Jharkhand High Court
Mahendra Singh vs State Of Jharkhand And Ors. on 10 September, 2004
Equivalent citations: 2004(3)BLJR1701, [2004(4)JCR254(JHR)]
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. In this writ petition the petitioner has prayed for quashing the order dated 19.11.1994 passed by respondent No. 4 directing restoration of the land of the petitioner in favour of respondent Nos. 5 to 9 under Section 46 (4-A) of the Chotanagpur Tenancy Act (in short 'CNT Act') and also the order dated 26.9.2000 passed by respondent No. 2 in Restoration Revision No. 140/1996 whereby he has allowed the revision and quashed the order of the Appellate Authority upholding restoration of land in favour of the said respondent.
2. The facts of the case lie in a narrow compass.
The land of Khata No. 192 of Village Bongabar was recorded as a raiyati land in the name of Bahira Munda and after his death the land was jointly inherited by his two sons, Raghubir Munda and Jhabu Munda. Jhabu Munda died issueless and after his death Raghubir Munda became the sole raiyat of the land. Raghubir Munda died leaving behind four sons who, by hukumnama dated 1.3.1946, alleged to have settled the land with one Chhangilal Agarwal and put him is possession of the said land. In 1960 Chhangilal Agarwal filed Title Suit No. 42 of 1960 for declaration that he has acquired valid and perfect title and possession over the aforesaid land. The suit was decreed on 2.5.1960 in terms of compromise petition filed by Chandgi Lal Agarwal and all the sons of Raghubir Munda. Later on Changilal Agarwal sold the aforesaid land to one Kamta Prasad Singh who, in turn, sold the said land to the father of the petitioner, Kailash Singh by virtue of a registered deed of sale dated 6.2.1969. The purchaser, Kailash Singh alleged to have made several constructions over the land and also mortgaged the land in favour of Bank of Baroda and executed a mortgage deed dated 9.12.1969. In 1983 Malwa Munda and others alleged to have filed an application for restoration of land being Restoration Case No. 4/83 against the father of the petitioner, Kailash Singh under Section 46 (4-A) of the CNT Act and the same was dismissed on 30.12.1983 by the Land Reforms Deputy Collector, Hazaribagh on the ground, inter alia, that the said application for restoration was barred by limitation.
3. Petitioner's further case is that the aforesaid order was not challenged before any superior Court. However, said Malwa Munda and others filed another application for restoration of the land in the year, 1986 being land Restoration Case No. 528/1986 against the petitioner under Section 46 (4-A) of the CNT Act. Petitioner's father, Kailash Singh died in the year, 1987 and after his death the petitioner came in possession of the property. In 1989 petitioner therefore, filed an application for impleading him as party in place of his father in the aforesaid Restoration Case No. 528/1986. It is stated that the record of the case was not put up for a long time from 1981 till 18.5.1994 and then by order dated 19.5.1994 the said application was allowed in absence of the petitioner and he was impleaded as party. Thereafter, without information to the petitioner final order was passed on 19.11.1994 directing restoration of land in favour of the respondents. The petitioner immediately, after knowing the aforesaid order, filed appeal being land Restoration Appeal No. 4.95 before respondent No. 4, the Additional Collector, Hazaribagh who, vide order dated 27.11.1995 allowed the appeal and set aside the restoration order dated 19.11.1994. Respondent Nos. 5 to 9 then moved in revision before the Commissioner against the order of Appellate Authority being Restoration Revision No. 140/1996. The said revision was allowed by the Commissioner vide order dated 26.9.2000 and the order passed by the Appellate Authority in appeal was set aside and the order of restoration passed by respondent No. 4 was affirmed.
4. Mr. S. Srivastava, learned counsel appearing on behalf of the petitioner assailed the impugned order of the Commissioner as being illegal and wholly without jurisdiction. Learned counsel submitted that the revisional authority while passing the impugned order has totally ignored the fact that the subsequent application for restoration was barred by the principles of res judicata. Learned counsel put reliance in this regard on the decisions of the Patna High Court in the case of Md. Salimuddin v. Commissioner, South Chotanapur Division, Ranchi, reported in 1993 PLJR 14, in the case of Dhananjay Mandal Suri v. State of Bihar, reported in 1990 PLJR 633 and in the case of Hari Shankar Prasad Kesri v. State of Bihar, (1995) 1 BLJR 604. Learned counsel further contended that even assuming that the second application was not barred by the principles of res judicata, it was hopelessly barred by limitation inasmuch as the restoration application was filed after 30 years from the date of dispossession. In this connection learned counsel relied upon the decision of the Patna High Court in the case of Suraj Deo Singh v. Commissioner, North Chotanagpur Division, Hazaribagh, reported in 1993 (1) PLJR 473.
