Proviso (c) to Sub-section (1) of Section 46 of the Chota Nagpur Tenancy Act, 1908, which restricts the transfer of raiyati rights by an occupancy raiyat who is not a member of the scheduled tribes, scheduled castes, or backward classes to a person who is not a resident within the local limits of the district in which the holding is situate, is not ultra vires the Constitution of India and is fully saved under Article 19 (5) of the Constitution, as the restriction is reasonable and in the interests of the general public.

A.B.N.Sinha, J.

1. This appeal by the plaintiff and defendant No. 4 arises out of a suit for declaration of the plaintiffs raiyati rights over 5.31 acres of lands comprised of eight plots appertaining to khata No. 10 of village Babhani, fully described in the schedule to the plaint and for confirmation of possession or for recovery of possession thereof. The suit was decreed by the trial Court but was dismissed by the lower appellate Court.

2. According to the plaintiffs case, Tikait Birendra Narayan Singh, the proprietor of village Babhani, settled under a registered patta, dated the 27th February 1947 about 31.13 acres of land accertaining to khata No. 10 and other khatas of village Babhani in permanent raiyati rights with his daughter Shrimati Churamani Kumari, defendant No. 4, who came into possession of the lands so settled with her. On the 18th February 1957. under a registered sale-deed the aforesaid Shrimati Churamani Kumari sold the suit lands as well as other lands to the plaintiff. When the plaintiff applied for mutation of his name, defendant No. 1 filed objections in regard to the suit lands. The plaintiffs application for mutation was dismissed by the Anchal Adhikari, and his appeal to the Sub-Divisional Officer, Giridih, was also unsuccessful. This having cast a cloud on his title, he filed the title suit for the aforesaid reliefs.

3. The suit was contested by defendants Nos. 1 to 3 only. Defendant No. 4, the vendor of the plaintiff, supported the plaintiffs case. The case of the contesting defendants was that the suit lands had been settled with defendants Nos. 1 and 2 in raiyati rights by virtue of a hukumnama on the 1st of January 1945 by Tikait Birendra Narayan Singh, who had put them in possession of the same and that they were in possession of the lands ever since then. It was further pleaded on their behalf that the plaintiff was not a resident of village Babhani or of any village within the police station of Dhanwar or within the district of Hazaribagh in the year 1957 or on the date of the execution of the sale-deed, dated the 18th February 1957 and, as such, the sale-deed, dated the 18th February 1957 in favour of the plaintiff was in contravention of the provisions of Sec. 46 of the Chota Nagpur Tenancy Act, 1908 , and, accordingly the plaintiff acquired no title and right over the suit lands. Their further case was that neither Shrimati Churamani Kumari nor the plaintiff was at any time in possession of the suit lands.

4. The trial Court found both title and possession with the plaintiff and rejected the defendants case of settlement and possession. It further held that the plaintiff was a resident within the local limits of the district of Hazaribagh from before the 18th February 1957, and, as such, the sale-deed, dated the 18th February 1957 (Ex. 1) executed by defendant No. 4 in favour of the plaintiff was not hit by Sec. 46 of the Chota Nagpur Tenancy Act. It, accordingly, decreed the suit.

5. On appeal by the contesting defendants, the learned Additional Subordinate Judge, Hazaribagh, has, however, come to the conclusion that though it has been established that the plaintiff, and not the contesting defendants, was in possession of the suit lands and that Shrimati Churamani Kumari who purported to sell the suit lands to the plaintiff was also in possession, but it had not been established that the plaintiff was a resident of Doranda, as claimed by him, at the time of the execution of the sale-deed, dated the 18th February 1957 (Ex. 1) in his favour, and, accordingly the sale was hit by Sec. 46 of the Chota Nagpur Tenancy Act, and, it could not be said that the plaintiff had acquired any title under the sale-deed. In that view of the matter, he dismissed the suit. Hence, this appeal by the plaintiff, who is appellant No. 1. His vendor, Shrimati Churamani Kumari (defendant No. 4) has also joined this appeal as appellant No. 2.

6. Mr. G.C. Mukherji, learned Counsel appearing in support of th