Vishnudeo Narayan, J.
1. This appeal at the instance of the plaintiffs-appellant stands directed against the impugned judgment and decree dated 30.4.1988 and 7.5.1988 respectively passed in Title Appeal No. 6 of 1987 by Shri Krishna Nand Singh, Additional Judicial Commissioner, Ranchi whereby and whereunder the judgment and decree dated 31.7.1986 and 16.8.1986 passed in Partition Suit No. 53 of 1978/42 of 1985 by Additional Sub-Judge, Ranchi was affirmed and the appeal was dismissed.
2. The appellants have filed the said suit for partition of the suit property detailed in Schedules 'B' 'C' of the plaint and also for a declaration that the order under Section 71-A of the Chotanagpur Tenancy Act (hereinafter referred to as the said Act) is void, illegal and erroneous.
3. The case of the appellants is that the parties to the suit are members of the joint Hindu family being the descendants of a common ancestor resident of village Senha Tola Bartoli, P.S. Senna, District Ranchi (now Lohardagga) and the said common ancestor was recorded in respect of the suit property in the Survey Records of Right and they are still continuing joint and there has been no partition by metes and bounds. It is also alleged that parties to the suit are Oraon by caste and they have been sufficiently Hinduised by local, caste and family customs and are governed by Mitakshara school of Hindu Law. The further case of the appellants is that the parties to the suit are in joint possession but for the sake of convenience some of the suit plots are cultivated separately by them. The further case of the appellants is that one Gajadhar Ram Pandey purchased the land of khata No. 35 in auction sale in the Execution case No. 82 (R)-9 of 1942-43 arising out of rent suit but the said auction sale is in contravention of Section 47 of the said Act and if there was any settlement by Gajadhar Ram Pandey orally, both the parties to this suit had paid the consideration and both the parties were in the joint possession thereon and due to mistake original plaintiff Laxminia Oraon (who has died during the pendency of this suit) had filed a case for setting aside auction sale of khata No. 35 under Section 71-A of the said Act. The further case of the appellants is that the land of Schedule 'C' of the plaint is the ancestral joint family properties of the parties and at the time of Revisional Survey their ancestors were cultivating the land separately for the sake of convenience and as such separate khata has been prepared according to their cultivation though there was and is no partition by metes and bounds and the land of Schedule 'C' is also not according to their respective and proportionate shares and the Revisional Survey Records of Right is incorrect and parties to this suit are cultivating the land of Schedule 'B' separately for the sake of convenience.
4. The case of defendants-respondent, inter alia, is that there was amicable partition between the parties before the revisional survey and they were in separate and exclusive possession of the land but no separate khata was prepared and the rent was joint and their separate possession has been recorded in the remarks column of the Survey Records of Right and similarly Bhuinharl lands belonging to the parties have also been partitioned and separate khewats were prepared for each branch. Their further case is that the then landlord Maharaja of Ratu filed a rent suit against the recorded tenants of khata No. 35 and got a decree and in execution of the said decree in Execution Case No. 82 (R)-9 of 1942-43 one Gajadhar Ram Pandey auction purchased the entire land appertaining to khata No. 35 and delivery of possession over the land of khata No. 35 was effected in his favour and he paid rent to the then landlord for some years and thereafter, orally settled the land of khata No. 35 to the defendant-respondent Ram Pahan and thereafter said Ram Pahan and his brothers got their names mutated in the State of Bihar and are getting regular rent receipts of their rent and since then the defendants-respondent are in possession of the lands under khata No. 35 continuously and openly for more than twelve years and have acquired perfect title by adverse possession and the plaintiffs-appellant have no subsisting title or possession over the land of khata No. 35 after the said auction sale. Their, further case is that plaintiff-appellant Laxminia Oraon (since dead) had filed a case under Section 71-A of the said Act for restoration of possession in her favour in respect of the entire land of khata No. 35 and the said case was dismissed and, thereafter, she has filed this suit for partition on fictitious grounds.
5. In view of the pleadings of the parties the following issues were framed by the trial Court for adjudication in this case :
(i) Is the suit as framed maintainable?