5. Mr. V. Shivnath, learned counsel appearing on behalf of the respondents, on the other hand, submitted that there is finding of fact recorded by the Commissioner that the respondents were dispossessed within ten years from the date of filing of the said application and such finding of fact cannot be interfered with by this Court. Learned counsel further submitted that petitioner's predecessor did not disclose the manner of acquisition of the land and the decree obtained in title suit was collusive which is non-est in view of Section 46(3) of the CNT Act. Learned counsel further submitted that restoration application filed by the respondents cannot be held to be barred by the principles of res judicata.
6. Before appreciating the rival contentions of the learned counsels for the parties I would like to refer the relevant provisions of Section 46 of the CNT Act. Sub-section (1) of Section 46 restricts transfer of raiyati holding by a raiyat who is a member of Scheduled Tribe by way of sale, lease, mortgage or gift without the permission of the Deputy Commissioner. Sub-section (4-A) of Section 46 of the CNT Act reads as under :--
"(4-A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by an occupancy-raiyat who is a member of the Scheduled Tribes, for annulling the transfer on the ground that the transfer was made in contravention of Clause (a) of the second proviso to Sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of Clause (a) of the second proviso to Sub-section (1) :
Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof :
Provided further that before passing any order under Clause (b) or Clause (c) of this sub-section the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter.
(b) If after holding the inquiry referred to in Clause (a) of this sub-section, the Deputy Commissioner, finds that there was no contravention of Clause (a) of the second proviso to Sub-section (1) in making such transferee shall reject the application and may award such costs to the transferee to be paid by the transferor as he may in the circumstances of the case deem fit.
(c) If after holding the inquiry referred to in Clause (a) of this sub-section, the Deputy Commissioner, finds that such transfer was made in contravention of Clause (a) of the second proviso to Sub-section (1), he shall annual the transfer and eject the transferee from such holding or portion thereof, as the case may be, and put the transferor in possession thereof :
Provided that if the transferee has constructed any building or structure, such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not wiling to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years, from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed:
Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before the commencement of the Chotanagpur Tenancy (Amendment) Act, 1969 (President's Act 4 of 1969) he may, notwithstanding any other provisions of this Act validate such a transfer made in contravention of Clause (a) of the second proviso to Sub-section (1), if the transferee either makes available to the transferor an alternative holding or portion of a holding, as the case may be, of the equivalent value, in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor."
7. From bare reading of the aforesaid provisions it is manifest that if any transfer of land of a raiyat who is a member of Scheduled Tribe is made in contravention of the provisions of Sub-section (1) of Section 46 of the CNT Act, then such transfer shall be annulled by the Deputy Commissioner either of his own motion or on an application filed before him by the raiyat However, the proviso to Sub-section (4-A) prescribes a period of 12 years for entertaining the application by the Deputy Commissioner for the purposes of annulling the transfer. According to this section if after holding inquiry the Deputy Commissioner finds that transfer was made in contravention of the provisions of Sub-section (1) of Section 46 of the Act, then he shall annual such transfer and eject the transferee from such holding or portion thereof and put the transferor in possession thereof.
