JUDGMENT
Lakshman Uraon, J.
1. The instant appeal is directed against the judgment dated 11th December, 1997, passed in C.W.J.C. No. 325 of 1988(R), whereby and whereunder, the order dated 29th March, 1976. passed in S.A.R. No. 73 of 1975 by the Special Officer, Lohardaga, and the order dated 30th May, 1986, passed in S.A.R. Appeal No. 15 R 15 of 1976-77, by the learned Additional Collector, Lohardaga, as also the order dated 9th December, 1986, passed in Lohardaga Revenue Revision No. 376 of 1986, by the learned Commissioner, South Chotanagpur Division, Ranchi, by which the lands were ordered to be restored in favour of the appellants, have been set aside.
2. The appellants have pleaded that husband of appellant and father of appellants No. 2 to 4 late Somra Singh Kherwar had filed application for restoration of land, appertaining to R.S. Plot No. 137, RS. Khata No. 40, having an area of 1.27 Acres, of Village Hesa Pirhi, P.S. Lohardaga, District Ranchi (now Lohardaga) under the provisions of the Bihar Scheduled Area Regulation Act, 1969. The Halka Karmchari and the Circle Inspector, Kisku, in course of enquiry submitted their reports to the effect that the land in question has been recorded in the name of Rudni Kherwarin, wife of Murli Singh. The applicant is the nephew of the recorded ralyat, who is also landless, which is clear from the order of the Settlement Officer (SAR) in S.A.R. Case No. 73 of 1975.
3. Learned counsel for the appellants has submitted that after the death of the recorded tenant, the Ex-landlord, without complying the mandatory provisions and without giving notice to the Deputy Commissioner under Sub-section (2) of Section 73 of the Chotanagpur Tenancy Act, for abandonment of the land and without abandoning the same, settled 63-1/2 Decimal of land in the name of Rahmat, son of Pir Bax, who was the recorded Diwan of Ex-landlord, for Rs. 300/- on 12.1.1949 by virtue of Sada Hukumnama. Thereafter, 31-1/2 Decimals of lands have been settled in the name of Anjuman Islamia by Rahmat by virtue of registered deed dated 14.7.1973 at a cost of Rs. 1,000/- and the rest of the land i.e. 21-1/2 Decimals of land has been settled in the name of Bibi Sakulan (respondent No. 3) by virtue of registered deed dated 14.7.1975 by Rahmat. It is submitted that the Ex- landlord has not taken any step before taking over the possession of the land, as laid down under Section 73(2) of the Chotanagpur Tenancy Act, which reads as follows :
“73. Abandonment of land by Raiyat–(1) If a Raiyat voluntarily abandons the land held or cultivated by him, without notice to the landlord and ceases either himself or through any other, person to cultivate the land to pay his rent as it falls due, the landlord may at anytime after the expiration of the agricultural year in which the Raiyat so abandons and ceases to cultivate, enter on the holding and let it to another tenant or take into cultivation himself.
(2) Before a landlord enters under this Section, he shall send a notice to the Deputy Commissioner in the prescribed manner, stating that he has treated the holding as abandoned and is about to enter on it accordingly; and the Deputy Commissioner shall cause a notice of the fact to be published in the prescribed manner [and if an objection is preferred to him within one month of the date of publication of the notice shall make a summary inquiry and shall decide whether the landlord is entitled under Sub-section (1) to enter on the holding. The landlord shall not enter on the holding unless and until such objection has been decided in his favour, or if no objection is preferred, until the expiration of one month from the date of publication of the notice].
(3) When a landlord enters under this section, the Raiyat shall be entitled to apply to the Deputy Commissioner for the recovery of possession of the land at any time not later than the expiration of three years in the case of an occupancy-Raiyat or in the case of a non-occupancy Raiyat one year, from the date of the publication of the notice; and thereupon, the Deputy Commissioner may on being satisfied that the Raiyat did not voluntarily abandon his holding, restore him to possession in the prescribed manner on such terms (if any) with respect to compensation to person injured and payment of arrears of rent as to the Deputy Commissioner may seem just.”