(ii) Have the plaintiffs got any cause of action or right to sue?
(iii) Whether the defendants purchased the suit land mentioned in Schedule 'B' alone or along with plaintiffs?
(iv) Whether the auction sale is against the provisions of Section 47 of the CNT Act?
(v) Whether the claim of the plaintiff No. 2 under Section 71 of CNT Act is barred to the present suit?
(vi) Whether there is unity of title and possession of the parties over the suit land?
(vii) Whether the suit is barred by adverse possession and ouster?
(viii) Whether the suit is barred under Sections 258, 139 and 139-A of CNT Act?
(ix) Whether the plaintiffs are entitled to get the reliefs as prayed for ?
(x) To what other relief or reliefs, if any the plaintiffs are entitled?
6. In view of the evidence oral and documentary on the record while deciding issue Nos. (iii) to (viii) the learned. Trial Court has held that the land of khata No. 35 detailed in Schedule 'B' of the plaint was auctioned sold in the execution of the rent decree vide Execution Case No. 82 (R)-9 of 1942-43 and it was purchased by Gajadhar Ram Pandey and sale certificate was issued in his name and delivery of possession was also effected in his favour and now the auction sale cannot be challenged after such a long period. The learned Trial Court has further held that the defendants-respondent has acquired the suit land by oral settled from Gajadhar Ram Pandey and it is not a joint acquisition by the defendants-respondent along with plaintiffs-appellant and there had been mutual partition prior to the revisional survey and there is no unity of title and possession between the parties in respect of the suit land and the plaintiff-appellant is not in possession over the land of khata No. 35 and she has also lost the restoration case under Section 71-A of the Chottanagpur Tenancy Act filed by her and the Trial Court has no jurisdiction in the matter in view of the order passed under Section 71-A of the said Act. Lastly it has been held that the defendants-respondent have perfected their right title and interest by adverse possession also and the suit is barred by adverse possession and ouster and the auction sale is not in contravention of the provision of Section 47 of the said Act. In view of the finding aforesaid the learned Trial Court has dismissed the suit.
7. Aggrieved by the judgment and decree of the Trial Court the plaintiffs-appellant preferred Title Appeal No. 6 of 1987. The lower appellate Court on reappraisal and re-appreciation of the evidence oral and documentary on the record affirmed the judgment and decree of the trial Court and dismissed the appeal. The lower appellate Court has held that the auction sale of land of khata No. 35 cannot be said to be in contravention of the provisions of the said Act and the auction purchaser Gajadhar Ram Pandey has settled the land orally with the defendants and since then the defendants-respondent are in possession of the land under khata No. 35 and it is not a joint acquisition and there had been mutual partition between the parties prior to the revisional survey and there is no unity of title and possession between the parties over the suit land and the plaintiffs-appellant have lost the proceeding under Section 71 -A of the said Act and, thereafter, her suit before the Trial Court is barred and plaintiffs-appellant cannot be said to be in Joint possession of the suit land along with the defendants-appellant.
8. Aggrieved by the judgment and decree of the appellate Court below the plaintiff-appellant has preferred this appeal before this Court. While admitting the appeal vide order dated 23.11.1989 the following substantial question of law was formulated :
'whether the Court below could have held that in view of the decision in the proceeding under Section 71-A of the Chottanagpur Tenancy Act, 1908 (the Act), the suit was not maintainable in view of Section 258 of that Act.'
