S.J.MUKHOPADHAYA, J. - (1.) IN this writ petition, while the petitioners have challenged the order dated 23rd December,1991 passed in SAR Case No. 81 of 1989 -90 and order dated 2nd February, 1994 passed in SAR Appeal No. 116(R) -15 of 1993, have also prayed to set aside the proceeding initiated under Section 71(A) of the Chhotanagpur Tenancy Act, 1908 (for short CNT Act).
(2.) THE case of petitioners is that the land in question under Khata No. 37, Plot Nos. 268, 344, 345, 386, 397, 416, 422, 423, 449, 625, 840, 841, 1068, 1071,1074, 1075, 1076, 1083, 1255, 1256, 1257 and 1258 having total area of 30.55 acres originally belonged to Birsa Munda s/o, Mangra Munda and Prabhu Sahay Munda s/o Alisa Munda of village Saranloya, P.S. Lapung, District - Ranchi. It was auction sold on 18th July, 1936 in favour of one Jagarnath Chandra Sahu in pursuance of Rent Execution Case No. 1674(R) -9/1935 -36, who took delivery of possession on 23rd October, 1937, from the Rent Suit Deputy Collector, Ranchi. One Atma Ram Poddar, subsequently purchased the land from Jagarnath Chandra Sahu, the decree holder. Thereafter, it was settled in favour of petitioners by registered deed dated 5th June, 1954. Since then the petitioners are in peaceful possession over the land in question. The 4th and 5th respondents filed a petition under Section 71(A) of the CNT Act for restoration of land in question in their favour. It was registered as SAR Case No. 195/71 which was rejected on merit vide order dated 11th September, 1974. The second petition under section 71 (A) of the CNT Act was preferred by 4th and 5th respondents being SAR case No. 45/76 was not entertained by the SAR Magistrate, Ranchi vide order dated 10th December, 1976. Third time a petition under Section 71(A) of the CNT Act was preferred by 4th and 5th respondents, being SAR Case No. 81/1989 -90. In the said case, the Court of Special Officer, Ranchi while doubted the legality of the Rent Execution Case No. 1674(R) -9 of 1935 -36 and delivery of possession, held the proceeding not conducted in terms of Section 208 of CNT Act and allowed the petition for restoration in favour of 4th and 5th respondents vide impugned order 'dated 23rd December, 1991. The petitioners, thereafter, preferred SAR Appeal No. 116 (R) -15 of 1991 -92 was allowed in favour of petitioners on 6th January, 1993, the Court below having decided the case on presumption, but it was again remitted for fresh decision of SAR Case No. 81/ 1989 -90. The appellate Court vide its order dated 6th January, 1993 admitted that the rent case was decided in 1936 and delivery of possession was affected on 23rd October, 1937. It also noticed that the petition for restoration under Section 71 (A) of the CNT Act, registered, as SAR Case No. 81/ 1989 -90 was third successive attempt made by the 4th and 5th respondents. In view of the such finding of fact by the Appellate Court, the Court below vide order dated 6th/10th February, 1993 rejected the SAR Case No. 81/1989 -90. However, the said order was again set aside in SAR Appeal No. 116(R) -15 of 1993 -94 preferred by 4th and 5th respondents and the case was again remitted to the first Court vide impugned order dated 2nd February, 1994.
(3.) THE petitioners have challenged the entire proceeding on the following grounds: '' "(a) A petition under Section 71 (A) of the CNT Act for restoration of land is not maintainable in the case the land transferred in pursuance of auction sale, such transfer being involuntarily transfer, beyond the scope of Section 71(A) of the CNT Act. (b) The third petition under Section 71(A) of the CNT Act for restoration of the land is not maintainable being barred by principle of res judicata. Similar petition under Section 71 (A) of the CNT Act preferred by same party having been earlier rejected on merit.And (c) An application under Section 71(A) of the CNT Act to set aside the sale of immovable property sold in connection with an auction sale is not maintainable, there being specific provision under Section 213 of the CNT Act wherein limitation of 30 days from the date of sale has been prescribed. ;