JUDGMENT: Ajit Kumar Sinha, J. -The petitioners have preferred the present writ petition for quashing the order dated 18.4. 1980, passed by respondent no. 4 in S.A.R. Case No. 139 of 1977-78 the order dated 29.9.1931, passed by respondent no. 3 in S.A.R. Appeal No. 17R 15 of 1980-81 and also the order dated 25.8.1988, passed by respondent no. 2 in Revenue Revision No. 133 of 1981. as contained in Annexures 8, 9 and 11 respectively, vide which the lands measuring an area of 8.70 Acres out of Plot Nos. 2511, 3274, 3335, 3340, 4483, 3484, 3485, 3486, 3487, 3488, 3490, 3536 and 3481, appertaining to Khata No. 67, situated at Village-Thethaitangar was restored under Section 71A of the Chotanagpur Tenancy Act in favour of Sahru Gond, father of respondent nos.5 and 6 herein. 2. The facts in brief, are set out as under: There was a registered surrender as contained in Annexure-1 by the raiyat in favour of the Zamindar and vide Annexure2 settlement has been made on 2.4.42 by the Zamindar to the predecessor in interest of the petitioner. The father of private respondent nos. 5 and 6, Sahru Gond, filed an application under Section 71 A of the Chotanagpur Tenancy Act, 1908 (in short "C.N.T. Act") claiming restoration of the aforesaid lands, in question, before the Special Officer, Scheduled Area Regulation, Simdega, which was registered as S.A.R. Case No. 139 of 1977-78. The mother of the present petitioners, namely, Smt. Baidehi Kumari Devi, filed her show cause assailing the application. The restoration application was allowed and the appeal preferred was also dismissed. Revision Petition filed was dismissed as time barred and the petitioner filed a writ petition and the Hon'ble High Court permitted to file a revision which was ultimately dismissed and the same has now been challenged in the present Writ Petition. According to the petitioner there was no violation of Section 46 or any other provisions of the C.N.T. Act nor any fraudulent method was adopted. It has been contended that the case of opposite party was barred by limitation and adverse possession and that the lands of Khata no. According to the petitioner there was no violation of Section 46 or any other provisions of the C.N.T. Act nor any fraudulent method was adopted. It has been contended that the case of opposite party was barred by limitation and adverse possession and that the lands of Khata no. 67 have been recorded in the Revisional Survey Record of Rights in the names of Padam Gond, son of Mandai Gond, Karia Gond and Saman Gond both sons of Baidyanath Gond and the recorded raiyat voluntarily surrendered the aforesaid lands to the then landlords by virtue of a registered deed of surrender dated 25.3.1942 and put the landlords in possession of the same and after surrender the lands became the Bakast lands of the then landlords and they came into possession thereof. It has also been submitted that the then landlords subsequently made permanent, heritable and transferable raiyati settlement of the aforesaid lands in favour of Smt. Sona Kumari Devi by virtue of a registered deed of settlement dated 2.4.1942 and put the settlee in possession of the same and the settlee came in possession from the date of settlement. The said settlee got her name mutated in the Serista of the Ex. landlord and paid rent in her own name and after vesting of the estates under the provisions of the Bihar Land Reforms Act, 1950 she was recognized as a raiyat by the then State of Bihar and she also paid rent to the State. The petitioners have further claimed that Smt. Sana Kumari Devi sold the aforesaid property to the mother of the petitioners, namely. Smt. Baidehi Kumari Devi by virtue of a registered deed of sale dated 30th January, 1956 and she remained in peaceful possession of the same from the date of purchase and after her death the present petitioners are in possession. According to the petitioners. their mother, Smt. Baidehi Kuman Devi. also got her name mutated in the Serista of the then State of Bihar and regularly paid rent in her own name 3. According to the petitioners. their mother, Smt. Baidehi Kuman Devi. also got her name mutated in the Serista of the then State of Bihar and regularly paid rent in her own name 3. The main argument put forth by the learned counsel for the petitioners is that as per Section 72 of the C.N.T. Act a raiyat had statutory right to surrender the lands to the landlord and no prior permission of the Deputy Commissioner was required for surrender of the land by raiyats in the year, 1942 in view of the fact that the amendment in the C.N.T. Act came into effect only from 5.1.1948 by Act XXV of 1947. The petitioners further contended that it was prospective in nature and the permission of the Deputy Commissioner was necessary for surrender of the lands by raiyats only after 5.1.1948 and, thus, the registered deed dated 20.3.1942 was quite legal and valid and the settlement dated 2.4.1942, executed by the then landlord in favour of the predecessor-in-interest proves that permanent, heritable and transferable raiyati settlement has been made by the then landlords in favour of the settlee. Learned counsel for the petitioners has also referred to and relied upon the decisions, reported in 1987 B.L.T. page-303 (Bishram Sahu vs. Bhairo Oraon & Ors.) and 1988 B.L.T. page-18 (Nand Kumar Sahu vs. State of Bihar & Ors.) in the context that merely because settlement has been made after a few days or months from the date of surrender, the same cannot be held to be illegal unless there is evidence that they form part and parcel of the same transaction. According to the petitioners, in the aforesaid cases the order for restoration passed in favour of the members of the Scheduled Tribe was quashed by the Hon'ble High Court, holding that in absence of any evidence that surrender and settlement are part and parcel of the same transaction, no order for restoration of the lands could have been passed. In this regard he has also referred to the judgments, reported in 1988 B.L.T. page-520 (Paras Nath Munda vs. Rama Sahu), 1993(1) B.L.J.R. page-328 (Jhalku Ahir vs. State of Bihar & Ors.) and 1989 B.L.T. page-404. 