JUDGMENT Permod Kohli, J. 1. Legality and validity of the order dated 23.3.1999 passed by the Commissioner of South Chhotanagpur Division, Ranchi in Gumla S.A.R. Revision No. 122 of 1996 (Annexure-6) has been called in question by the present petitioners, whereby the revisional authority after reversing the judgments of the court of first instance and that of the appellate authority directed the restoration of the land in favour of respondent No. 5. Before dwelling upon the issues involved in this writ petition, it is useful to recapitulate the factual background emerging from the record. 2. Plot No. 1494 measuring 0.39 acres under khata No. 84 of Mouza-Gumla was recorded as raiyati holding of one Tipu Kharia son of Deba Kharia father of respondent No. 5 herein. This plot of land measuring 0.39 acres was under the Zamindari of one Baraik Deokinandan Singh, who was Khewatdar of Khewat No. 3. The recorded raiyat Tipu Kharia surrendered 0.09 acres of land out of 0.39 acres in the aforesaid plot to the Khewatdar. Being unable to pay the rent, remaining area of 0.30 acres was also surrendered thereafter in favour of Deokinandan Singh and a Deed of Surrender dated 8.2.1946 was brought into existence duly executed by the parties in respect to the land referred to above. Thus the total holding under the raiyatship of Tipu Kharia came in possession of Deokinandan Singh. It is alleged that though no consideration for surrender was settled, however, a sum of Rs. 400/- was paid to the raiyat as compassionate financial assistance, which fact was duly recorded in the Surrender Deed dated 5.2.1946. It is also averred in the writ petition that pursuant to taking over of the possession Khewatdar enjoyed the property on the strength of title and possession to the knowledge of everyone including erstwhile raiyat. Baraik Deokinandan Singh entered into a Chhaparbandi settlement in favour of one Ayodhya Prasad with respect to 0.30 acres of land comprising R.S. plot No. 1494, khata No. 84 of Mauza-Gumla by executing a registered Kabaliat (Counter part lease) dated 15.3.1946. On securing the land from the land holder the settlee began paying stipulated rent and cess to the landlord against proper receipts. On securing the land from the land holder the settlee began paying stipulated rent and cess to the landlord against proper receipts. Settlee, namely, Ayodhya Prasad sold a portion of land under his possession measuring about 11.25 decimals equivalent to 7.0 kathas from out of his Chhaparbandi holding measuring 30 decimals in R.S. Plot No. 1494, khata No. 84 of Mouza-Gumla to Balabux Narsaria vide registered deed of Sale dated 16.1.1948 and the said purchaser was put in possession of the land. It is further alleged that Balabux Narsaria and his brother, namely, Ram Ballabh Narsaria constituted a Joint Hindu Family and the purchased land was for and on behalf of joint family. It is further stated that both the brothers constructed a pucca house upon 11.25 decimals of plot No. 1494 of Mouza-Gumla somewhere in the year 1948-49. The house still exists and has been converted into a commercial-cum- residential complex. Presently this property is said to have come within Gumla Municipality and its valuation at the time of promulgation of Bihar Schedule Area Regulation, 1969 was not less than Rs. 5,00,000/- and at the time of filing of this writ petition it was about 20,00,000/-. The land was also mutated in the name of Balabux Narsaria and Ram Ballabh Narsaria after the purchase in the year 1948. It is alleged that after the partition between the two brothers comprising the joint family, the land in question had fallen to the share of Ram Ballabh Narsaria father of the petitioners herein. While property was being enjoyed by Ram Ballabh Narsaria, the erstwhile raiyat- Tipu Kharia filed an application on 9.5.1991 under Section 71A of the Chota Nagpur Tenancy Act (hereinafter referred to as the Act) seeking restoration of possession of 19.5 decimals from out of R.S. Plot No. 1494 on the allegation that he has been dispossessed from the said land by virtue of a compromise decree in a collusive title suit. This application came to be registered as S.A.R. Case No. 2 of 1991-92 and was heard by Sub-Divisional Magistrate, Gumla exercising power as Special. Officer under the Bihar Schedule Area Regulation. This application was dismissed vide order dated 18.5.1993. The Special Officer passed the order dismissing the application after holding inquiry. He recorded a finding that the applicant failed to produce any document in support of his case. Officer under the Bihar Schedule Area Regulation. This application was dismissed vide order dated 18.5.1993. The Special Officer passed the order dismissing the application after holding inquiry. He recorded a finding that the applicant failed to produce any document in support of his case. It has also been recorded by the Special Officer that the land was surrendered by Tipu Kharia-recorded raiyat in favour of Zamindar and also executed the Surrender Deed on 11.3.1946. The landlord thereafter transferred