8. It appears from the order of Sub Divisional Officer-cum-Special Officer, Schedule Area Regulation, Ramgarh, that in 1986 restoration application was filed by the respondents on the ground that they have been dispossessed from the land in question 10 years back i.e. in 1976. The Special Officer recorded a finding that the petitioner herein failed to establish as to how his predecessor-in-interest acquired land from the members of Scheduled Tribe. The Special Officer therefore on the basis of the finding that the applicants were dispossessed within 10 years from the date of filing of application passed order for restoration of the land. Curiously enough, the Appellate Authority namely Additional Collector, Hazaribagh allowed the appeal filed by the present petitioner and set aside the order passed by the Special Officer mainly on the ground that after the compromise decree passed by civil Court the Revenue Authority has got no jurisdiction to entertain the application for restoration. However, in revision filed by the applicant respondents, the Commissioner. North Chotanagpur Division, Hazaribagh reversed the order passed by the Appellate Authority and restored the order passed by the Special Officer for restoration of land. The Commissioner in his order very elaborately discussed the facts of the case. The Commissioner categorically recorded a finding that applicant/respondents were dispossessed in 1976 and the decree in title suit obtained on compromise was collusive one. The Commissioner therefore held that neither the restoration application was barred by limitation nor barred by principle of res judicata. For better appreciation para 6, 7 and 8 of the Commissioner's order are quoted herein below :--
"It is admitted fact that the land in dispute is record in the cadastral survey khatiyan in the name of the ancestor of the petitioners. OP failed to explain the mode of transaction by which the land in dispute was transferred to his vendor and thus the transfer is clearly illegal. It is also clear that a tribal land could not be transferred to any non-tribal, which also shows the transfer as illegal. Therefore, the only point to decide is the period of dispossession of the petitioner. The OP claims that he is the owner of Bharat Glass Fefractories, Bharech Nagar, Ramgarh and he purchased the aforementioned piece of land in the year 1969 vide sale deed No. 2323, dated 7.3.1969 and the land was mutated vide case No. 60/70-71; but the submission of the OP as well as the report of, the Karmchari and Anchal Adhikari indicates that the land in dispute was mutated in the name of "Bharat Glass Refractories" vide case No. 55/1961-62, which is contradictory. The OP states it just a slip of pen, but it indicates some unserpulous tactic to grab the land of poor tribals. If the jamabandi of the OP was opened in 1961-62 and it is continuous as the rent receipts show, then how a rent receipt was issued to the petitioners in the year 1976, it implies that tribal petitioners were in possession since 1976 and in the same year he was dispossessed by the OP from all concerns of the land in dispute. It appears that the title suit, which was decided on compromise was a collusive suit and the decree in collusive suit is non-est in the light of Section 46, Sub-section (3) of the Chotanagpur Tenancy Act, 1908. It appears that subsequent transactions are created to manufacture the collusive mutation and to prove the dispossession of petitioners for more than 12 years. Perusal or record also indicates that the tribal petitioners have no knowledge of contesting any title suit and they also denied contesting the earlier Restoration Case No. 4/ 1983 or 1/1989. The' report of the Anchal Adhikari shows that tribal petitioners were in possession till 1976 and were dispossessed after that and he concluded the dispossession within 10 years, which is clearly in the stipulated time period under Section 46 (4-A), of the CNT Act.
Perusal of lower Court original record indicates that the Executive Magistrate while considering the case came to conclusion that the transactions claimed by the OP are illegal/factious collusive suit is created to manufacture the forged documents to show the possession of OP but OP failed to prove the authenticity and legality of the documents. He also considered the rent receipt of the petitioners upto 1976 and their possession being the descendant of the recorded tenant and relied on the report of the Anchal Adhikari and the documents to accept the dispossession is within 12 years and thus rightly passed order to restore the land to tribal petitioners. But the learned Additional Collector based his finding on the Title Suit No. 42/60. He assumed that the Revenue authorities has no power to sit over the decision of a civil Court, and thus he failed to consider the provisions of law enunciated in Section 46(3) of the CNT Act, which restricts the power of the civil Court in deciding the right and title over a tribal land.
Also in view of the above findings the principles of res judicata does not apply, as like the title suit, forged transaction and collusive mutation, restoration cases can be filed by the OP to make a case of 'res jadicata'. It is clear from the entire case that petitioners always show ignorance about the Restoration Case No. 4/83, decided in favour of the OP and if one Malwa Munda had contested that case, it does not affect the right of all the co-shrers of the land. Hence in my view the principle of res judicata does not apply in this case.
9. Admittedly, the land in question is a raiyati land belonging to the member of Scheduled Tribe. Although petitioner's case is that one of the recorded raiyat Raghubir Munda died leaving behind four sons namely, Jalwa Munda, Malwa Munda, Helman Munda and Netu Munda who by virtue of hukumnama dated 1.3.1946 settled the land to one Chandgi Lal Agarwal and put him in possession, but no chit of paper in support of settlement much less hukumnama has been filed or proved by the petitioner. Only on the basis of compromise decree passed in Title Suit No. 42/60 a case was made out that by virtue of the decree the said Chandgi Lal Agarwal acquired valid and perfected title and possession over the land. It is interesting to look into the compromise petition alleged to have been filed in Title Suit No. 42/60. A copy of the said petition has been annexed as Annexure-1 to the writ petition. It is two paragraph compromise petition. In the first paragraph it is stated that parties belong to the adjacent village and do not want unnecessarily to contest the suit as it would amount to unnecessary harassment and bitterness amongst the parties. In the second paragraph it is stated that claim of the petitioner is genuine and true and he is in possession of the land for more than 14 years on the basis of dar-raiyati hukumnama dated 1.3.1946 granted by the defendant to the plaintiff. On the basis of said petition decree was passed which is the sheet anchor of the petitioner's case.
