SWAPAN MALLICK Vs. PURNA LAXMI TRIPURA

JUDGEMENT

(1.) THE petitioner by the present writ petition has challenged the order dated 25. 2. 1995 passed by the Restoration Officer, Belonia, South Tripura in Case No. 329/r/94 under Section 187 of the Tripura Land Revenue and Land Reforms Act (hereinafter referred to as T. L. R. and LR. Act), 1960, directing restoration of the schedule land to the respondent No. 1 by ejecting the petitioner from the said land.

(2.) I have heard Mr. S. Deb, learned senior counsel assisted by Mr. S. Choudhury, learned counsel for the petitioner and Mr. P. Dutta, learned counsel appearing on behalf of all the respondents.

(3.) MR. Deb, learned senior counsel for the petitioner has submitted that the petitioner's father filed a Title Suit being Title Suit No. 31 of 1969 in the Court of the learned Munsiff, Belonia, South Tripura against the husband of the respondent No. 1 as defendant praying for a decree declaring that the plaintiff is the Benamdar in respect of the land involved in the present proceeding, which was decreed on compromise. According to the learned senior counsel, by the said decree passed by the learned Civil Court on 23. 6. 1969 the right, title and interest of the predecessor-in-interest of the present writ petitioner has been declared and, therefore, the Revenue Court has no power and jurisdiction to pass the order dated 25. 2. 1995 directing restoration of possession of the land in question in favour of the respondent No. 1 by ejecting the petitioner inasmuch as the predecessor-in-interest of the respondent No. 1 has admitted that the land which was purchased on 21. 2. 1966 by the predecessor-in-interest of the petitioner in the name of predecessor-in-interest of the respondent No. 1. Further submission of the learned senior counsel is that since the predessor-in-interest of the petitioner has purchased the land on 21. 2. 1966 i. e. , much prior to 1. 1. 1969, in the name of the predecessor-in-interest of the respondent No. 1 and since such transaction was declared to be a benami transaction by the Civil Court, the Revenue authority has no power and jurisdiction to restore the possession of the land in favour of the respondent No. 1 in exercise of the power under Section 187 (3) of T. L. R. and L. R. Act, 1960, as under the said provision the Revenue authority can direct restoration of possession of the land belonging to the tribal if such land is transferred to a non-tribal on or after 1. 1. 1969. Mr. Deb, learned senior counsel has further submitted that though the provision of Section 187 was amended by the Sixth and Seventh Amendment, which came into force on 11. 2. 1969, where by the power has been conferred on the Revenue authority to restore possession of the land to the tribals, if possession of the land is parted with in favour of the non-tribal after 1. 1. 1969, the said provision is not applicable in the present case in view of the fact that it came into force with effect from 11. 2. 1996 and the proceeding was initiated much prior to coming into force the said amended provision. In any case, according to the learned counsel, it is evident from the decree passed by the Civil Court that the petitioner through the predecessor-in-interest was in possession of the land prior to 1. 1. 1969 and, therefore, even if the amended provision is applicable, the petitioner cannot be evicted from the land in question and the possession cannot be restored in favour of the respondent No. 1 as the said power can be exercised by the Revenue authority if such transfer has been effected or possession has been parted with after 1. 1. 1969. According to the learned senior counsel, the respondent No. 1 filed the application under Section 187 before the learned Revenue authority which was decided initially vide order dated 24. 4. 1986 and against which an appeal was preferred before the learned District Magistrate and Collector, South Tripura, which has been registered as Rev. Case No. 21/86 and the learned appellate Court by setting aside the order dated 24. 4. 1986 remanded the case to the learned Revenue authority for a fresh decision to ascertain whether there was any transfer of the land to the predecessor-in-interest of the present writ petitioner by the respondent No. 1 as envisaged under Section 187 of the T. L. R. and L. R. Act, 1960 and whether the said proceeding is at all maintainable under Section 187 of the said Act, but the Revenue authority, on remand, without giving any specific finding about the date of transfer has recorded a finding that the transfer took place after 1. 1. 1969 and directed restoration of possession in favour of respondent No. 1 vide order dated 25. 2. 1995. Mr. Deb, learned senior counsel has submitted that before directing restoration of possession of the land by the Revenue authority, in exercise of the power conferred under Section 187 (3) of the T. L. R. and L. R. Act, 1960, the authority must come to a definite finding that the transfer was effected by the respondent No. 1 or her predecessor-in-interest in favour of the writ petitioner or his predecessor-in-interest after 1. 1. 1969 and specific date of transfer, which has not been done in the instant case by the Revenue authority while passing the impugned order dated 25. 2. 1995. Hence, the learned senior counsel submits that it is a fit case where the impugned order dated 25. 2. 1995 is to be set aside and the restoration officer, Belonia may be directed to make a fresh enquiry and decide the such proceeding afresh by recording the specific finding about the date of transfer of the land by the respondent No. 1 or her predecessor-in-interest in favour of the petitioner or his predecessor-in-interest and also whether the proceeding under Section 187 is at all maintainable.