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2010 DIGILAW 594 (JHR)

Jagan Bediya v. Kameshwar Narayan Singh

2010-05-13

PRASHANT KUMAR, SUSHIL HARKAULI

body2010
JUDGMENT We have heard the learned counsel for the parties. 2. By the impugned order of the learned Single Judge, the rejection of the land restoration application of the appellants under Chhotanagpur Tenancy Act 1908 has been upheld. 3. Out of the 8 appellants of this appeal, appellant nos. 1 to 4 are sons of one Rabni Oevi who had filed an earlier land restoration application under the same provisions of the Act in the year 1977. The order passed on that restoration application has been annexed with this appeal as Annexure No.4. On internal page 2 of that annexure it has been clearly stated that the claim of Smt. Rabni Devi on one part of the land on which restoration was sought, was not valid, meaning thereby that the restoration' application was rejected in respect of that part of the land. Subsequently, after a lapse of about 10 years, a second application for restoration was filed by Smt. Rabni Devi which was also rejected. The third application which' is relevant for this case was filed by the said four sons of Smt. Rabni Devi i.e. appellant nos. 1 to 4 alongwith the appellant nos. 5 to 8 who allege themselves to be co-sharers of Smt. Rabni Devi. 4. So far as appellant nos. 1 to 4 are concerned, they are claiming through Smt. Rabni Devi and therefore it has been rightly held that on the principles of res-judicata, that the two earlier applications of restoration by their mother having been rejected, this third application moved after a lapse of another 10 years in the year 1956 was not maintainable. 5. So far as the appellant nos. 5 to 8 are concerned, even if on account of their being co-sharers, the principles of res-judicata may not be applicable directly, but the fact of moving of restoration by Smt. Rabni Devi would indicate that before 1977 they had been dispossessed from the land. It is not possible In case of a joint holding that only some of the cosharers may be dispossessed by third parties. 6. It is not possible In case of a joint holding that only some of the cosharers may be dispossessed by third parties. 6. Having been dispossessed and two land restoration application having been filed one after the other by one co-sharer, the other co-sharers who sat quietly watching the fate of the first restoration and second restoration applications and allowed 20 years to lapse should not be permitted, by extending the principle of re-judicata, to apply for restoration, as it would amount to abuse of the process of Court by allowing initiation of a third round of litigation. However, this is not the only ground on which we are inclined to dismiss the appeal. 7. So far as the appellant no. 5 to 8 are concerned, it has been rightly held that having been dispossessed before 1977, their restoration application moved in 1996 is far beyond the permissible period of 12 years prescribed by the first proviso to section 46(4-A) (a) of the The Chota Nagpur Tenancy Act. For ready reference, the said proviso is reproduced below:- 46(4-A) (a):-The Deputy Commissioner, may, of his own motion or on an application filed before him by an occupancy-Raiyat, who is a member of the Scheduled Tribes, 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 no sub application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof: Provided further that before passing any order under clause (b) or clause (c) of this sub-section, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter. 8. The argument of learned counsel for the appellant in reply to this objection is that because the transfer was illegal, therefore the limitation will not apply. We are unable to agree in view of the direct statutory provision. 9. Accordingly, this appeal is dismissed on the ground that the third restoration application was barred by res-judicata in respect to appellant nos. 1 to 4 and by limitation in respect to appellant nos. 5 to 8.