4. It is further submitted that there is violation of Section 73(2) of the CNT Act, which is mandatory and which has been formulated in order to secure the interest of the tribals from being dispossessed from the land by Ex-landlord on the ground of abandonment. In the present case, it has been argued that there was never any abandonment of the land in question. Section 73(1) of the CNT Act clearly states that if a Raiyat voluntarily abandons the land, then alone the Ex-landlord can enter into the land. In the present case, the Raiyat has never abandoned the land. Even after the death of the recorded tenant, the Ex-landlord ought to have taken the recourse as laid down under Section 73(2) of the CNT Act. Thus, the provisions strictly prohibits the Ex-landlord from taking over the possession of the land unless the matter is decided in his favour.
5. The petitioners-respondents,
namely, Sk. Rahimuddin and others, chal
lenged the order of the Special Officer,
S.A.R., for restoration of the land in favour
of these appellants- respondents, ordering
restoration of the land in their favour in
S.A.R. Appeal Case No. 15 R 15 of 1976-77
in the Court of the learned Additional Col
lector, Lohardaga, which was dismissed with
some modification. The petitioners-respon
dents preferred appeal before the Deputy
Commissioner, which was also dismissed
and against that order, they preferred
revision before the Commissioner, South
Chotanagpur Division, which was also dis
missed. Against that order, the petitioners-
respondents filed writ petition bearing
C.W.J.C. No. 325 of 1988(R). The learned
Single Judge by order dated 11th December, 1997 came to the conclusion that the
authorities committed serious error of law as also error of fact. It was observed that 17.4.1949 is the date when the land in question was re-settled by the Ex-landlord in favour of the father of petitioner No. 1. In the deed, there is recital as noticed by the authorities that the land was abandoned much before 1949 by the Raiyat and the landlord entered into possession and made the land Bakast and thereafter, it was settled in 1949. The learned Single Judge also opined that the period of thirty years will commence from the date when the landlord entered into possession after the land was abandoned by the Raiyat. The learned Single Judge further opined that the land was voluntarily abandoned by the Raiyat much before 1949 and, therefore, the authorities have committed serious illegality in’holding that the application, filed by the so-called nephew of the Raiyat, was maintainable. On these grounds, the learned Single Judge allowed the writ petition and set aside the order of restoration, passed by the respondents authorities.
6. The point for consideration before me is that as to whether the appellant Somra Singh Kherwar (since deceased and substituted by his legal heirs, who are Lakho Devi and three others) was the nephew of the recorded Raiyat and secondly; whether the original Raiyat voluntarily abandoned the land in question, resulting in taking over the land by the Ex-landlord and its subsequent settlement to the respondents-petitioners. After restoration of the land, the appellants-respondents are paying rent since 1988 when their possession was restored and are in cultivating possession of the land. The plea of the petitioners-respondents Rahimuddin and others, is that the land was voluntarily abandoned. In the record, there is no cutoff date when the ancestor of Somra Singh Kherwar has been arrayed as nephew of the recorded Raiyat Rudni Kherwarin, wife of late Murli Singh. In S.A.R. Case No. 73 of 1975, the Special Officer (S.A.R.) on the basis of the enquiry report, submitted by the Halka Karmchari and Circle Inspector, Kisku opined that the recorded Raiyat was Rudni Kherwarin, wife of Murli Singh and the applicant-petitioner Somra Singh Kherwar is the nephew, who is landless. The possession of the land in question was restored in his favour, which was concurrently upheld up to the revisional court of Commissioner, South Chotanagpur. vide Lohardaga Revenue Revision No. 376 of 1986. Thus, there is a finding of fact by all the revenue authorities in course of S.A.R. proceedings that Somra Singh Kherwar is the nephew of the recorded Raiyat Rudni Kherwarin.
7. The learned Single Judge has held that in absence of any proof or any verdict of the Civil Court, Somra Singh Kherwar, who alleges himself to be the nephew of the recorded tenant, can not be believed. Moreover, when it was abandoned in the year, 1949, and much prior to that date, the Ex-landlord came in possession of the land re-settled the same in favour of the petitioners-respondents, then after expiry of 30 years of limitation period, the Restoration Case under Section 71-A of the CNT Act is not maintainable.
