JUDGMENT : (Dr. Ravi Ranjan, C.J.) 1. Matter was heard through video conferencing and there had been no complaint whatsoever regarding audio and/or video quality. 2. This appeal is directed against the judgment dated 24.11.2017 passed by the learned Single Judge of this Court in C.W.J.C. No.3317 of 1998(R) by the writ petition has been dismissed holding that there is no illegality or impropriety in the order passed by the Deputy Commissioner and affirmed by the Commissioner ordering for delivery of possession of land in favour of respondent No.6. 3. Brief facts, which would be necessary for consideration of lis and which emanate out of the pleadings of the parties, stand narrated as under:- A land of Plot No.309 appertaining to Khata No.238 of an area about 1.09 acres situated in Village Samlong, PS-Namkum, District Ranchi belonged to one Madhi Pahan, i.e., grandfather of the original writ petitioner (since deceased) namely Rajesh Bhutkunwar Pahan as Bakashta Bhuinhari Pahanai land. It is claimed by the original writ petitioner/appellants that the land was transferred by his grandfather Madhi Pahan in favour of the predecessors-in-interest of respondent No.6 in contravention of Sections 46, 48 and 49 of the Chota Nagpur Tenancy Act, 1908 (hereinafter to be referred to as ‘the Act’) through a registered sale-deed dated 23.05.1934. The said transfer was challenged by the petitioner/appellants by filing a petition under Section 71-A of the Act for restoration of land in his favour which was numbered as S.A.R. Case No.14/1979-80. The Special Officer, S.A.R. Court (respondent No.5 to the writ petition) vide order dated 29.04.1980 ordered the land to be restored and possession to be delivered in favour of the writ petitioner/appellants. The respondent No.6 preferred an appeal before the Additional Collector/District Magistrate, Ranchi (respondent No.4), who, after hearing the parties, remanded the case to respondent No.5 i.e., the Special Officer, for fresh consideration vide order dated 15.05.1980. After the remand, the Special Regulation Officer vide order dated 20.06.1980 (Annexure 3 to the memo of appeal) reviewed his earlier order and finally rejected the prayer for restoration of land holding that the land concerned is a Bakashta Bhuinhari and the transfer was made vide registered deed in the year 1933-34 after seeking permission from the Deputy Commissioner, therefore, no proceeding can be drawn under Section 48(4) of the Act and hence rejected the prayer for restoration of land. Surprisingly, no appeal was preferred by the writ petitioner/appellants assailing the aforesaid order passed by the respondent No.5. Thereafter, respondent No.6 filed a petition before the Special Regulation Officer making a prayer for restoration of possession of the land as the petition filed under Section 48(4) of Act of the writ petitioner was already dismissed, which was earlier allowed and on that pretext delivery of possession was given to him. Since the order has now become non-existent, the possession should be delivered back to the respondent No.6. However, the said prayer was rejected vide order dated 05.10.1987 holding that the authorities under the Chota Nagpur Tenancy Act, 1908 do not have power to deliver possession in favour of a non-tribal. Misc. Case Appeal No.47-R-28 of 1987-88 was preferred against the aforesaid order before the Deputy Commissioner, Ranchi who vide order dated 04.02.1988 set aside the aforesaid order passed by the Special Regulation Officer in Misc. Application No.47R-28/87-88 and remanded the matter for imparting justice by delivering back the possession to respondent No.6 which was earlier effected on the basis of an illegal order. Subsequently, vide order dated 07.04.1988 (Annexure 4 to this memo of appeal), the Special Regulation Officer passed an order to restore possession in favour of respondent No.6 and a direction was given to the Circle Officer to execute the order. The writ petitioner/appellants preferred an appeal before the Additional Collector which was numbered as S.A.R. Appeal No.51-R-15 of 1988-89, who vide order dated 18.04.1998 (Annexure 5 to the memo of appeal) again remanded the matter to the Special Officer to pass order after compliance of the direction given by the Deputy Commissioner in his order dated 04.02.1988 passed in Misc. Case No.47R28/1987-88. The Special Officer vide order dated 31.01.1994 (Annexure 6 to the memo of appeal) passed an order for delivery of possession in favour of respondent No.6. The appeal preferred against it was also dismissed vide order dated 27.10.1995 (Annexure 7 to the memo of appeal) by respondent No.3. Then, a revision being