M.Y.EQBAL, J. - (1.) THIS appeal under Clause 10 of the Letters Patent is directed against the judgment dated 6.5.97 passed in CWJC No. 1413/83 (R), whereby the learned Single Judge allowed the writ petition filed by the respondent Tulsi Sao and set aside the order of restoration passed by the respondent -authority under Section 46 (4A) of the Chotanagpur Tenancy Act.
(2.) THE facts of the case lies in a narrow compass. It appears that one Shankari Mundain filed application under Section 46 (4A) of the said Act for restoration of land of plot nos. 213, 215, 192 and other plots of village Merar, P.S. Ramgarh, District - Hazaribagh against respondent Parmeshwar Sao and Tulsi Sao on 13.9.77 stating that the respondents dispossessed the petitioner forcibly from the land 5 to 6 years before the said application was registered as case No. 13 of 1977 -78 and was heard by respondent No. 4, Deputy Collector, I/C Land Reforms Hazaribagh. Respondent No. 4 rejected the restoration application by passing a reasoned order holding that the application was barred by limitation inasmuch as it was filed after expiry of 12 years from the date of dispossession. Against the said order the petitioner Shankari Mundain preferred appeal before the Additional Collector, Hazaribagh being restoration appeal No. 34/78. The appellate authority after recording a find (finding) that dispossession was made in the year 1969 allowed the appeal and set aside the order passed by the Deputy Collector, Land Reforms. The appellant authority further held that the deed of surrender on the basis of which respondents claim their title and possession was illegal. Against the said order, respondents filed revision before respondent No. 2. Commissioner, North Chotanagpur Division, Hazaribagh, which was registered as Restoration Revision No. 66 of 1980. The revisional authority also held that since the deed of surrender was illegal, it could not be looked into. It was further held by the revisional authority that dispossession was made in 1969 and therefore application for restoration was filed within 12 years. The respondent then preferred revision before respondent No. 1, Member Board of Revenue who by order dated 26.6.83 dismissed the Second Revision. The respondent then filed writ petition being CWJC No. 1413/83 (R), which was allowed by the learned Single Judge in terms of the impugned judgment. We have heard Mr. S.N. Lal, learned counsel for the appellants and Mr. Jai Prakash for the concerned respondent and we have also gone through the entire records of the case.
(3.) ADMITTEDLY the predecessor -in -interest of the appellant namely Shankari Mundain filed restoration application being Restoration case No. 13/77 -78 under Section 46 (4A) of the said Act against the respondent including respondent Tulsi Sao. The said restoration case was contested by respondent Tulsi Sao by filing objection contending that the land in question was recorded in the name of one Lachuwa Munda who died long ago leaving behind his only son Puran Munda, who also died leaving behind two daughters namely, Sohari Mundain and Shankari Mundain. The case of the respondent Tulsi Sao was that he inherited the land from his fore -father who was coming in possession since before survey but it was wrongly recorded in the name of Puran Munda. Puran Munda was asked to execute a deed of release and accordingly deed of release/surrender was executed on 23.11.61 in favour of the petitioner admitting that plot No. 192 belongs to the fore -father of the present petitioner. The respondent No. 4. Land Reforms Deputy Collector accepted the contention of the respondent Tulsi Sao and relying upon the deed of release executed in 1961 held that respondent was in possession of the land for more than 12 years and consequently restoration application was rejected. However, the appellant considered the entire documents and held that the deed of release (deed of surrender) alleged to be executed in 1961 by Puran Munda on the basis of which respondent claims title and possession is not admissible in law as the said document was executed in contravention of provisions of Section 72 (1) of the said Act. The appellate authority further found that in support of possession respondent Tulsi Sao filed a rent receipt of the year 1969 only on the basis of mutation of the land. The appellant authority therefore held that the application for restoration was filed within 12 years and it was maintainable and accordingly, order of restoration was passed. The Commissioner, North Chotanagpur Division in the revision filed by the respondent and the Board of Revenue in the Second Revision filed by the respondent affirmed the finding of the appellant authority and held that even if possession of respondent is admitted from 1969 then the restoration application was filed within 12 years.;