Judgment Satya Brata Sanyal, J. 1. This is an application for quashing Annexures 20, 21 and 22 by which the revenue authorities have allowed the land to be restored under Sec.71-A of the Chotanagpur Tenancy Act. 2. The land in dispute beers municpal holding No.215 in ward No.6 of Ranchi Municpality standing on M. B. Plot No.6 situated at Kantatoli Chowk, Parulia Road, Ranchi, belonging to the petitioners. One Benjamin Khess died leaving behind his only son John Khess, who inherited the properties kft by this deceased father including the property in question. John Khess also died leaving behind his widow Mudit Khess and Son Komal Khess, who is said to have inherited the disputed property and came in possession of the same. Petitioner No.1 purchased a portion of M. B. Plot No.6, old holding No.330 corresponding to new holding No.215 within Ward No.6 of the Ranchi Municipality, by virtue of a registered sale deed dated 24-1-1963 from Komal Khess (respondent No.5) and his Mother Mudit Khess (Annexure 4 ). Petitioner No.1 after purchase got his name mutated in the office of the State of Bihar in mutation Case No.207, Rule 27 of 1963-64 and is paying rent to the State of Bihar. Petitioner No.1 also got his name mutated in the office of the Ranchi Municipality and is paying taxes regularly to the Ranchi Municipality. the rent receipts are Annexures 5 (a) to 5 (e ). It is said that one Susana Khess, claiming to be another widow of John Khess, claimed her interest in the propsrty which resulted, in petitioner No.1s instituting a suit for partition bearing Partition suit No.3 of 1969 in the court of the Special Subordinate Judge, Ranchi. Against komal Khess, Mudit Khess and Susana Khess. The suit, however, was compromised between the parties and a final decree was prepared on 24-5-1972 and the land purchased by petitioner No.1 was allotted to him (Annexure 6 ). A deed of release was also executed by Susana Khess, Mudit Khess and Komal Khess in favour of petitioner No.1 and they relinquished all their right, title and interest, if any, with respect to the property purchased by petitioner No.1 by virtue of the registered deed of sale dated 24-1-1963 (Annexure 7 ). A deed of release was also executed by Susana Khess, Mudit Khess and Komal Khess in favour of petitioner No.1 and they relinquished all their right, title and interest, if any, with respect to the property purchased by petitioner No.1 by virtue of the registered deed of sale dated 24-1-1963 (Annexure 7 ). On 9-8-1972 petitioner No.1 purchased 1 Katha, 8 Chataks and 13 square feet out of the said plot, part of the same Municipal holding, from Komal and Mudit. His name was also mutated in the office of the State of Bihar in Mutation Case No.143, rule 27 of 1973-74 (Annexure 9 ). Petitioner No.1 is also paying rent to the state of Bihar (Annexure 1-C ). He also got his name mutated in the office of the Ranchi Municipality and is paying taxes in his own name (Annexure 10/a ). It is said that petitioner No.1 constructed a substantial structure at a cost of more than Rs.60,000 before coining into force of Regulation 1 of 1969. 3. Petitioner No.2 on his part purchased 3 Kathas, and Chataks and 30 square feet of land along with the house standing on a portion of plot No.6, being sub-plot No.6/c, of the same holding from Komal Khess and his wife sushila Khess by virtue of a registered sale deed dated 20th August, 1973, for a consideration of Rs.6,000 (Annexure 11 ). Petitioner No.2 similarly got his name mutated in the office of the State of Bihar in Mutation Case No.338, rule 27 of 1979-80 (Annexure 12) and also got his name mutated in the municipal records and is paying taxes in his own name (Annexure 13 ). 4. Petitioner No.3 by a registered sale deed dated 10-8-1979 purchased 55 Karies of land alongwith the house standing on a portion of the said plot appertaining to the said ward for a sum of Rs.7,000 in Mutation Case No.706, rule 27 of 1979-80 and is paying chapparbandi rent to the State of Bihar. He is also paying municipal taxes (Vide Annexures 15, 16, 17, 17/a and 18 ). 5. He is also paying municipal taxes (Vide Annexures 15, 16, 17, 17/a and 18 ). 5. It may be stated here that Susana Khess before selling that part of the land to petitioner No.3 obtained permisson under Sec.26 of the Urban land Ceiling and Regulation Act, 1976 from the competent authority under the urban Land Ceiling and Regulation Act, Ranchi, and the competent authority accorded permission to Susana Khess vide Memo. No.3782, dated 20-8-1979 (Annexure 14 ). 6. Susana Khess filed a petition for restoration of the land as against petitioner No.1. It was held in revenue appeal that land being chapparbandi, section 71-A has no application. Restoration petition was dismissed. This order became final. From the order as contained in Annexure 19 it appears that both Susana Khess and Komal Khess were parties before the appellate court. 