S.A.R. Revision No. 57/1996 was preferred before the Commissioner, South Chotanagpur Division, Ranchi, which was also dismissed vide order dated 20.10.1998 (Annexure 9 to the memo of appeal). Thereafter, the writ petitioner preferred a writ petition being C.W.J.C. No. 3317 of 1998(R), which was dismissed by the learned Single Judge of this Court vide order dated 27.03.2000. Thereafter, the writ petitioner preferred a writ petition being C.W.J.C. No. 3317 of 1998(R), which was dismissed by the learned Single Judge of this Court vide order dated 27.03.2000. Then, L.P.A. No. 171 of 2000 was preferred against the aforesaid order which was allowed vide order dated 11.05.2000 and the matter was remanded to the learned Single Judge for fresh consideration. Thereafter, the order impugned has been passed by the learned Single Judge of this Court dismissing the writ petition by passing a reasoned order. 4. In the aforesaid background of the matter, this Court has heard learned counsels appearing for the parties and perused the records of this case including the original records of the proceedings before the concerned authorities produced at the time of hearing. 5. Mr. H.K. Mahato, learned counsel appearing for the writ petitioner/appellants, has submitted that the concerned land, being Bakashta Bhuinhari Pahanai land is by character inalienable and a rent-free land, so the alleged transfer deed itself is a document manufactured and obtained by playing upon the authority which is also not according to the spirit to Section 49 of the Act, as the registered deed nowhere discloses that any reasonable and sufficient purpose was there for such transfer. As such, said transfer was liable to be annulled under Section 71-A of the Chota Nagpur Tenancy Act, 1908 being in contravention of Sections 48 and 49 of the Act. Learned counsel has further submitted that a transfer of occupancy holding or Bhuinhari tenure only for certain purposes is permissible which stand mentioned in Section 49(1)(a) & (b) itself. Thus, there was sufficient ground for annulling the transfer and restoring the land in favour of the original writ petitioner. It has further been submitted that the consent of Deputy Commissioner was required to be in written and for want of the same, the transfer can be declared as a nullity, as transfer of Bhuinhari Pahanai land has been made and even considering it to be with permission of the Deputy Commissioner, the same was not for reasonable and sufficient purposes, therefore, such permission was required to be ignored. Further, as per the customary laws, which would be evident from Survey Report 1992-2010 (Ranchi), the Bakashta Bhuinhari Pahanai land was not alienable to anyone other than Pahan of the village. Further, as per the customary laws, which would be evident from Survey Report 1992-2010 (Ranchi), the Bakashta Bhuinhari Pahanai land was not alienable to anyone other than Pahan of the village. It is further contended that the application of the writ petitioner/appellants was allowed and possession was delivered in his favour, but again the order was reviewed and possession has been directed to be delivered back to respondent No.6 which is illegal, as there is no provision under the Act for delivery of possession in favour of a non-tribal. 6. Per contra Mr. P.P.N. Roy, learned senior counsel appearing on behalf of the respondents, has vehemently opposed the contention raised by the appellants and submitted that the land in question was transferred by a registered deed in the year 1934 itself and after about 45 years the petition for restoration of possession of the land has been filed, whereas, the relevant provision under Section 49(5) of the Act empowers the State Government to look into the matter of consent given by the Deputy Commissioner for its legality and propriety of the transfer but only within a period of 12 years. Thus, it is contended the application was not maintainable after 12 years of transfer and was required to be rejected on this ground alone. It has further been contended that provision of Section 71-A of the Act is not applicable in those cases where the permission under Section 49(3) has been granted by the Deputy Commissioner. So far as the written consent is concerned, it is contended that the registered deed itself discloses that permission was taken in a particular case by the Deputy Commissioner which was never challenged. Learned Senior Counsel has placed reliance upon the decision rendered by the Division Bench of Patna High Court in Sri Rajendra Nath Kapoor v. The State of Bihar & Ors [1990 BLT 352] holding that if the transfer has been made under the provisions of Section 49(3), then Section 71-A is not a remedy in view of the special provision for challenging such transfer under Section 71-A of the Act. He has further placed reliance on the decision rendered by this Court in Niranjan Mahli v. State of Bihar [ 2003 (3) JCR 492 (Jhr) as well as in Etwa Oraon v. Kusum Devi [ 2007 (4) JCR 132 (Jhr)]. 