LAKSHMAN URAON, J. - (1.) THE instant appeal is directed against the judgment dated 11th December, 1997, passed in CWJC No. 325 of 1988 (R), whereby and whereunder, the order dated 29th March, 1976, passed in SAR No. 73 of 1975 by the Special Officer, Lohardaga, and the order dated 30th May, 1986, passed in SAR Appeal No. 15R15 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, R.S. Khata No. 40, having an area of 1.27 acres, of village Hesa Pirhi, PS Lohardaga, District Ranchi (now Lohardaga) under the provisions of the Bihar Scheduled Area Regulation Act, 1969. The Halka Karmachi 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 raiyat, who is also landless, which is clear from the order of the Settlement Officer (SARJ in SAR Case No. 73 of 1975. 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 soda 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 ceased either himself or through any other person to cultivate the land to pay his rent as it falls due, the landlord may at any time 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 the 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 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 seen just."
(3.) 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 he CNT Act. Thus, the provision strictly prohibits the Ex. landlord from taking over the possession of the land unless the matter is decided in his favour.;