An application for restoration of land under Section 48 of the Chotanagpur Tenancy Act is barred by limitation if it is filed beyond 12 years from the date of transfer of the land, and a subsequent application for restoration between the same parties is barred by res judicata if the earlier application was dismissed on merit.

M.Y.Eqbal, J.

1. In this writ application the petitioner has prayed for quashing of the order dated 16.9.1981 passed by sub-divisional officer, Gumla and the order dated 4.6.1986 passed by Additional Collector, Gumla and the order dated 2.12.1986 passed by the Commissioner, South Chotanagpur Division in purported exercise of jurisdiction under Sec. 48 of the Chotanagpur Tenancy Act (hereinafter referred to as the "said Act"). There order are Annexure 1, 2 and 3 respectively to the writ application.

2. The fact of the case in short is that a proceeding under Sec. 48 of the said Act in respect of plot No. 106/107, 108 measuring total area 3.74 decimals under Khata No. 83 of village Samal Police Station-Sasai, District-Gumla was initiated by the Sub-divisional Officer, Gumla being S.A.R. Case No. 4 of 1980-81 for the restoration of land in favour of respondent No. 4 Learned Sub-divisional Officer passed the impugned order (Annexure-1) restoring the and in favour of private respondent. The said order was affirmed in appeal and revision by respondent Nos. 1 and 2. The case of the petitioner was that the on the basis of Gassaman Kabaza the landlord transferred the land in the proceeding to the father and uncle of the petitioner by registered deed in the year 1924. Thereafter, they came into possession of the lands on payment of rent and after the death of the ancestor of the petitioner the petitioner came in possession of the lands. The petitioners further case was that at the time of revisionl survey the name of the father and uncle of the petitioner was noted in the remarks column of the Khatian. A photocopy of the Khatian has been filed and marked Annexure 5 to the writ application. It was further stated that at the time of revising survey a proceeding under Sec. 83 of the said Act bearing case No. 351 was started and the said proceeding was decided in favour of the father and uncle of the petitioner. The petitioners further case was that during the current survey also the lands in question has been recorded in the case of the petitioner and the objection filed by Charo Pahan was rejected. A copy of the order Sec. 83 of the Chotanagpur Tenancy Act is Annexure 7 to the writ application. The petitioners further contention was that a similar proceeding under the said Act was initiated for restoration of the same land in the year 1971 vide S.A.R. case No. 39 of 1971-72 which was dismissed on merit. A copy of the order passed in the said restoration proceeding is Annexure 8 to the writ application. The petitioner , therefore, stated that the impugned orders passed by the concerned respondents are highly illegal and without jurisdiction.

3. No counter affidavit has been filed on behalf of the respondents, including private respondent and done appeared at the time of hearing.

4. Mr. P.N. Sahu, learned Counsel appearing on behalf of the petitioner assailed the orders passed by the concerned respondents as being illegal and without jurisdiction. Learned Counsel submitted that similar proceeding between the same party initiated in the year 1971 and having been dismissed on merit, the instant proceeding for restoration of the land was barred by res judicate. Learned Counsel further submitted that the instant proceeding initiated under Sec. 48 of the said Act was also barred by limitation in view of Sec. 48 (4) of the said Act. Learned Counsel further submitted that the concerned authorities have passed the impugned order failed to consider any of the questions raised by the petitioner. I find force in the submission of learned Counsel appearing on behalf of the petitioner.

5. From perusal of the order passed by Sub-divisional Officer it appears that the application for restoration was allowed by a non-speaking order only on the ground that the land is Bhumidhari land and they cannot go outside the Bhumidhari family. The appellate Court came to a finding that although the name of the appellant was recorded as Gassaman Kabaza in the s