(A) Satvant Kaurari vs The State Of Jharkhand
2023 Latest Caselaw 1432 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI

                      W. P. (C) No. 4897 of 2006

     1. (a) Satvant Kaurari, wife of Pritam Singh, resident of Ram
        Bhawan, Tata Road, Chaibasa, P.O. Chaibasa, P.S. Chiabasa,
        District West Singhbhum (Jharkhand)
        (b) Ramnit Kaur Jhanjal, daughter of Pritam Singh, wife of Pritpal
        Singh Dhanjal, resident of H.No. D-207, Khutadih, Sonari,
        Jamshedpur, P.O. Jamshedpur, P.S. Jamshedpur, District East
        Singhbhum (Jharkhand)
        (c) Harpreet Kaur, daughter of Pritam Singh, wife of Pal Singh
        Panesar, resident of 902, Elover Everest World, Kolshet Road,
        Opposite Bayer Factory Thane, Sandozbaugh, Thane, P.O.
        Sandozbaugh, P.S. Sandozbaugh, District Mumbai (Maharashtra).
        (d) Deepak Singh Ari, son of Pritam Singh, resident of Ram
        Bhawan, Tata Road, Chaibasa, P.O. Chaibasa, P.S. Chiabasa,
        District West Singhbhum (Jharkhand).
     2. (a) Grumit Singh, son of Kala Singh @ Karheya Singh, resident of
        Tata Road, Caibasa, P.O. Chaibasa, P.S. Chaibasa, District West
        Singhbhum (Jharkhand)
     3. Gurmukh Singh, son of late Fouja Singh
     4. Baljeet Singh, son of late Fouja Singh
     5. Sarjeet Singh, son of late Fouja Singh
     6. (a) Kamaljit Kaur Khokhar, wife of Harbhajan Singh @ Paji
        Singh, resident of F.S. House, Tata Road, Ward No.22, Near
        Railway Station, Chaibasa, P.O. Chaibasa, P.S. Chaibasa, District
        West Singhbhum (Jharkhand)
        (b) Roshan Singh Khokhar, son of Harbhajan Singh @ Paji Singh,
        resident of F.S. House, Tata Road, Ward No.22, Near Railway
        Station, Chaibasa, P.O. Chaibasa, P.S. Chaibasa, District West
        Singhbhum (Jharkhand)
        (c) Karan Singh Khokhar, son of Harbhajan Singh @ Paji Singh,
        resident of F.S. House, Tata Road, Ward No.22, Near Railway
        Station, Chaibasa, P.O. Chaibasa, P.S. Chaibasa, District West
        Singhbhum (Jharkhand).
        All residents of Tata Road, Chaibasa, P.O. Chaibsa, Police Station
        Chaibasa (M), District Singhbhum West.
                                                   ...     ...      Petitioners
                                Versus
     1. The State of Jharkhand
     2. The Commissioner, Kolhan at Chaibasa
     3. The Deputy Commissioner, West Singhbhum at Chaibasa
     4. Land Reforms Deputy Collector, Sadar Chaibasa, District West
        Singhbhum
     5. Circle Officer, Sadar Chaibasa, West Singhbhum
     6. Shri Mageya Deogam, Son of late Gono Ho
     7. Shri Majbi Deogam, son of late Gono Ho
        Both respondents, Nos. 6 and 7, residents of Village Dumbisai,
        P.O. Chaibasa, Police Station Chaibasa (M), District West
        Singhbhum                            ...        ...       Respondents
                                ---

CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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For the Petitioners : Mr. Indrajit Sinha, Advocate

: Mr. Ajay Sah, Advocate For the Resp.-State : Mr. Prashant Kr. Rai, Advocate

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09/31.03.2023 Heard the learned counsel for the petitioners and the respondent

-State.

2. This writ petition has been filed for the following reliefs: -

"For issuance of an appropriate writ, order or direction for quashing the order dated 25th May, 2006 passed in S.A.R. Revision No. 5 of 2004 by the respondent No. 2, whereby and whereunder he has been pleased to allow the said revision filed by the respondent Nos. 6 and 7 and remitted the matter to the Deputy Commissioner (respondent No. 3) for passing fresh orders on reconsidering the claim of the respondent Nos. 6 and 7;

AND/OR Any other appropriate writ(s), order(s) or direction(s) as to Your Lordship may deem fit and appropriate for doing conscionable justice to the petitioner."

