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CASE NO.: Appeal (civil)  3267 of 2001

PETITIONER: Fulchand Munda

RESPONDENT: State of Bihar & Ors.

DATE OF JUDGMENT: 24/01/2008

BENCH: P.P. NAOLEKAR & DALVEER BHANDARI

JUDGMENT: J U D G M E N T

P.P. NAOLEKAR,J.

1.              The brief facts of the case necessary for  deciding the questions involved are that the land of plot  Nos. 1695, 517 and 802 under Khata No. 288 within  Khewat No. 6/1 of Village Hocher, P.S. Kanke, District  Ranchi was recorded in the record of rights as Bakast  Bhuinhari land in the name of Chamtu Pahan & others as  landlords.  In the record of rights in the remarks column,  these lands were shown in possession of Kolha Kumhar  & others, the predecessors-in-interest of the private  respondents herein as Beyayani Bakbaje.  The recorded  bhumidar Chamtu Pahan & others filed a title suit against  Kolha Kumhar & others for relief of declaration of title and  recovery of possession.  The said suit was decreed by the  trial court and the appeal preferred by the predecessors- in-interest of the respondents herein was dismissed.  A  second appeal being Appeal from Appellate Decree No.  1909 of 1948 filed by the defendants in the original suit  was allowed by the High Court on 20.9.1951 and the  judgment & decree passed by the trial court and that of  the first appellate court was set aside.  The Court came to  the finding that the appellant\022s predecessors neither  redeemed mortgage nor came in possession of the land  and that the suit for recovery of possession was not  maintainable. The Court recorded the finding that there  was an oral usufructuary mortgage as not yet been repaid  and that mortgage, under Section 59 of the Transfer of  Property Act, is bad in law and as such the defendants\022  possession as mortgagees must be ignored.   After  commencement of the Bihar Scheduled Areas  Regulation, 1969 (Regulation 1 of 1969), successive  applications were filed under Section 71A of the Chota  Nagpur Tenancy Act, 1908 (for short \023the CNT Act\024) by  the predecessors-in-interest of Chamtu Pahan bearing  SAR Nos. 65/76, 82/77 and 543/83.  All these  applications were ultimately rejected by the Special  Officer, Scheduled Areas Regulation, in terms of the  orders dated 16.9.1976, 7.7.1977 and 31.12.1983  respectively holding that the predecessors-in-interest of  the respondents had perfected their title and the  applications for restoration were barred by limitation.   Despite rejection of the suit and the applications moved  under Section 71A of the CNT Act, a fresh application  was moved by the appellant claiming himself to be the  heir of Chamtu Pahan alleging therein that he by caste is

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Munda and is a member of the Scheduled Tribes and is  the priest (Pahan) of his village and the land in question  measuring a total area of 6.38 acres is Bakast Bhuinhari  Pahani land recorded in the name of his grandfather  Chamtu Munda/Pahan and others in the record of rights.   It was alleged that the land in question is community land,  the usufruct of which is used for the community feast at  the time of Sarna Puja or Bhut Puja held by the  community members on several occasions of the  agricultural year and the said land cannot be transferred  to a person other than the members of a Bhuinhari family  as provided under Section 48 of the CNT Act.  It was  further alleged that although such land is non-alienable,  the ancestors of the respondents by playing fraud on the  grandfather of the appellant, namely, Chamtu Munda,  took the same on oral zerpesgi (mortgage) for Rs.154/-  for a period of 20 years as mentioned in the record of  rights in the year 1922 and, thus, the transfer being in  contravention of Section 46 of the CNT Act, possession of  the land be restored.  The application moved by the  appellant was allowed vide order dated 21.12.1987 by the  Special Officer, Scheduled Areas Regulation, who  directed restoration of possession of the land in favour of  the appellant.  The private respondents herein thereupon  preferred an appeal before the Additional Collector,  Ranchi which was allowed by him.  Considering the  judgment & order passed in the second appeal by the  High Court as also the orders passed on successive  applications under Section 71A of the CNT Act, he came  to the conclusion that fresh application under Section 71A  was not maintainable.  Consequently, the order of  restoration of possession was set aside.  The appellant  preferred a revision before the Divisional Commissioner  under Section 217 of the CNT Act, which was allowed  and restoration of possession order was restored.  That  was challenged by the respondents by filing a writ petition  in the High Court.  Learned Single Judge of the High  Court while allowing the writ petition held that the  revisional authority committed an error in ignoring the  findings arrived at by the High Court in the second appeal  and also the successive orders passed by the Special  Officer earlier rejecting the applications for restoration  filed by the predecessors-in-interest of the appellant.  The  Court also held that the Commissioner totally ignored the  effect of Section 27 of the Limitation Act and failed to see  that the application for restoration was barred by limitation  as also by the principle of res judicata.  The order of the  learned Single Judge was upheld by the Division Bench in  letters patent appeal.  That is how the matter has come  before us. 2.              It is contended by Mr. S.B. Upadhyay, learned  senior counsel for the appellant that the orders of the  High Court are contrary to the provisions, intendment,  letter and spirit of the Bihar Scheduled Areas Regulation,  1969 (Regulation 1 of 1969) which is a welfare legislation  concerning the members of the Scheduled Tribes, which  is mainly intended, by insertion of Section 71A in the CNT  Act, for restoration of their lands transferred in favour of  non-tribals fraudulently or in contravention of Sections 46  and 48 and other provisions of the CNT Act.  It is further  urged by the learned senior counsel that there is no  limitation prescribed for resorting to the provision of  Section 71A of the CNT Act; and that the earlier decision  of the High Court will not operate as res judicata.   Whereas, it is contended by Mr. Sunil Kumar, learned

