LANKESHWAR PATAR Vs. FEKU MAHTO

JUDGEMENT

(1.) THIS appeal under clause 10 of the Letters Patent is directed against the judgment dated 5th January, 1991 passed in CWJC No. 1311 of 1997 (R) whereby the learned single Judge quashed the orders of restoration passed by the authorities and held that the application for restoration of land under Section 71 -A of the Chotanagpur Tenancy Act was not maintainable.

(2.) THE relevant facts, not in dispute, are that the land in question is recorded in the name of Ohdar Patar and Kisto Mohan Patar in the revisional survey records of right published in 1935. One Rasik Patar son of Kisto Mohan Patar sold the land in favour of the father of the respondent by virtue of register deed of sale dated 3.10.1940 and also the said purchaser respondent came in possession of the land. However, in 1970 Rasik Patar son of Kisto Mohan filed an application for restoration of the said land under Section 71 -A of Chotanagpur Tenancy Act (in short "CNT Act") on the ground that a sale deed was obtained by the respondent fraudulently. The said restoration application was rejected by Sub -Divisional Officer, Khunti in terms of order dated 14.6.1971. The Sub -Divisional Officer found that the land was transferred from before and merely because the judgment passed by the Supreme Court, the land could not be restored on the ground that the applicant was declared as sub -caste of Munda. The said order was not challenged by Rasik Patar which attained its finality. However, in 1978 a fresh application was filed by Lankeshwar Patar son of Rasik Patar under Section 71 -A of the CNT Act on the ground that he is a member of Scheduled Tribe and possession of the land was taken by adopting illegal method. The said restoration application was allowed by the Deputy Collector, Khunti in terms of order dated 24.5.1979. The respondent then preferred appeal before the Additional Collector, Ranchi, which was dismissed by order dated 16.4.1984. The said order was also affirmed by the Commissioner South Chotanagpur Division, Ranchi by order dated 14.5.1987. The respondent then challenged all these orders before this Court in CWJC No. 1311 of 1987 (R). The learned single Judge allowed the writ application holding that the second restoration application was barred by res judicata and further that at the time when transfer was made, the predecessor in interest of the appellant was not a member of Scheduled Tribe.

(3.) ADMITTEDLY , the earlier restoration application was filed by Rasik Patar, father of the present appellant, for restoration of the land on the ground that he was dispossessed by the respondent fraudulently and the sale deed was obtained by the respondent from the father of the appellant by adopting illegal method. The Sub -Divisional Officer, who is the competent authority, has recorded a finding that the transfer was made long before the Patar Community was declared as sub -caste of Munda in terms of decision of the Supreme Court. The restoration application was rejected and the same attained its finality inasmuch as neither the petitioner nor his father has ever challenged the said order by filing appeal or revision before any Court of law. In 1978 the appellant filed a fresh application under Section 71 -A of the said Act for restoration of land on the ground that the father of the appellant is Patar by caste, which is sub - caste of Munda and the transfer made in the year 1940 was in violation of provision of the said Act. The respondent contested the said restoration application on various grounds including that the application was barred by res Judicata. The Deputy Collector although has taken notice of the fact that the second restoration application was barred by res judicata but took a view that since serious defect in the sale deed of the year 1940 was detected, which shows that transfer was by fraudulent method and therefore held that the restoration application could not said to be barred by res judicata. The relevant portion of the order of the Deputy Collector reads as under : - -