Arguments of the Petitioners

3. Learned counsel for the petitioners has submitted that the entire proceedings under Section 71A of Chotanagpur Tenancy Act is hit by the principles of res judicata in view of the fact that two of the full brothers of the respondent nos. 6 and 7 had earlier participated in the proceedings under Section 71A of Chotanagpur Tenancy Act in S.A.R. Case No.267 of 1976-1977, in which, ultimately an amount of compensation was to be paid. Against the quantum of compensation, those two brothers had moved the appellate authority, but the appeal was dismissed for default. He submits that the present respondent nos.6 and 7 filed another application for restoration of land under Section 71A vide petition dated 26.11.1996. He submits that the two brothers having moved earlier, the subsequent petition filed by the other two brothers is barred by res-judicata. The learned counsel submits that the principle of res judicata will apply in view of the fact that the two full brothers of the respondent nos. 6 and 7 had already participated in the earlier proceedings for restoration under Section 71A. The learned counsel for the petitioners has relied upon the following judgments:

                   (i)     (1996) 2 PLJR 719 para 3 and 5
                   (ii)    (2002) 3 JLJR 126 para 4 and 6
                   (iii)    (2007) 8 SCC 329 para 9, 17 & 18

4. The learned counsel has also submitted that the property involved in this case was sold by the father of the respondent nos.6 and 7 to the father of the present petitioners vide registered sale deed dated 31.01.1963 and therefore the proceedings for restoration has been filed after 33 years 10 months and 23 days.

5. So far as limitation is concerned, the learned counsel has submitted that there was an amendment in Article 65 of the Limitation Act by virtue of Bihar Schedule Area Regulation 1969 and 30-years limitation was prescribed and accordingly submits that the prescribed limitation for filing an application under Section 71A would be only 30 years and no more. He has further submitted that the Hon'ble Supreme Court in various judgments including the judgment passed in the case of Situ Sahu reported in (2004) 4 JCR 211 SC has held that though no limitation has been prescribed for filing an application under Section 71A of Chotanagpur Tenancy Act, but some reasonable time has to be there and has held that an application filed after about 40 years was beyond the reasonable time. Learned counsel has also submitted that the said judgment has been followed by this Court in CWJC No.2022 of 2000 (R). He submits that the aforesaid amendment in Article 65 of the Limitation Act through Bihar Schedule Area Regulation 1969 was not brought to the notice of Hon'ble Supreme Court while deciding the aforesaid judgment. Arguments of the respondent-State

6. Learned counsel appearing on behalf of the respondent - State, on the other hand, has submitted that there is no question of applicability of res judicata in the present case, in as much as, the two brothers of the respondent nos. 6 and 7 had participated in the earlier proceedings and the matter regarding dispossession under Section 71A was not even decided on merit, rather it was disposed of on the basis of some kind of compromise between the petitioners and two full brothers of the private respondents. Learned counsel has also submitted that as per the application for restoration, the petitioners were in possession of the property by virtue of a tenancy over the property and it has been specifically stated in the application that till the year 1980, the father of the private respondents used to take rent for the property involved in the present case.

7. Learned counsel has submitted that the petitioners were the tenants over the property and they continued to be tenant over the property by giving rent and the sale deed dated 31.01.1963 is of no use as the required permission from the Deputy Commissioner for transfer of land involved in the present case was never taken. Learned counsel has also submitted that the authority had only remanded the matter for fresh consideration and these disputed questions of fact may not be entered into at this stage of the litigation.

Findings of this Court.

8. The records of this case reveal as under: -

9. Ram Singh [Grandfather of Petitioner Nos.1(a) to (1(d) & Petitioner No.2(a)] & Fouja Singh [Father of Petitioner Nos.3 to 5 & Grandfather of Petitioner Nos.6(a) to 6(c)] had purchased a total area of land measuring 0.24 acres bearing Old Plot No.33 [New Plot Nos.52 (1 decimal), 53 (20 decimals) and 54 (3 decimals)], Old Khata No.22 (New Khata No.26) situated in Mouza- Dumbisai, Thana No.643, Estate No.697 from Gono Ho (Father of Respondent Nos.6 &

7) alongwith the house constructed thereover by virtue of registered Sale Deed No.105 dated 31.01.1963 (Annexure-1) registered at Chaibasa Sub-registry Office without obtaining permission under Section 46 of the Chotanagpur Tenancy Act and they came into possession over the land by constructing substantial structure thereon. The land was mutated in the names of Ram Singh and Fouza Singh in the office of the Block Development Officer, Chaibasa vide Mutation Case No.38/1965-66.