7. He has further placed reliance on the decision rendered by this Court in Niranjan Mahli v. State of Bihar [ 2003 (3) JCR 492 (Jhr) as well as in Etwa Oraon v. Kusum Devi [ 2007 (4) JCR 132 (Jhr)]. 7. From the Lower Court records of the concerned case which have been produced before us during the course of hearing, it appears that a petition under Section 71-A was filed by one Rajesh Bhutkunwar Pahan against Ajit Kumar Ghose. However, subsequently, vide a petition dated 11.04.1979, a request was made to the Special Officer to convert the case from Section 71-A to Section 48 of the Chota Nagpur Tenancy Act, 1908. Copy of the petition is available in the lower court records which is extracted and reproduced as under:- ^^cvnkyr Jh ts- ,u- lgk; eks- jkWaph Request 15@78 jkts'k HkqV dqekj &&&&&&&&&&&&&&&&&&&&&&&&&&& izFke i{k cuke vthr dqekj cksl &&&&&&&&&&&&&&&&&&&&&f}rh; i{k eksdnesa lnj esa vkosnd izFkZuk djrs gSA ¼1½ ;g ds ekdsnek tehu okilh djus ds fy, 71, NksVkukxiqj Vsu,ulh ,DV esa fn;k gSA ¼2½ ;g ds ijpk ds ns[kus ls irk yxrk gS ds okil gksusa okyh tkehu ckdkLr Hkq;Wagkjh igukbZ gSA Hkq;Wagkjh tehu dh okilh dk okMZj 71 nQk esa gksuk dBhu gSA ¼3½ ;g ds vkosnd ds tkehu dks okihl djus dk vkns'k nQk 48 C.N.T. ds vUrZxr fd;k tk;A vxj bl vnkyr dks 48 nQk dk ds'k ns[kus dk v/khdkj uk gks rk bl ds'k dks Jh ch- ,e- eqUMk ds vnkyr esa Hkstus dh d`ik fd tk;A vr% gqtwj ls izFkZuk gS ds bl eksdnesa dks nQk 48 C.N.T. ds v/khu QSlyk fd;k tk;A Okthc Fkk vtZ fd;k By vkbZUns gqtwj ekfyd gSaA A.M. Sahay A.G.P. ¼jkts'k HkqVdqaokj½ 11/4/79 11-4-79” (Emphasis is mine) 8. From perusal of the aforesaid petition it appears that at the time of filing of the case the writ petitioner was not even knowing that the land is a Bakashta Bhuinhari Pahanai. Therefore, he has stated that after looking into the Purcha it appears that it is a Bakashta Bhuinhari Pahanai land and restoration of possession under Section 71-A would be very difficult, therefore, the case should be converted into Section 48-A of the C.N.T. Act. Thus, the submission of Mr. Therefore, he has stated that after looking into the Purcha it appears that it is a Bakashta Bhuinhari Pahanai land and restoration of possession under Section 71-A would be very difficult, therefore, the case should be converted into Section 48-A of the C.N.T. Act. Thus, the submission of Mr. H.K. Mahato, learned counsel for the petitioner/appellants, that the proceedings ought to have been concluded under Section 71-A of the Act falls flat because it was the writ petitioner who had requested for conversion of the case from one under Section 71-A to Section 48 of the Act. 9. Learned counsel for the writ petitioner/appellants has placed reliance upon few judicial pronouncements which I will proceed to consider one by one. Learned counsel has placed reliance upon a decision of the Hon’ble Apex Court rendered in Pandey Oraon v. Ram Chander Sahu & Ors [ AIR 1992 SC 195 ]. In this case, the Hon’ble Apex Court has held that only question for consideration as to whether the transfer of type involved comes within the ambit of Section 71-A of the Act, then one will have to see that the provision is beneficial and the legislative intention is to extend protection to one who is not in a position to keep his property to himself in the absence of protection. When the legislature is extending special protection to the named category, liberal construction to the protected mechanism would have to be worked out so that the protection would be effective than limit by the scope. However, in that case, Bhuinhari Pahanai land was not in question for which a special provision has been incorporated in the Act under Section 49 of the Act for permitting alienation under certain conditions and remedy has been provided under Section 49(5). Therefore, the aforesaid decision of the Hon’ble Supreme Court having been rendered in a different set of facts, would not be applicable in the present case. Learned counsel has again placed reliance upon a decision of the Hon’ble Supreme Court rendered in S.P. Chengalvaraya Naidu v. Jagannath [1994 SCC (1) 1] to impress upon this Court that fraud vitiates very solemnity of the proceedings or all judicial acts. The Hon’ble Supreme Court has held that even a judgment and decree obtained by playing fraud on a court is a nullity and non est in