10. As noticed above, neither there is any document of settlement nor is there any evidence of possession. Even the name of the so called under raiyat was never entered in the revenue record. Even assuming that there had been some under raiyat or dar-raiyati settlement, that dar-raiyati interest is not heritable under the law unless custom of heritability is established. In this regard a Division Bench judgment of the Patna High Court in the case of Johan Uraon v. Sita Ram Sao, 1963 BLJR 623 is worth to be quoted hereinbelow which lays clown the settled proposition of law. Their Lordships held :--
"This view was further affirmed in the case of Jugesh Chandra Bose v. Maqbal Hussain. It is well settled that the interest of an under-raiyat with occupancy status is not heritable under the law. It may be heritable by custom. In this case, the plaintiffs specifically pleaded that the dar-raiyati interest in the locality lasts till the life time of the dar-raiyat and not further. On the other hand, the defendants controverted this' allegation and alleged that the right of a dar-raiyat is heritable by custom of the village. Both the parties adduced evidence and both the Courts below have concurrently held that the custom of heritability has not been established. It must be held, therefore, that the dar-raiyati interest with occupancy right is not heritable in the village in question. That being so, the defendants acquired no interest in the disputed land because the right which Nirbandh Oraon had acquired terminated on his death. The status of the defendants is nothing more than that of a trespasser. In this view of the matter, the defendants are manifestly liable to be ejected, and the decrees of the Courts below must be affirmed."
11. The Commissioner in his order recorded a finding of fact that for the first time rent receipt was issued in the year 1976 in the name of petitioner and before 1976 the applicants respondent who are member of the Scheduled Tribe were in possession.
12. The case of the petitioner is that in 1946 by virtue of hukumnama the settlee Mr. Chandgi Lal Agarwal got dar-raiyati settlement of the land but as noticed above, there is no document of settlement nor any document or oral evidence of possession on the basis of the settlement. The only document relied upon by the petitioner is the compromise petition referred to herein above. In that compromise petition possession of the settlee Chandgi Lal Agarwal was allegedly admitted by the raiyat belonging to members of Scheduled Tribe. In my opinion, the Commissioner has rightly held that it was a collusive suit in which by filing a compromise petition some admission about possession was recorded.
13. At this stage I must refer Bihar Schedule Area Regulation Act, 1969 by which certain provisions and certain amendment have been made in certain laws applicable to the State of Bihar including the State of Jharkhand. The said regulation inter alia provides that notwithstanding any admission made by the member of the Schedule Tribe it has to be proved otherwise the Court shall ignore such admission.
14. Taking into consideration the facts discussed above, I have no hesitation in holding that the decree obtained by one Chandgi Lal Agarwal in Title Suit No. 42/60 was collusive one and in absence of any evidence of possession from the side of the petitioner it cannot be held that the predecessor-in-interest of the petitioner came in possession over the land in question in the year 1960. Consequently, any document of transfer executed by Chandgi Lal Agarwal in favour of one Kamta Prasad Singh transferring the land in question will not in any way be binding upon the applicant/respondents who are the members of Schedule Tribe and were not party in the said transaction. It was for the first time the dispute arose in 1976 when the applicant/respondents were sought to be dispossessed from the land for which application for restoration was filed in the year 1986. The Commissioner therefore rightly held that the applicants were dispossessed within 10 years from the date of filing of application and such dispossession amounted to transfer and therefore application was within time. I fully agree with the view taken by the Commissioner.
15. Besides the above, in a recent decision of the Supreme Court in the case of Amrendra Pratap Singh v. Tej Bahadur Prajapat, 2004 AIR SCW 4103, a similar question with regard to dispossession of the member of Schedule Tribe came for consideration, before the Supreme Court under the Orissa Schedule Area Transfer of Immovable Property (by Scheduled Tribe) Regulation Act, 1956. I would like to quote few paragraphs of the judgment :--
"Tribal areas have their own problems. Tribals are historically weaker sections of the society. They need the protection of the laws as they are gullible and fall prey to the tactics of unscrupulous people, and are susceptible to exploitation on account of their innocence, poverty and backwardness extending over centuries. The Constitution of India and the laws made thereunder treat tribals and tribal areas separately wherever needed. The tribal need to be settled, need to be taken care of by the protective arm of the law, and be saved from failing prey to unscrupulous device so that they may prosper and by an evolutionary process join the mainstream of the society. The process would be slow, yet it has to be initiated and kept moving. The object sought to be achieved by the 1950 Act and the 1956 Regulations is to see that a member of an aboriginal tribe indefeatably continues to own the property which he acquires and every process known to law by which title in immovable property is extinguished in one person to vest in another person, should remain so confined in its operation in relation to tribals that the immovable property of one tribal may come to vest in another tribal but the title in immovable property vesting in any tribal must not come to vest in a non-tribal. This is to see and ensure that non tribals do not succeed in making in-roads amongst the tribals by acquiring property and developing roots in the habitual of tribals.