9. Assailing the impugned judgment it has been submitted by the learned counsel for the plaintiffs-appellant that the learned Court below has committed a manifest error in coming to the finding that the jurisdiction of the Civil Court is barred in view of the fact that there had earlier been an order under Section 71-A of the said Act whereby restoration of possession in favour of the plaintiffs-appellant was refused by the Revenue Court and thus the provisions of Sections 258, 139 and 139-A are not at all attracted in this case and the order passed under Section 71-A of the said Act is illegal and without jurisdiction and then the Civil Court has got its own jurisdiction under Section 9 of the Code of Civil Procedure. It has also been submitted that auction purchaser Gajadhar Ram Pandey was himself a raiyat and as such question of oral settlement by him In favour of the defendants-respondent does not arise at all and, therefore, the alleged settlement is illegal and without any basis and as such an adverse Inference ought to have drawn against the title of the defendants-respondent in respect of the land of khata No. 35. It has also been contended that khewat No. 3/10 is still the joint khewat of the parties which proves the fact that the parties are still joint but the learned Court below did not consider this aspect of the case and has erred in coming to the finding that there is no unity of title and possession between the parties. In support of his contention reliance has been placed upon the ratio of the case of Paritosh Maity v. Ghasiram Malty and Anr.. 1987 PLJR, 354.
10. The defendants-respondent have not appeared in this case in spite of service of notice on them.
11. The subject matter for metes and bounds partition in this case Is Schedule 'B' and Schedule 'C' land of the plaint. Schedule 'B' land appertains to khata No. 35 recorded in the revisional survey Khatiyan as a Raiyati kaiyami land in the names of the ancestors of the parties to this case jointly but in the remark column of the Survey Records of Right distinct possession over each plot of the recorded tenant has been mentioned whereas Schedule 'C' land consisting of several khatas stands recorded as Bakast, Bhuinhari Pahani land under different khewat separately and distinctly in the name of the ancestors of the parties to the suit except khewat No. 3/10. Both the Courts below have concurrently held in view of the evidence on the record that there had been metes and bounds partition in respect thereof prior to revisional survey between the parties and there is no unity of title and possession between them in respect thereof. There was a rent suit filed by the then landlord against recorded tenants of khata No. 35 aforesaid for arrears of rent and in execution of the said decree vide Execution Case No. 82 (R)-9/ 1942-43 the land of khata No. 35 was auction sold which was purchased by Gajadhar Ram Pandey and Sale Certificate was issued in the name of the said certified purchaser and delivery of possession in respect thereof was also effected in his favour. It, therefore, appears that land of khata No. 35 no longer remained the properties of the parties to the suit after the auction sale. The said certified purchaser remained in possession over the land of khata No. 35 and, thereafter, he settled the land of khata No. 35 with defendants-respondent orally after few years of the said auction sale and, thereafter, the defendants- respondent came in possession over the same and paid rent to the landlord, and, thereafter to the State and they are in cultivating possession over the same since their settlement. Both the Courts below have held that the defendants-respondent have exclusively acquired the land of khata No. 35 and it is not a joint acquisition. Admitting the possession of the defendants-respondent over the land of khata No. 35 plaintiff Laxminia Oraon (since dead) had filed a case under Section 71-A of the said Act for restoration of possession in her favour in respect of the entire land of khata No. 35 vide SAR Case No. 57 of 1977-78 which was dismissed by the competent authority and the said order had reached its finality for the reasons that no appeal was filed against that order by her and in the said suit she has also sought a relief for a declaration that the said order is void, illegal and erroneous. Both the Courts below have concurrently held that the suit of the plaintiffs-appellant in view of the decision in the proceeding under Section 71-A of the said Act is not maintainable. Section 71-A of the said Act has been inserted in the said Act by amendment by the Bihar Scheduled Areas Regulation, 1969. In exercise of the powers conferred under para 6 of the Fifth Schedule to the Constitution of India, the Scheduled Areas (Part A States) Order, 1950 was made specifying certain areas in various Part A States as Scheduled Areas Among the areas in the State of Bihar declared as Scheduled Areas by 1950 Order aforesaid is Ranchi, and Lohardagga was the then Sub-Division within the district of Ranchi. Acting in exercise of the powers conferred by para 5 of the Fifth Schedule to the Constitution, the Governor of Bihar, made the Bihar Schedule Areas Regulation, 1969. The Regulation amended in their application to the Schedule Areas various Acts, including the Chottanagpur Tenancy Act, 1908 and Indian Limitation Act, 1963. The regulation amended Article 65 of the Indian Limitation Act by substituting 30 years, as the prescribed period of limitation in place of 12 years and it also made certain amendments to the Chottanagpur Tenancy Act regarding which it is only necessary to state that it added a new Section 71 -A of the said Act. Section 71-A of the said Act empowered the Deputy Commissioner to restore possession to raiyats belonging to the Scheduled Tribes over lands, if the Deputy Commissioner was satisfied that the transfer of the land had been effected in contravention of the provisions of Section 46 or any other provision of the Act or by any fraudulent method. For proper appreciation of the matter in controversy Section 71-A of the said Act is quoted below :
'71-A. Power to restore possession to member of the Schedule Tribes over land unlawfully transferred.--if at any time it comes to the notice of the Deputy Commission that transfer of land belonging to a raiyat who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or any other provision 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 enquiry 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 the Scheduled Tribes according to the village custom for the disposal of an abandoned holding.