10. Sidiu Deogam & Jadav Deogam (Two full brothers of Respondent Nos.6 and 7), both sons of Gono Ho, filed an application for restoration of the lands-in-question under Section 71A of Chotanagpur Tenancy Act being S.A.R. Case No.267/1976-77 in the court of the Sub-Divisional Officer, Sadar at Chaibasa. On the submissions of both the parties, the Sub-Divisional Officer, Sadar at Chaibasa vide order dated 05.09.1983 directed Ram Singh & Fouza Singh to pay compensation of Rs.2,000/- to Sidiu Deogam & Jadav Deogam and on payment of the compensation to Sidiu Deogam, the case was disposed of vide order dated 09.09.1983 (Annexure-2). Thus, the case was not decided on merit.

11. Thereafter, Sidiu Deogam & Jadav Deogam (Two full brothers of Respondent Nos.6 and 7) preferred S.A.R. Appeal No.75 of 1983- 84 (Annexure-3) before the learned Deputy Commissioner, Singhbhum at Chaibasa for re-determination of the quantum of the compensation, which was dismissed for default vide order dated 05.08.1986 (Annexure-4).

12. After 33 years 09 months 23 days from the Sale Deed No.105 dated 31.01.1963, the Respondent Nos.6 and 7 filed an application (Annexure-5) on 26.11.1996 being S.A.R. Case No.4/1996-97 under Section 71A of the Chotanagpur Tenancy Act against Pritam Singh & Karheya Singh, both sons of Late Ram Singh and Gurmukh Singh, Baljeet Singh, Sarjeet Singh & Paji Singh, sons of Late Fouza Singh for restoration of the lands-in-question on the grounds that Ram Singh & Fouza Singh were tenants of Gono Ho who were given the property on rent for the business of selling wood and Gono Ho had taken rent from them till 1980. It was alleged that the Sale Deed No.105 dated 31.01.1963 was executed without obtaining permission under Section 46 of the C.N.T. Act from the Deputy Commissioner for purchase-sale of the lands-in-question and execution of the sale deed was in violation of the provision under Section 46 of the C.N.T. Act and was illegal. It was alleged that the sale deed does not bear the signature of any witness of Mouza- Dumbisai and all the three witnesses are outsiders and that Gono Ho had collected rent till 1980.

13. Gurmukh Singh & Others (opposite parties therein) filed their show cause (Annexure-6) opposing the restoration application on several grounds including the grounds of res-judicata, barred by limitation and adverse possession.

14. The learned Land Reforms Deputy Collector, Sadar, Chaibasa, vide order dated 28.04.2001 (Annexure-8) passed in S.A.R. Case No.4/1996-97, allowed the restoration application on the grounds that the land of scheduled tribe can be sold only after obtaining permission under Section 46 of the C.N.T. Act from the Deputy Commissioner and to a member of the same community. It was held that Fouja Singh was not a member of Scheduled Tribe and accordingly, Sale Deed No.105 dated 31.01.1963 was illegal and void and the possession of Gurmukh Singh & Others over the land-in-question was illegal. The

learned LRDC directed the Circle Officer, Sadar, Chaibasa for restoration of possession of the lands-in-question to Respondent Nos.6 and 7 and to effect delivery of possession to them.

15. The learned LRDC, Sadar, Chaibasa, did not record any finding on the issue as to whether the application for restoration was barred by limitation or any finding on the point of adverse possession. Nor the authority recorded any finding regarding claim of tenancy created by the recorded tenant Gono Ho in favour of Gurmukh Singh & Others (opposite parties therein) and the claim that Gono Ho had collected rent till 1980.

