- (1.) THIS appeal is directed against the order dated 18.06.2003 passed by learned Single Judge in W.P.(C) No. 3771 of 2002, whereby and whereunder the writ application filed by appellants, challenging the order of Divisional Commissioner, Santhalparagana in R.M. Appeal Case No. 142 of 1997 -98, has been dismissed.
(2.) SANS unnecessary particulars, the facts of the case are that the disputed lands, recorded in the names of appellants' ancestors, acquired by the Deputy Commissioner in L.A. Case No. 5 of 1936 -37 for the purpose of 'hat' in Village -Sarasdangal. It then appears that after acquisition of the said lands, the same were settled with the ex -landlord. Thereafter, the disputed lands were settled with Basudeo Bhagat by registered deed of settlement dated 2.04.1938. It is alleged that the lands are non -transferable agricultural lands, therefore, cannot be transferred by way of sale, gift, mortgaged or otherwise. It is further stated that the purpose for acquisition of lands is for 'hat' and not for Basouri, therefore, cannot be transferred in violation of provisions of Santhalparagana Tenancy Act. It appears that the appellants filed an application before the Settlement Officer, Dumka for eviction of respondents from the disputed land and for recording of their names in the record of rights. On the basis of application of the appellants R.E. Case No. 1 of 1997 -98 was instituted. It further appears that vide order dated 20.06.1997, the Settlement Officer, Dumka allowed the aforesaid application of the appellants and ordered that the names of the appellants to be entered in the record of right and respondents be evicted from the land in question. Against the aforesaid order respondents filed an appeal before the Divisional Commissioner, Santhalparagana Division, Dumka which was registered as R.M. Appeal Case No. 142 of 1997 -98. The Divisional Commissioner vide his order dated 23.05.2002 allowed the appeal and set aside the order of Settlement Officer, Dumka. Against the aforesaid order, appellants filed writ petition in this Court vide W.P.(C) No. 3771 of 2002 which was dismissed by a learned Single Judge vide order dated 18.06.2003. Against the said order the present appeal filed. The respondents on being noticed appeared before the learned Single Judge and filed counter affidavit stating therein that it is true that earlier the lands in question was recorded in the name of ancestors of appellants, but the said lands were acquired in L.A. Case No. 5 of 1936 -37 under Section 25A of Regulation II of 1886. It is further stated that after acquisition, the lands in question settled with ex -landlord through the machinery of Court. It is stated that subsequently ex -landlord settled the land in favour of ancestors of respondents. It is further stated that under the Santhalparagana Tenancy Act, once the land acquired under Section 25A of Regulation II of 1886, it becomes Basouri land, consequently, it can be transferred. Thus, the settlement by ex -landlord in favour of respondents ancestors is legal and not in violation of the provisions of Santhalparagana Tenancy Act. It is further stated that in the year 1976 -77, the Circle Officer, Shikaripara filed an application before the Sub -Divisional Officer, Dumka for eviction of respondents from lands in dispute. The said application was registered as R.M. Case No. 207 of 1976 -77. The S.D.O., Dumka vide his order dated 05.06.1979 dismissed aforesaid application. Against that an appeal filed before the Deputy Commissioner, Dumka vide Revenue Misc. Case No. 665 of 1979 -80, which was allowed and order of S.D.O., Dumka set aside. It is stated that against the said order of Deputy Commissioner, Dumka an appeal filed by the respondents before the Divisional Commissioner, Bhagalpur. It is stated that in the said appeal ancestors of appellants filed an application for impleading them as party, which was allowed. It is further stated that the Divisional Commissioner, Bhagalpur, after considering the case of the parties, allowed the appeal and set aside the order passed by Deputy Commissioner, Dumka. It is stated that the aforesaid order of Divisional Commissioner, Bhagalpur has not been challenged by the appellants or his ancestors. It is submitted that the subsequent application filed by the appellants, before the Settlement Officer, Dumka, is barred by res -judicata. It is also stated that the Settlement Officer, Dumka has no jurisdiction to hold that Section 25A of the Regulation II of 1886 is ultra vires to the Constitution of India, and Section 299(2) of the Government of India Act, 1935. Accordingly, respondents stated that the order of Divisional Commissioner, Dumka in R.M. Appeal Case No. 142 of 1997 -98 as well as the impugned judgment passed by learned Single Judge based on sound legal principle, thus, do not require any interference.
(3.) IT is submitted by learned Counsel for the appellants that the lands in question are non -transferable land, therefore, transfer made by the ex -landlord in favour of ancestors of respondents is illegal. It is further submitted that though the ancestors of appellants filed application in S.P. Rev Misc. Appeal No. 60 of 1982 -83 for impleading them as parties, but they have not been impleaded in the said appeal. Thus, the finding of Divisional Commissioner, Dumka in R.M. Appeal Case No. 142 of 1997 -98 that the application filed by ancestors of appellants has been allowed is off the record. Therefore, application filed by the appellants before the Settlement Officer, Dumka is not hit by res -judicata.;