the land in favour of Ayodhya Prasad by executing a patta dated 16.1.1948. Purchaser further sold portion of land to the respondents, who raised construction over the land. This order became subject matter of challenge before the appellate authority in S.A.R. Appeal No. 21 R 15 of 1993-94 filed by Tipu Kharia. During pendency of the appeal, the sons of Balabux Narsaria were impleaded as parties, who submitted in writing that after partition in the family they have no connection with the property which belongs to Ram Ballabh Narsaria. During the pendency of this appeal, Tipu Kharia, original applicant died and respondent No. 5, his daughter, was substituted as applicant. Ram Ballabh Narsaria also died and the present petitioners were also substituted as his legal representatives. The appellate authority, after hearing the parties, concurred with the findings of Special Officer and dismissed the appeal holding that there had been no transfer in violation of provision of the Act. Aggrieved by this order, respondent No. 5 filed a revision under Section 217 of the Act before the Commissioner, South Chhotanagpur Division being S.A.R. Revision No. 122 of 1996. The revisional authority vide order impugned dated 23.3.1999 set aside the order passed by the forums below and directed restoration of possession of the land in favour of respondent No. 5 and held that since surrender dated 5.2.1946 was made after taking Rs. 400/- as consideration money, such surrender amounted to transfer in violation of Section 46 of the Act. Revisional authority also recorded that the application for restoration was filed after a lapse of 45 years. Accordingly, revisional authority vide impugned judgment directed respondent No. 5 to pay compensation to the petitioners and remanded the case to the trial court for determination of the compensation. Revisional authority also recorded that the application for restoration was filed after a lapse of 45 years. Accordingly, revisional authority vide impugned judgment directed respondent No. 5 to pay compensation to the petitioners and remanded the case to the trial court for determination of the compensation. Operational part of the judgment reads as under: The petition for restoration has been filed in the year 1991 i.e. after a period of about 45 years from the date of transfer of the lands. Thus the petition has been filed after the limitation period and the lands can be restored only under the third proviso of Section 71-A of the C.N.T. Act. In the present case I am satisfied that the lands should be restored to the petitioner provided he pays the compensation to be decided by the learned lower court to the O.Ps. Under the above circumstances the revision is allowed. The orders passed by learned court below are set aside. The lands in question are ordered to be restored to the petitioner provided the petitioner pays compensation to the C.P. and for the determination of compensation the case is remanded to the trial court who after hearing the parties concerned will pass the order for the determination of compensation. 3. I have heard learned Counsel appearing for the petitioners, contesting respondent No. 5 and the State. Both the sides addressed lengthy arguments. Mr. Rajiv Ranjan, learned Counsel appearing for the petitioners has challenged the validity of the order on the following grounds: (i) that the application preferred by the father of respondent No. 5 was barred by time and same was liable to be rejected and no directions could have been issued by the revisional authority invoking proviso-3 of Section 71-A of the Act (ii) revisional authority passed the impugned order on a new plea not raised before the courts-below which is impermissible in law and (iii) that the respondent No. 5 being the daughter of the raiyat is not entitled to inherit the property of the raiyat under the tribal customs. 4. With a view to appreciate the contentions of the parties urged in this case, it is useful to refer to some of the provisions of Chota Nagpur Tenancy Act, 1908. It is also relevant to refer to Article 65 of the Limitation Act, 1963. 4. With a view to appreciate the contentions of the parties urged in this case, it is useful to refer to some of the provisions of Chota Nagpur Tenancy Act, 1908. It is also relevant to refer to Article 65 of the Limitation Act, 1963. Relevant extracts of Sections 46, 71-A, 72 of the Chota Nagpur Tenancy Act and Article 65 of the Limitation Act are quoted hereunder: 46. Restrictions on transfer of their rights by raiyats.