16. On 24.02.2003, Pritam Singh & Karheya Singh, both sons of Late Ram Singh and Gurmukh Singh, Baljeet Singh, Sarjeet Singh & Harbhajan Singh @ Paji Singh, sons of Late Fouza Singh filed S.A.R. Appeal No.33/2002-03 (Annexure-10) before the learned Deputy Commissioner, West Singhbhum at Chaibasa for setting aside the order dated 28.04.2001 (Annexure-8) passed in S.A.R. Case No.4/1996-97.

17. The learned Deputy Commissioner, West Singhbhum at Chaibasa, vide order dated 30.12.2003 (Annexure-12) passed in S.A.R. Appeal No.33/2002-03, recorded its findings that Gono Ho had sold the lands-in-question to the non-scheduled tribe persons namely, Ram Singh and Fouja Singh (Sikh) without obtaining permission under Section 46 of the C.N.T. Act from the Deputy Commissioner or the competent officer which is in violation of the provisions under Section 46 of the C.N.T. Act (Para-5, 6 & 11 of Annexure-12).

18. However, the learned appellate court set aside the order dated 28.04.2001 (Annexure-8) passed by the learned Land Reforms Deputy Collector, Sadar, Chaibasa in S.A.R. Case No.4/1996-97 applying the principle of res-judicata on the basis that earlier S.A.R. Case No.267/1976-77 filed by Sidiu Deogam & Jadav Deogam (Two full brothers of Respondent Nos.6 and 7) was disposed of vide order dated 05.09.1983 passed by the learned Sub-Divisional Officer, Sadar at Chaibasa, and allowed the S.A.R. Appeal No.33/2002-03 (Para-6, 7 & 12 of Annexure-12).

19. The learned appellate authority also did not record any finding on the issue as to whether the application for restoration was barred by

limitation or any finding on the point of adverse possession. Nor the authority recorded any finding regarding claim of tenancy created by the recorded tenant Gono Ho in favour of Gurmukh Singh & Others (opposite parties therein) and the claim that Gono Ho had collected rent till 1980.

20. Thereafter, Respondent Nos.6 and 7 filed S.A.R. Revision No.5/2004 (Annexure-13) under Section 217 of C.N.T. Act before the learned Commissioner, Kolhan at Chaibasa against order dated 30.12.2003 (Annexure-12) passed in S.A.R. Appeal No.33/2002-03.

21. The Court of the learned Commissioner, Singhbhum (Kolhan) Sub-Division, Chaibasa (Revisional Court), vide order dated 25.05.2006 (Annexure-14-Impugned Order) passed in S.A.R. Revision No.5/2004, set aside the order dated 30.12.2003 (Annexure-

12) passed in S.A.R. Appeal No.33/2002-03 on the ground that the present case is not barred by res-judicata and the order of the learned court below applying the principles of res-judicata and limitation is illegal. The learned revisional court remitted the matter to the learned court below to reconsider the claim of the applicants and to pass fresh order.

22. The first issue involved in this case is :-

(A) Whether the application dated 26.11.1996(Annexure-5) for restoration of land under Section 71A of C.N.T. Act, 1908, filed by the Respondent Nos.6 and 7 (two sons of recorded tenant- Gono Ho) being S.A.R. Case No.4/1996-97 against descendants of Ram Singh and Fouza Singh is barred by the principle of res- judicata on account of earlier application for restoration filed by the other two sons of recorded tenant- Gono Ho being S.A.R Case no. 267 of 1976-77 decided on 05.09.1983?

23. As per the findings of the learned original court and revision court, Sale Deed No.105 dated 31.01.1963 (Annexure-1) was executed without obtaining permission under Section 46 of the Chotanagpur Tenancy Act from the Deputy Commissioner or the competent authority and therefore, Sale Deed No.105 dated 31.01.1963 is illegal and void.

24. The learned appellate court has also recorded findings that Sale Deed No.105 dated 31.01.1963 (Annexure-1) was executed without obtaining permission under Section 46 of the Chotanagpur Tenancy Act from the Deputy Commissioner.