the eyes of law. The Hon’ble Supreme Court has held that even a judgment and decree obtained by playing fraud on a court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in a collateral proceeding. However, in the present case, provision for obtaining consent for alienation is also under Section 49(3) and if obtained by fraud, remedy has also been provided under Section 49(5) which was not availed within the period of limitation provided under the special schedules. Otherwise also, for declaring a registered fraudulent, cogent materials would have to be brought on record and that should be produced. The moot question in this case is that the registered deed executed by the grandfather of the writ petitioner in favour of the predecessors-in-interest of the respondent No.6 could have been challenged under which provision of the Act and if yes, then under which provision? The original writ petitioner himself filed a petition under Section 71-A of the Act, but again filed a petition for converting it into a petition under Section 48 of the Act. However, Section 48 only imposes restrictions of transfer of Bhuinhari tenure, but at the same time, Section 48(2), empowers the State Government to make Rules permitting a member of a Bhuinhari family which holds any Bhuinhari tenure to transfer such tenure or any portion thereof through sale, gift, exchange or will, subject to restrictions and conditions as may be specified in the said Rules. For ready reference, Section 48 of the Act is extracted as under:- “48. Restrictions on the transfer of Bhuinhari tenure.-(1) A member of a Bhuinhari family may transfer any 'Bhuinhari tenure as defined in the Chota Nagpur Tenures Act, 1869 (Ben. Act 2 of 1869) which is held by him or any portion thereof in the same manner and to the same extent as an aboriginal 'Raiyat may transfer his right in his holding under clauses (a) and (b) of sub-section (2) of Section 46. Act 2 of 1869) which is held by him or any portion thereof in the same manner and to the same extent as an aboriginal 'Raiyat may transfer his right in his holding under clauses (a) and (b) of sub-section (2) of Section 46. (2) The State Government may make rules permitting a member of a 'Bhuinhari family holds any 'Bhuinhari tenure to transfer such tenure or any portion thereof by sale, gift, exchange or will subject to such restrictions and conditions as may be specified in the said rules. (3) Save as provided in sub-section (1) or in any rules made under sub-section (2), a transfer of a 'Bhuinhari tenure or any portion thereof shall not be valid to any extent. (4) If a member of a 'Bhuinhari family transfers any 'Bhuinhari tenure which is held by him or any portion of such tenure in contravention of the provisions of this Section or on the expiration of the period for which any such member has transferred his 'Bhuinhari tenure or any portion thereof in accordance with the provisions of this Section or any rules made thereunder, the Deputy Commissioner may, of his own motion or on the application of such member, eject the transferee and place such member in possession of the said 'Bhuinhari tenure or portion at any time within twelve years from the date of the transfer, or from the expiration of the period of the transfer, as the case may be. Provided that a member of the Bhuinhari may transfer by a simple mortgage his right in his tenancy or any portion thereof with a view to raising loan for agricultural purposes to a society or bank registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act VI of 1935) or to a Company or Corporation owned by, or in which not less than fifty-one per cent of the share capital is held by the State Government or Central Government or partly by the State Government and partly by the Central Government and which has been set up with a view to providing agricultural credit to cultivators. (5) A member of a 'Bhuinhari family, who holds land in any village in which a 'Bhuinhari tenure as defined in the Chota Nagpur Tenures Act, 1869 (Ben. (5) A member of a 'Bhuinhari family, who holds land in any village in which a 'Bhuinhari tenure as defined in the Chota Nagpur Tenures Act, 1869 (Ben. Act 2 of 1869) is situated may transfer such land in the same manner and to the same extent as an occupancy 'Raiyat transfers his right in his holding under sub-section (3) of Section 46, and sub-section (4) of this Section shall apply to such land in the same way as it applies to a 'Bhuinhari tenure. (6) If any member of a 'Bhuinhari family transfers his 'Bhuinhari tenure or any portion thereof by a lease, the lessee shall not acquire a right of occupancy therein.” 