R.K.MERATHIHA, J. - (1.) PETITIONERS have challenged the orders dated 12.7.1988, passed by respondent No. 3, in Eviction Appeal No. XV/10 of 1987 -88 (Annexure -11) and Eviction Appeal No. XV/11 of 1987 -88 (Annexure -11A), whereby it is ordered that if half of the amount mentioned in Hukumnama is deposited by respondent No. 4, the lands of Khata No. 69/42, plot No. 849/1667/669 of Village Aan, P.S. Chandwa, District -Palamau, shall be restored to respondent No. 4; and also orders dated 24.7.1996, passed by respondent No. 2 in S.A.R Revision Case No. 239/88 (Annexure -13) and S.A.R. Revision Case No. 240/88 (Annexure -13A), whereby respondent No. 2 dismissed the revisions filed by the petitioners.
(2.) PETITIONERS ' case in short is that -father of respondent No. 4 surrendered half of the lands in question on 16.3.1934 to the then landlord by Sada Hukumnama and other half by registered Istifanama dated 17.1.1944. After taking possession, the Jamindar settled the same orally in favour of Kaushlaya Devi, mother of petitioners, coupled with possession and acceptance of rent, which were also confirmed by Hukumnama dated 25.1.1936 and 14.1.1945. In the return filed by Jamindar, the name of petitioners' mother was shown as raiyats. Rent receipts were issued by the State of Bihar also. Since such settlement, petitioners are coming in continuous possession by constructing house on the portion of the land and by using it for cultivation. In the recent survey, record of rights were prepared in which name of petitioners as raiyat of Khata No. 69/42, plot No. 849/1667/669 only was shown and with respect to plot No. 717, name of respondent No. 4 was shown. Respondent No. 4 filed objection for correction of the entries, which was registered as Objection No. 160/1980 -81. The objection was rejected and name of petitioners were entered in Banda Purcha with respect to plot Nos. 669 and 717. Against this order, respondent No. 4 filed revision being Revision Case No. 11/1986. Petitioners also preferred revision for opening a new Khata in their name with respect to 68 decimals of plot No. 669, being revision case No. 108/1981. The revision filed by respondent No. 4 was dismissed and the revision filed by the petitioners was allowed vide order dated 9.12.1982. Respondent No. 4 did not challenge the said order dated 9.12.1982 but filed two cases under Section 71A of the Act, which were numbered as Case No. 4/1987 and 6/1987. Petitioners produced several documents in support of their case including the Caste certificate, issued by the Block Development Officer, Chandwa, certifying that respondent No. 5 was 'Lohar' by caste and thus not a member of scheduled caste. The said proceedings were dropped by order dated 28.1.1987 on the ground that respondent No. 4 not being a scheduled caste, proceeding under Section 71A of the Act was not maintainable. Respondent No. 4 preferred two appeals against the said order, which were registered as Eviction Appeal No. XV/10 of 1987 -88 and XV/11 of 1987 -88. A report was called about the caste of respondent No. 4. It was reported on 26.6.1988 that respondent No. 4 belongs to 'Lohara' caste, which is a scheduled tribe. In the said appeals filed by respondent No. 4, it was ordered that on deposit of half of the amount mentioned in Hukumnama by respondent No. 4, the lands in question shall be restored to him. The revisions filed by the petitioners, against these orders, were dismissed by Board of Revenue. Hence this writ petition. Mr. Devi Prasad, learned senior counsel appearing for the petitioners, submitted that the authority wrongly decided that respondent No. 4 was a scheduled caste. Petitioners should have been given opportunity to show that the said report dated 26.6.1988 was wrong. He alternatively submitted that even if it is held that respondent No. 5 was a scheduled tribe, his application under Section 71A of the Act was not maintainable. Half of the lands in question were surrendered by the father of respondent No. 4 in the year 1934 by Sada Hukumnama and half was surrendered by registered Istifanama on 17.1.1944, which were confirmed by Hukumnama of 1936 -1945 respectively. Name of the mother of petitioners was shown in the return filed by the Jamindar. During recent survey, some of the lands was recorded in the name of petitioners and some was recorded in the name of respondent No. 4 which was objected by the petitioners and respondent No. 4 both. After hearing the parties, the petitioners' objection was found to be correct and the objection of respondent No. 4 was rejected vide order dated 9.12.1982. This order had become final as respondent No. 4 did not challenge the same. But he filed the present case to harass the petitioners. He further submitted that the said documents of surrender and settlement were wrongly doubted by the authority only because there was an agreement between the parties in the year 1957. He further submitted that the authorities itself held that the petitioners have acquired title by adverse possession for more than 30 years. It should not have ordered for restoration of lands in favour of respondent No. 4. It was also submitted that without considering the relevant aspects, the Commissioner dismissed the revision petitions filed by the petitioners. He further submitted that there was no bar in surrender/settlement prior to the Amendment Act which came into force since 1947. Accordingly, the surrender/settlement made in favour of petitioners prior to 1947, cannot be said to be invalid. He relied on the judgments reported in : AIR2000SC2276 Jay Mangal Uraon and : (2004)8SCC340 Situ Sahu and 2004 (1) JLJR 515 Bibi Makho.
(3.) MR . M.M. Prasad, appearing for respondent No. 4, submitted that right by adverse possession cannot be acquired by a non -aboriginal on the property belonging to a member of aboriginal tribe. He relied on the judgment reported in 2004(3) JLJR S.C. 103 Lincai Gamango v. Daya Nidhi Jena.;