25. The previous case i.e. S.A.R. Case No.267/1976-77 filed by Sidiu Deogam & Jadav Deogam (Two full brothers of Respondent Nos.6 and 7), both sons of Gono Ho was disposed of vide order dated 09.09.1983 (Annexure-2) and the case was not decided on merit. In the aforesaid circumstances, it cannot be said that the application for restoration of land filed by two sons of Gono Ho will be barred by res- judicata on account of earlier application filed by other two sons of Gono Ho. The case was neither decided on merits nor the case was between the same parties or claiming through the same parties. It is important to note that Gono Ho, the recorded raiyat never filed any application for restoration of land. Two separate applications were filed by his two sons each in different point of time. The first one having not been decided on merits, the subsequent one cannot be said to be barred by the principles of res-judicata.

26. So far as the judgement relied upon by the learned counsel for the petitioners reported in (2007) 8 SCC 329 (Saroja Vs. Chinnusamy (dead) by LRS. and Anr.) is concerned the principle of law for applicability of the principle of res-judicata has been enumerated in para 5 of the judgement as follows:-

"5. We have carefully examined the provisions under Section 11 CPC. After a careful reading of the provisions under Section 11 CPC, it is discernible that in order to constitute res judicata, the following conditions must be satisfied--

(i) There must be two suits--one former suit and the other subsequent suit;

(ii) The court which decided the former suit must be competent to try the subsequent suit;

(iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits;

(iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit;

(v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits;

(vi) The parties in both the suits must have litigated under the same title."

27. In the said case reported in (2007) 8 SCC 329, the earlier suit ended in passing of ex-parte decree and the principles of res-judicata was elaborately dealt with regard to each of the aforesaid conditions mentioned in para 5 of the judgement. There is no dispute that each of the conditions mentioned in para 5 is required to be satisfied in order to attract the principle of res-judicata. While dealing with the

condition no. (iv), the Hon'ble Supreme court held in para 12 to 16 that even ex-parte decree would act as res-judicata for the subsequent suit by agreeing with the view of Hon'ble Madras High Court in Arukkani Ammal v. Guruswamy holding that ex-parte decree is undoubtedly a decree which is passed without contest; but it is only after the merits of the claim of the plaintiff have been proved to the satisfaction of the trial court, that an occasion to pass an ex parte decree can arise. The para 12,13, 15 and 16 of the aforesaid judgement are quoted as under: -

"12. Let us, therefore, deal with Condition (iv) first which says, "the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit". Learned counsel for the appellant sought to argue that since the former suit was decided ex parte, it could not be said that it was finally heard and decided by the court and, therefore, Condition (iv) was not satisfied and the principle of res judicata could not be applied and accordingly the ex parte decree in the former suit would not operate as res judicata in the subsequent suit. We are unable to agree with this contention of the learned counsel for the appellant.

In this case, admittedly, summons was duly served upon Kuppusamy and in spite of such service of summons, Kuppusamy thought it fit not to appear or to contest the suit filed against him. Once an ex parte decree is passed against Kuppusamy, in our view, the same should be taken as a final decision after hearing.

13. It is well settled that an ex parte decree is binding as a decree passed after contest on the person against whom such an ex parte decree has been passed. It is equally well settled that an ex parte decree would be so treated unless the party challenging the ex parte decree satisfies the court that such an ex parte decree has been obtained by fraud. Such being the position, we are unable to hold that Condition (iv) was not satisfied and accordingly it cannot be held that the principle of res judicata would not apply in the present case.

15. In this connection, reference can be made to a decision of the Madras High Court in Arukkani Ammal v. Guruswamy which was also relied on by the first appellate court. The Madras High Court in that decision observed as follows: (LW p. 708, para 1) "It is also difficult to appreciate the view taken by the District Munsif that ex parte decree cannot be considered to be 'full decree on merits'. A decree which is passed ex parte is as good and effective as a decree passed after contest. Before the ex parte decree is passed, the court has to hold that the averments in the plaint and the claim in the suit have been proved. It is, therefore, difficult to endorse the observation made by the Principal District Munsif that such a decree cannot be considered to be a decree passed on merits. It is undoubtedly a decree which is passed without contest; but it is only after the merits of the claim of the plaintiff have been proved to the satisfaction of the trial court, that an occasion to pass an ex parte decree can arise."