-(1) No transfer by a raiyat of his right in his holding or any portion thereof- (a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or (b) by sale, gift or any other contract or agreement, shall be valid to any extent: Provided that.... Provided further that.... (2) A transfer.... (3) No transfer.... (3A) Notwithstanding.... (4) at any time within three years after the expiration of the period for which a raiyat has, under Clause (a) of Sub-section (1) transferred his right in his holding or any portion thereof, the Deputy Commissioner shall on the application of the raiyat put the raiyat into possession of such holding or portion in the prescribed manner. (4A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by occupancy-raiyat who is a member of the Scheduled Tribe, for annulling the transfer on the ground that the transfer was made in contravention of Clause (a) of the second proviso to Sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made in contravention of Clause (a) of the second proviso to Sub-section (1): Provided that.... Provided further that.... (b) If after holding.... (c) If after holding.... Provided that.... Provided further that.... 71A. Provided further that.... (b) If after holding.... (c) If after holding.... Provided that.... Provided further that.... 71A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred.- If at any time it comes to the notice of the Deputy Commissioner that transfer of land belonging to a raiyat who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or any other provision of this Act or by any fraudulent method [including decrees obtained in suit by fraud and collusion] he may, after giving reasonable opportunity to the transferee who is proposed to be evicted, to show reasonable opportunity to the transferee who is proposed to be evicted, to show cause and after making necessary enquiry in the matter, evict the transferee from such land without payment of compensation and restore it to the transferor or his heir, or in case the transferor or his heir is not available or is not willing to agree to such restoration, re-settle it with another raiyat belonging to the Scheduled Tribes according to the village custom for the disposal of an abandoned holding: Provided that if the transferee has, within 30 years from the date of transfer, constructed any building or structure on such holding or portion thereof, the Deputy Commissioner, shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow, failing which the Deputy Commissioner may get such building or structure removed: Provided further that where the Deputy commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before coming into force of the Bihar Scheduled Area Regulation, 1969, he may notwithstanding any other provisions of the Act, validate such a transfer where the transferee either makes available to the transferor an alternative holding or portion thereof, as the case may be, of the equivalent value in the vicinity or pays adequate compensation to be determined by the Deputy commissioner for rehabilitation of the transferor: Provided also that if after an enquiry the Deputy Commissioner is satisfied that the transferee has acquired a title by adverse possession and that the transferred land should be restored or re-settled, he shall require the transferor or his heir or another raiyat, as the case may be, to deposit with the Deputy Commissioner such sum of the money as may be determined by the Deputy Commissioner having regard to the amount for which the land was transferred or the market value of the land, as the case may be, and the amount of any compensation for improvements effected to the land which the Deputy Commissioner may deem fair and equitable. Explanation.- In this section substantial structure or building means structure or building the value of which on the day of initiation of enquiry, was determined by the Deputy Commissioner to exceed Rs. 10,000/- but does not include structure or building of any value, the material of which can be removed without substantially impairing the value of. 72. Surrender of land by raiyat.- (1) a raiyat not bound by a lease or other agreement for a fixed period may, at the end of any agricultural year surrender his holding with the previous sanction of the Deputy Commissioner in writing. 65. For Twelve years When the possession of possession of immovable the property or any but 30 years defendant interest therein in respect of becomes based on title immovable adverse to property the plaintiff belonging to a member of the Schedule Tribes as specified in Part III to the Schedule to the Constitution (Scheduled Tribes) Order, 1950" 5. Section 46 of the Chota Nagpur Tenancy Act, 1908 imposes restrictions on transfer of their rights by raiyats by mortgage or lease exceeding five years or by sale, gift or any other contract or agreement. However, under the proviso 2 nd to Section 46 a Scheduled Tribe, Scheduled Caste or backward class raiyat is entitled to transfer his respective right in favour of another Scheduled Tribe, Scheduled Caste or backward class person in the local limits of the district as the case may be. Sub-section (4) of Section 46 prescribes limitation of three years for seeking restoration of possession by such a raiyat who has transferred his right. Similarly, Sub-section (4A) of Section 46 provides the maximum period of limitation for annulment of transfer on the ground that the same was made in contravention of Clause (a) of the second proviso to Sub- section (1) which is 12 years. Section 71-A deals with the restoration of possession to member of the Scheduled