In support of the proposition that the expression 'transfer of immovable property' is capable of being assigned art extended meaning depending on the context and the setting in which it has been used so as to include therein such transactions as would not otherwise and ordinarily be included in its meaning, we may refer to a few decided cases.
In Pandey Orson v. Ram Chander Sahu and Ors., 1992 Supp (2) SCC 77, the term 'transfer' as used in Section 71-A of Chotanagpur Tenancy Act, 1908, came up for the consideration of the Court. 'Transfer' was not defined in the Act. It was held that considering the situation in which the exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of 'transfer' to transfer under the Transfer of Property Act, or a situation. Where 'transfer' has a statutory definition. What exactly is contemplated by 'transfer' in Section 71-A is where possession has passed from one to another and is a physical fact the member of the Schedule tribe who is entitled to hold possession has lost it and a non-member has come into possession, would be covered by 'transfer'. Their Lordships observed : "The provision is beneficial and the legislative intention is to extend protection to a class of citizens who are not in a position to keep their property to themselves in the absence of protection. Therefore, when the legislature is extending special protection to the named category, the Court has to give a liberal construction to the protective mechanism which would work out the protection and enable the sphere of protection to the effective than limit by its scope." Their Lordship referred to three earlier decisions of this Court, namely, Mancegowda v. State of Karnataka, (1984) 3 SCR 502; Lingappa Pochanna Appelwar v. State of Maharashtra, (1984) 2 SCR 224; Gamini Krishnayya v. Guraza Seshachalam (1965) 1 SCR 195 and a decision of House of Lords in D (a minor) v. Bershire Country Council, (1987) 1 All ER 20 (HL) laying down the proposition that a broad and liberal construction should be given to give full effect to the legislative purpose.
The law laid down by this Court is an authority for the proposition that the Court shall step in and annual any such transaction as would have the effect of violating a provision of law, more so when it is a beneficial piece of social legislation. A simple declaratory decree passed by a civil Court which had the effect of extinguishing the title of a member of Scheduled Tribe and vesting the same in a non-member, was construed as 'transfer' within the meaning of Section 165(6) of the M.P. Land Revenue Code, 1959. Thus, we are very clear in our minds that the expression 'transfer of immovable property' as defined in Clause (f) of para 2 of the 1956 regulations has to be assigned a very wide meaning. Any transaction or dealing with immovable property, which would have the effect of extinguishing title, possession or right to possess such property in a tribal and vesting the same in a non-tribal;, would be included within the meaning of 'transfer of immovable property'.
What is adverse possession? Every possession is not in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process a acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession.
In our opinion, the above said shall be the position of law under the 1956 Regulations where 'transfer of immovable property' has been defined and also under the 1950 Act where 'transfer of holding' has not been defined. Acquisition of title in favour of non-tribal by invoking the Doctrine of Adverse Possession over the immovable property belonging to a tribal, is prohibited by law and cannot be countenanced by the Court.
16. On the question of res judicata raised by the petitioner learned counsel drawn my attention to the order dated 30.12.1983 passed by Land Reforms Deputy Collector in the earlier Restoration Case No. 4 of 1983. A copy of the said order has been annexed as Annexure-5 to the writ petition. From perusal of the order it appears that the Land Reforms Deputy Collector suo motu initiated a restoration proceeding against the petitioner on the basis of report of Circle Officer that Malwa Munda and others (respondents) were dispossessed from the land in question by the petitioner. The Land Reforms Deputy Collector without giving notice to the respondents and without hearing them dropped the restoration case on the basis of the plea taken by the petitioners that they have been in possession of the land for more than 14 years.
17. Firstly I would like to discuss the ratio decided in various decisions relied upon by the petitioner :
18. In the case of Md. Salimuddin v. Commissioner, South Chotanagpur Division, Ranchi, 1993 (1) PLJR 14, one Bhikhari Pujak filed an application for restoration of land under Section 71-A of the CNT Act which was registered as SAR Case No. 271/1970. By order dated 26.4.1971 his application was dismissed, inter alia, on the ground that the petitioner has been in possession of land in question for a period of 34 years after his father obtained settlement of the land in question by reason of two hukumnamas. Another application was filed by same Bhikari Pujak under Section 71-A of the CNT Act in 1972 which was again rejected by order dated 29.12.1972. Thereafter third application was filed by one Amrit Uroan and aunt of Bhikari Pujak which was also rejected by order dated 25.7.1974. Fourth application was filed by the wife of Bhikari Pujak which was dismissed as barred by res jadicata and limitation. Curiously enough, the wife of Bhikari Pujak filed a fresh application on which order was passed for restoration. In that context the learned Judge held that the application was barred by the principle of res judicata and limitation.
