JUDGMENT

Prashant Kumar Mishra, J. - Challenge in this writ petition is to the order passed by the Board of Revenue whereby Revision Application preferred by respondent Nandlal has been allowed and the order passed by the Sub Divisional Officer (Revenue) Gharghoda, District Raigarh on 27.4.2005 and the appellate order passed by the Additional Collector, Raigarh on 28.7.2005 have been set aside. By these two orders, the Sub Divisional Officer (Revenue) and the Additional Collector have allowed the petitioner's application under Section 170-B of the CG Land Revenue Code, 1959 (for short 'the Code') to direct that the land bearing Khasra Nos.138/2 and 138/3 ad measuring 3 acres be reverted back to the legal heirs of the original tribal holder.

2. By two separate sale deeds dated 3.2.1958 and 31.3.1958 the predecessor of the petitioners namely, Cherka and Matal had executed a sale deed for 3 acres of land in favour of Mahigal Singh, father of respondent Nandlal. Mutation of the name of Mahigal Singh was recorded some time in the year 1963. After the sale deed and at the time of mutation, the purchaser was in possession of the property, yet the tribal holder did not initiate any action. After coming into force of Section 170-B of the Code, an application under Section 170-B was moved stating that the subject land was in fact mortgaged in favour of Mahigal Singh but he obtained execution of sale deed, therefore, it is a case of commission of fraud. After examining the parties, the Sub Divisional Officer (Revenue) Gharghoda allowed the application filed by the tribal holder with a finding that even if sale deed was executed before 2.10.1959 i.e. before commencement of operation of the Code, yet considering the fact that the land was in fact mortgaged and not sold by Cherka and Matal, it is the transaction which is hit by Section 170-B of the Code. The Collector affirmed the order passed by the Sub Divisional Officer (Revenue).

3. Before the Board of Revenue, the respondent Nandlal raised an objection that for transaction before 2.10.1959, the provisions contained in Section 170-B of the Code would not be applicable. This plea has been accepted while allowing the Revision Application filed by the non-tribal holder.

4. Learned counsel for the petitioner would submit that when sons of Mahigal Singh, in whose names the property was purchased' applied for mutation in the year 1960, Cherka objected to the prayer on the plea that the land has not been sold but it has been mortgaged. The Revenue Inspector rejected the prayer for mutation, however, without filing any appeal or challenging the order, another application for mutation was moved in the year 1963, which was allowed vide Annexure-P/3. Thus cause of action for invoking Section 170-B of the Code has arisen after 2.10.1959 and not before that, therefore, the provisions contained in Section 170-B of the Code would be applicable.

5. On the other hand, learned State Counsel would support the impugned order.

6. The question as to whether the provisions contained in Section 170-B of the Code would apply to a transaction before 2.10.1959 was earlier considered by me in the matter of Parwati Bai and Another Vs. State of M.P. & Others (WP No.1739/1997, decided on 2.2.2010). After referring to the judgment rendered by the Madhya Pradesh High Court in the matter of Roop Chand Vs. Board of Revenue,1995 Revenue Nirnay 184 , it was held in para-13 thus:-

"13. In view of the material on record and the legal position settled by the High Court of M.P., this Court is of the opinion that the provisions of Section 170(B) of the Code are not attracted in the present case. The Commissioner is not correct in observing that the provisions of Section 170 (B) of the Code will be applicable even where the transaction has been entered into before 02.10.1959. The Commissioner has not assigned any reason for arriving at such conclusion. The Commissioner appears to have been impressed the fact that the petitioners