JUDGMENT
Tapen Sen, J.
1. The petitioners in the instant case pray for issuance of a writ of certiorari for quashing the order dated 7.8.1992 (Annexure 5) of the respondent No. 3 which was passed on remand as per order dated 11.3.1992. By reason of the order dated 7.8.1992, the LRDC, Hazaribagh held that the lands in dispute were recorded in the names of the ancestors of the respondents Nos. 4 and 5. Consequently he passed an order directing the Circle Officer to ensure restoration of land in favour of the respondent Nos. 4 and 5.
2. The petitioners further pray for issuance of a writ of certiorari for quashing the order dated 17.12.1993 (Annexure 7) passed in Land Reference Case No. 16/92 by which respondent No. 3 ordered the restoration of lands belonging to the petitioners in favour of the respondent Nos. 4 and 5. The petitioners also make a prayer for issuance of a writ of certiorari for quashing the order dated 14.8.1995 (Annexure 7) passed by the respondent No. 2 in RAN Case No. 5/95 rejecting the appeal filed by the petitioners under Section 215 of the Chotanagpur Tenancy Act. The petitioners also pray for quashing the entire proceedings in relation to restoration of lands filed by the respondent Nos. 4 and 5 being Case No. 136/1980/1/1990.
3. Consequentially, the petitioners pray that a writ of mandamus be issued directing the respondents not to interfere with the rights of the petitioners.
4. The facts pleaded in the instant writ petition are that lands mentioned herein-after and situated in village Kulhi under Khata No. 5 were recorded in the raiyati name of the ancestors of the respondent Nos. 4 and 5. These plots are stated in paragraph 4 of the writ petition in the following manner :
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Khata No. Village Plot No. Area
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5 Kulhi 85 11 Decimals
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do do 763 16 Decimals
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do do 809 54 Decimals
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do do 810 04 Decimals
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do do 811 53 Decimals
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do do 133 20 Decimals
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Total 01.58 Acres
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5. It is further stated that Fekan Mahali who was the father of the respondent Nos. 4 and 5 surrendered the aforementioned 1.58 acres of land together with some other plots including Plot No. 1579 in Khata No. 5. The aforementioned surrender by Registered Deeds dated 8.9.1942 and 3.2.1943 were made in favour of landlord Udit Mahto son of Thanu Mahto and Redai Mahto son of Chanu Mahto, These deeds are Annexures 1 and 1/A to the writ petition.
6. After the aforementioned surrender of the lands in question, Udit Mahto made a raiyati settlement of all the above lands in favour of the ancestors of the petitioners by Registered Deed dated 2.11.1942 and 3.2.1943 vide Annexures 1C and 1B respectively.
7. After vesting of the Jamindari under the provisions of the Bihar Land Reforms Act, the State of Bihar recognized the raiyati status/right of the settlees and entered their names in the revenue records and issued rent receipt vide Annexures 2 to 2/C. It is stated that after taking settlement in the year 1942-43, the ancestors of the petitioners and after them, the petitioners themselves have been coming in continuous cultivating possession over these lands and have been exercising all acts of possession/Raiyati possession and have been regularly paying rent to the State of Bihar.
8. After about 38 years from the date of surrender/settlement, the respondent No. 5 filed an application on 20.2.1981 purporting to be under Section 46(4)(a) of the Chotanagpur Tenancy Act, 1908 (hereinafter referred to for the sake of brevity as the CNT Act) before the Court of the LRDC Hazaribagh (respondent No. 3) against the father of the petitioners and also against one Ugan Mahto and some others for restoration of some of the lands mentioned above namely Plot Nos. 85 (11 decimals). Plot No. 810 (4 decimals), Plot No. 811 (53 decimals) and Plot No. 1579 (69 decimals). The other lands which he prayed for restoration were Plot No. 105 (19 decimals), Plot No. 133 (20 decimals) and Plot No. 1680 (1.41 Acres). In other words he prayed for restoration of 3.17 acres of land. The aforementioned application for restoration was registered as case No. 110 of 1981 vide Annexure 3. This application was dismissed on 24.10.1981 vide Annexure 3/A. One of the grounds for dismissal of the aforementioned application was that from a perusal of all documents it was evident that the lands in question were in possession of the petitioners for more than 12 years and therefore, under Section 46(4)(a) of the CNT Act, the claim was barred.