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senior counsel for the private respondents that when  successive applications under Section 71A of the CNT  Act moved by the predecessors-in-interest of the  appellant have been rejected, the Special Officer  committed an error in entertaining the fresh application  moved by the appellant.  It is further urged that the earlier  decision of the High Court operates as res judicata and in  any case the principle of constructive res judicata would  be applicable as all the questions available with the  appellant to be agitated before the court shall be deemed  to have been adjudicated against him.            3.              To better appreciate the arguments advanced  by the counsel on both sides, it would be pertinent to note  the relevant provisions of the Chota Nagpur Tenancy Act,  1908(CNT Act). The relevant provisions of Section 46(1)  of the CNT Act as it stood in 1908 Act and substituted by  Amendment Act of 1947 which came into force with effect  from 5.1.1948 read as under: \023Restrictions on transfer of their rights by  raiyats: (1) No transfer by a raiyat of his right  in   his holding or any portion thereof \026

(a) by mortgage or lease for any period  expressed or implied which exceeds or might  in any possible event exceed five years, or

(b) by sale, gift or any other contract or  agreement,  

shall be valid to any extent:

xxx                             xxx                             xxx\024

4.              In the CNT Act, Section 71A was inserted by  the Bihar Scheduled Areas Regulation, 1969 (Regulation  1 of 1969).  Later on, by the Bihar Scheduled Areas  (Amendment) Regulation, 1985 (Regulation 1 of 1985),  after the word ‘raiyat\022, the words ‘or a Mundari Khunt  Kattidar or a Bhuinhar\022 were inserted.  Section 71A, as  amended by Bihar Scheduled Areas (Amendment)  Regulation, 1985, reads as under:  \023Power to restore possession to member of the  Scheduled Tribes over land unlawfully  transferred.- If at any time it comes to the notice of  the Deputy Commissioner that transfer of land  belonging to a raiyat or a Mundari Khunt Kattidar or  a Bhuinhar who is a member of the Scheduled  Tribes has taken place in contravention of Section  46 or any other provision of this Act or by any  fraudulent method, including decrees obtained in  suit by fraud and collusion he may, after giving  reasonable opportunity to the transferee who is  proposed to be evicted, to show cause and after  making necessary enquiry in the matter, evict the  transferee from such land without payment of  compensation and restore it to the transferor or his  heir, or in case the transferor or his heir is not  available or is not willing to agree to such  restoration, resettle it with another raiyat belonging  to the Scheduled Tribes according to the village  custom for the disposal of an abandoned holding:

xxx                             xxx                             xxx\024

5.              As per Section 46 of the CNT Act, 1908, as it

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stood in 1922, no transfer by a raiyat of his right in his  holding or any portion thereof by mortgage or lease for  any period expressed or implied would be effected which  exceeds or might in any possible event exceed five years.  It further restricted transfer by way of sale, gift or any  other contract or agreement and such transfer shall not  be valid to any extent.  The suit of the appellant\022s  predecessors for possession on the basis of oral  mortgage was culminated into a decision by the High  Court in second appeal (AFAD No.1909/1948) where a  clear-cut finding was recorded that there could not have  been an oral  usufructuary mortgage of immovable  property for value of more than Rs.100/- under Section 59  of the Transfer of Property Act, the same being bad in  law.  Thus, the predecessors of the respondents could not  be treated to be in possession under the mortgage.   Under the CNT Act as it stood in the year 1922, the  transfer could have been challenged as it contravenes  Section 46 of the CNT Act, being a contract or agreement  of transfer.  That plea having not been taken by the  appellant\022s predecessors, the appellant and his  predecessors were not entitled to raise the question of  transfer being invalid under Section 46 of the CNT Act as  it stood in 1922 on the principle of constructive res  judicata.  Section 46 of the CNT Act, by virtue of its  amendment with effect from 5.1.1948, restricts and  prohibits transfer by a raiyat of his right in his holding or  any portion thereof by mortgage or lease for any period  expressed or implied, which exceeds or might in any  possible event exceed five years.  It further restricts  transfer by a raiyat of his right in his holding or any portion  thereof, apart from mortgage etc., by way of sale, gift or  any other contract or agreement and if such transfer is  effected it shall be invalid.  Section 71A of the CNT Act  authorizes the Deputy Commissioner to evict the  transferee from such land and to restore possession to  the raiyat if the transfer is being effected in contravention  of Section 46 or any other provision of the CNT Act.   Thus, if there is contravention of Section 46, the Deputy  Commissioner is authorized to evict the transferee from  such  land  and  restore  it  to  the transferor under  Section 71A of the CNT Act. The predecessors of the  respondents could not be treated to be in possession in  contravention of Section 46 as possession of land by  them has been upheld by the High Court in its decision.   The decision of the High Court cannot be reopened by  taking advantage of amendment in Section 46 which  came into force with effect from 5.1.1948.  Section 71A of  the CNT Act would be attracted only in case the Deputy  Commissioner finds that the impugned transfer was made  in contravention of Section 46 or any other provision of  the CNT Act. The decision of the High Court comes in the  way of the Deputy Commissioner in arriving at any such  findings.  The possession having been denied to the  appellant\022s predecessors holding that there was no  contravention of Section 46 as it stood in 1922, the  appellant cannot be permitted to take advantage under  Section 46 on same having been amended by an Act of  1947.  That apart, although there is no period of limitation  prescribed for exercising the power under Section 71A by  the Deputy Commissioner, the party affected is called  upon to approach the appropriate authority or the power  has to be exercised by the Deputy Commissioner within a  reasonable period of time.  The gap of more than 50  years for challenging the transaction of 1922 cannot be

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said to be a reasonable time for exercising the power  even if it is not hedged in by a period of limitation. 6.              For the aforesaid reasons, the appeal is  without substance and is dismissed.