19. In the case of Dhananjay Mandal Suri and Anr. v. The State of Bihar and Ors., 1990 PLJR 633, the land in dispute was sold in 1911-12 in auction in a Certificate Case No. 92/1911 which was purchased by one Ram Lal Sahu. In 1969 the said suit property was sold by the heirs of the auction purchaser in favour of the plaintiff and his brothers who, in turn, sold the same to the petitioners. In 1975 an application for restoration of the said land was filed which was dismissed. Another application was filed under Section 71-A of the CNT Act in 1980 which was dismissed on the ground that the disputed question of possession cannot be decided. Thereafter another application under Section 71-A of the Act was filed in 1981-82. The said application was dismissed and in that context it was held by the learned Single Judge that the restoration application was barred by res judicata.
20. In the case of Hari Krishna Prasad Keshri v. The State of Bihar and Ors., (1985) 1 BLJR 604, the fact was that the respondent earlier filed a case under Section 71-A of the CNT Act for restoration of land. The Special Officer dropped the proceeding by order dated 17.9.1989. After lapse of four years the same respondent filed another application for the same relief against the father of the petitioner and on these facts it was held that the subsequent application being barred by the principles of res judicata, is not maintainable.
21. In the instant case, as notice above, there is finding of the special officer Schedule Area Regulation and the Commissioner, South Chotanagpur Division that the respondents who are the members of Scheduled Tribe, were not aware about the earlier restoration proceeding initiated in 1983 by the Land Reforms Deputy Collector on the basis of the report of the Circle Officer that they were dispossessed from the land by one Chandgi Lal Agarwal. In absence of the respondents in whose favour restoration proceeding was initiated, the Land Reforms Deputy Collector, on the basis of show cause filed by Chandgi Lal Agarwal, dropped the proceeding. No finding was recorded by the Land Reforms Deputy Collector on the issue as to whether respondents who are members of the Schedule Tribe, were dispossessed more than 12 years ago nor he decided any issue rather the proceeding was dropped only on the basis of the averments made in the show cause. In my considered opinion, therefore, the restoration proceeding initiated in 1986 on the basis of the application filed by the respondents can not and shall not be hit by the principles res judicata. The decisions relied upon the petitioner referred to herein above, in my view therefore, do not apply in the facts of the present case.
22. The basic idea in the rule of res judicata has sprouted from the maxim "nemo debet bis vexari pro nua et eadem causa" which mens that no man should be vexed twice over for the same cause of action. For the application of the rule of res judicata there must be adjudication of the issue in the earlier suit or proceeding between the same parties or between the parties under whom they or any of them claim litigating under the same title.
23. In the case of Inacio Martins v. Narayan Hari Naik and Ors., (1993) 3 SCC 123, the Supreme Court held that, if the first suit is dismissed on technical ground without deciding the issue regarding status of the plaintiff as a lessee, subsequent suit brought by the lessee for possession of the property cannot be held to be barred by res judicata.
24. Similarly, in the case Deva Ram and Anr. v. Ishwar Chand and Anr., (1995) 6 SCC 733, the Supreme Court discussed the principles of res judicata and observed :--
"Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman Jurisprudence "Interest reipulicae as sit finis litium" (it concerns the State that there be an end to law suits and partly on the maxim "nemo debet bis vexari una et eaden causa" (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of the Court but operates as a bar to the trial of the suit or issue if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a Court, competent to try the subsequent suit in which such issue has been raised."
25. So far compromise decree alleged to have been obtained by the predecessor-in-interest of the petitioner namely, Chandgi Lal Agarwal in Title Suit No. 42 of 1960 is concerned, as notice above in the compromise petition some dar-raiyati settlement was admitted by the respondents who are the member of Schedule Tribe but the there was no adjudication of right title and interest of Chandgi Lal Agarwal for which he had filed the said suit. Such compromise decree, in my opinion also will not be a ground for dismissing the restoration proceeding as being barred by the principles of estoppel and res judicata.