8. In the present case there is no cutoff date when the land was abandoned. The evidence is only that on 17.1.1949 the Ex-landlord resettled the land in favour of the father of petitioner No. 1-respondent. There is no cut-off date on which the Ex- landlord came in possession of the land and made it Bakast, the same having not been determined by any of the courts. As such, in absence of any definite date, the period of limitation will run from 1949 and the S.A.R. Case was filed just within the period of thirty years, which has been relied upon in the cases of Safiuddin v. Lawrence Somra Kerketta and Anr., reported in AIR 1956 (Pat) 186 and Jageshwar Teli v. State of Bihar and Ors., reported in 1991 (1) PLJR 91.
9. Learned counsel appearing on behalf of the petitioner- respondents submitted that the original applicant Somra Singh Kherwar 9, father of appellants No. 2 to 4 and husband of appellant No. 1, has neither claimed himself to be the nephew of the recorded Raiyat Most Rudni Kherwarin in the original application nor has adduced any evidence to prove any relationship between him and the recorded Raiyat and, as such, under law, he is not entitled for restoration of the land in question. The learned Single Judge has examined all the facts critically in the light of the materials, available on record, and came to the conclusion that except the recording of relationship by respondent No. 7 (Special Officer, Lohardaga), there is no finding of the authority that the applicant Somra Singh Kherwar is, in fact, nephew of the recorded Raiyat. It was also submitted that after the death of the recorded Raiyat, the resumption of the land by the Ex-landlord was not illegal. Hence the provisions of Section 73(2) of the CNT Act is not mandatory particularly in view of the fact that the recorded Raiyat died intestate, leaving the land abandoned. It was also argued that Somra Singh Kherwar never claimed and cultivated the land of the recorded Raiyat nor anybody else on his behalf ever cultivated the land by remaining in possession or paid rent to the Ex-landlord as Raiyat or heir or legal representative of the recorded Raiyat. It was also submitted that Section 73 of the CNT Act is a self contained provision and, therefore, even if Somra Singh Kherwar intended to claim restoration of the land on the ground that the Ex-landlord dispossessed him by illegally entering into the land, in violation of Section 73(2) of the Act, he ought to have availed the remedy provided under Section 73(3) of the Act, by filing application within the limitation period of 12 years. As in any view of the matter, the land in question could not have been restored under Section 71-A of the Act on the ground that the Ex-landlord entered into the land in violation of Section 73(2) of the Act.
10. It is true that there is no finding of the Civil Court that Somra Singh Kherwar is the nephew of the recorded Raiyat Rudni Kherwarin, but during course of enquiry in S.A.R. Proceeding, pending in the court of Special Officer, S.A.R., Lohardaga, the Halka Karmchari and Circle Inspector have found that Somra Singh Kherwar was the nephew of the recorded Raiyat Rudni Kherwarin. Besides that, there is no other evidence to show otherwise that he is not the nephew of the recorded Raiyat. Therefore, in absence of any other better evidence or finding of record, it can not lightly be rejected the Somra Singh Kherwar is not the nephew of the recorded Raiyat.
11. I have already considered above that the Ex-landlord claimed to have assumed the land only on the plea that the recorded Raiyat Rudni Kherwarin virtually abandoned the land and she settled the land in favour of the petitioner-respondent No. 1 on 17.1.1949. The learned Single Judge has opined that much prior to that date, the land was abandoned by the Raiyat and the Ex- landlord entered into possession and made the land Bakast and settled it in favour of the petitioner-respondents in the year, 1949. This finding of the learned Single Judge is not supported by any evidence either oral or documentary. I have already stated above that there is no cut-off date as to when the land was voluntarily abandoned. This is also a fact in dispute, which is not an admitted fact, regarding voluntarily abandonment. Section 73 of the CNT Act is a self contained provision in respect of the lands, voluntarily abandoned. But in the present case there is on evidence that the land was virtually abandoned by the recorded Raiyat. Hence in the present case, Section 73 of the Act is not so important as the appellants-respondents have taken recourse of Section 71-A of the CNT Act, which provides as follows :
“[71-A. 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 Kattidar or 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 transferee, 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].”