10. From perusal of the aforesaid, it would appear that there is no provision under Section 48 of the Act for annulling the transfer of Bhuinhari tenure, rather the provision is under Section 49(5) of the Act. It is further made clear that Section 49 of the Act, at the same time, permits transfer of occupancy holding of Bhuinhari tenure for certain purposes as would be evident from sub-section (1)(a) and (b). For better appreciation, Section 49 of the Act is quoted as under:- “49. Transfer of occupancy-holding or Bhuinhari-Tenure for certain purposes -(1) Notwithstanding anything contained in Sections 46, 47 and 48 any occupancy Raiyat or any member of a Bhuinhari family, who is referred to in Section 48 may transfer his holding or tenure or any part thereof for the following purposes – (a) in any case, the use of the land for any industrial purposes or for any other purposes which the State Government may, by ratification declare to be subsidiary thereto or for access to land used or required for any such purpose. (b) in any case, the use of the land for the purpose of mining or for any other purposes which the State Government may, by notification, declare to be subsidiary thereto or for access to land used or required for any such purpose. (2) The transferee in such cases shall not be entitled to use the land so transferred for any other purpose except for which it was transferred. (3) Every such transfer must be made by registered deed, and before the deed is registered and the land transferred, the written consent of the Deputy Commissioner must be obtained to the terms of the deed and to the transfer. (3) Every such transfer must be made by registered deed, and before the deed is registered and the land transferred, the written consent of the Deputy Commissioner must be obtained to the terms of the deed and to the transfer. (4) Before consenting to any such transfer, the Deputy Commissioner shall satisfy himself that [adequate compensation is tendered to landlord for the loss (if any) caused to him by the transfer], and, where only part of a holding or tenure is transferred, may, if he thinks fit, apportion; between the transferee and the original tenant the rent payable for the holding or tenure (5) The State Government may, at any time within a period of twelve years from the date on which written consent is given by the Deputy Commissioner in regard to the transfer of any holding or part thereof belonging to an occupancy-Raiyat, who is a member of the Scheduled Tribes either on its own motion or on an application made to it in this behalf set aside such written consent and annul the transfer, if after holding an inquiry in the prescribed manner and after giving reasonable opportunity to the parties concerned to be heard it finds that the consent had been obtained in contravention of the provisions of sub-sections (1) and (2) by misrepresentation or fraud, and in case any holding or part thereof has been transferred on the basis of such written consent direct the Deputy Commissioner to take further necessary action under clause (c) of sub-section 4-A of Section 46." (Emphasis is mine) 11. From perusal of the aforesaid, it would appear that there is a provision of transfer of occupancy holding or Bhuinhari tenure for certain purposes which stands stated in sub-section (1)(a) and (b). However, such transfer must be by a registered deed and before any deed is registered and the land is transferred, written consent of Deputy Commissioner must be obtained to the terms of the deed and to the transfer. However, such transfer must be by a registered deed and before any deed is registered and the land is transferred, written consent of Deputy Commissioner must be obtained to the terms of the deed and to the transfer. However, under sub-section (5), the State Government has power to reopen the matter within a period of 12 years from the date of consent either on its own motion or on application made to it on behalf of the concerned person to set aside such written consent given by Deputy Commissioner and annul the transfer, whereas Section 71A is for restoration of possession to a member of Scheduled Tribes over land unlawfully transferred. However, it is made clear that conditions for transfer as has been described in Section 49(1)(a) and (b) was substituted in place of the earlier provisions by Chota Nagpur Tenancy (Amendment) Act, 1996 (2 of 1996). The earlier provision was as under:- “49. Transfer of occupancy-holding or Bhuinhari-Tenure for certain purposes -(1) Notwithstanding anything contained in Sections 46, 47 and 48 any occupancy Raiyat or any member of a Bhuinhari family, who is referred to in Section 48 may