4. In this regard he has also referred to the judgments, reported in 1988 B.L.T. page-520 (Paras Nath Munda vs. Rama Sahu), 1993(1) B.L.J.R. page-328 (Jhalku Ahir vs. State of Bihar & Ors.) and 1989 B.L.T. page-404. 4. Counsel for the petitioners has further referred to and relied upon the decision of the Hon'ble Supreme Court, rendered in the cases of Jai Mangal Oraon vs. Mira Nayak (Smt.) & Ors., reported in (2000)5 SCC page-141 and 2004(4) J.L.J.R. page-109(SC) for the proposition that surrender even during agricultural year is valid and no permission of Deputy Commissioner was required for surrendering the land in the year 1942. 5. Next argument raised by the learned counsel for the petitioners is that the application for restoration of the lands was filed in the year, 1977 i.e. after 35 years from the date of surrender and it suffered from gross delay and latches. According to the petitioners, even the amendment in Article 65 of the Limitation Act by Regulation-1 of 1969 cannot apply retrospectively since it is prospective in operation and in view of the settled law as aforesaid and the judgments, no petition under Section 71 A of the C.N.T. Act can be entertained for restoration of the lands after expiry of 30 years from the date of initial transfer. 6. The contesting private respondent nO.5 has submitted that in view of notification, published in the Extra-ordinary Gazette no. 480 dated 1.9.1986 all lands including Bhuiyari, Mundari, Khutkati etc: being, raiyati lands, Section 71 of the C.N.T. Act was attracted and, accordingly, the order of restoration was fully justified. It has further been submitted that in the revision petition, the Commissioner of South Chhotanagpur Division, Ranchi after hearing the parties and scrutinizing the evidence, by a well considered judgment held that the father of respondent no. 5 was forcibly dispossessed and thus Section 71A of the C.N.T. Act was attracted. 7. Learned counsel for the State has submitted that Section 71 A of the C.N.I. Act was inserted by 1969 amendment and the same came into force with effect from 1969 and, thus, the limitation will run from 1969. However, at paragraph nos. 2 and 3 of the written submission filed on behalf of the State it has been stated as under: "2. In the present case the restoration filed by the respondent no. However, at paragraph nos. 2 and 3 of the written submission filed on behalf of the State it has been stated as under: "2. In the present case the restoration filed by the respondent no. 5 and 6 in the year 1977-78 Section 71A inserted by the 1969 amendment and came into force in the year 1969, therefore, whether the limitation run from that of 1969 or from the date of surrender i.e. 1942. According to State, it runs from 1969 when the provision of 71 A inserted in the Act. 3. It is true that the petitioner came in the possession of the land in the year 1942 and the restoration application filed by the respondent no. 5 and 6 in the year 1969, therefore, petitioner or his predecessor in interest is in possession of the land without any obstruction for more than 45 years as such petitioner may claim the adverse possession against the members of Scheduled Tribe and in that case Section 71 A does not apply in view of the judgment reported in 1988 B.L.T. 18, 1987 B.L.T. 301 (Rep) Hence, the writ application does not have substance." 8. On going through the entire pleadings and argument and the rival contentions, the following moot questions arise for consideration: (1) Whether the surrender and settlement is the same transaction meaning thereby it is sale or not ? (2) Articles 64 and 65 of the limitation Act would apply from which date? (3) Whether the petitioners are in adverse possession of the property against the private respondents ? (4) Whether there is violation of Section 46 or any other provision of the C.N.T. Act. 9. This High Court has time and again considered the issue with regard to surrender and settlement as to whether it is the same transaction and amounts to sale/transfer. As per Section 72(4) of the C.N.T. Act when a raiyat has surrendered his holding, the landlord may enter into the holding and either settle it to another tenant or take it into cultivation himself and, thus, the landlord has the statutory right to settlement of the land to another person and in the instant case the raiyati settlement of the land was made by the then landlord in favour of the predecessor-in-interest of the petitioners. This view has been upheld in 1987.B.L.T. page-303 (supra), 1988 B.L. T. page-520 (supra), 1993(1) B.L.J.R. 