7. Komal Khess filed an application for restoration of the land under section 71-A of the Chotanagpur Tenancy Act against the petitioner which was contested by the petitioner mainly on the grounds (a) the land being chapparbandi neither Sec.46 nor Sec.71-A had any application, and (b) Komal Khess having suffered a judgment earlier, the second proceeding is barred by the principles of res judicata. From the judgment Mr. Munda, Special officer, dated 18-4-1980 (Annexure 20) it appears that large number of documents were filed in support of the petitioners case which are enumerated in the judgment itself. M. Munda allowed the restoration mainly on the ground that in view of the amending Ordinance of 1979 the Chotanagpur Tenancy act has been made applicable to the Municipal area as well. Since there is a change of law there can be no estoppel against statute. The question of res judicata, therefore, does not arise. He further observed that earlier the court dismissed the petition for restoration because the land was within the municipal area. The lower appellate court adopted the same view that Ordinance 165 of 1979 has extended application of Sec.71-A to chhaparbamti holding as it is now applicable to the whole of the municipal area. It further held that there is no such proceeding showing any order of the competent authority converting the raiyati land to chapparbandi. Besides, Sec.46 of Chotanagpur Tenancy act does not give any exemption to chapparbandi land (Annexure 21 ). It further held that there is no such proceeding showing any order of the competent authority converting the raiyati land to chapparbandi. Besides, Sec.46 of Chotanagpur Tenancy act does not give any exemption to chapparbandi land (Annexure 21 ). The revisional court relying upon Ordinance 165 of 1979 held that since Chotanagpur tenancy Act has been made applicable to municipal area no question of res judicata arises as there could be no estoppel against statute. Earlier the decision of Mr. J. Ram was rendered prior to the extension of the Act to municipal area. It was also held that once upon a time the land was a part of the raiyati holding and there is no proceeding taken to convert the same to chapparbanai so as to change the character of the tenancy from raiyati to chapparbandi. For these reasons the revision taken by the petitioners was rejected. 8. Mr. Debi Prasad appearing for the petitioners contended that the courts below have completely erred in law in restoring the land and two errors are manifest from the impugned judgment, namely, (a) restoration has been allowed because of exetension of the Act to the municipal area by the amending ordinance 165 of 1979, and (b) character of the raiyati land could not have been changed to chapparbandi because the parties did not take any action to convert raiyati land to chapparbandi. He also contended that the second proceeding is barred by res judicata. He further submitted that the finding that the land is not chapparbandi is perfunctory without consideration of mass of documents produced before them. 9. Mr. Nand Kishore Prasad appearing on behalf of the respondents, however, contained that the principles of res judicata have got no application and the original application for restoration was by Susana Khess, which will be apparent from Annexure a to the counter-affidavit and it is not known how komal was impleaded before the appellate court. He further contended that according to the petitioners own case in paragraph 7 Susana was not the legal heir. Learned counsel further submitted that Sec.71-A is a beneficient provision and any admission made either in the suit by way of compromise or in the sale-deeds showing the land to be chapparbandi must be ignored in view of the decision in Ram Narain Sah V/s. The State, 1975 BBCJ 433 . Learned counsel further submitted that Sec.71-A is a beneficient provision and any admission made either in the suit by way of compromise or in the sale-deeds showing the land to be chapparbandi must be ignored in view of the decision in Ram Narain Sah V/s. The State, 1975 BBCJ 433 . He also contended that for maintaining an application under Sec.71-A the claimant need by a raiyat qua the land transferred, he only requirement is transfer of land belonging to raiyat. In short, claimant must be a raiyat as well. The land being originally raiyati cannot cease to be so merely because of erection of building thereupon. The raiyati character of the land is not destroyed by mere construction in view of the provisions of Sec.21 (2) (c) of the Chotanagpur tenancy Act. Sec.71-A according to learned counsel being a summary procedure, a detailed enquiry by the revenue officer as to whether the land was chapparbandi was not required. The instant proceeding having been taken after the Ordinance of 1979, the question of retrospective operation of the Ordinance does not at all arise. 