Budhu Baraiak And Ors. Vs Sohan Singh Baraik And Anr.

2. At the heart of the matter is the restoration of land ordered in favour of defendants under Section 71-A of the Chota Nagpur Tenancy Act,1908 ( for short CNT Act) for sale of the suit land by the defendant in favour of the Plaintiff being in violation of the provisions of CNT Act. Plaintiff filed suit for title which has been decreed by the appellate Court.

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PLAINTIFF’S CASE

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3. Plaintiff filed the suit for declaration of right title and interest, for recovery of possession if found dispossessed and for permanent injunction from creating any disturbance in possession of the plaintiff.

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4. Raiyati land recorded under revisional survey khata no.14 of village Gudgud P.S. Lapung, District Ranchi originally belonged to one Chota Bhola Baraik (original defendant and now deceased) who was by caste ‘Baraik’ (Jadubansi Chhatri). He sold and gave possession of the land to the plaintiff in 1958. In 1977 , he filed petition under Section 71A of the CNT Act claiming himself to be Chik Baraik and as such a Schedule Tribe. Special Officer SAR held Chota Bhola Baraik a S.T. and got restoration done in his favour.

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5. It is averred that actual delivery of possession never took place and thereafter, a proceeding under Section 145 of the Cr.P.C. was decided in favour of plaintiff, but was later on reversed in the Criminal Revision No.124 of 1983 in favour of heirs of Chota Bhola Baraik.

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6. Title suit was filed praying for adjudication of plaintiffs’ right, title and interest over the land and for declaration and confirmation of possession alternatively recovery or possession and for permanently restraining the

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defendants from disturbing in possession of plaintiff. It was pleaded that Chota Bhola Baraik was not a member of schedule tribe, but Jadubanshi Chhatri.

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DEFENDANTS’ CASE

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7. Chota Bhola Baraik was by caste ‘Chik Baraik’ a ST, no transfer was made by him of the suit land in favour of plaintiff and the sale deed was obtained by fraud. Without prior permission by Deputy Commissioner, no deed was registerable. Chota Bhola Baraik was dispossessed only for short period during about 1975 and for the application under Section 71A of CNT Act for which restoration was filed which was allowed and since thereafter, he continued in possession followed by his successors i.e. the defendants. Against the order of restoration, plaintiffs filed Revenue Appeal No.377 of 79 which was dismissed by Additional Collector, This order was never challenged and became final. Fact of defendants possession also got finally established in Cr. Revision No.124 of 1983. Defendants’ names had been mutated in revenue register.

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8. Issue that appellant was a member of Schedule Tribe having been settled in restoration case, cannot be reopened in a civil suit, particularly when the special officer SAR and the Additional Collector were not party in the suit.

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9. On the basis of pleadings of the parties following main issues were framed:

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i. Is the suit as framed maintainable?

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ii. Has the plaintiff got valid cause of action for the suit?

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iii. Has the plaintiff got valid right, title, interest and possession over the suit land on the basis of the sale deed executed by Chota Bhola Baraik in the year 1958?

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iv. Is the plaintiff entitled to a permanent injunction?

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v. To what other relief or reliefs, if any the plaintiff is entitled?

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10. Learned trial Court held that the Chhota Bhola Baraik was a member of Schedule Tribe and transfer of land by him in favour of the Plaintiff was in violation of the provision of the CNT Act and therefore there was no infirmity in the order of restoration .

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11. Learned 1^st appellate Court held that Defendant was not a member of Schedule Tribe in view of declaration made in the Sale Deed (Ext-2) by him that he was Jadubanshi Chhatri and also in the entry made in khatian .

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12. It is argued by the learned counsel on behalf of appellants that the judgment and decree of the first appellate court is not tenable in view of the fact that the principle of res judicata bars adjudication by the civil court. Defendants are members of Scheduled Tribe and the alleged sale deed was barred under the provisions of Chota Nagpur Tenancy Act regarding which SAR Case No. 27 of 1976 was filed under Section 71A of the CNT Act by the appellants/defendants.

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13. The main contention raised in the second appeal is that there was a judgment in favour of the defendants for restoration of land passed in SAR Case No. 27 of 1976 and the 1^st Appellate Court has overturned the judgment of the trial Court without considering the decision of the trial Court which will operate as res judicata. Learned counsel has placed reliance on the judgment reported in (2003) 7 SCC 52 at Para-10.

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14. It is submitted by learned counsel on behalf of the appellants that the issue of res judicata was not framed by the learned Trial court for the reason that this was admitted in Para-5 of the plaint itself that A restoration case was passed in favour of the defendant(s), and therefore, the parties were not at issue in this matter. It is for this reason alone that the said judgment passed in the SAR case was not exhibited.

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15. The main plank of the argument is that once the order passed in SAR proceeding had attained finality, whether a suit for title can be filed by the aggrieved party and also aggrieved by the judgment of restoration case of title and possession?

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16. Having considered the submissions advanced on behalf of both sides it appears that the Plaintiff’s title to the suit land is based on the sale deed executed by the original defendant. The authority relied upon by the appellant is not on the issue regarding binding nature of the judgment delivered by the revenue court on the civil court. In the said case, the issue was when a restoration case under Section 71-A had attained finality, if a subsequent restoration application will be hit by principles of res judicata. Their Lordships have held that res judicata will apply in such case.

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17. Furthermore for a case to be hit by principles of res judicata it is necessary that matter in issue in the earlier suit be directly and substantially in issue between the same parties litigating under the same title. For such a plea

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to succeed it is necessary that there should be specific pleading on it, issue should be framed and the evidence be led to support the said plea. The object behind being that the other side should have an opportunity to rebut assertions by leading evidence on it. In the absence of pleadings, issues and evidence, as is in the present case, such plea cannot be raised at this stage.

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18. Learned first appellate court has dealt with this issue at length and noted that PW 4 Minia Oraon deposed that Chota Bhola Baraik was a Yaduvanshi Baraik and he was not an Aadivasi. It also came in evidence of DW 1 that Chota Bhola Baraik had no heirs and he was his agnate. In the original sale deed (Exhibit 2), the executor Chota Bhola Baraik has been referred to as Yaduvanshi Baraik. As per the record of rights (Exhibits 6), caste of Chota Bhola Baraik was Chik which was not a Schedule Tribe as per the ratio laid down in 1988 BLT (Repot.) 13 as Baraik was not the member of Schedule Tribe.

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19. Under the aforesaid facts and circumstance and considering the finding of fact by the first appellate court, this Court is of the view that the question being raised at Bar, does not constitute a substantial question of law for admission of the second appeal.

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The Second Appeal is dismissed with cost.

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(Gautam Kumar Choudhary, J . )

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Sandeep / uploaded

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Budhu Baraiak And Ors. v. Sohan Singh Baraik And Anr.

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Budhu Baraiak And Ors. v. Sohan Singh Baraik And Anr.

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