328 (supra) and 1988 B.L.T. 404 (supra), holding that the surrender and settlement of the land made within a span of few days and/or months is quite legal and valid and, thus, the question of restoration does not arise and the order is, accordingly, illegal. A perusal of the registered deed of settlement dated 2.4.1942 executed by the then landlord in favour of Smt. Sona Kumari Devi further proves the fact that it was permanent, heritable and transferable raiyati settlement made by the then landlord in favour of the settlee. As per the provisions contained in Section 72(4) of the C.N.T. Act the landlord had statutory right to settle the raiyati land. 10. As regards the second issue of limitation, undisputed fact remains that peaceful, continuous and uninterrupted possession of the land, in question with the predecessor-in-interest of the petitioners continued since 2.3.1942 and the application for restoration was filed after 35 years from the date of surrender and, thus, the restoration application filed in the year, 1977 was barred by limitation. The Hon’ble Supreme Court in (2000)5 SCC page-141 (supra) at para 16 has held as under: "……..Merely because Section 71-A commences with the words "If at any time ..... " it cannot be taken to mean that those powers could be exercised without any point of time-limit, as in this case after nearly about forty years unmindful of the rights of the parties acquired in the meantime under the ordinary law and the law of limitation. We consider it, therefore inappropriate to countenance any such contentions in these proceedings." 11. A similar issue was considered by the Hon'ble Supreme Court in 2004(4) JCR Page 211 (SC) wherein while considering the issue of limitation. sustainability of power under Section 71 A and 71 B with regard to restoration of land to the members of scheduled tribe and Khatiyani holders it was held that the test is not as to whether the period of limitation prescribed in the Act of 1963 had expired but whether the power under Section 71A was sought to be exercised after unreasonable delay. The Hon'ble Supreme Court at Paragraph 13 & 14 held as under:- "13. The Hon'ble Supreme Court at Paragraph 13 & 14 held as under:- "13. We will assume that the surrender of tenancy on 7.2.1938 and the settlement of the lands of the present appellant on 25.2.1938 were in quick succession and could be viewed as parts of the same transaction within the meaning of the term 'transfer' as contemplated by the Act. Nonetheless it has not been established before us that the transfer was contrary to any other provisions of the Act. 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 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 Office; 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 exerci3e 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." 12. Again in the case of Fulchand Munda vs. State of Bihar & Ors., as reported in 2008(1) SCALE page-718 [ : 2008(1) JLJR (SC) 309], the Hon'ble Supreme Court while considering a similar issue held that Section 71 A of the C N.T. Act could be attracted only in case the Deputy Commissioner finds that the impugned transfer was made in contravention of Section 46 or any other provision of the C.N.T. Act. It also held that even though there is no period of limitation prescribed for exercising the power under Section 71 A of the C.N.T. Act by the Deputy Commissioner, the party effected is called upon to approach the appropriate authority or the power has to be exercised by the Deputy Commissioner within a reasonable period of time. It has also been conclusively held by the Hon'ble Supreme Court that under Section 46(4)(a) of the C.N.T. Act, a prior sanction of the Deputy Commissioner before effecting transfer was introduced only in the year. 1947 with, effect from 5.1.1948 and no such provision existed during the relevant point of time of the surrender which in the instant case was 1942 and, thus, the Hon'ble Supreme Court held that it was not at all necessary whether Section 71 A incorporated by amendment is applicable in respect of the land in question. The Hon'ble Supreme Court has specifically held that the statutory provisions as they stood in force in the year, 1942 neither envisaged the obtaining of prior sanction of the Deputy Commissioner before surrender by a tenant, nor there was anything illegal or wrong at that point of time, and accordingly, upheld it to be in accordance with the statutory provisions in force at the relevant point of time. 13. The fact remains that hostile possession has remained with the petitioners and their predecessor-in-interest for over last fifty years and, thus, even by way of adverse possession a right has accrued in their favour to retain possession. Considering the aforesaid facts and circumstances of the case it appears that the respondent authorities have erred in failing to appreciate the aforesaid settled law and, thus, the impugned orders dated 18.4.1980, passed by respondent no.4 in S.A.R. Case No. 139 of 1977-78, 29.9.1981, passed by respondent No.3 in S.A.R. Appeal No.17R15 of 1980-81 and 25.8.1988, passed by respondent no. 2 in Revenue Revision No. 133 of 1981, as contained in Annexures 8, 9 and 11 respectively, being devoid of any merits, are hereby set aside and the writ petition is, thus, allowed. However, there will, be no order as to costs.