The power of annulment under Section 49(5) of the Chota Nagpur Tenancy Act rests with the State Government, and the jurisdiction of the civil court is barred under Section 258, except on the ground of fraud or want of jurisdiction.

JUDGMENT

Anil Kumar Choudhary, J. - Heard the learned counsel for the appellants.

2. This second appeal has been preferred by the plaintiffs, who were the appellants in lower Appellate Court and the appellants herein, against the judgment and decree dated 26.02.2011 passed by the District Judge, Lohardaga in Title Appeal No. 7 of 2009 whereby and whereunder, the learned Lower Appellate Court has dismissed the appeal and upheld the judgment and decree passed by the trial Court.

3. The case of the Plaintiffs in brief is that the suit land was recorded in the name of Fagua Pahan, as Pahanai Bakast land of the Pahan. The descendants of Fagua Pahan namely Luchu Munda, Ram Munda, Peka Munda and Nekal Munda filed a petition for permission before the Deputy Commissioner on 02.12.1946 for transfer of the suit lands to Bhula Mahali for the construction of water reservoir or bandh. Vide order dated 17.12.1947 in case no. 20R8 (ii) of 1946-47, permission for transfer of land was accorded by Deputy Commissioner, Ranchi, for a sum of Rs. 4,200/-. It is further pleaded by the plaintiffs that though the land was transferred for the construction of water reservoir but no water reservoir was ever constructed. Thereafter, the ancestors of the plaintiffs moved for restoration of land under Section 71A of the Chota Nagpur Tenancy Act (Schedule Area Regulation 1969) before the designated court of the S.D.O., Lohardaga in S.A.R. Case No. 69 of 1976-77 but the same was dismissed by order dated 24.09.1976. The appeal was preferred vide appeal no. 26R/15/77-78. The appellate court of Additional Collector, Lohardaga in the said appeal vide order dated 31.03.1990 remanded back the said case to the court of DCLR for fresh hearing. After remand on fresh hearing and submission of a report by the circle officer, the land was ordered to be restored to Sita Ram Pahan in the said S.A.R. Case No. 69 of 1976-77. Being aggrieved by the said order of restoration, the defendants moved the Appellate Court of the Additional Collector, Lohardaga in S.A.R. Appeal No. 17R 15/95-96 and by order dated 09.07.1996, the appeal of the defendants was dismissed. The defendants preferred a revision before the High Court vide C.W.J.C. No. 2800 of 1996(R) and by order dated 12.05.2003 a coordinate Bench of this Court held that Section 71A of the Chota Nagpur Tenancy Act is not applicable in the instant case and the order of restoration was set aside and thereafter, the plaintiffs filed the instant title suit and pleaded that the orders passed in a writ jurisdiction in exercise of Civil Writ Jurisdiction is not a judgment and the jurisdiction of the civil court is still there. The defendants filed their joint written statements and asserted that the matter has attained finality by the order passed by a coordinate Bench of this Court in the said C.W.J.C. No. 2800 of 1996 (R) as the same has not been assailed by the plaintiffs and the jurisdiction of the civil court is barred under Section 258 of Chota Nagpur Tenancy Act. It has further been pleaded by the defendants that there is specific provision under Section 49 (5) of Chota Nagpur Tenancy Act for restoration of such land by the State Government.

4. On the basis of the rival pleadings, the learned trial court framed six issues. The main issue being

"Whether the plaintiffs are entitled to a decree of declaration of their right, title and interest over the suit land?"

5. The learned trial court observed that the power of annulment is with the State Government and not with the Civil Court even under Section 49 (5) of the Chota Nagpur Tenancy Act, 1908 and that the essential ground for such annulment was that the consent under Sub-Section 1 and 2 of Section 49, must have been obtained in contravention of the provisions of Subsection 1 and 2 of Section 49 of the Chota Nagpur Tenancy Act, 1908, by misrepresentation or fraud and the plaintiffs having not pleaded fraud or misrepresentation at any stage of the case, dismissed the suit.

6. B