Tribe over land unlawfully transferred belonging to a raiyat who is a member of Scheduled Tribe and the transfer has taken place in contravention of Section 46 or any other provision of this Act or by any fraudulent method which, inter alia, include decrees obtained in suit by fraud and collusion. No limitation is prescribed under Section 71-A for exercising power by Deputy Commissioner under this Section. It also prescribes for restoration of the property without payment of any compensation. No limitation is prescribed under Section 71-A for exercising power by Deputy Commissioner under this Section. It also prescribes for restoration of the property without payment of any compensation. There are three provisos to this Section. Proviso-1 deals with the situation where the transferee of the land has constructed any building or structure on the holding within thirty years from the date of transfer. Deputy Commissioner in such cases can order restoration of the property on payment of compensation equivalent to the value of the construction/ structure if transferor is so willing and if the transferor is not willing to pay the value of the structure, the transferee is to be directed to remove the construction/structure within a period of six months from the date of the order or such extended period not exceeding two years and on failure of the transferee to remove, the Deputy Commissioner has been authorized to get the building or structure removed. Proviso-2 requires Deputy Commissioner to refuse the restoration. If he is satisfied that the transferee has constructed a substantial structure or building on such holding or portion before coming into force of the Bihar Scheduled Areas Regulation, 1969 on the condition that transferee either makes available to the transferor an alternative holding or portion of the equivalent value in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor. Proviso-3 further provides that if the transferee has acquired a title by adverse possession and the Deputy Commissioner on inquiry is satisfied that the land should be restored or re- settled, he shall ask the transferor or his heir or another raiyat to deposit with the Deputy Commissioner sum of the money by way of compensation equivalent to the amount for which the land was transferred or the market value of the land and also the amount of any compensation for improvements effected on the land for payment to the transferee. 6. Section 72 deals with the surrender of land by raiyat. Sub-section (1) provides that a raiyat not bound by a lease or other agreement for a fixed period may surrender his holding at the end of any agricultural year with the previous sanction of the Deputy Commissioner in writing. 6. Section 72 deals with the surrender of land by raiyat. Sub-section (1) provides that a raiyat not bound by a lease or other agreement for a fixed period may surrender his holding at the end of any agricultural year with the previous sanction of the Deputy Commissioner in writing. The provision for sanction was inserted by an amendment Act 25 of 1947 and prior to that no sanction of Deputy Commissioner was required for surrender. 7. Under Article 65 of the Schedule to the Limitation Act, 1963 period of limitation for suit for possession of immovable property based on title is 12 years when the possession of the defendant becomes adverse. There is an amendment in the Limitation Act for the State of Bihar in Article 65 wherein the period of limitation for suit in respect of immovable property belonging to a member of Scheduled Tribes as specified in part-III to the Schedule to the Constitution (Scheduled Tribes) Order 1950 has been provided as 30 years. This amendment was brought in with effect from 8.2.1969. 8. Based upon the above factual and statutory provisions, it is contended on behalf of the petitioner that the revisional authority has committed glaring illegality in accepting the application of the raiyat under Section 71-A filed in the year 1991 when it was hopelessly time barred. According to the learned Counsel appearing for the petitioner, limitation for seeking possession of immovable property under Article 65 is 12 years and in case of member of Scheduled Tribe it is 30 years by virtue of the amendment carried out under Article 65 of the Limitation Act for the State of Bihar and thus the application filed beyond the period of limitation was liable to be rejected. In this regard, he has referred to the findings of the revisional authority itself wherein it is recorded that the application has been filed after 45 years. I have perused the order of the revisional authority. Revisional authority has recorded: The petition for restoration has been filed in the year 1991 i.e. after a period of about 45 years from the date of transfer of the lands. Thus the petition has been filed after the limitation period. 9. I have perused the order of the revisional authority. Revisional authority has recorded: The petition for restoration has been filed in the year 1991 i.e. after a period of about 45 years from the date of transfer of the lands. Thus the petition has been filed after the limitation period. 