BIBI KULSUM Vs. COMMISSIONER, SOUTH CHOTANAGPUR DIVISION, RANCHI

JUDGEMENT

(1.) THIS appeal by the petition in CWJC No. 1420 of 1989(R) challenges the dismissal of the writ petition by a learned Single Judge. In the writ petition, the appellant had challenged the orders passed by the three authorities in proceedings under Section 71 -A of the Chotanagpur Tenancy Act. In the proceedings under Section 71 -A of the Chotanagpur Tenancy Act, the Sub -Divisional Officer, Lohardaga, held that respondent No. 4 herein, was entitled to an order for restoration of the holding. The Sub -Divisional Officer held that the land was outstanding with the predecessor of respondent No. 4. The landlord had filed Title Suit No. 224 of 1925 which was dismissed. An appeal from the said decree, Title Appeal No. 3 of 1928, was also dismissed. The matter was taken up in Second Appeal No. 1849 of 1930 and that was also dismissed. The appellant claims through the ex -landlord. The Sub -Divisional Officer therefore held that in view of the outstanding tenancy in favour of the predecessor of respondent 4, the assignment relied on by the appellant was hit by Section 46 of the Chotanagpur Tenancy Act and in that context, respondent No. 4 was entitled to be restored to possession in terms of Section 71 -A of the Chotanagpur Tenancy Act. This decision of the Sub -Divisional Officer was confirmed in appeal by the Deputy Commissioner, Lohardaga by the order, Annexure -7 marked in the writ petition. That authority also relied on the prior civil litigation between the predecessor of the appellant and the predecessor of respondent No.4 and also held that the appellant managed to dispossess the raiyat illegally in the year 1955 inspite of having lost the suit on title and in that context, respondent No. 4 was entitled to restoration of the possession and the Sub -Divisional Officer was right in passing the order under challenge. The appellant filed a revision and the revisional authority, the Commissioner, by order marked Annexure - 8 in the writ petition, found no reason to disagree with the findings of fact rendered by the original authority and the Appellate Authority. It held that in the face of the decision on title in the Title Suit, the transactions by the ex -landlord in favour of the predecessor of the appellant and then to her husband, and then to herself, were all fraudulent and could not be given any credence in the eye of law. When these orders were challenged in the writ petition, the learned Single Judge after reference to the relevant aspects came to the conclusion that the finding that fraudulent transfers were made by the landlord in violation of the provisions of Section 46 of the Chota -nagpur Tenancy Act was fully correct. The learned Single Judge also agreed with the findings rendered by the authorities that the predecessor of respondent No. 4 was a raiyat protected by the Chotanagpur Tenancy Act and in that context the finding that a fraud had been played by the landlord stood established and consequently the order passed under Section 71 -A of the Act was well within the jurisdiction of the authority. Thus, the learned Single Judge found no merit in the writ petition and dismissed the same affirming the order for restoration passed by all the authorities.

(2.) LEARNED counsel for the appellant contended that there was no transfer of land belonging to a raiyat and consequently, Section 71 -A of the Act was not applicable. This argument cannot be accepted. The dismissal of the Title Suit filed by the landlord by all the Courts, including the High Court against the predecessor of respondent 4 and the other materials available, clearly justify the findings rendered by the authorities that Section 71 -A of the Chotanagpur Tenancy Act was attracted to the case on hand. Learned counsel then argued that the finding was that after the Second Appeal was disposed of, the predecessor of respondent No. 4 had been forcibly dispossessed by the landlord and such dispossession did not come within the meaning of Section 71 -A of the Chotanagpur Tenancy Act since such a forcible dispossession could not be considered to be a transfer. He relied on the decision of the Patna High Court in Ram Chandar Sahu v. Commissioner, [1991(1) PLJR 17 (FB)]. But we must notice that this decision was reversed by the Supreme Court in Pandey Orson v.Ramchander Sahu, (AIR 1992 SC 195) wherein their Lordships, after noticing that Section 71 -A was a beneficial piece of legislation intended to extend the protection to a class of citizens who are not in a position to retain their lands to themselves in the absence of special legal protection held that the provision should be broadly and liberally construed. So construed, it would not be proper to confine the meaning of the expression 'transfer 'in Section 71 -A of the Act to the meaning given to transfer under the Transfer of Property Act. Their lordships therefore held that even a forcible dispossession would attract Section 71 -A of the Act. In view of this decision, it is futile for the learned counsel for the appellant to contend that there was no dispossession of the predecessor -in -interest of respondent No. 4 within the meaning of Section 71 -A of the Act. The finding that there was dispossession has been found as a fact by all the authorities in the context of the decision in the civil litigation and in the light of the other circumstances. That finding was rightly not interfered with by the learned Single Judge when his jurisdiction under Article 226 of the Constitution of India was invoked. We also find absolutely no reason to disturb that finding. In that situation, there is no merit in the argument that Section 71 -A of the Act was not attracted to the case on hand.

(3.) LEARNED counsel then attempted to argue that the application for restoration was belated since the period of limitation for filing an application was 30 years and the said 30 years had elapsed. It was for the appellant to establish the exact point of time at which the raiyat was dispossessed so as to succeed in this claim. We find that no such contention was properly put forward or sought to establish before the authorities under the Act, nor was it urged before the learned Single Judge. In the circumstances of the case and keeping in mind the object of the legislation, we are of the view that we would not be justified in entertaining this belated contention on behalf of the appellant.