transfer his holding or tenure or any part thereof for any reasonable and sufficient purpose. (2) The expression “reasonable and sufficient purposes” as used in sub-section (1), includes – (a) In the case of a member of a Bhuinhari family, but not in the case of an occupancy raiyat, building purposes generally. (b) in any case, the use of the land for any charitable, religious or educational purpose or for any other purpose which the State Government may, by general or special order, declare to be a public purpose or for the purposes of manufacture or irrigation or as building ground for any such purpose, or for access to land used or required for any such purpose, and (c) in any case the use of the land for the purpose of mining or for any other purpose which the State Government may by notification declare to be subsidiary threreto or for access to land used or required for any such purpose. (3) xxx xxx xxx xxx xxx xxx xxx (4) xxx xxx xxx xxx xxx xxx xxx” If the earlier provision is compared and contrasted with the substituted provision it would emanate that latter has limited the purposes allowed for transfer to a great extent. 12. (3) xxx xxx xxx xxx xxx xxx xxx (4) xxx xxx xxx xxx xxx xxx xxx” If the earlier provision is compared and contrasted with the substituted provision it would emanate that latter has limited the purposes allowed for transfer to a great extent. 12. Now, the question arises, when a petition is filed for restoration of possession of a Bhuinhari tenure, which provision of law would be applicable -Section 71-A or 49(5)? For the aforesaid purpose, the scope of both the transfers and nature of the land would have to be understood. The relevant provision of the Act under Section 71-A is quoted as under for better appreciation:- “71A. Power to restore possession to member of the Scheduled Tribes over land unlawfully transferred. For the aforesaid purpose, the scope of both the transfers and nature of the land would have to be understood. The relevant provision of the Act under Section 71-A is quoted as under for better appreciation:- “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 or a Mundari Khunt-Kattidaror a Bhuinhari who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or Section 48 or Section 240 or any other provisions 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 transfer, who is proposed to be evicted, to show cause and after making necessary inquiry 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 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 Areas Regulation, 1969, he may, notwithstanding any other provisions of the Act, validate such 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 of the vicinity or pays adequate compensation to be determined by the Commissioner for rehabilitation of the transferor: Provided also that if after an inquiry 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 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.” 13. The issue fell for consideration before a Division Bench of the Patna High Court in Harakh Sao v. Dukhan Pahan & Ors [1977 0 BCCJ 479]. The relevant passage from the aforesaid decision is extracted and quoted as under:- “4. From the orders of the Sub-divisional Officer as well as the orders passed in appeal and revision, it appears that there is no dispute that the land is bhuinhari and it had been recorded as Bakast Bhuinhari Pahanai land. The question, which is to be answered, is as to whether respondent no. 1 can be held to be a tenure-holder or a raiyat in respect of such lands. Section 6 of the Act, defines what is meant by raiyat saying that it means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself or by a member of his family etc. Section 5 defines what is meant by tenure-holder. It means primarily a person who has acquired from the proprietor or from any tenure-holder a right to hold land for the purpose of collecting rents etc. Section 5 (b) says that it includes the holders of tenure entered in any register prepared and confirmed under the Chotanagpur Tenures Act, 1869 (Bengal Act, 2 of 1869 hereinafter to be referred as the Tenures Act, 1869). The tenure holders who have been entered in the register prepared and confirmed under the Tenures Act, 1869, are known as Bhuinhari Tenure holders. Therefore, the definition of ‘tenure-holder’ given under section 5 of the Act, also includes a Bhuinhari tenure-holder. The main object of Tenures Act, 1869 was to prepare a register in respect of tenures which were known as “Bhuinhari Tenures” held by persons claiming to be the descendants of original founders of the villages in which such lands are situated or their assigns. If a particular land is registered in the register maintained under that Act, then it will be deemed to be a Bhuinhari tenure and holder thereof as Bhuinhari tenure-holder. Rule 4 (b) of the Chotanagpur Tenancy Rules, 1959 (hereinafter to be referred to as the Rules) again while defining a raiyat says what it means “an occupancy riayat but does not include a member of a Bhuinhari family referred to in section 48.” 