9. Other side has not been able to rebut this finding in any manner, however, learned Counsel appearing for the respondents has contented that proviso-3 to Section 71-A is attracted where the application is barred by limitation and if the Deputy Commissioner is satisfied that land is to be restored he is competent to issue direction for payment of compensation to the transferee for restoration of land and thus the revisional authority has rightly issued the directions in exercise of its authority/power under proviso-3 to Section 71-A. 10. A similar issue came up for consideration before a Division Bench of this Court in Situ Sahu and Ors. v. State of Bihar and Ors. reported in 1997 (2) PLJR 425 . In this case, the recorded raiyat surrendered the land to the landlord by a registered deed in the year 1938. The landlord subsequently settled the land with another person through sada hukumnama few days after the surrender. On 3.2.78 the raiyat filed an application under Section 71-A of the Act for restoration of the land on the ground that land was fraudulently acquired by the occupant through sada hukumnama. His application was allowed by the Special Officer. An appeal preferred therefrom also failed and revision filed by the landlord also resulted in dismissal. A writ petition being C.W.J.C. No. 98 of 1988(R) was preferred before this Court. During pendency of the writ petition, besides raising the question of validity of transfer/surrender, the landlords successor who was in possession of the land on the basis of sada hukumnama also raised the question of limitation. It was contended that the application was filed beyond the period of limitation and is liable to be dismissed. A Division Bench of this Court rejected the contention and upheld the order of the authorities under the provisions of Chota Nagpur Tenancy Act, 1908 and allowed the restoration of land. This judgment became subject matter of challenge before Honble Supreme Court of India in Civil Appeal Nos. 2414-15 of 1999. A Division Bench of this Court rejected the contention and upheld the order of the authorities under the provisions of Chota Nagpur Tenancy Act, 1908 and allowed the restoration of land. This judgment became subject matter of challenge before Honble Supreme Court of India in Civil Appeal Nos. 2414-15 of 1999. Honble Supreme Court vide its judgment reported in 2004(4) JCR 211 (SC) set aside the judgment of the Division Bench holding that the application for restoration was belated one and no direction could have been issued by the authorities for restoration of the land on application filed after 40 years. While examining the provisions of Section 71-A particularly the expression "at any time" used in this Section, Honble Supreme Court observed: 11. We are, therefore, of the view that the use of words "at any time" in Section 71-A is evidence of the legislative intent to give sufficient flexibility to the Deputy Commissioner to implement the socio-economic policy of the Act viz to prevent in roads upon the rights of the ignorant, illiterate and backward citizens. Thus, where the Deputy Commissioner chooses to exercise his power under Section 71-A it would be futile to contend that the period of limitation under Limitation Act has expired. The period of limitation under the Limitation Act is intended to bar suits brought in Civil Courts where the party himself chooses to exercise his right of seeking restoration of immovable property. But, where for socio-economic reasons, the party may not even be aware of his own rights, the Legislature has stepped in by making an officer of the State responsible for doing social justice by clothing him with sufficient power. However, even such power cannot be exercised after an unreasonably long time during which third party interests might have come into effect. Thus, the test is not whether the period of limitation prescribed in the Act of 1963 had expired, but whether the power under Section 71-A was sought to be exercised after unreasonable delay. (Emphasis Supplied) 11. After making above observations, Honble Supreme Court further considered the legality and propriety of the directions issued by the authorities on an application filed after 40 years of the alleged transfer and held: 14. We shall now examine the last argument of Mr. Narasimha that the transfer was fraudulent. Even on this, we are afraid that the appellants are entitled to succeed. We shall now examine the last argument of Mr. Narasimha that the transfer was fraudulent. Even on this, we are afraid that the appellants are entitled to succeed. We need not go into the details of the transaction for we may even assume that the transfer was fraudulent. Even then, as held in Ibrahimpatnam, (supra), the power, under Section 71-A could have been exercised only within a reasonable time. Looking to the facts and circumstances of the present appeal we are not satisfied that the Special Officer exercised his powers under Section 71-A within a reasonable