Ram Charan Mahto v. State of Bihar — 1991 DIGILAW 157 (PAT)

JUDGMENT S. B. Sinha, J. In this application, the petitioners have sought for quashing of an order dated 9. 4. 1984 passed by the respondent no 4 and as contained in Annexure-17 to the writ application, the order dated 26. 8. 1984 passed by the respondent no. 3 and as contained in Annexure-18 to the write application and the order dated 14. 10. 1986 passed by the respondent no. 2, as contained in Annexure-19 to the writ application. 2. Bereft of all unnecessary details, the fact of the matter lies in a very narrow compass. 3. Jitu Manjhi and Deonath Manjhi were the recorder tenants of the plots mentioned in paragraph-4 of the writ application situate in village Karma PS-Petarwar Hppna Manjhi was the son of Jitu Manjhi and Bistu Manjhi was the grand son of Jitu Manjhi. Shkhram Manjhi was the son of Deona Manjhi and respondent no. 6 is the son of Sukhram Manjhi. 4. In the year 1943 Sukhram Manjhi surrendered plot no. 1469 in favour of the ex-landlord by reason of a registered deed of surrender dated 26. 3. 1943. On the same date, Sukhram Manjhi together with Jitu Manjhi surrendered plot no. 1467. Similarly, in the year 1941, Jitu Manjhi and Sukhram Manjhi surrendered plot no. 1468. 5. The Ex-landlord purported to have made settlement of the aforementioned land to Nanhu Mahto by executing a Hukumnama. Allegedly, Nanhu Mahto came in possession of the lands in question. It is further alleged that Jitu Manjhi and Suhram Manjhi surrendered plot no. 1450 by a registered deed of surrender dated 31. 8. 1942 and the Ex-landlord settled the land in favour of Bhagtu Mahto and Ramji Mahto, by reason of a Hukumnama dated 13.9.1942. 6. Jitu Manjhi executed a registered deed of surrender dated 28. 4. 1931 in respect of the plot no. 1469 and the said land was settled by the ex-landlord in the said year itself to Fekan Mahto. 7. Allegedly, after the death of aforementioned Fekan Mahto, his widow and minor son sold the aforesaid plot no. 1469 and 1016 to chattu Mahto by a registered deed of sale dated 9. 5. 1944. 8. Jitu Mahto and Sukhram Manjhi further surrendered the plot nos. 1442, 1445, 1448 as well as 1977, 1983, 1969 by registered deeds of surrender dated 26. 3. 1943 and 30. 6. 1469 and 1016 to chattu Mahto by a registered deed of sale dated 9. 5. 1944. 8. Jitu Mahto and Sukhram Manjhi further surrendered the plot nos. 1442, 1445, 1448 as well as 1977, 1983, 1969 by registered deeds of surrender dated 26. 3. 1943 and 30. 6. 1943, and in the year 1945, the Ex-landlord settled the said plot to Most. Dunia wife of Jalim Singh and put her in possession thereof by grant of a Hukumnama dated 15.6. 1945. 9. On 6. 10. 1944 and 24. 5. 1945 Hppna Manjhi and Jitu Manjhi surredered plot nos. 1437 and 1436 by two registered deeds of surrender and the Ex-landlord after two years settled the said land with Most. Dunia. 10. In the year 1946 Hpen Manjhi executed a deed of surrender dated 2. 4. 1946 in respect of plot no. 1030 and the Ex-landlord settled the same with petitioner no. 2, Sachinath Ghasi. 11. Allegedly, in the year 1972, the respondent nos. 5 to 6 claimed themselves to be the heirs and legal representatives of the recorded tenant filed an application under Section 464 of tile Chotanagpur Tenancy Act, inter alia an the ground that they have been dispossessed from the said lands about one and half year back. The said application dated 4. 2. 1972 is contained in Annexure 12 to the writ application whereupon, Restoration case No. 85 of 1972 was registered. An inguiry was made by B. D. O Kasmar wherein, it was found that the petitioners and their predecessors in interest had been in possession of the lands in question for a period of more than 25-30 years. The said report is contained in Annexure-13 to the writ application. The said report is contained in Annexure-18 to the writ application. 12. The said Restoration case no. 85 of 1972 was dismissed by the respondent no. 4, by an orded 30. 8. 1974, as contained in Annexure•I4 to the writ application, inter alia on the ground that the petitioners had been in possession of the lands in question for a period of more than 12 years. 13. on 14. 2. 1983. respondent nos, 5 and 6, filed an application before the respondent no. 4 for restoration of the same land on the ground that they were dispossessed A. forcibly, whereupon Restoration Case No, 9 of 1982-33 was registred. 13. on 14. 2. 1983. respondent nos, 5 and 6, filed an application before the respondent no. 4 for restoration of the same land on the ground that they were dispossessed A. forcibly, whereupon Restoration Case No, 9 of 1982-33 was registred. A Copy of the said application is contained in Annexure-15 to the writ application. 14. In the said cases, petitioners appeared and filed a show cause contending inter alia, therein that the said application was barred under the law of Limitation as also under the principles of resjudicata. 