9. It is stated in paragraph 6 of the writ petition that the order dated 24.10.1981 as contained in Annexure 3/1 attained finality in as much as neither any appeal nor any revision was filed against the same by the respondent No. 5.
10. Yet another proceeding, as has been stated at paragraph 7 of the writ petition, for restoration of the same plots had been filed by the same respondent Nos. 4 and 5 in 1980 and which was registered as Case No. 136 of 1980 and this restoration application was also directed against the same petitioner in which Ugan Mahto and others appeared and filed their cause and documents before the respondent No. 3. After hearing, the respondent No. 3 dismissed this application also vide his order dated 14.12.1981.
11. Against the aforementioned order dated 14.12.1981, the respondent Nos. 4 and 5 filed an appeal before the respondent No. 2 (Additional Collector, Revenue, Hazaribagh) vide Case No. R.A. 7/82 and by order dated 4.6.1984 (Annexure 4), the respondent No. 2 rejected the claim of respondent Nos. 4 and 5 and dismissed the appeal after holding that the surrender and settlement in respect of Plot Nos. 85, 810, 811, 133 and 1680 stood proved. He further held that although the surrender in relation to Plot No. 1579 was referred to in favour of Ugan Mahto but no papers had been produced in support thereof. Similarly, no papers were shown in relation to Plot No. 105. He accordingly held that in so far as these two plots are concerned, namely Plot Nos. 105 and 1579, the same should be treated as lands belonging to the appellants. Consequently, the claim of the respondent Nos. 4 and 5 in so far as it related to Plot Nos. 105 and 1579 was allowed with a direction to the Circle Officer, Ramgarh that if these lands were not found in possession of the appellants (meaning thereby the respondent Nos. 4 and 5) then he should ensure that these two plots are restored to them.
12. In other words, the appellate Court rejected the claim of the respondent Nos. 4 and 5 in respect of Plot Nos. 85, 810, 811, 133 and 1680 but allowed their claims only in respect of Plot Nos. 105 and 1579.
13. Being aggrieved by the aforementioned order in respect of restoration of the lands belonging to Ugan Mahto (Plot No. 1579, the said Ugan Mahto filed CWJC No. 1117 of 1984(R) and by judgment dated 23.4.1991 as stated in paragraph 10(b) of the writ petition, the said writ petition was allowed and the order of restoration as against Ugan Mahto was quashed.
14. In the mean time, the respondent Nos. 4 and 5 being aggrieved by the other portion of the order dated 4.6.1984 passed by the respondent No. 2 vide Annexure 4 filed a revision before the Commissioner. The Commissioner, as stated in paragraph 11 (a) remanded the matter to the Additional Collector, Hazaribagh (respondent No. 2) who, in his turn, by order dated 16.12.1989, remanded the matter back to the original Court namely to the Court of the respondent No. 3.
15. Then by order dated 4.12.1991, the respondent No. 3 once again decided the matter but this time he reversed his earlier order dated 14.12.1981 and passed an order of restoration in favour of the respondent Nos. 4 and 5.
16. Being aggrieved by the order dated 4.12.1991, passed by the respondent No. 3, the petitioners moved in appeal before the respondent No. 2 vide appeal No. 2/92 which was allowed by order dated 11.3,1992 and the matter was again remanded to the respondent No. 3 for rehearing. Upon such remand, the respondent No. 3 re-decided the issue on 7.8.1992 (i.e. the 1st impugned order as contained in Annexure 5). While deciding the respondent No. 3 held as follows :
“(a) That the lands were recorded in the names of the ancestors of the respondent Nos. 4 and 5 and had been surrendered to the landlord by registered deed dated 3.2.1943 but there is no statement in that deed that prior to the said surrender, permission of the Deputy Commissioner had been obtained or not.
(b). That the raiyati settlements were made on the same day i.e. 3.4.1943 and therefore, it was not proper.