(emphasis supplied)

16. We are in full agreement with this view of the Madras High Court holding that a decree which is passed ex parte is as good and effective as a decree passed after contest. A similar view has also been expressed by a Division Bench of the Allahabad High Court in Bramhanand Rai v. Dy. Director of Consolidation. However, the learned counsel for the appellant relying on a decision of the Madras High Court, namely, A.S. Mani v. Udipi Hari Niwas invited us to hold that the principle of res judicata would not apply as the

former suit was decided ex parte. This decision, in our view, is distinguishable on facts. In that decision, the observation that the ex parte decree shall not operate as res judicata was made on the basis that the earlier petition which was filed for eviction against the tenants was dismissed only on technical grounds, and after keeping this fact in mind only, the Madras High Court held that the ex parte decree would not operate as res judicata inasmuch as the petition was not heard and finally decided as contemplated in Section 11 CPC. Therefore, in our view, since Condition (iv), as noted hereinbefore, was satisfied, we hold that the principles of res judicata would be applicable in the present case as held by the first appellate court and also affirmed by the High Court."

28. Thus, what is important for satisfaction of condition no. (iv) is that the case should have been decided on merits even if the decree is ex-parte. In the present case, in the earlier petition filed for restoration under Section 71A, the two sons of Gono Ho prayed only for compensation of the land and the authority determined the compensation after hearing both the parties. Thus, in the present case, the condition no. (iv) was not satisfied to treat the subsequent proceedings instituted by other two brothers being barred by res- judicata.

29. It is also important to note that even the condition no.(v) i.e 'The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits", is also not satisfied in the present case. Admittedly, Gono Ho never filed any case for restoration of land during his life time. His two sons filed the case only claiming compensation for land in which the other two sons of Gono Ho were not parties. The instant case arises out of proceedings initiated at the instance of the other two sons of Gono Ho.

Thus, it cannot be said that the two sons of Gono Ho, who had instituted the present proceedings for restoration of land, were parties to the earlier proceedings nor can they be said to be the persons claiming under the parties to the earlier proceedings. Thus, they cannot be said to be party in both the proceedings either directly or through one or the other party in the earlier proceedings. Para 17 of the aforesaid judgement passed by the Hon'ble Supreme Court deals with the condition no. (v) which is quoted as under: -

17. Now let us deal with Condition (v) which says, "the parties to the suits or the parties under whom they or any of them claim must be the same in both the suits". It is true that the appellant was not a party to the suit filed by Respondent 3 and others against Kuppusamy from whom the appellant had purchased the property by a registered deed of sale. In the present case, the appellant was litigating on the basis of the title acquired by her from Kuppusamy against whom the ex parte decree was

passed in the former suit. Therefore, it would not be difficult for us to hold that the appellant, who although was not a party to the former suit, claimed through Kuppusamy in the suit subsequently filed by her. In Pandit Ishwardas v. State of M.P. this Court held that: (SCC p. 166, para 7) "In order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim."

(Emphasis supplied) Therefore, Condition (v) is also satisfied."

30. Thus, the requirement for condition no. (v) is that the issue should be between the same parties or between parties under whom they or any of them claim. This condition is not satisfied in the present case.

31. In view of the aforesaid findings, condition (iv) and (v) having not been satisfied, the plea that the proceedings initiated by the other two sons of Gono Ho is barred by res-judicata, is rejected. This Court does not find any illegality in the impugned order passed by the revisional court so far as it holds that the proceedings were not barred by res-judicata.

32. Para 18 of the aforesaid judgement deals with condition no.(vi). Once it is held that condition no. (iv) and (v) are not satisfied, there is no need to further consider satisfaction of condition no.(vi). Suffice it is to say that in both the proceedings, the parties claimed that they were dispossessed by virtue of registered sale deed of the year 1963.

33. So far as the judgment passed by the Hon'ble Patna High Court reported in 1996 2 PLJR 719 (Bhaiya Ram Munda Vs. Anirudh Patar and Ors.) is concerned, the same does not apply to the facts and circumstances. In the said case, earlier case was decided on merit by holding that the petition for restoration of land was barred by limitation and in the earlier occasion, no claim was made in connection with a portion of the land and subsequent application was filed with regards to the remaining land claiming restoration in favor of the family. It was held that if the principle of res judicata was applicable with respect to 2 acres of land, the same principle was also applicable for the whole of the piece of land as earlier no claim relating to restoration was made by the respondent of the said case though a petition was filed.