15. By an order dated 9. 4. 1984 (Annexure 17), the respondent no. 4 however allowed the said application and directed the restoration of the land in question. 16. the petitioners, thereafter, preferred an appeal, which was registered as Land Restoration Appeal No. 68 of 1984 and the same was also dismissed by an order dated 26. 8. 1985 (Annexure-18). The Revision filed by the petitioners being Restoration Revision No. 148 of 1985 was also rejected by the respondent no. 1, by an order dated 14. 10 1986 (Annexure-19). 17. Mr. M. Y. Eqbal. the learned counsel appearing on behalf of the petitioners submitted that the impugned orders as contained in Annexures 17, 18 and 19 to the writ application must be held to be wholly illegal and without jurisdiction inasmuch as the application filed by the respondent nos. 5 and 6 were barred both under the law of limitation as also the principle of resjudicata. 18. From a perusal of Annexure-15 to the writ application, it appears that therein the respondent nos. 5 and 6 did not allege that any transfer was made by them in favour of the petitioners they merely stated that the petitioners have taken possession of the land illegally. Such an allegation evidently do not come within the purview of Section 46 (4A) of the Chotanagpur Tenancy Act. 19. It is further well known by reason of various decisions of this Court that the principles of resjudicata applies even in a proceeding under the Chotanagpur Tenancy Act. Reference in this connection may be made to Ram Chandra Sahu Vs. The State of Bihar (1989 BLT, 482). 20. From a perusal of the order passed by the respondent no. 4 as contained in Anuexure-14, it appears that the respondent no. Reference in this connection may be made to Ram Chandra Sahu Vs. The State of Bihar (1989 BLT, 482). 20. From a perusal of the order passed by the respondent no. 4 as contained in Anuexure-14, it appears that the respondent no. 4 relied upon the report of the BDO, Kasmar as also the rent receipts filed by the petitioners. He, came to the conclusion that petitioners had been in possession of lands for more that 12 years and on that ground, he dismissed the aforementioned Restoration Case No. 85 of 1972. 21. From Ii perusal of the appellate order as contained in Annexure-18 to the writ application, it appears that the respondent No. 3 purported to have held that although the period of limitation for filing such an application is 12 years, the same will not apply in a case where the Deputy Commissioner initiates the proceeding suo moto. 22. The respondent No. 1, in the impugned order as contained in Annexure-19 to the writ application, who purported to nave held that as in the earlier application for restoration, it was stated by the respondent Nos. 5 & 6 that they were dispossessed in the middle of 1971 and he later on applied to the Circle Officer in the year 1981. on the ba1is whereof, an Amin was appointed for the measurement of the land and a report was submitted in this regard on 1982 leading to filing of the restoration application by the Respondent Nos. 5 and 6 in the year 1982, the respondent Nos. 5 and 6 must be held to have filed an application for restoration within the period of limitation as be first approached the Anchal Adhikari in 1981. 23. The reasons assigned by the respondent Nos. 2 find 1 in their impugned orders against the provisions of law. 24. In terms of 46 (4A) of the Act, the Deputy Commissioner is entitled to initiate a proceeding for restoration either on his own motion or upon an application filed before him by an occupancy raiyat who is a member of the Scheduled Tribes However, such an application must be for annulling a transfer on the ground that the same was made in contravention of Clause (a) of the second proviso to Sub section (1) of Section 46 of the Chotanagpur Tenancy Act. 25. 25. Sine qua non for exercise of the jurisdiction of the Deputy Commissioner-under the aforementioned provision, there fore, is the transfer of the land which having been made in contravention of the Clause (a) of the second proviso to Sub section (1) of Section 46 of the Act, and which is sought to be annulled. 26. The provision appended to Section 44 (4A) puts an embargo upon entertaining of such an application by the Deputy Commi5sioner, unless the same is filed within a period of 12 years. 27. Under t he General law also the period of Limitation is 12 years. If a person had been in possession of the lands in question for a period of more than 12 years evenbly reason of an illegal transfer, an application under Section 46 (A4) will be barred by limitation. 