Judgment:
Ajit Kumar Sinha, J.
1. In the instant writ petition the petitioner prays for issuance of a writ of certiorari or any other appropriate writ, rule, order or direction to quash the order dated 28.9.99 passed by respondent No. 2 in Land Restoration Revision No. 32/94 allowing the Revision and setting aside the order dated 18.6.88 passed by respondent No. 3 in Land Restoration Appeal No. 28/1986 and confirming the order dated 4.3.86 passed by respondent No. 5 in Land Restoration case No. 66/85 whereby the respondent No. 6 in purported exercise of its power under Section 46(4)(a) C.N.T. Act illegally passed order for restoration of Land belongs to the petitioner's wife Smt. Chintamani Devi in favour of respondent No. 5.
2. The facts, in brief are set out as under:
The dispute involves an area measuring 0.24 acres of which 0.12 acres of plot No. 423 and 0.12 acre of plot No. 429 under Khata No. 141 of village Cantonment, Thana No. 157, P.S. and Sistt. Hazaribag The Khata No. 141 is recorded in the name of Mosemat Lakshmania who died leaving behind one son Bandhan Uraon, who also died leaving behind his only son Fagu Uraon. Fagu also died leaving behind three sons Mangar Uraon, Santu Uraon and Dadhwa Uraon. Phulo Devi is widow of Mangar Uraon. It is submitted that one Chintamani Devi w/o opposite party prior to her marriage occupied the land in 1948 and after marriage of O.P. fenced the area with pucca boundary and excavated a well and constructed a house. In the year 1964 Fagu Uraon (father of the petitioner) filed T.S. No. 997/1974 before Munsif for declaration of title against Chintamani Devi. But he allegedly compromised in 1965 accepting the title and possession of Chintamani Devi and the Decree was ordered in favour of Chintamani Devi on 8.6.1965. Revenue authorities allowed mutation in favour of Chintamani Devi in 1966-67 and rent was fixed from Municipality also. Again Fagu filed an application under Section 46(4a) of the C.N.T. Act for restoration of land which was recorded as L.R. Case No. 407/76 before L.R.D.C. which was allowed vide order dated 8.8.1977. Against this order, an appeal was filed before Additional Collector as C.N.T. Appeal No. 82/77. In the meantime, Fagu died and his three sons Mangra, Dhadwa and Santu were substituted. These substituted petitioners allegedly filed a compromise petition on 12.4.1982 accepting the possession of Chintamani Devi (w/o O.P.) On the basis of affidavit and petition, the Additional Collector vide order dated 28.7.1982 allowed the appeal in favour of Chintamani Devi (wife of present O.P.)
After lapse of three years, instead of filing Revision before Divisional Commissioner, Mangra Uraon & his brothers filed fresh case for the restoration of disputed land before Land Reforms Deputy Collector, Hazaribag, being L.R. Case No. 66/85 against the husband of Chintamani Devi (present O.P.) and learned L.R.D.C. did not advise the petitioners to go for revision and admitted the case afresh and vide order dated 4.3.1986 passed order for the restoration. Against this order, the O.P. filed an appeal No. RAN-29/86 before Additional Collector, Hazaribagh who quashed the order of the L.R.D.C. on the grounds of limitation bar and resjudicata. The learned Additional Collector also relied on the previous judgment of his predecessor passed on 28.7.82 in 82/77 in which it is mentioned that petitioners had appeared before the Court and accepted the compromise held between two parties in T.S. No. 997/1964 in which they accepted the possession from 1948. The learned Additional Collector concluded that this acceptance confirms the dispossession of the petitioners (here) for more than 30 years and under these circumstances he could not find any provision for restoration under Section 46 of the C.N.T. Act.
3. The main contention raised by the counsel for the petitioner is that there has been a delay of 6 years in filing the revision petition and it has also been submitted that they are in possession for more than the statutory period of 12 years. It has further been contended that in any case the restoration petition and the revision is barred by principles of resjudicata since the matter was already settled in the title suit as well as before the authority subsequently and the petition for restoration was filed after a lapse of 50 years. The respondents in reply submits that the compromise decree was collusive and the transfer was fraudulent and the D.C. was not even impleaded in the title suit. It has also been contended that the petitioners are non-tribal and thus there is a statutory bar of transfer. It has also been submitted that principles of resjudicata was not applicable since the dispute/lis has not been decided.