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It is, therefore, clear that by virtue of Section 71-A of the said Act the Deputy Commissioner has the power to evict the transferee from the land if the transfer has taken place in contravention of Section 46 or any other provisions of the Act or by any fraudulent method in suits by fraud or collusion and that the power can be exercised by him at any time. To hold that power of the Deputy Commissioner is limited to setting aside or ignoring only transfers of lands which have taken place after the coming into force of Section 71 -A of the Act would involve reading limitations into the exercise of the power which are not there in the Act and there would be no warrant for reading the limitation that the impugned transfer of the land must have taken place prior to coming into force of the section. The provisions which, I have quoted above makes it crystal clear that the power extends direct restoration of land transfers of which were made prior to the coming into force of the Regulation by which Section 71-A was introduced in the Act. Furthermore, the period of limitation is 30 years within which and application shall lie before the Deputy Commissioner under Section 71-A for restoration of possession, in case, the transfer has been taken place in contravention of Section 46 or any other provisions of the said Act or by any fraudulent method. Here in this case, the auction sale took place on 24.8.1942 in Execution Case No. 82 (R)-9 of 1942-43 and sale was confirmed on 25.11.1942 and sale certificate was issued to the auction purchaser Gajadhar Ram Pandey on 19.6.1943 and decree was effected in his favour on 10.9.1943 The plaintiff-appellant filed an application under Section 71-A of the said Act before the Deputy Commissioner in the year 1977-78 which gave rise to S.R. Case No. 57 of 1977-78 i.e. after the expiry of the statutory period of 30 years and the Deputy Commissioner vide order dated 9.2.1998 dismissed the application of the plaintiff-appellant finding the auction sale not at all in contravention of any provision of the Chotanagpur Tenancy Act much less Section 46 of the said Act. The contention of the plaintiff-appellant that the said application was filed under mistake has no relevancy in this case and in this view of the matter there is no question of declaring the order of the Deputy Commissioner passed under Section 71-A of the said Act as void and illegal. However, both the Courts below have found the suit filed by the plaintiff-appellant not maintainable on the ground that in view of the order under Section 71-A of the said Act, Civil Court has no jurisdiction. Both the Courts below have erred in coming to the finding to that effect. It is pertinent to mention here that in the case of Luthra Uraon v. Samua Uraon and Ors., AIR 1948 Patna 49, it has been observed that the first part of Section 258 of the Chotanagpur Tenancy Act did not operate to bar the suit, inasmuch as the substance and scope of the decision of the Deputy Commissioner being quite different from the substance and scope demanded from the Civil Court and the decision of the Civil Court will not, therefore, vary, modify or set aside the decisions of the Deputy Commissioner. It has further been observed which runs thus :--'Where a suit for declaration of a raiyat's title and ejectment of the transferee is filed in a Civil Court after the period of three years mentioned in the old Section 46(4) has elapsed and therefore, the Deputy Commissioner can no longer entertain any application thereunder, the Deputy Commissioner cannot be said to be competent to try the suit within the meaning of Section 11, Civil PC, inasmuch as the opening words of Section 46(4), 'At any time..... portion thereof can properly be understood as affecting the jurisdiction of the Deputy Commissioner to hear the application therein authorised and not as merely imposing a limit of time and, therefore, the suit is not barred either by Section 258 or by Sections 139 and 139-A.'