12. This Section was inserted by amendment in Bihar Scheduled Area Regulation, 1969 and the period of limitation in case of tribal lands as mentioned under Article 65 of the Limitation Act is 30 years. In the present case, there is no definite date on which the Ex-landlord resumed the possession of the land alleged to have been abandoned by the Raiyat. In tribal areas, due to hardship the Raiyats, generally use to leave the village for earning livelihood for a year or two without entrusting the land to be cultivated by any tenant of the village. During such period, there is every possibility that the rent is not being paid to the landlord. This does not mean that the land was virtually abandoned by the recorded Raiyat. After a year or two of the cultivation year, the recorded Raiyats again return back to home and start cultivation of their agricultural land. In the present case, in absence of any evidence regarding voluntarily abandonment, Section 73 of the CNT Act has got no role to play rather Section 71-A of the Act is applicable in this case for restoration of the land.
13. After due inquiry, the revenue authorities upto the Revisional Court of learned Commissioner, South Chotanagpur Division, Ranchi, in Lohardaga Revenue Revision No. 376 of 1986 upheld the finding of the Courts below and dismissed the Revision. Thus, the findings of authorities are there who have found Somra Singh Kherwar to be the nephew of recorded Raiyat Rudni Kherwarin and the land was accordingly restored. After restoration since 1988, Somra Singh Kherwar and after his death, his heirs are in cultivating possession and are paying the rent.
14. In the present case, I find that the landlord when came in possession of the land, alleged to have been voluntarily abandoned, is not clear. Even before taking possession of the land, the landlord had not followed the procedure as laid down under Section 73(2) of the Act. The Deputy Commissioner has not declared the land as voluntarily abandoned. The object of Section is to safeguard the legitimate interest of the tribals against the fraudulent resumption of the land. The landlord, who has taken recourse of the requisite proceedings and one who has not done so, is that a landlord, who had taken proceeding before the Deputy Commissioner, will have an indefeasible right by virtue of abandonment from the date of the order recorded by the Deputy Commissioner, treating the land as abandoned. The landlord, however, who has not taken recourse of this proceeding, cannot claim indefeasible title and he may be defeated by a suit, initiated by the person, entitled to the property, within the period of limitation from the commencement of the, possession of the land by the landlord. Prior to coming into force the Scheduled Area Regulation, 1969, the CNT Act is already there since 1908. Section 46 of the said Act is the safeguard to stop sale of the holding by Raiyats and to restrict all norms of mortgage and thereafter to save aboriginal population from falling into the clutches of speculative money-lenders. Scheduled Area Regulation, 1969 was framed for the purposes of giving adequate safeguard to the aboriginals, who were exploited by the persons, who are not the members of the Scheduled Tribe. The scope of Section 71-A of the Act is, therefore, extended to such extent that even of a Raiyat belonging to a member of Scheduled Tribe is forcefully dispossessed by any illegal means, then the land shall be restored to such Raiyat.
15. In the present case, I have already discussed above that there is no evidence on record or any finding to this effect by the Revenue Authorities to show that the land was voluntarily abandoned much prior to 1949 by the recorded Raiyat. As such, in absence of this evidence, the finding of the learned Single Judge that the landlord entered into possession after the land was abandoned by the recorded Raiyat, much before 1949, is not convincing to me. Similarly, in absence of any cogent evidence that Somra Singh Kherwar is not the nephew of the recorded Raiyat Rudni Kher-warin, I am unable to disbelieve the enquiry report and the opinion formed by the Revenue Authorities that Somra Singh
Kherwar is the nephew of recorded Raiyat Rudni Kherwarin. who has claimed restoration of land of Rudni Kherwarin under Section 71-A of the CNT Act.
16. In view of the aforesaid con
sidered opinion, I am not in agreement with
the finding of the learned Single Judge, on
the points, discussed above. As such, the
same is hereby set aside and in the result,
this Letters Patent Appeal is allowed accordingly. However, there shall be no order
as to costs.