafter the Revenue Officer ordered to publish a substituted notice through newspaper, but no individual notices were issued to the legal heirs and successors and the notice was published in the newspaper “Bihar Observer” and ultimately it resulted in ex parte judgement against the defendants.
6. The defendants filed appeal which was numbered as Misc. Appeal No.205 of 2010 and contended that the Revenue Officer had committed serious error and had passed the order impugned in haste. It was also asserted that the plaintiffs were not the legal heirs of the recorded raiyat and they were not connected with Fulmani Mahtain and Gouri Mahtain and many contested issues were raised before the learned 1st appellate court as mentioned in paragraph 6 of the appellate court’s judgement. It was also argued that the newspaper “Bihar Observer” is not widely circulated paper in the district of Dhanbad and the defendants did not get any information regarding the pendency of the case before the Revenue Officer and they could not mark any objection. The plaintiffs, who were the respondents before the 1st appellate court objected and stated that the Revenue Officer found the plaintiffs in possession of the property and after inquiry, the order was passed.
7. The learned 1st appellate court held that the newspaper “Bihar Observer” was not widely circulated newspaper in the district of Dhanbad and on the basis of certain documents filed by the defendants before the 1st appellate court, the court observed that the plaintiffs had suppressed certain facts before the Revenue Officer. The order of the Revenue Officer was passed ex parte and the affected parties were not heard and the matter has been remanded and the order of the Revenue Officer was set aside. The matter was remanded to the Revenue Officer for passing fresh order after hearing the parties and parties were directed to appear before the Revenue Officer within a period of two months. The appellate court order was passed on 31.01.2020.
8. This Court finds that the learned 1st appellate court has primarily considered the fact that the notice was not duly served upon the defendants which led to passing of ex parte judgement by the Revenue Officer and consequently, the 1st appellate court has simply remanded the matter for fresh consideration by the Revenue Officer. There can be no doubt that the Revenue Officer is bound to hear the matter afresh and has to pass the fresh judgement after considering the case of the respective parties and without being prejudiced by the order of remand passed in Misc. Appeal No.205 of 2010.
9. This Court finds no reason to interfere with the impugned judgement, and accordingly, the Second appeal is hereby dismissed. However, it is made clear that the Revenue Officer shall decide the case on its own merit, if not already decided.
10. Let a soft copy of this order be communicated to the court concerned through FAX/email.