26. In the case of Baldevdas Shivlal and Anr. v. Filmistan Distributors Pvt. Ltd. and Ors., AIR 1970 SC 406, the Supreme Court, considering similar question observed :--
"A consent decree (according ?) to the decisions of this Court, does not operate as res judicata, because a consent decree is merely the record of a contract between the parties to a suit, to which is superadded the seal of the Court. A matter in contest in a suit may operate as res judicata only if there is an adjudication by the Court: the terms of Section 11 of the Code leave no scope for a contrary view. Again it was for the trial Court in the first instance to decide that question and thereafter the High Court could if the matter were brought before it by way of appeal or in exercise of its Revisional jurisdiction, have decided that question. In out judgment, the High Court had no jurisdiction to record any finding on the issue of res judicata in a revision application filed against an order refusing to uphold an objection to certain question asked to a witness under examination."
27. In the case of State of Punjab (Now Haryana) and Ors. v. Amar Singh and Anr., AIR 1974 SCC 994, the Supreme Court was considering the question of applicability of res judicata against a compromise decree under the provision of Punjab Security of Land Tenures Act, 1953. Their Lordship observed :--
"Another argument was suggested that the order even though passed on a compromise was as valid and binding as one passed on contest. May be, that as a broad proposition one may assent to it. But where a compromise goes against a public policy prescription of a statute or a mandatory direction to the Court to decide on its own certain foundational facts, a razi cannot operate to defeat the requirement so specified or absolve the Court from the duty. The resultant order will be ineffective. After all. by consent of agreement parties cannot achieve what is contrary to law and a decree merely based on such agreement cannot furnish a judicial amulet against statutory violation. For, by private agreement, converted into a decree parties cannot empower themselves to do that which they could not have done by private agreement alone." (See Mulla, CPC, Vol II. p. 1300). The true rule is that 'the contract of the parties is not the less a contract and subject to the incidents of a contract, because there is superadded the command of the Judge." The learned author, Mulla, in his commentary on Order XXIII, Rule 3 (Civil Procedure Code, Vol. II, pp. 1299-1300) cites many authorities for this proposition and observed:
"It a decree is passed under this rule on a compromise which is not lawful, the Court should not enforce the decree in execution proceedings. Thus, a sale of an office attached to a temple is against public policy. Hence, if in a suit against the holder of such an office a compromise is arrived at whereby the holder of the office consents to the office being sold in satisfaction of the debt due to the plaintiff, and a decree is passed on the compromise, the Court should notwithstanding the consent decree refuse to sell the office in execution. It is clear that if the matter had rested in contract only, the Court could not have enforced the sale in a suit brought for that purpose. The mere fact that the contract is embodied in a decree does not after the incidents of the contract."
It may be right to conclude that any authority, like the Collector here, enjoined to apply Section 10-A (b) and (c) may decline to act on a compromise which has ripened into an order if the agreement between the parties disposes of property in violation of a statutory mandate. He can and must left the veil and look the agreement of the parties in the face. The vice of contravention of Section 10-A (b) is writ large in Annexure-'A'."
28. On the question of limitation learned counsel relied upon a decision of the Patna High Court in the case of Abdul Rajjak v. The Commissioner and Ors., reported in 1997 (1) BLJR 168. In that case the fact was that in 1984 one Biswa Karmali filed an application under Section 46 (4-A) of the CNT Act for restoration of possession of land on the ground that the land was settled in his favour by the land lord in the year 1929. The application was registered as land Restoration Case No. 1/1984. The case was contested inter alia on the ground that relief under Section 46 (4-A) of the Act was not available in as much as application was barred by limitation and the petitioner had not perfected his title by adverse possession. On these facts it was held that no application under Section 46(4-A). CNT Act could have been entertained because the matter related to a dispute which could be adjudicated by the.
29. Similarly in the case of Suraj Deo Singh v. The Commissioner and Ors., reported in 1993 (1) PLJR 473, it was held by the Patna High Court that the jurisdiction of the Deputy Commissioner is barred for entertaining an application for restoration under Section 46 (4-A) of the Act is the transfer which is sought to be annulled took place more than 12 years prior to filing of the application and the Deputy Commissioner is prohibited from initiating any proceeding for the purpose of finding out as to whether any transfer has been made in violation of the provisions of Section 46 of the CNT Act.