period of time. The lapse of 40 years is certainly not a reasonable time for exercise of power, even if it is not hedged in by a period of limitation. We derive support to our view from the observations made by this Court in Jai Mangal Oraon case, (supra), which was also a case which arose under the very same provision of law. There this Court took the view that Section 46(4)(a), which envisaged a prior sanction of the Deputy Commissioner before effecting the transfer in any of the modes stated therein, was introduced only in the year 1947 (with effect from 5.1.1948) and no such provision existed during the relevant point of time when the surrender was made in that case (15.1.1942). Obviously, therefore, no such provision existed in 1938, and the same reasoning applies. 15. In the result, therefore, we are of the view that the Special Officer ought not to have exercised his powers under Section 71-A of the Act after such an unreasonable long period of time, in the facts and circumstances of the case brought to light. 16. The appellants succeed. The impugned judgment of the High Court and the impugned judgments of the authorities below are all set aside and the application for restoration made by the fifth respondent being SAR 415/77-78 is dismissed. (Emphasis Supplied) 12. In view of the ratio of the judgment of the Apex Court and in the light of the findings recorded by the revisional authority that the application was filed after 45 years, I am of the considered view that the application filed by the father of respondent No. 5 was hit by doctrine of delay and laches being filed after unreasonable period. Thus the authorities under the Act had no jurisdiction to order the restoration at such a belated stage. 13. Thus the authorities under the Act had no jurisdiction to order the restoration at such a belated stage. 13. The other contention of Mr. Rajiv Ranjan is that the revisional authority has passed the order on a new plea that the transfer was in contravention of provisions of Section 46 of the Act. According to learned Counsel, in both the courts-below only plea raised by the applicant-raiyat was his dispossession from the land by virtue of compromise decree in a collusive title suit. This plea having been rejected on account of non-production of any evidence/material, it was not open to the revisional authority to have entertained a new plea of transfer in contravention of Section 46 or any other provisions of the Act. It is true that the plea of transfer in violation of provisions of Section 46 was not raised before the Special Officer as also the appellate authority and it was for the first time introduced before the revisional authority. Normally, no new plea should be allowed to be raised at the revisional stage. However, the revisional jurisdiction conferred upon the Commissioner under Section 217 of the Act has such a wider amplitude, thus the contention of the learned Counsel for the petitioner cannot be accepted. Apart from this, a Full Bench of the Patna High Court in AIR 1975 Patna 58 while considering the issue of surrender of land with consideration and thereafter its transfer to a third party has ruled that such a surrender amounts to transfer and falls within the mischief of Section 46 of the Act. Therefore, if from the facts on record Commissioner found that the transaction or surrender in question falls within the scope of the expression "transfer" envisaged under Section 46 of the Chota Nagpur Tenancy Act, he had the jurisdiction to decide the issue notwithstanding the same was not specifically raised before the courts-below. The last contention of Mr. Rajiv Ranjan is that respondent No. 5 being the daughter of the raiyat is not entitled to inherit the property is without any substance. Admittedly, no such plea was specifically urged before the authorities below and even if it has been raised no material or evidence has been brought on record to establish such a custom prevalent amongst the tribals to which respondent No. 5 belongs. Admittedly, no such plea was specifically urged before the authorities below and even if it has been raised no material or evidence has been brought on record to establish such a custom prevalent amongst the tribals to which respondent No. 5 belongs. In absence of any material, there was no occasion for the authorities to have dealt with the issue of right of respondent No. 5 to inherit the property being a female. It is settled law that the custom has to be pleaded and established by necessary evidence. In absence of adequate pleadings and evidence on record, I do not feel that this issue can be considered and adjudicated upon. 14. In the background of the factual and legal position noticed hereinabove, I am unable to persuade myself to concur with the order impugned passed by the revisional authority, respondent No. 2. Impugned order dated 23.3.1999 passed by respondent No. 2 is hereby set aside and consequently the application filed by the father of respondent No. 5 is dismissed. In the facts and circumstances of the case, no order as to costs.