(c) That the deed of settlement and surrender both are illegal.
17. Since Ugan Mahto had succeeded in his writ application by virtue of the order dated 23.4.1991 passed in CWJC No. 1117 of 1984(R) and since all these plots were also subject matters of the proceedings out of which the said writ application arose, the petitioners therefore, filed an application for review before the respondent No. 3 but by order dated 17.12.1993 (Annexure 5/A 2nd impugned order) the respondent No. 3 refused to interfere.
18. Then being aggrieved, the petitioners filed CWJC No. 723 of 1994(R) and by order dated 15.2.1995, the writ petition was dismissed vide Annexure 6 on the ground of alternative remedy.
19. Thereafter, the petitioners filed an appeal before the respondent No. 2 which was registered as RAN Case No. 5/95 and by order dated 14.8.1995 (the 3rd impugned order), the said appeal was dismissed.
20. The learned counsel for the petitioner submitted that the principles on the basis of which decision was rendered in favour of Ugan Mahto in CWJC No. 1117 of 1984(R) should have also been applied in the case of the petitioner but none of the respondents dealt with this issue. It was further submitted that admittedly, surrender and settlement took place on 3.2.1943 and therefore, the proceeding for restoration could only have been filed under Section 46(4)(a) within 12 years and not thereafter; It was further argued that in any event the claims are barred by res judicata in as much as the same claim was brought vide case No. 10 of 1991 was dismissed by order dated 24.10.1981 which attained finality as no appeal or revision was filed against the same.
21. In the counter affidavit filed on behalf of the respondent Nos. 1 to 3 it has inter alia been stated that there was a forcible deed of surrender on 3.2.1943 by one Fekan Mahali in the name of Udit Mahato and others and were settled in the name of the Jhama Mahato without obtaining prior approval of the Deputy Commissioner under Section 71(a) of the Chotanagpur Tenancy Act. The other paragraphs of that counter affidavit are the repetition of facts.
22. The counter-affidavit of Respondent Nos. 4 and 5 is very short and in paragraph-7, it says that the statements of the Writ Petitioners made in the Ist part of paragraph No. 4 (a) and the other paragraphs namely 5 to 14 (c) are matters of record and the Petitioners must prove them.
23. In this context it is relevant to mention that in paragraph 5 of the Writ Petition, the Petitioners have stated that on 20.2.1981, the Respondent No. 5 filed an application under Section 46 (4)(a) of the CNT Act for restoration of lands belonging to the Petitioners and one Ugan Mahato of the same Khata in village Kulhi. This proceeding was recorded as Case No. 110 of 1981 and it was dismissed on 24.10.1981. In paragraph 6 it has been stated that no appeal or revision was filed against the said order dated 24.10.1981 which became final. These statements made in paragraphs – 5 and 6 have been replied by the Respondent Nos. 4 and 5 as being matters of record. It would be relevant to mention that in paragraph 5, the numbers of Plot Nos. 85, 810, 811, 1579, 105, 133 and 1680 has been mentioned Annexure 8, is the application which was filed on 20.02.1981 by the Respondent No. 5 and from a perusal thereof, it appears that the said Respondent No. 5 prayed for restoration of Plot Nos. 810 (0.4 Decimals). 811 (0.53 Decimals), 85 (0.11 Decimals), 1579 (0.69 Decimals), 105 (0.19 Decimals), 133 (0.20 Decimals), 1680 (1.41 Acres).
