Ajit Kumar Sinha, J. - (1.) The petitioners have preferred the present writ petition for quashing the order dated 18-4-1980, passed by respondent No.4 in S.A.R. Case No. 139 of 1977-78, the order dated 29-9-1981, passed by respondent No.3 in S.A.R. Appeal No. 17R15 of 1980-81 and also the order dated 25-8-1988, passed by respondent No.2 in Revenue Revision No. 133 of 1981, as contained in Annexures 8, 9 and 11 respectively, vide which the lands measuring an area of 8.70 acres out of Plot Nos. 2511, 3274, 3335, 3340, 4483, 3484, 3485, 3486, 3487, 3488, 3490, 3536 and 3481, appertaining to Khatana No.67, situated at Village-Thethaitangar was restored under Section 71-A of the Chotanagpur Tenancy Act in favour of Sahru Gond, father of respondent Nos.5 and 6 herein.
(2.) The facts, in brief, are set out as under : There was a registered surrender as contained in Annexure-1 by the raiyat in favour of the Zamindar and vide Annexure-2 settlement has been made on 2-4-1942 by the Zamindar to the predecessor-in-interest of the petitioner. The father of private respondent Nos. 5 and 6, Sabru Gond, filed an application under Section 71-A of the Chhotanagpur Tenancy Act, 1908 (in short "C.N.T. Act") claiming restoration of the aforesaid lands, in question, before the Special Officer, Scheduled Area Regulation, Simdega, which was registered as S.A.R. Case No. 139 of 1977-78 the mother of the present petitioners, namely, Smt. Baidehi Kumari Devi, filed her show cause assailing the application. The restoration application was allowed and the ap-peal preferred was also dismissed. Revision Petition filed was dismissed as time barred and the petitioner filed a writ petition and the Hon'ble High Court permitted to file a revision which was ultimately dismissed and the same has now been challenged in the present Writ Petition According to the petitioner there was no violation of Section 46 or any other provisions of the C.N.T. Act nor any fraudulent method was adopted. It has been contended that the case of opposite party was barred by limitation and adverse possession and that the lands of Khata No.67 have been recorded in the Revisional Survey Record of Rights in the names of Padam Gond, son of Mandal Gond, Karia Gond and Saman Gond both sons of Baidyanath Gond and the recorded raiyat voluntarily surrendered the aforesaid lands to the then landlords by virtue of a registered deed of surrender dated 25-3-1942 and put the landlords in possession of the same and after surrender, the lands became the Bakast lands of the then landlords and they came into possession thereof. It has also been submitted that the then landlords subsequently made permanent, heritable and transferable raiyati settlement of the aforesaid lands in favour of Smt. Sona Kumari Devi by virtue of a registered deed of settlement dated 2-4-1942 and put the settled in possession of the same and the settlee came in possession from the date of settlement. The said settlee got her name mutated in the Serista of the ex-landlord and paid rent in her own name and after vesting of the estates under the provisions of the Bihar Land Reforms Act, 1950 she was recognised as a raiyat by the then State of Bihar and she also paid rent to the State the petitioners have further claimed that Smt. Sona Kumari Devi sold the aforesaid property to the mother of the petitioners, namely, Smt. Baidehi Kumari Devi by virtue of a registered deed of sale dated 30th January, 1956 and she remained in peaceful possession of the same from the date of purchase and alter her death, the present petitioners are in possession. According to the petitioners, their mother, Smt. Baidehi Kumari Devi, also got her name mutated in the Serista of the then State of Bihar and regularly paid rent in her own name.
(3.) The main argument put forth by the learned counsel for the petitioners is that as per Section 72 of the C.N.T. Act a raiyat had statutory right to surrender the lands to the landlord and no prior permission of the Deputy Commissioner was required for surrender of the land by raiyats in the year, 1942 in view of the fact that the amendment in the C.N.T. Act came into effect only from 5-1-1948 by Act XXV of 1947 the petitioners further contended that it was prospective in nature and the permission of the Deputy Commissioner was nesessary for surrender of the lands by raiyats only after 5-1-1948, and, thus the registered deed dated 20-3-1942 was quite legal and valid and the settlement dated 2-4-1942 executed by the then landlord in favour of the predecessor-in-interest proves that permanent, heritable and transferable raiyati settlement has been made by the then landlords in favour of the settlee Learned counsel for the petitioners has also referred to and relied upon the decisions, reported in 1987 Bihar LT 303, (Bishram Sahu v. Bhairo Oraon & Ors. ) and 1988 Bihar LT 18, (Nand Kumar Sahu v. State of Bihar & Ors. ) in the context that merely because settlement has been made after a few days or months from the date of surrender, the same cannot be held to be illegal unless there is evidence that they form part and parcel of the same transaction. According to the petitioners, in the aforesaid cases the order for restoration passed in favour of the members of the Scheduled Tribe was quashed by the Hon'ble High Court, holding that in absence of any evidence that surrender and settlement are part and parcel of the same transaction, no order for restoration of the lands could have been passed. In this regard he has also referred to the judgments, reported in 1988 Bihar LT 520, (Paras Nath Munda v. Rama Sahu ), 1993 (1) BLJR 328, (Jhalku Ahir v. State of Bihar & Ors .) and 1989 Bihar LT 404.;