S.J.MUKHOPADHAYA,J. - (1.) THIS writ application has been preferred by the petitioner against the last part of the order dated 7th December, 1999 passed by the Commissioner, South Chhotanagpur Division, Ranchi in Singhbhum (East) in SAR Revision No. 8/99, whereby and where under, the Commissioner while accepted that he was confused in the case, observed that the opposite party must file an appeal before the High Court for necessary amendment of order dated 28th January, 1991, passed in CWJC No. 223 of 1984(R).
(2.) AS the case can be disposed of on a short point, it is not necessary to discuss all the facts except the relevant ones. The petitioner, a Scheduled Tribe, while claimed that the land, in question belong to him, filed a petition for restoration under Section 71 -A of the Chhotanagpur Tenancy Act (hereinafter referred to as the CNT Act). It was registered as R.P. Case No. 17/80 -81. The aforesaid case was preferred against one Kuthru on the impression that he was making certain construction over the land in question. Later on, when it came to his notice that the construction was being made by the 5th respondent, the said 5th respondent was made a party and was noticed in the said case. Against such proceeding, the 5th respondent moved before Ranchi Bench of the Patna High Court in CWJC No. 223 of 1984(R), raising the question of maintainability of the petition under Section 71 -A of CNT Act, by saying that the petitioner having been forcibly disposed from the land, in question, the petition under Section 71 -A was not maintainable. A single Judge of Ranchi Bench of Patna High Court by its judgment dated 28th January, 1991, allowed the writ petition, set aside the notice as was issued to the 5th respondent with liberty to the concerned party to prefer suit. The petitioner, thereafter, preferred a title suit No. 47/91 in the Court of Sub -Judge, Jam -shedpur, which was dismissed for default. In the meantime, the Supreme Court rendered judgment in the case of Pandey Oraon and others v. State of Bihar, reported in : AIR1992SC195 and held, as follows : - 'That definition of transfer as contemplated in Transfer of Property Act, is not to be applied in restoration proceeding. In Section 71 -A, in the absence of definition of transfer and considering the situation in which exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of transfer under the transfer by a statutory definition. What exactly is contemplated by transfer in Section 71 -A is when possession has passed from one to another and as a physical fact, the member of Scheduled Tribe, who is entitled to hold the possession would be covered by transfer and a situation of that type would be amendable to exercise the jurisdiction within the ambit of Section 71 -A.' In view of the observations of the Supreme Court, the petitioner again preferred a petition under Section 71 -A of the CNT Act, which was registered as R.P. Case No. 4/92 -93. After hearing the parties, the said case was disposed of on 4th May, 1998 by learned DCLR, Jamshedpur by ordering to regularize the transfer on payment of compensation of rupees five lakhs per acre, with further observation that if the amount is not paid within three months then to restore the land in favour of petitioner. Against the said order, the 5th respondent preferred SAR Appeal No. 42/98 -99. before the Deputy Commissioner, East Singhbhum, Jamshedpur, which was dismissed on merit, after hearing the parties on 23rd October, 1998. Against the said order, the 5th respondent preferred SAR Revision No. 8 of 1999, wherein the following observations were made : - 'I am in a fix in this case. I agree with the submission of both the parties. The petitioner is right when he says that the OP should have filed an appeal against the order of the Hon'ble High Court in the light of the Supreme Court's judgment. The OP is also right when he says that the judgment of the Hon'ble High Court that Section 71 -A does not apply in the present case was according to the old law and after the Supreme Court's judgment the Section 71 -A applies and he has taken the benefit of the law as contained in Supreme Court's judgment. On merit, I find that the petitioner has no claim because in the present case there is a transfer by fraudulent means.'
(3.) COUNSEL for the petitioner, contesting respondent No. 5 and the State, all of them accept that the revisional authority was confused and instead of advising the parties, should have determined the case on merits. He should have either upheld or disagreed with the finding of the Court below.;