5. Rule 4 (b) of the Chotanagpur Tenancy Rules, 1959 (hereinafter to be referred to as the Rules) again while defining a raiyat says what it means “an occupancy riayat but does not include a member of a Bhuinhari family referred to in section 48.” 5. It appears that the holder of this bhuinhari tenure has been treated as a separate class under the Act, and specific provisions have been made in respect thereof. Section 10 of the Act, makes a provision that there shall be no enhancement of rent in respect of such tenures. Section 17 defines ‘settled raiyat. But, there is a separate provision under section 18 in respect of holders of Bhuinhari tenure who may as well cultivate some land in the village as raiyats. Section 46 places restrictions regarding the transfers to be made by raiyats. So far as restriction over transfer of bhuinhari tenures is concerned, a separate provision under section 48 has been made. Section 47 provides for restriction of sale of raiyat’s right under the orders of court. The parallel provision in respect of bhuinhari tenure is under section 48 A. From these provisions it can be held that the rights of a raiyat and rights of a holder of bhuinhari tenure are not same and provisions under the Act, have been made separately in respect of them.” 14. From the aforesaid decision it would appear that in the aforesaid case also, the land was recorded as Bakashta Bhuinhari Pahanai land. The Division Bench had, after considering the definition of “tenure holder” under Section 5 of the Act, held that it includes Bhuinhari tenure-holder and thus, it has to be treated as to be different from the raiyat right as it is a tenure-holder. It has also been held that holder of Bhuinhari tenure has been treated as a separate class under the Act and specific provision has been made in respect thereof which is different from the raiyati rights and, thus, has come to a conclusion that transfer of the Bakashta Bhuinhari Pahanai land would not be covered under Section 71-A of the Act. The second decision, which is important to be considered in this matter, would be one rendered by a Division Bench of Patna High Court (Ranchi Bench) in Sri Rajendra Nath Kapoor (supra). The Division Bench has held that scope of Sections 71-A and 49(5) are completely different. The second decision, which is important to be considered in this matter, would be one rendered by a Division Bench of Patna High Court (Ranchi Bench) in Sri Rajendra Nath Kapoor (supra). The Division Bench has held that scope of Sections 71-A and 49(5) are completely different. Section 71-A is a general provision, whereas Section 49(5) is a special provision only with respect to transfer of occupancy holding or Bhuinhari tenure. It was held that if a transfer has been made under Section 49 after seeking consent of the Deputy Commissioner, then it can only be tested under Section 49(5), the same being a special provision, and not under Section 71-A which is a general provision for restoration of land if the transfer has been made in contravention of Section 46. It has further been held that there is no conflict between the aforesaid two provisions and the submission that Section 47-A will prevail, has no substance. Finally, it has been held in view of the fact that the effect of prayer made by respondent Nos.3 and 4 was to annul the transfer made with consent of the Deputy Commissioner under Section 49(3), the application under Section 71-A was not maintainable. More or less similar stand has been taken by this Court in Niranjan Mahli (supra) and Etwa Oraon (supra). 