Patna High Court
Smt. Satyabati Devi vs State Of Bihar And Ors. on 26 July, 1996
Equivalent citations: 1997(1)BLJR456
Author: S.J. Mukhopadhaya
Bench: D.P. Wadhwa, S.J. Mukhopadhaya
JUDGMENT S.J. Mukhopadhaya, J.
1. The order dated 25th of October, 1980 passed by the Deputy Collector, Khunti in Case No. 333/79-80-TR No. 71/7980 in under challenge in the present case. By this impugned order the respondent-Deputy Collector, Khunti has allowed the petition, which was filed by the Respondent No. 7 under Section 7-A of Chotanagpur Tenancy Act (hereinafter referred to as 'CRT. Act') and Bihar Schedule Area Regulation, 1969. The same has been allowed in part and the petitioner has been ordered to restore the possession of 0.66 acres of land from the disputed plot in favour of Respondent No. 7. The appellate order dated 15th of July, 1985 passed by the respondent-Additional Collector, Ranchi in S.A.R. Case No. 57/ (R)-15/80-81 and the revisional order passed by the respondent-Commissioner, South Chotanagpur Division, Ranchi in S.A.R. Revision No. 146/85 are also under challenge, having confirmed the original order.
2. The land in question, which was subject-matter of petition under Section 71-A of the C.N.T. Act, was total measuring 2.66 acres of Plot No. 288 under Khata No. 133 in R.S. Khatiyan situated in Village-Baboikundi, P.S. Tamar in the district of Ranchi. The said land originally belonged to one Jagmohan Patar (ancestor of Respondent Nos. 6 to 8). The father of the petitioner, namely, Kali Nath Mahto purchased the same having paid consideration money, by two separate registered deeds of sale dated 19th of May, 1947 and 24th of June, 1947. Said Kali Nath Mahto thereafter came in possession of the same, which ultimately vested with the petitioner by a family arrangement. The petitioner is in possession of the land in question for a long period and is/was paying rent to the State of Bihar.
3. The provision of Section 71-A of the C.N.T. Act was promulgated subsequently in the year 1969. The Respondent No. 6, Shiveshwar Patar filed a petition under Section 71-A of the C.N.T. Act in the year 1977-78 for restoration of only 2 acres of land out of said Plot No. 288, Khata No. 133. The case was numbered as Case No. 459/77-78. The Deputy Collector, Khunti rejected the claim of said Respondent No. 6, Shiveshwar Patar by order dated 16th of September, 1978, passed in said Case No. 459/77-78 on the ground that the same was time barred. This order was not challenged by the respondents and become final. Subsequently the husband of Respondent No. 7, late Ram Kumar Patar (father of Respondent No. 8), who is nephew of Respondent No. 6, Shiveshwar Patar, filed a petition for restoration under Section 71-A of the C.N.T. Act for restoration of total area of 2.66 acres of land out of said plot No. 288. This time it was numbered as S.A.R. Case No. 333 of 1979-80. Notice was issued to the petitioner, when the petitioner filed show cause reply. The petitioner raised the following objection:-
(a) The petition was time barred, as was held in the earlier case;
(b) The petition was not maintainable, applicants (Respondents herein) being not scheduled caste, Patar having not been shown as tribe under the Schedule; and
(c) The earlier petition for restoration, which was filed by the other family members, having been dismissed, being time barred and no appeal having been preferred against the same, present petition for restoration by members of the same family is barred by the principles of res-judicata.
The Respondent-Deputy Collector, Khunti by the impugned order dated 25th of October, 1980 held as follows:-
(i) The applicants (Respondents herein) are Scheduled Tribe;
(ii) The petition for restoration was not time barred; and
(iii) The principle of res-judicae is applicable with respect to only two acres of land and not with respect to 0.66 acres of land as earlier petition for restoration was made with respect to 2 acres of land.
Thereby he has ordered to restore 0.66 acres of land out of the aforesaid plot in favour of Respondent Nos. 6 to 8.
4. A counter affidavit has been filed on behalf of the Respondent Nos. 6 and 7. According to them, the respondents aforesaid are Patar by caste, which has been held lo be 'Munna' by the Supreme Court. Thereby they are Scheduled Tribe. The counsel for the respondents has relied on the decision of the Supreme Court in the case of Bhaiya Ram Munda v. Anirudh Patar and Ors. . Further, according to the counsel for the respondents, the petition was not time barred, having been filed within 30 years of sale. So far as the res-judicate is concerned, according to the counsel for the respondents, the principles of res-judicata cannot be made applicable in the present case, as the earlier petition was filed by Respondent No. 6, Shivshwar Patar, whereas the subsequent petition for restoration was filed by late Ram Kumar Patar.
5. So far as the second question is concerned, in the light of the decision of the Supreme Court, the answer goes in favour of the respondents. The petitioner has failed to show that the respondents are not Scheduled Tribe. However, with respect of first question it appears that the argument advanced by the counsel for the petitioner is attractive. Admittedly, the sale took place with respect of the disputed land by registered sale deed dated 19th May, 1947 and 24th of June, 1947. The petition, which was filed by the Respondent No. 6, Shivshwar Patar for such restoration of 2 acres of land out of the very disputed plot was rejected as time barred as back as on 16th of September, 1978. Such being the position how it can be stated that the subsequent petition for restoration, which was filed in the year 1979-80, i.e. after about 32 to 33 years of the execution of sale deed was within the prescribed time. However, this Court is not giving any opinion with respect to this question raised by the appellant. So far as third question if concerned, admittedly when the application was filed for restoration by one of the members of the family, namely Shiveshwar Patar; the same was rejected on 16th of September, 1978 and no claim was made therein with respect to 0, 66 acres of land, which plea was also available at that point of time to them. According to this Court, subsequently, the other members of the same family could not have filed similar petition for restoration with respect to total 2.66 acres of land in favour of their family. If the principles of res-judicata are applicable with respect to 2 acres of land, the same principles are also applicable for whole of the piece of land, as earlier no claim relating to restoration was made by the respondents though a petition was filed.
6. For the reasons stated above, this Court hold that the impugned order dated 25th of October, 1980 passed in S.A.R. Case No. 333 of 1979-80 as illegal. The same is accordingly, set aside. The appellate order and the revisional order having confirmed the said illegal order the same are also set aside.
7. Accordingly, the writ petition is allowed. However, in the facts and circumstances of the case, there will be no order as to costs.