28. It is, therefore, not correct to state that the Deputy Commissioner can exercise its jurisdiction suo moto at any point of time irrespective of the expiry of the period of limitation provided for in the proviso appended to Section 46 (4A) of the Act. 29. It is true that the first proviso appended to Section 46 (4-A) of the Act, refers to an application by the occupancy tenant but in view of the General Law of Limitation as also in terms of the said provi3ion, the Deputy Commissioner must exercise his power suo moto also within the aforementioned period and the period of limitation provided for in the proviso appended thereof, can Dot be said to have no application in a case where the Deputy Commissioner exercise his suo moto of power. 30. The Statute of limitation is one of repose and peace. A plea of limitation is that plea of law which concerns jurisdiction of the court trying the proceeding. It is now well known that the Statute of limitation was intended to relief and quiet of defendant and to prevent person from being harrased at a distant period of time, after the committing of the injury complained of. The laws of limitation are founded on public policy; although the same in isolated cases may cause hardship. 31. Thus, the reasons assigned by the respondent no. 4 must be held to be contrary to the provisions of law. 32. So far as the reasoning of the respondent no. The laws of limitation are founded on public policy; although the same in isolated cases may cause hardship. 31. Thus, the reasons assigned by the respondent no. 4 must be held to be contrary to the provisions of law. 32. So far as the reasoning of the respondent no. 1 in his impugned order as contained in Annexure-19 to the Writ application in this regard is concerned, the same is also devoid of any merit. 33. An application under Section 46 4 A of the Chotanagpur Tenancy Act, has to be filed within a period of 12 years from the date of the transfer which was made in violation of Section 46 thereof and which is required to be annulled. 33. Such and application is entertained only by Deputy Commissioner within the meaning of the provision of the said Act. An application filed before the Anchal Adikari thus is not an application under Section 46 (4 A) of the Act, and even if some period bad elapsed as Anchal Adhikari deputed an amin for measuring the land in question, the same could not be taken into consideration for the purpose of saving the period of limitation. 34. Further, as noticed herein before, the respondent nos. 5 and 6 in their application did not State that any transfer has been made by them in favour of the petitioner in violation of the section 46 of the Chotanagpur Tenancy Act, which was sine que non for maintaining such an application. 35. Evidently, the respondent no. 4 has found that transfers were effected by the reason of surrenders and settlements, all of which had taken place during the period 1931 to 1943 and the settlements were made from 1931 to 1846. 36. There cannot be any doubt that at that point of time when the deeds of surrender were executed by the recorded tenants no prior permission of the Deputy Commissioner there for was necessary in terms of Section 72 of the Chotanagpur Tenancy Act, as such a prevision was brought on the Statute for the first time in 1947 by reason of Chotanagpur Tenancy (Amendment) Act. 1947. 37. 1947. 37. It is true that surrenders and settlements forming part of the same transaction would constitute transfer with in the meaning of Section 46 of the said Act, but apart from the fact that no such case was made out nor any evidence to that effect was led, even if it be held that such purported transfers took place: the same place between the periods evidently, the application filed by the respondent nos. barred by limitation having taken 1931 to 1946: evidently, the respondents nos. 4 and 5 was barred by limitation. 38. Further, from the order dated 30.8.1974 as contained in Annexure 14 to the writ application, it appears that the earlier application filed by the respondent nos. 5 and 6 was dismissed on the ground of limitation. The said order was passed upon perusal of the report of the Block Development officer, Kasmar as also the rent receipts granted by the Karamchari from 1956. By reason of the aforementioned order dated 30.8.1974, the respondent no. 4 clearly, came to the conclusion that the petitioners had been in possession of the lands in possession of grant of 12 years and therefore, the same was barred under the la w of limitation. 39. A determination of question of limitation also attracts the principle of res judicata. Such a question can not, therefore, be permitted to be reagitated in a subsequent proceeding inasmuch as, a finding on such an issue shall operate as res judicatain the subsequent proceeding. 40. Taking thus all facts and circumstances into consideration, the impugned orders can not, therefore, be sustained. 40. In the result, this application is therefore, allowed and the impugned orders as contained in Annexures-17, 18 and 19 are quashed. Let a writ of certiorari be issued accordingly. 41. However, in the facts and circumstances of the case, there will be no order as to costs. Application allowed.