15. Learned counsel appearing for the appellant has placed reliance upon the decision of a Division Bench of this Court rendered in State of Jharkhand v. Arjun Das [ 2004 (4) JCR 535 ]. However, that was completely on a different pretext as the question involved was as to whether question of right, title and interest can be decided in a mutation proceeding and Section 14 of the Bihar Tenant’s Holdings (Maintenance of Records) Act, 1973 was under consideration. Learned counsel has further placed reliance upon a decision of the Division Bench of this Court rendered in The State of Jharkhand & Ors v. Taurian Infrastrucutre Pvt. Ltd. [ 2015 (4) JCR 753 ]. Learned counsel has further placed reliance upon a decision of the Division Bench of this Court rendered in The State of Jharkhand & Ors v. Taurian Infrastrucutre Pvt. Ltd. [ 2015 (4) JCR 753 ]. This decision is also not applicable in the present case as Section 14 of the Bihar Tenant’s Holdings (Maintenance of Records) Act, 1973 as well as Section 4(h) of the Bihar Land Reforms Act, 1950 and Section 46(3) of the Chota Nagpur Tenancy Act, 1908 were under consideration and it was held that the provisions which were for the Scheduled Tribes would be applicable in the case of Backward Classes also. That apart, the subject-matter was also not for transfer of Bhuinhari Pahanai land covered under Section 49 of the Act. As a last attempt, learned counsel for the appellants has submitted that there is no provision under the Chota Nagpur Tenancy Act, 1908 for delivery of possession to a non-tribal. In my view, such submission is to be noted only to be rejected inasmuch as the possession itself was given to the writ petitioner vide an illegal order which was rectified later on. Once the order has been rectified and his petition has been dismissed, principle of justice requires that a person who has been dislodged due to wrong order passed by the court then possession must be restored back. Thus, in my view, no wrong has been committed by the concerned authority. 16. Having considered the rival submissions, I am of the view that this appeal has to fail for the following reasons:- (i) The challenge to the sale-deed executed by the grandfather of the original writ petitioner in favour of the predecessors-in-interest of respondent No.6 was firstly made under Section 71-A of the Act after about 45 years. 16. Having considered the rival submissions, I am of the view that this appeal has to fail for the following reasons:- (i) The challenge to the sale-deed executed by the grandfather of the original writ petitioner in favour of the predecessors-in-interest of respondent No.6 was firstly made under Section 71-A of the Act after about 45 years. The Hon’ble Supreme Court in Situ Sahu & Ors v. State of Jharkhand & Ors [ 2004 (8) SCC 340 ] has held that even assuming the transfer was fraudulent, the challenge after lapse of 40 years would not be a reasonable time for exercise of power under Section 71-A. (ii) It was well within the knowledge of the original writ petitioner that his petition was not maintainable under Section 71-A, therefore, though he filed an application under Section 71-A, subsequently filed a petition for converting the proceedings under Section 48 of the Chota Nagpur Tenancy Act, 1908 in place of 71-A of the Act. (iii) From the judgments of the Patna High Court in Harakh Sao (supra), Sri Rajendra Nath Kapoor (supra) and Niranjan Mahli (supra) as well as Etwa Oraon (supra), it is crystal clear that the scope of Sections 49(5) and 71-A of the Act are quite different and for the purpose of challenging the consent given by Deputy Commissioner for transfer of Bhuinhari Pahanai land and for annulling such transfer on the ground the consent was taken on fraudulent grounds, the sole provision would be Section 49(5) of the Act and not Section 71-A of the Act. The said challenge was required to be made within 12 years of such consent or transfer but the same having been challenged after 45 years, the proceeding itself was not maintainable, being barred by limitation. (iv) The consent given by Deputy Commissioner already stands incorporated in the registered deed along with the description of concerned case, thus it cannot be deemed that there was no written consent. (v) The submission on behalf of the appellants that there is no provision for delivery of possession to the non-tribal under the Act is also noted only to be rejected, inasmuch as, the writ petitioner admittedly was not in possession of the land, therefore, he filed a petition for restoration of the land in his favour which was allowed by an incorrect order and possession was delivered. However, subsequently, the erroneous order was rectified and the writ petition was dismissed, then the possession, which was delivered to him under an illegal order, was essentially required to be restored back to the concerned person who was earlier in possession. Illegality done by the authorities cannot bestow benefit upon writ petitioner. 17. Having reached to the aforesaid conclusions, I am of the view that no cogent ground could be raised by the writ petitioner/appellants requiring interference by this Court in the impugned order. 18. Accordingly, this appeal fails and is dismissed. Let the original lower court records be returned to the concerned. I agree, (Sujit Narayan Prasad, J.)