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PETITIONER: BRISA MUNDA

       Vs.

RESPONDENT: CHANOO KUMARI @ MOST DUMARI AND ORS.

DATE OF JUDGMENT16/11/1995

BENCH: G.N. RAY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      Heard learned  counsel for  the parties. In this appeal the  appellant  who  is  admittedly  a  tribal  residing  in Chhotanagpur Division  made an  application under Section 46 (4)(a)  under  Chhotangpur  Tenancy  Act  for  getting  back possession of  the disputed  land  which  according  to  the appellant was surrendered by the father of the appellant and on  such   surrender  the  said  land  was  settled  to  the respondent  Chando  Kumari  @  Most  Dumari  and  Ors.  Such application was made on 12th January. 1976 before the Deputy Commissioner. Land  Reforms. The application was rejected by the Deputy  Commissioner. The appellant thereafter preferred an appeal  before the  Additional Collector and the case was remanded back  to the  Deputy Commissioner. Land Reforms but the  matter   was  again   dismissed  by   the  said  Deputy Commissioner  by   order  dated   29th  January.  1994.  The appellant again  preferred an  appeal before  the Additional Collector  land  Reforms.  But  Additional  Collector  again passed an  order of  remand before  the Deputy Commissioner. Such order  of remand  was challenged  by the  appellant  in revision.  By   an  order   dated  8th  October,  1986.  the Commissioner   allowed   the   revision   application.   The Commissioner  inter  alia  came  to  the  finding  that  the appellant was in possession within a period of 12 years from the date  of  making  the  said  application  under  Section 46(4)(a) and  as such  there was  no occasion  to remand the matter for decision by the Deputy Collector.      It appears  that in  coming to  said finding  about the possession of the appellant within 12 years from the date of making the application under Section 46 reliance was made to the entry in the Bhujarat Record of Rights of 1960 where the possession of the appellant was noted. The Commissioner also took into  consideration the  fact that the opposite parties had produced rent receipts only from 1961 onwards.      Against the said decision of the Commissioner in favour of the  appellant, the  opposite parties  preferred  a  W.P. before the  Ranchi Bench of Patna High Court and by an order dated 23rd  April. 1991,  the single Judge of the Patna High Court allowed the said W.P. relying on a Full Bench decision

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of the  Patna High  Court in  the case  of Sam  Chandra Sahu versus State of Bihar. It was held in the said decision that forcible possession did not amount to transfer.      The appellant thereafter preferred an appeal before the Division Bench  of the  High Court  but such appeal was also dismissed. Thereafter  a special  leave petition  was  filed before this Court out of which this appeal arises.      It may  be stated  here that  the decision  of the Full Bench of  Patna High  Court in  Ram Chander  Sahu  and  Ors. Versus State of Bihar has been set aside by this Court on an appeal filed  by one  of the  respondents in  the said  case namely, Pandey  Oraon and  the decision  of  this  Court  is reported in  1992 (2) Suppl. SCC 77 (Pandey Oraon Versus Ram Chander Sahu  and Ors.). It has been held by this Court that the expression  transfer appearing  in Section 71 (a) of the Chhotanagpur Tenancy  Act must  be interpreted  liberally in the context  of the beneficial legislation for protection of a member  of the  Scheduled Tribe  and it has been held that the transfer  as understood  in  Transfer  of  Property  Act should not  be applied  for the purpose of deciding the case of transfer  under the Chhotanagpur Tenancy Act. It has been held that surrender by a tenant will also amount to transfer for getting relief under the said Act.      Mr. Raju Ramchandran, learned counsel appearing for the appellant has contended that in the instant case the finding of the revisional authority namely the Commissioner that the application under  Section 46(4)(a) was made within 12 years from  the   date  of   dispossession  has   been  made  very objectively by  placing reliance  on the  Bhujarat Record of Rights of  1960 and  such finding should be accepted by this Court to  be correct.  He has  submitted that  although  the decision of  this Court  in Pandey  Oraon’s  case  was  made relating to  a  case  under  Section  71-A  of  Chhotanagpur Tenancy Act but this Court has clearly indicated in the said decision that transfer for the purpose of this Act should be liberally construed and a similar case of surrender has been held to be a transfer within the meaning of the said Act. He has therefore  submitted that  the impugned judgment must be set aside  and the  application made  by the appellant under Section  46  of  the  Chhotanagpur  Tenancy  Act  should  be allowed.      Mr. Jha.  learned counsel  appearing for the respondent has however  disputed the said contention of Mr. Ramchandran and it  has been  contended by Mr. Jha that Section 71-A was inserted by  amendment of  Chhotanagpur Tenancy Act and said section has  been made  applicable donly  in respect of area specified in  the Schedule.  The disputed  land is  situated outside the area under the said Schedule. Hence, Section 71- A  of   the  Chhotanagpur  Tenancy  Act  has  no  manner  of application in  respect of  land in  question. He  has  also submitted that  although the  Commissioner  had  come  to  a finding that the applicant had made an application within 12 years from  the date  of dispossession  but such finding has not been accepted by the High Court. The High Court has come to the  finding that  the respondents had been in possession of the  property for a long time and as such the application for annulling by transfer was parred by limitation.      After  taking   into  consideration   the   facts   and circumstances of  the case  and the  contentions made by the learned counsel  for the  parties, it appears to us that the Commissioner in  disposing of the revisional application had placed reliance  on Bhujarat  Record of  Rights made in 1960 where  the   name  of  the  applicant  was  recorded  as  in possession of  the land in question. The presumption arising from the  said record  of right, therefore, clearly stood in

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favour of  the appellant.  We   are of  the  view  that  the finding of  the Commissioner that the appellant had made the said application  under Section  46 within 12 years from the date of  dispossession need  not be  disturbed and we accept such finding  to be  correct. In  this case  an  application under Section 46(4)(a) has been made. It is therefore not at all necessary whether Section 71 A incorporated by amendment is applicable in respect of the land in question.      It appears  to us  that Mr. Ramchandran is justified in his contention  that the decision rendered in Pandey Oraon’s case by  this Court  clearly indicates  that the  expression transfer appearing  in  Chhotanagpur  Tenancy  Act  must  be liberally construed  and the  surrender  made  by  a  tribal should be  construed as  a transfer  under the  said Tenancy Act.  Accordingly,   the  said   application  under  Section 46(4)(a) under the Chhotanagpur Tenancy Act of the appellant was  within   time  and  in  the  facts  of  the  case,  the application should  be  allowed.  We  order  accordingly  by setting aside the impugned judgment.      It however  appears that  the respondents have come out with a  case that substantial structure had been constructed by them  on the  said land.  What is  the nature of the said structure and  what should  be the  value of  such structure requires to  be decided  in accordance  with the  proviso to Sub-section 4 A(c) of Section 46 of Chhotanagpur Tenancy Act by the  Deputy Commissioner  Land  Reforms.  We,  therefore, direct the  Deputy Commissioner  to decide  the claim of the respondents for  relief under  the  proviso  to  Sub-Section 4A(c) of  Section 46  of Chhotanagpur Tenancy Act. Since the matter is  pending for  a long time, the Deputy Commissioner is circuited to dispose of such claim within a period of six months from the date of the communication of this order. The appeal is  accordingly disposed  of without  any order as to cost.