10. It is now settled by a Bench decision of this Court in CWJC No.713 of 1980 (R) Ashwini Kumar Roy V/s. State of Bihar and others, decided on the loth of January, 1984 [reported in 1987 BLT (Rep.) 33 ] that Sec.71-A of the Chotanagpur Tenancy Act does not apply to chapparbandi land, that is non-agricultural land. In that view of the matter, the courts below were required to record a clear finding whether the land in dispute is chapparbandi. From the three judgments I find that the revenue authorities have gone haywire in view of the provisions of 1979 Ordinance. The revenue authorities seem to think that since the land appertains to the Municipality and the application of the Act having been extended to municipal area, it is now not required that the land chould be agricultural land. It could be non-agricultural as well. This is not the correct position. There could be raiyati laud in a municipal area as well. Sec.71-A refers to transfer of land belonging to a raiyat for its applicability. It is only when a land belonging to a raiyat, who is a member or the scheduled tribe, is transferred in violation of Sec.46 of the Act resort to section 71-A is permissible. There could be raiyati laud in a municipal area as well. Sec.71-A refers to transfer of land belonging to a raiyat for its applicability. It is only when a land belonging to a raiyat, who is a member or the scheduled tribe, is transferred in violation of Sec.46 of the Act resort to section 71-A is permissible. The following ingredients have to be fulfilled for the applicability of Sec.71-A (a) the transferor must be a raiyat, (b) the land must be raiyati, (c) such a raiyat should be a member of the scheduled tribe, and (d) the impugned transfer must be in violation of the provisions of Sec.46. Learned counsel admit that there is no provision in the whole of the Chotanagpur tenancy Act laying down a procedure for conversion of agricultural land into non-agricultural land. There may be land within a compound of a house or shop which could not be held to be agricultural land for the purpose of the applicability of the Chotanagpur Tenancy Act. See the case of Rama Charan gorain V/s. Govindram Marwari, AIR 1935 Pat 105. The character of the land could be lost by its user. It might have been acquired once upon a time for cultivation but if it is being used consistently for residence unconnected with agricultural operation, the losing of the character of the land is permissible in law, particularly when there is no provision and no procedure for obtaining an order from authorities that the land has lost its original character-Dindayal Ram V/s. Ramzan Mistri, AIR 1946 Patna 466. Mr. Debi Prasad has drawn my attention to various annexures, namely, 3, 3-a. The report of the circle Officer, 4 the sale-deed, 5 series of the municipal rent receipts 6. The final decree, 8 the sale-deed, 9 the connection slip, 10 the rent receipt granted by the state, 11 the sale deed of petitioner No.2, 12 the mutation of the name of petitioner Nos.2,17 and 17/a the rent receipts granted by the State and 9 the previous judgment. In all these documents the land is described as chapparbandi. I do not find the revenue authorities had at all adverted to these annexures to hold the land to be chapparbandi or not so. In all these documents the land is described as chapparbandi. I do not find the revenue authorities had at all adverted to these annexures to hold the land to be chapparbandi or not so. The revenue authorities were carried away by the fact that there could be no raiyati land in a municipal area and the Ordinance having extended the applicability of the Chotanagpur tenancy Act to Municipal area also the question whether the la id is agricultural or non-agricultural has no significance. The revenue authorities have distinguished the earlier judgment in view of the amending Ordinance even though the earlier judgment was not founded upon the said ground. On the question of res judicata it is not known how Komal came to be impleaded in the appeal who sought restoration of the present land having already undergone a judgment adverse to him that the Act has no application to chapparbandi land. For all these reasons, I am constrained to ho that the decisions rendered by the revenue authorities, namely, Annexures, 21 and 22, have to be set aside and the case has to be reconsidered bearing whether the land being within or beyond the municipal area is not at for the applicability of Section 71-A of the Act. They must record finding whether the land which is sought to be restored in agricultural land or non-agricultural land. They must bear in view some land within the compound of a house which is that cultivated will not make the land raiyati. The dominant purpose of the land should be agricultural activities and not for residential purposes. It is now clearly established in the case of Ashwini Kumar Roy (supra) that if a land is chapparbandi no proceeding under Sec.71-A can be initiated for restoration of that land. If the land is chapparbandi it will be governed by the Transfer of 1 roperty Act and not by the Chotanagpur Tenancy Act. This is the moot point which is required to be decided by the revenue authorities. 11. In the result, the application is allowed, the orders contained in annexures 20, 21 and 22 are set aside and the case is remanded back to the special Officer to reconsider afresh and decide all the points involved in the case afresh bearing in view the observations referred to in this judgment. In the circumstances, there will be no order as to costs.