24. This claim of the Respondent No. 5 was dismissed on 24.10.1981 by Annexure 3/A as stated in paragraph 6, of the Writ Petition holding that the application having been filed much after. 12 years was barred under Section 46(4)(a). Admittedly, no appeal or revision was filed against this order. These statements made in paragraphs 5 and 6 have merely been stated as matters of record without any denial. It would further be relevant to take note of the fact that on 04.06.1984, the Additional Collector in the Order passed in appeal filed by the Respondent No. 4 held that the surrender in respect of Plot Nos. 85, 810, 811, 133 and 1680 stood proved. The appeal was allowed only in respect of Plot Nos. 105 and 1.79. These two lands belong to Ugan Mahato and he filed CWJC No. 1117 of 1984 (R) That Writ Application was allowed and two paragraphs from the judgment passed therein namely paragraph – 10 and paragraph – 14 would be relevant to take into consideration. They are accordingly quoted below :
“10. Mr. V.P. Singh, the learned counsel appearing on behalf of the petitioner raised a short question in support of this application. The learned counsel contended that in view of the fact that the application filed by the respondent Nos. 4 and 5 purported to be in terms of Section 46(4-A) of the Chotanagpur Tenancy Act being Case No. 110 of 1981 having been rejected by an order dated 24.10.1981 and as contained in Annexure 4 to the writ application; the same shall operate as res judicata.
14. The petitioner, therefore, does, not claim any title in respect of Plot No. 105 by reason of the said purported settlement made in the year 1945. However, as it appears from the order dated 24.10.1981 as contained in Annexure 4 to the writ application evidently, both plots were the subject matter of the earlier proceeding under Section 46 (4A) of the Act, being Case No. 10 of 1981. The order dated 24.10.1981, therefore, shall operate as res-judicata in the subsequent proceeding.”
25. There is no denial of the fact that for the same cause of action the Ist round of litigation ended in favour of the Petitioners and against the Respondents by Order dated 24.10.1981 passed in Case No. 110 of 81. Obviously, therefore, the 2nd proceeding becomes barred under the principles of res judicata. That apart, the provision in relation to surrender of land as provided under Section 72 of the Chotanagpur Tenancy Act, was introduced in the Act by Act 25 of 1947. Thus at the time when the registered surrender were made in the instant case, there was no requirement for seeking permission of the Deputy Commissioner. That being the condition, it cannot be said that the surrender of the land made in 1943 was bad. To that extent the Order dated 7.8.1992 (Annexure 5) must be held to be bad. Reference in support of the aforesaid proposition can be had from the case of (1) “Jai Mangal Oraon v. Meera Nayak (SMT) and Ors.” reported in (2000) 5 SCC 141 and (2) “Nand Kumar Sahu v. The State of Bihar and Ors.” reported in “1988 BLT (Rep.) 18 (Patna)”
26. In addition it is evident that the application for restoration under Section 46(4)(a) was filed after about 38 years from the date of surrender Section 46(4)(a) clearly stipulates that no application can be entertained unless it is filed within a period of 12 years. The first order dated 24.10.1981 was, therefore, correct. There was no appeal or revision against that order. It attained finality.
27. Thus, this Writ Application must succeed basically on three issues. Firstly, the proceedings were barred under the principles of res judicata, secondly, the principle applied by another Bench of this Court in CWJC No. 1117 of 1984 (R) should have been made applicable in the facts and circumstances of this case, and thirdly, prior permission of the Deputy Commissioner was not required in the year 1942-43 which were the dates of surrender in the instant case.
28. The Petitioners have filed a supplementary affidavit on 19.9.1998 and they have stated various facts including the fact that Udit Mahato was not the landlord at the relevant time of the surrender and therefore, he could not have settled the lands of the ancestors of the Petitioners. In this affidavit they have stated that Chamanlal was the actual landlord and that by a Deed dated 26.6.1915, he had given the land in mortgage for three years to Udit Mahato and Bhanu Mahato with a clear stipulation that they should not make settlement of any lands and therefore, Udit Mahato could not have accepted the surrender from Fekan Mahali nor could he have made the settlement.
29. These submissions are being made much after the period prescribed and in any event, as has already been held earlier, the proceedings were barred under the principles of Res judicata and not maintainable under Section 46(4)(a). That being the position, these submissions of the Respondents cannot be accepted at this stage and specially when, these are all questions of fact. The remedy, if any, of the Respondent Nos. 4 and 5 would be by way of filing a suit for declaration of title with consequential relief of confirmation and/or recovery of possession.
In that view of the matter, the impugned orders cannot be sustained. The Writ Petition is allowed and the impugned orders as contained in Annexures -5, 5/A and 7 are quashed and set aside. There shall be however no order as to costs.