D.G.R.PATNAIK, J. - (1.) challenge in this appeal is against the order of the learned Single Judge whereby petitioner's prayer for quashing the order dated 19.11.1994 passed by the D.C.L.R. for restoration of possession of the land in dispute in favour of the respondents 5 to 9, was rejected.
(2.) CASE of the petitioner in brief is that the land of Khata No. 192 of village Bongabar was originally recorded as a raiyati land in the name of a tribal Bahira Munda. After his death, his two sons namely, Raghubir Munda and Jhabu Munda had inherited the property. Jhabu Munda died issueless, whereupon his brother Raghubir Munda became the sole raiyat of the land. The petitioner has claimed that after the death of Raghubir Munda; his surviving five sons had settled the land by virtue of Hukumnama dated 1.3.1946 in favour of one Chhangilal Agrawal. The settlee on coming in possession of the land, filed a Title Suit No. 42 of 1960 for a declaration of his right, title, interest and possession of the land. The suit was decreed in terms of a compromise petition between Chhangilal Agrawal and four sons of Raghubir Munda. On the basis of the decree, Chhangilal Agrawal sold the land to one Kamta Prasad Singh, who in turn, sold the same to the petitioner's father Kailash Singh by virtue of a Registered Sale Deed dated 6.2.1969. After acquiring title and possession of the land by virtue of the Registered Sale Deed, the purchaser Kailash Prasad Singh made several constructions over the land in the year 1969 and was enjoying possession over the land. It was much later in the year 1983 that Malwa Munda, one of the sons of late Raghubir Munda and one of the respondents (since deceased) filed an application for restoration of the land vide Restoration Case No. 4 of 1983 against the petitioner's father under Section 46(4A) of the Chhotanagpur Tenancy Act. The application was dismissed by the D.C.L.A., Hazaribagh on 30.12.1983 as being barred by limitation. Without preferring any appeal' against the order, yet another application for restoration of the land was filed in the year 1986 vide Land Restoration Case No. 528 of 1986 against the petitioner. During the pendency of the application, petitioner's father Kailash Singh died in the year 1987, whereafter the petitioner came in possession of the land. The petitioner's application for substitution of his name in place of his deceased father in the restoration case, which was filed in the year 1989, was ultimately allowed by order dated 19.5.1994. However, by the impugned order dated 19.11.1994 the respondent D.C.L.R. directed restoration of the land in favour of the respondents. Against the order of restoration, the petitioner preferred a restoration appeal vide Land Restoration Appeal No. 4 of 1995 before the Additional Collector. The appeal was allowed by order dated 27.11.1995 setting aside the order of restoration dated 19.11.1994 passed by the D.C.L.R. The respondents 5 to 9 thereafter moved in Revision before the Commissioner against the order of the appellate authority vide Restoration Revision No. 140 of 1996. By order dated 26.9.2000 the Commissioner allowed the revision application, setting aside the order of the appellate authority and confirming the order of the D.C.L.R. for restoration of lands in favour of the respondents 5 to 9. Against the order of the D.C.L.R., the petitioner preferred the writ application which was dismissed by the learned Single Judge. In the writ application, the petitioner had raised the following grounds: 1. that in view of the fact that earlier application for restoration filed by Malwa Munda was dismissed, the subsequent application for restoration of the same land filed by the same person, was barred by the principles of Res judicata. 2. that the restoration application was barred by limitation under provisions of Section. 46(4A) of the Chhotanagpur Tenancy Act inasmuch as, it was filed after more than 12 years from the date of dispossession:
(3.) AFTER hearing the petitioner and the respondents, the learned Single Judge dismissed the writ application with the following observations; 1. that the Commissioner in his order dated 26.9.2000 has elaborately discussed the facts of the case and has recorded a finding that the respondents were dispossessed in the year 1976. A positive evidence to draw such inference was that the respondents were issued rent receipts till the year 1976 which implied that they were found to be in possession of the lands in the year 1976 and it was in the same year that they were dispossessed by the petitioner. 2. that the application for restoration filed in the year 1986 was not barred by the principles of Res Judicata in view of the fact that in the earlier restoration proceeding initiated in the year 1983 before D.C.L.R. on the basis of the report of the Circle Officer, the respondents herein were not impleaded as party and as such, they could not be aware of the proceeding which was later dropped on the basis of the showcause filed by Chhangilal Agrawal. Even otherwise, no finding was recorded in the earlier proceeding by the D.C.L.R. on the issue as to whether the respondents who were members of the Scheduled Tribes were dispossessed more than 12 years ago. 3. that the compromise decree purportedly obtained by Chhangilal Agrawal in Title Suit No. 42 of 1960 was rightly found by the Commissioner to be a collusive decree. Even otherwise, in the compromise petition, some Dar raiyat settlement was admitted by the respondents, members of the Scheduled Tribes, but there was no adjudication on the issue relating to the right, title and interest of Chhangilal Agrawal over the suit' properties for which the suit was filed and, therefore, the compromise decree was of no avail to the petitioner. Furthermore, the purported Hukumnama claimed to have been executed by the sons of the deceased Raghubir Munda was never - produced by the petitioner in any of the proceedings. ;