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2003 DIGILAW 1317 (JHR)

Godwin Ekka v. State Of Bihar

2003-11-24

AMARESHWAR SAHAY

body2003
JUDGMENT Amareshwar Sahay, J. 1. Respondent No. 4 had filed an application before the Additional Collector under Section 71-A of the Chhotanagpur Tenancy Act (hereinafter to be referred as the "Act" for the sake of convenience) for restoration of altogether 23 plots under Khata No. 257 situated in village Gotra PS Simdega, District Ranchi (now Gumla) on the ground that the transfer of the land was in violation of Section 46 of the Act. The said application for restoration was registered as SAR case No. 283 of 1979-80. The Deputy Collector by his order dated 20.10.1981 dismissed the application filed by the respondent No. 4 on the ground that as it was filed beyond 30 years, therefore, it was barred by limitation. 2. Being aggrieved by the said order of Deputy Collector, respondent No. 4 filed an appeal before the Additional Collector, Gumla who by his order dated 27.4.1984 allowed the appeal, set aside the order of the Deputy Collector and ordered for restoration of the lands in question in favour of the respondent No. 4. The said order of the Additional Collector has been annexed as Annexure 2 to this writ application. Thereafter against the said order, the petitioner moved before the Commissioner, South Chhotanagpur, Division Ranchi by filing a revision application which was dismissed in limine at the stage of admission itself, as it appears from the Annexure 3 to the writ application. Against the said order of the Revision Court the petitioner moved before this Court by filing CWJC No. 910 of 1984, which was disposed of after setting aside the order the Revisional Court and the matter was remanded to the Commissioner for deciding the revision application on merits. It was also indicated in the said order that under Section 217 of the Act, which is a revisional power, Revisional Authority had wide power under Section 217 of the said Act and it is not circumscribed by Section 151 of the Code of Civil Procedure. 3. It appears that by order dated 7.6.1997 as contained in the Annexure 5, the learned Commissioner, South Chhotanagpur i.e., Revisional Authority again dismissed the Revision application but of course by a detail -reasoned order after hearing the parties. 4. 3. It appears that by order dated 7.6.1997 as contained in the Annexure 5, the learned Commissioner, South Chhotanagpur i.e., Revisional Authority again dismissed the Revision application but of course by a detail -reasoned order after hearing the parties. 4. From perusal of the Revisional order It appears that the learned Commissioner has held that jarpeshgi deed as well as dar raiyati are valid for only five years as per the relevant provision of the said Act and they do not confirm on transferee the rights of a raiyat. It was held that the transfer of the land was made without prior permission of the Deputy Commissioner as per the provisions of the Act. 5. Mr. A.K. Das learned counsel for the petitioner has submitted that the Deputy Collector, before whom the application for restoration was filed by the respondent No. 4 had dismissed application for restoration only on the ground that the application for restoration was barred by limitation as it was filed beyond of 30 years. Therefore, it was incumbent upon the Additional Collector, who set aside the order of the Deputy Collector, to deal with the point of limitation, but no such discussion or finding was given by the learned Additional Collector. He further submits that the learned Commissioner has not taken into consideration at all in his order as to whether the application for restoration was barred by limitation, therefore, the order of the learned Commissioner is bad in law. 6. Mr. B.B. Stnha learned Sr. Counsel for the respondent No. 4 submitted that neither the point of limitation was raised before the Revisional Authority nor there is any ground mentioned in the writ application that the point, of limitation was raised before the Revisional Authority. Therefore, at this stage the petitioner cannot be allowed to raise the point of limitation. He further submits that both the Courts below have already given concurrent findings of fact after appreciation of the evidence and as such this Court in exercise of its writ jurisdiction should not Interfere with the findings of the fact arrived at by both the Courts below. 7. He further submits that both the Courts below have already given concurrent findings of fact after appreciation of the evidence and as such this Court in exercise of its writ jurisdiction should not Interfere with the findings of the fact arrived at by both the Courts below. 7. Considering the rival contentions of the parties and from perusal of the impugned orders it appears that the Revisional Court as well as the appellate Court after considering the evidence on record they have come to the conclusion that deed of mortgage or deed of dar raiyatt i.e. under tenancy did not create any right, title and interest in favour of the petitioner. Since both the Courts below have given concurrent findings of fact and since the point of limitation, as it appears from the impugned order, was not raised therefore, no relief can be granted in exercise of power under Articles 226 and 227 of the Constitution of India. 8. In the result I find no merit in this writ application. It is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.