4. I have considered the pleadings and the arguments of the rival parties. It is well settled that the word transfer used in Section 46(4)(a) and Section 71(a) of the C.N.T. Act has to be given a wider interpretation and any dispossession even by force/fraud will come under the definition of illegal transfer as has taken place in this case. The private respondents have not even produced any document which give them the right and title over the land as to how it was transferred in their favour from the tribal tenant. The decree in the title suit No. 997/64 is based on a compromise which appears to be fraudulent/collusive.
5. Be that as it may, in any case it is well settled that if a compromise is in violation of a statutory provision of law it is per se illegal and unsustainable. Section 46 of the C.N.T. Act read with Section 71A provides for restoration of tribal land transferred by any fraudulent method which will includes a decree obtained in a suit by way of fraud or collusion. The Hon'ble Supreme Court in S.L.P. (Civil) No. 17231/1991 (Birsa Munda and Ors. v. Chando Kumari and Ors. vide order dated 2.11.95 while interpreting Section 71 of the C.N.T. Act held that fraudulent and forcible dispossession will also be included as a transfer. The second contention with regard to the period of dispossession, it will be evident that the learned L.R.D.C. while examining the case in L.R. Case No. 407/76 and L.R. Case No. 66/85 held that dispossession was within 12 years and the private respondents did not produce any substantive proof which can support dispossession for more than 12 years. The revisional Court has rightly held that there was no documentary evidence/proof to show how and when the opposite party, private respondents herein, or his wife came in possession of the land and thus it was inconceivable that a minor girl from another place acquired a tribal land in 1948. Even the mutation has taken place in the year 1966-67 which is nearly 20 years after the alleged possession of land which also betrays the claim of possession since 1948. Learned Counsel for the petitioner has placed reliance on 1992 (2) PLJR 343 (Malo Devi v. State of Bihar)
6. The order of the Additional Collector was an exparte order and settled law is that the D.C. can suo motu initiate a case at any time for restoration of alienated tribal land under Section 46(4A) read with Section 71A of C.N.T. Act. The fact remains that the petitioner did not produce any document or paper before the learned Munsif or before any court/authority to support his case of purchase in 1948 and even when the L.R.D.C. visited the disputed land in 1986 he found the construction incomplete as claimed by the petitioner. Thus it was rightly concluded that the dispossession was within the period of 12 years and accordingly it was rightly restored.
7. The Hon'ble Supreme Court overruled the Full Bench decision as reported in 1992 (1) PLJR 89 (S.C.) (Pandey Oraon v. Ramchandra Singh and Ors.) which reads the expression transfer appearing in Section 71A of C.N.T. Act must be interpreted liberally in the context of beneficial legislation for protection of a member of scheduled tribe and it has been held that the transfer as understood in Transfer of Properties Act should not be applied for the purpose of deciding the case of transfer under the C.N.T. Act. Section 46(1) of C.N.T. Act put complete bar on transfer of raiyati land belonging to tribal to a non-tribal. Section 46(3) prohibits any Court from recognizing as valid such illegal transfer. Therefore a decree obtained by fraudulent means or false compromise cannot prevail over the statutory provisions of law.
8. Considering the aforesaid facts and evidence, I find that the order of the revisional authorities is perfectly legal and valid and it has rightly came to the conclusion based on evidence that the opposite party came in possession in and around 1964 by fraudulent means prompting the tribal raiyat to file title suit which was also fraudulently and illegally compromised. The third contention with regard to applicability of principles of resjudicata, it can be conclusively held that the principles of resjudicata applies only when a dispute or a lis between the parties are decided on merits and thus the same has no application in the present case in view of a decree by a fraudulent compromise and the title was never decided on merits. Section 46 of the C.N.T. Act totally prohibits transfer of tribal raiyati land to a non-tribal and even Section 46(1A) does not empower the Deputy Commissioner to grant permit for such transfer. Thus the transfer of tribal raiyat land to a non-tribal is ab-initio illegal and invalid and the law clearly enjoins that any Court in exercise of civil, criminal or revenue jurisdiction cannot hold such transfer as valid and legal and even the jurisdiction has been barred.
9. The judgment referred Supra and cited does not apply to the facts of this case since these were cases where it was proved beyond doubt that the restoration of possession were sought after a lapse of 12 years and thus it was barred by limitation. Even the last contention that petition for restoration has been filed after 50 years is erroneous and unsustainable since the restoration was filed initially in 1976 i.e. within 30 years.
10. Considering the aforesaid facts and circumstances of the case this appeal is accordingly dismissed without any order as to costs.