34. So far as the judgment passed by Hon'ble Division Bench of this Court, reported in 2002 (3) JLJR 126 (Lankeshwar Patar Vs. Feku Mahto & Ors.) is concerned, the same also does not apply to the facts and circumstances of this case in view of the fact principle of res judicata was applied in view of the fact that earlier restoration application was filed by the father of the appellant and the subsequent application was filed by his son referring to certain new facts. It was held that the revisional authority wrongly held that since new facts have come on record, therefore, consequent proceeding cannot be held to be barred by res judicata. The son who filed the subsequent application was certainly claiming through his father which is not the case here.

35. The second and third issue involved in this case are: -

(B) Whether the application (Annexure-5) filed by Respondent Nos.6 and 7 on 26.11.1996 being S.A.R. Case No.4/1996-97 under Section 71A of the Chotanagpur Tenancy Act for restoration of the lands-in-question against Pritam Singh & Karheya Singh, both sons of Late Ram Singh and Gurmukh Singh, Baljeet Singh, Sarjeet Singh & Paji Singh, sons of Late Fouza Singh is barred by limitation in terms of Article 65 of the Limitation Act, 1963, as amended by Bihar Scheduled Areas Regulation, 1969 which came into force on 09.02.1969?

(C) Whether the petitioners or their predecessor in interest have perfected their right, title, interest and possession by way of adverse possession in the light of amendment of Article 65 of the Limitation Act, 1963 in the light of Bihar Scheduled Areas Regulation, 1969 which came into force on 09.02.1969, whereby the period has been prescribed to be 30 years in respect of immovable property belonging to a member of the Scheduled Tribes as specified in Part III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950?

36. Some of the important factual aspects are: -

(i) Respondent Nos.6 and 7 have filed the application (Annexure-5) on 26.11.1996 being S.A.R. Case No.4/1996-97 for restoration of the lands-in-question after 33 years 09 months 23 days from the date of execution of the Sale Deed No.105 dated 31.01.1963.

(ii) As per the findings of the learned original court, appellate court and revision court, Sale Deed No.105 dated

31.01.1963 (Annexure-1) was executed without obtaining permission under Section 46 of the Chotanagpur Tenancy Act from the Deputy Commissioner or the competent authority and therefore, Sale Deed No.105 dated 31.01.1963 is illegal and void.

(iii) The learned LRDC, Sadar, Chaibasa and Deputy Commissioner, West Singhbhum, Chaibasa have not recorded any clear finding on the issue whether the restoration application was barred by limitation or not or whether the petitioners or their predecessors in interest have perfected their right, title, interest and possession by way of adverse possession. The Hon'ble Supreme Court in the case of Situ Sahu v. State of Jharkhand (2004) 4 JCR 211 (SC) has laid down that under Section 71A of the C.N.T. Act, an application for restoration of the land can be dealt with, if filed within reasonable time. What is a reasonable time, certainly depends upon facts and circumstances of a case. The authorities have also not recorded any findings on the point of tenancy as claimed by the applicants i.e two sons of recorded tenant- Gono Ho and their plea that Gono Ho had collected rent till 1980.

37. In view of the aforesaid facts and circumstances of this case , the materials already on record are required to be scrutinized closely for recording any finding on aforesaid aspects of the matter. To enable the concerned authority to apply judicial mind to the aforesaid aspects of the matter on the basis of materials on record, the finding of the learned Commissioner that the proceedings were not barred by limitation, is set-aside.

38. Consequently, the learned Deputy Commissioner, before whom the matter has been remitted by the learned Commissioner for fresh consideration, is directed to consider the matter afresh, based on the materials already on record and in the light of the aforesaid observations taking into consideration of the provisions of law. Considering the nature

of dispute involved in this case, the respondent State is also required to be heard by the Deputy Commissioner for which an appropriate counsel be appointed by the State.

39. The parties are directed to appear before the learned Deputy Commissioner on 18.05.2023. The final reasoned order be passed after granting adequate opportunity of hearing to the parties within a period of 3 months thereafter.

40. This writ petition is accordingly disposed of.

41. Pending interlocutory application, if any, is dismissed as not pressed.

42. Let a copy of this order be communicated to the learned counsel for the parties for compliance and necessary action.

(Anubha Rawat Choudhary, J.) Manoj/Saurav