R.K. Merathia, J.

1. Petitioner has prayed for quashing the order dated 31.3.1987 (Annexure 6) passed by the Sub-Divisional Officer, Khunti (respondent No. 4) in S.A.R. Case No. 2 of 1986-87 and also the order 10.9.1996 (Annexure 8) passed by the Commissioner, South Chotanagpur Division, Ranchi (respondent No. 2) in S.A.R. Revision No. 87 of 1989 confirming the said order.

2. By the said orders, the application for restoration of land filed by respondent No. 5 and his father under Section 71A of the Chotanagpur Tenancy Act, 1908 (hereinafter referred to as "the Act") was allowed.

3. Their case was that they have been dispossessed by petitioner from the lands in question which belonged to their agnate Mostt. Mangari Mundain. The land in question is 0.91 acres of land arising out of Revisional Survey Plot No. 75 and 0.79 acres of land out of the Revisional Survey Plot No. 79 of Khata No. 231 under Khewat No. 16 situated at village Rolagutu, P.S. Karra, District Ranchi.

4. Petitioners case was that the said application under Section 71A was barred by res judicata; that the lands in question were taken over by the then Zamindar after the recorded raiyat Mostt. Mangari Mundain died issueless and it was given to the petitioner who was the kept of the son of Zamindar; that she has been in possession since 1953-54; she got her name mutated in Mutation Case No. 261 of 1964-65 and has been paying rent; there being no ingredients of transfer, Sections 46, 68 and 71A of the Act were not attracted.

5. After hearing the parties, the Sub-Divisional Officer held that the alleged transfer of land by Zamindar in favour of the petitioner was hit by Section 46 and respondent No. 5, a member of the Scheduled Tribe community was illegally dispossessed. Moreover such dispossession was also hit by Section 68 of the Act. Accordingly, he directed the petitioner to restore the land to respondent No. 5.

6. Petitioner preferred appeal against the said order. It was allowed on the ground that-respondent No. 5 was dispossessed prior to 1965; that the petitioner is coming in possession since 30 years and that her name has been mutated.

7. Respondent No. 5 challenged the said order before the revisional authority. After perusing the documents and after hearing the parties, he held that-the contention of the petitioner that the land was transferred in her favour under Section 68 of the Act is untenable, as there was no decree or order ejecting respondent No. 5. He further held that admittedly respondent No. 5 was the descendant of the recorded tenant and, therefore, it follows that in the absence of any legitimate explanation as to how the land was transferred from the descendant of recorded tenant to the petitioner, any transfer has to be considered illegal and against the provision of Section 46 of the Act. He further held that the appellate authority without considering the relevant aspects and without any basis held that the petitioner was in possession of the land in question for the last 30 years. Accordingly, the revision petition was allowed in favour of respondent No. 5.

8. In my opinion, the first contention of res judicata raised by the petitioner is not tenable. Admittedly after the suit (T.S. No. 19 of 1980) was transferred, it was dismissed for non-prosecution on 25.5.1983. It appears that the suit was abandoned by respondent No. 5. Moreover, in view of paragraphs 4 to 6 of the judgment of Shivashankar Prasad Sah and Anr. v. Baikunth Nath Singh and Ors. and Paragraphs 17, 12, 24 and 25 of Ram Govinda Daw and Ors. v. Smt. H. Bhakta Bala Dasi etc. it cannot be held that the application of respondent No. 5 under Section 71 of the Act was barred by res judicata.

9. Petitioners second contention that as per Section 48(4) of the Act, no claim for restoration of bhuinhari land is maintainable after 12 years is wholly misconceived. This is not a case of transfer under Section 48(4) of the Act. There is no transfer of any bhuinhari tenure by a memb