BHUSHAN MUNDA Vs. NIRANJAN MAHLI

JUDGEMENT

(1.) Heard the learned counsel for the appellants.

(2.) This second appeal has been preferred by the plaintiffs, who were the appellants in lower Appellate Court and the appellants herein, against the judgment and decree dated 26.02011 passed by the District Judge, Lohardaga in Title Appeal No. 7 of 2009 whereby and whereunder, the learned Lower Appellate Court has dismissed the appeal and upheld the judgment and decree passed by the trial Court.

(3.) The case of the Plaintiffs in brief is that the suit land was recorded in the name of Fagua Pahan, as Pahanai Bakast land of the Pahan. The descendants of Fagua Pahan namely Luchu Munda, Ram Munda, Peka Munda and Nekal Munda filed a petition for permission before the Deputy Commissioner on 02.12.1946 for transfer of the suit lands to Bhula Mahali for the construction of water reservoir or bandh. Vide order dated 17.12.1947 in case no. 20R8 (ii) of 1946-47, permission for transfer of land was accorded by Deputy Commissioner, Ranchi, for a sum of Rs. 4,200.00. It is further pleaded by the plaintiffs that though the land was transferred for the construction of water reservoir but no water reservoir was ever constructed. Thereafter, the ancestors of the plaintiffs moved for restoration of land under Sec. 71A of the Chota Nagpur Tenancy Act (Schedule Area Regulation 1969) before the designated court of the S.D.O., Lohardaga in S.A.R. Case No. 69 of 1976-77 but the same was dismissed by order dated 24.09.1976. The appeal was preferred vide appeal no. 26R/15/77-78. The appellate court of Additional Collector, Lohardaga in the said appeal vide order dated 31.01990 remanded back the said case to the court of DCLR for fresh hearing. After remand on fresh hearing and submission of a report by the circle officer, the land was ordered to be restored to Sita Ram Pahan in the said S.A.R. Case No. 69 of 1976-77. Being aggrieved by the said order of restoration, the defendants moved the Appellate Court of the Additional Collector, Lohardaga in S.A.R. Appeal No. 17R 15/95-96 and by order dated 09.07.1996, the appeal of the defendants was dismissed. The defendants preferred a revision before the High Court vide C.W.J.C. No. 2800 of 1996(R) and by order dated 12.05.2003 a coordinate Bench of this Court held that Sec. 71A of the Chota Nagpur Tenancy Act is not applicable in the instant case and the order of restoration was set aside and thereafter, the plaintiffs filed the instant title suit and pleaded that the orders passed in a writ jurisdiction in exercise of Civil Writ Jurisdiction is not a judgment and the jurisdiction of the civil court is still there. The defendants filed their joint written statements and asserted that the matter has attained finality by the order passed by a coordinate Bench of this Court in the said C.W.J.C. No. 2800 of 1996 (R) as the same has not been assailed by the plaintiffs and the jurisdiction of the civil court is barred under Sec. 258 of Chota Nagpur Tenancy Act. It has further been pleaded by the defendants that there is specific provision under Sec. 49 (5) of Chota Nagpur Tenancy Act for restoration of such land by the State Government.