30. In the instant case, as noticed above, no transfer of the land was made by the respondents or their predecessor-in-interest who are the members of the Schedule Tribe rather their case is that they were dispossessed in 1976. It is the petitioner's case that one Chandgi Lal Agarwal got dar-raiyati settlement of the land in the year 1946 but no evidence was produced in support of such settlement. The petitioner alleged to have purchased the land in the year 1969 from one Kamta Prasad Singh who, in turn, had purchased it from Chandgi Lal Agarwal in the year 1969. In other words, Chandgi Lal Agarwal sold the land to Kamta Prasad by registered deed of sale dated 6.2.1969 and in the same year Kamta Prasad Singh sold the land to Kailash Singh, the father of the petitioner. The respondents who are the members of Schedule Tribe, are not parties to any of such transfers made in favour of Kamta Prasad Singh or Kailash Singh. The finding of facts recorded by both the Special Officer, Scheduled Area Regulation and the Commissioner, South Chotanagpur Division is that the respondents were dispossessed in the year 1976. It has been well settled that dispossession amounts to transfer and in that view of the matter the Commissioner rightly held that application for restoration was filed within 10 years from the date of dispossession.
31. Recently, in the case of Lineal Gamango and Ors. v. Dayanidhi Jena and Ors., (2004) 3 PLJR 212, Supreme Court was considering similar question in Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956. In that case the appellants who belong to Schedule Tribe filed a case for restoration of land alleging that it has been forcibly occupied by the respondents. The original authority passed order for restoration of the land but in appeal Additional District Magistrate remanded the case for further enquiry with an observation that the identity of the suit land was to be ascertained with assignment of plot numbers etc. After remand the matter was heard and the original authority finally dismissed the restoration case holding that respondents are in possession for more than 30 years which is the limitation period according to Section 7-D of the said Act. The appellant then preferred appeal before the Collector who allowed the appeal and set aside the order of the original Authority. The matter ultimately came before the Supreme Court and it was held that since transfer of immovable by a tribal to a non-tribal is impermissible, invalid, null and void, a non-tribal would not acquire right and title over a tribal land on the basis of adverse possession. Deciding the question their Lordships observed :--
"We find both these reasons given by the High Court are not sustainable. Coming first to the second poind, se find that there is a decision of this Court direct on the point. It is reported in JT 2003 (9) SC 201, Amrendra Pratap Singh v. Tej Bahadur Prajapati and Ors.. The matter related to transfer of land filling in tribal area belonging to the Scheduled Tribes. The matter was governed by Regulations 2, 3 and 7-D of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) Regulations, 1956 viz., the same Regulations which govern this case also. The question involved was also regarding acquisition of right by adverse possession, considering the matter in detail, in the light of the provisions of the aforesaid Regulation, this Court found that one of the questions which falls for consideration was 'whether right by adverse possession can be acquired by a non-aboriginal on the property belonging to a member of aboriginal tribe"? (para 14 of the judgment). In context with the above question posed, this Court observed in para 23 of the judgment as follows :
".....The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant....."
This Court then noticed two decision one that of the Privy Council reported in AIR 1923 PC 205, Madhavrao Waman Saundalgekar and Ors. v. Reghunath Venkatesh Dehspande and Ors., and AIR (36) 1949 Nagpur 265, Marimullakhan S/o Mohd. Ishaqkhan and Anr. v. Bhanupratap Singh, holding that title by adverse possession on Inam lands. Watan lands and Debutter, was incapable of acquisition since alienation of such land was prohibited in the interest of the State. We further find that the decision in the case of Madhiya Nayak (supra) relied upon by the High Court was referred to before this Court and it is observed that the question as to whether a non-tribal could at all commence prescribing acquisition of title by adverse possession over the land belonging to a tribal which is situated in a tribal area, was neither raised nor that point had arisen in the case of Madhiya Nayak. It is further observed that the provisions of Section 7-D of the Regulations are to be read in the light of the fact that the acquisition of right and title by adverse possession is claimed by a tribal over the immovable property of another tribal but not where the question is in regard to a non-tribal claiming title by adverse possession over the land belonging to a tribal situate in a tribal area. It is, therefore, clear in view of the decision in the case of Amrendra Pratap Singh, (supra) that a non-tribal would not acquire right and title on the basis of adverse possession. Therefore, the second ground for setting aside the order passed by the Appellate Court fails through. Therefore, the other factual aspect about the possession of the respondents over the disputed land and entries in their favour may also not be of much consequence, in any case, this aspect of the matter has to be seen and considered afresh in the light of other facts and circumstances of the case."
32. After giving my anxious consideration in the fact of the case and considering the law discussed herein above, I am of the opinion that the Commissioner, South Chotanagpur, Division Ranchi has rightly held that since the private respondents who belong to Schedule Tribe were dispossessed in 1976, restoration proceeding is neither barred by limitation nor barred by principles of res judicata. I do not find any reason to interfere with the said order.
33. For the aforesaid reasons, there is no merit in this writ application, which is accordingly, dismissed.