In para-9, it has further been observed that :--
'In regard to the provision under (a) above, the plain wording thereof indicates clearly that what is intended is to bar suits whose object is 'to vary.... the decision....of any Deputy Commissioner.....' and the word 'indirectly' must be construed in the light of this intention. Where the whole effect aimed at in the suit will be 'to vary.... the decision.... of the Deputy Commissioner....', that will ordinarily be taken as its indirect object even though it be not so expressed in the plaint, and such a suit will be barred but where the main object of the suit is otherwise than 'to vary.....the decision of the Deputy Commissioner......' the mere fact that the suit, if decreed, will incidentally vary the effect of the decision will not suffice to bar the suit. In this connection I would quote the following extract from the judgment of Fazl Ali. j. (as he then was) in 15 Pat. 299.
'There is nothing in Section 258 of the Act to bar a suit for declaration of title and possession and other reliefs, which the Revenue Officer could not grant though it may be to some extent to vary, modify, or even indirectly set aside a decision or decree of a Deputy Commissioner.'
In the case of Karunamoy Dutta and Ors. v. State of Bihar and Ors., 1983 BLJR 244, it has been observed that Section 258 of the said Act is not a bar to a suit for declaration of title and for correction of the record of Rights. In the case of Secretary of State v. Mask and Co., AIR 1940 P C 105, it has been observed which reads thus :
'The exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied. Even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.'
In the case of Sree Raja Kanderegula Srinivasa Jagannadharao Panthala Bhadur Guru (dead) by his legal representatives v. The State of Andhra Pradesh and Ors., AIR 1971 SC 71, the ratio of the case of Secretary of State (supra) has been found favour regarding the jurisdiction of the Civil Court to entertain a suit for declaration of title and in the facts and circumstances of that case it was observed that the jurisdiction of the Civil Courts cannot be excluded. It, therefore, appears from the ratio of the aforesaid cases that the suit of the plaintiff-respondent for declaration of his title along with the consequential reliefs is maintainable in the Civil Court and it is not barred under Section 258 of the said Act and the Code of Civil Procedure confers jurisdiction upon the Civil Courts to hear and determine all civil suits and the right of every individual to have a suit determined by the ordinary Courts is an inherent part of the rule of law and is, therefore, one of the fundamental liberties of the citizen. When, therefore, the legislature takes away that right it is to be presumed that it does not intend to do so to any greater extent than the effect of the words used and the apparent object of the particular enactment necessarily require. The ratio of the case of Paritosh Maity (supra) is also relevant in this connection in which it has been observed that the questions relating the title or interest in land are matters of civil nature and jurisdiction of Civil Court can only be barred if firstly it is expressly excluded or secondly if it is so done by necessary implication. In view of the ratio of the case of Luthra Uraon (supra) and Paritosh Maithy (supra) read with the ratio of the case of Sree Raja Kanderegula Srinivasa Jagannadharao Panthala Bhadur Guru (dead) by his legal representatives (supra) the suit filed by the plaintiff-appellant for metes and bounds partition before the Civil Court is not barred under Section 258 of the said Act and viewed thus, the suit of the plaintiff-appellant is maintainable and the Civil Court has jurisdiction to entertain and decide the said suit and the provision contained under Section 258 of the said Act does not exclude the jurisdiction of the Civil Court in respect thereof. Both the learned Courts below have committed a manifest error in coming to the finding that the jurisdiction of the Civil Court is barred and thus the suit of the plaintiff-appellant is not maintainable. However, it is equally pertinent to mention here that inspite of the fact that the suit filed by the plaintiff-appellant is held to be maintainable before the Civil Court. The appeal stands concluded by concurrent findings of the fact which do not call for any interference by this Court and thus this appeal is fit to be dismissed.
12. There is no merit in this appeal and it falls. The impugned judgment is hereby affirmed. The appeal is dismissed. No order as to costs in the facts and circumstances of this case.