Vishnudeo Narayan, J.

1. This appeal has been directed at the instance of defendants appellant against the impugned judgment and decree dated 1.5.1990 and 11.5.1990 respectively passed in Title Appeal No. 30 of 1988 by Shri Surya Kant Mishra, 7th Additional District Judge, Palamau at Daltonganj whereby and whereunder the judgment and decree dated 26.4.1988 and 6.5.1988 respectively passed by Sub-Judge, Garhwa in Title Suit No. 11 of 1983 was set aside and the appeal filed by the plaintiffs respondent was allowed.

2. The plaintiffs respondent had filed Title Suit No. 11 of 1983 on 20.01.1983 for a declaration that plot No. 496 appertaining to Khata No. 14 having an area of 71 decimals (hereinafter referred to as the suit land) situate in village Arsali Tola, Jhunri, P.S. Bhawnathpur, District Palamau is the occupancy raiyati land of the plaintiffs respondent and the defendants appellant have no interest therein and they have further sought confirmation of their possession in respect of the suit land and in the alternative for recovery of possession in respect thereof.

3. The case of the plaintiffs respondent, in brief, is that Aliyar Chamar is the common ancestor of the plaintiffs respondent and he was recorded as occupancy raiyat of the land of Khata No. 14 situate in village Arsali in the Survey Records of Right and he died leaving behind his two sons Sheo Tahal Chamar and Ghoghan Chamar and they have Inherited the land of Khata No. 14 on the death of their father Sheo Tahal Chamar died issueless about 40 years ago leaving behind his widow Chijwa Chamain and his widow Chijwa Chamain succeeded her deceased husband in respect of his interest in the sum property Ghoghan Chamar died about 35 years ago leaving behind his three sons, namely, Ram Bilash Chamar, Budhan Chamar and plaintiff respondent No. 1 Rudi Chamar and they inherited the properties left by their father Ghoghan Chamar, Ram Bilash Chamar died issueless in the year 1955. Chijwa Chamain, the widow of Sheo Tahal Chamar died in the year 1972 and, thereafter. Budhan Chamar also died leaving behind his two sons, plaintiffs respondent No. 2 Chandrika Chamar and plaintiff respondent No. 3 Amerika Chamar and his widow plaintiff respondent No. 4 Muswa Chamain and plaintiff respondent No. 1 Rudi Chamar succeeded Chijwa Chamain on her death in respect of the properties of Khata No. 14 to the extent of their share therein. On the death of Budhan Chamar in the year 1972 his three heirs inherited the properties left by Budhan Chamar in respect of Khata No. 14. Budhan Chamar and Chijwa Chamain executed a sale deed dated 12.7.1971 (Ext. C) in respect of the suit plot in favour of the defendants appellant without obtaining the previous sanction of the Deputy Commissioner and as such the said sale deed Is void ab initio and also the said sale deed is without consideration and on the basis of the said illegal sale deed the defendants appellant started interfering in the peaceful cultivating possession of the plaintiffs respondent in respect of the suit land. It is alleged that the defendants appellant have acquired no right title and interest in the suit land and they are also not in possession over the same. It is also alleged that Chijwa Chamain and Budhan Chamar also executed a deed of cancellation on 25.11.1971 (Ext. 1) cancelling the sale deed executed by them in favour of the defendants appellant. Since a cloud has been cast on the right title and interest of the plaintiffs respondent hence he has filed the said title suit.

4. The case of the defendants appellant, inter alia. Is that they have acquired a suit land by virtue of the registered sale deed dated 12.7.1971 executed by Chijwa Chamain and Budhan Chamar and they came in possession over the suit land and the said sale deed is for consideration and both the vendors as well as the vendees are the members of scheduled castes. It is alleged that there is no restriction under Section 46 of the Chotanagpur Tenancy Act in respect of the sale of any immovable property by a member of the scheduled caste to the other member of that caste being the resident of the same police station and on the basis of the declared policy of the State of Bihar all the sale deeds by member of the scheduled caste in favour of the members of the scheduled caste at the relevant period is legal and valid and the defendants appellant are in coming over the possession of the suit land since then.

5. In view of the pleadings of the parties the learned trial Court framed the following issues for adjudication :--

(i) Is the suit as framed maintainable

(ii) Whether the plaintiffs have valid cause of action for the suit

(iii) Whether the suit is barred by law of limitation and adverse possession

(iv) Whether the suit is under values

(v) Whether the sale deed executed by Chijwa Chamain and Budhan Chamaron 12.7.1971 is valid, legal and effective and the defendant acquired any right title and interest over the land

(vi) Whether the plaintiffs are occupancy raiyats of the suit land and they are entitled for recovery of possession for confirmation of possession

(vii) To what other relief or reliefs the plaintiffs are entitled for

6. The learned trial Court while deciding issue No. (v) and (vi) aforesaid had held that Budhan Chamar and Chijwa Chamain have sold the suit land to the defendants appellant and consideration money was paid in two parts and defendants appellant are in possession of the land and from the recital of the sale deed it will appear that the title passed on the deed of execution of the sale deed and since the title has passed and the plaintiffs respondent and his ancestors had not taken any steps within three years of the execution of the sale deed for setting it aside and as such the remedy is not available to the plaintiff respondent after eleven years of the execution of the sale deed to seek declaration that the sale deed is not valid. The learned trial Court has further held that there is nothing on the record that the permission as required under Section 46 of the Chotanagpur Tenancy Act was not obtained from the Deputy Commissioner. The plaintiffs respondent have not filed anything in support of their case. The sale deed executed by. Chijwa Chamain and Budhan Chamar is also not invalid and because the plaintiff No. 1 was not joined as executant in the sale deed as because from the perusal of certified copy of records of Right it will transpire that the ancestor of the executants had three acres of land and they have not executed their share by executing the sale deed and on this ground also the sale deed in question cannot be said to be invalid. In view of the findings aforesaid the learned trial Court had dismissed the suit of the plaintiffs respondent.

7. Aggrieved by the judgment and decree of the trial Court the plaintiffs respondent preferred Title Appeal No. 30 of 1988. The lower appellate Court on reappraisal and reappreciation of the evidence oral and documentary on the record set aside the judgment and decreed of the trial Court and allowed the appeal as per the impugned judgment and decreed the suit. The appellate Court below came to the finding of the fact that title of the vendors did not pass by virtue of the execution of the sale deed dated 12.7.1971 (Ext. C) in favour of the defendants appellant for non-payment of consideration of the said sale deed. The learned appellate Court below has further held that the sale deed in question was executed without permission of the Deputy Commissioner in contravention of Section 46 (1)(b) of the Chotanagpur Tenancy Act and hence the sale deed is void ab initio and the defendants appellant did not acquire any title over the suit land by virtue of the said sale deed.

8. The Court while admitting the appeal for hearing formulated the substantial question which runs thus :

"Whether in view of the decision of this Court in Smt. Budhni Mahtoain v. Gobardhan Bhogta, reported in 1984 PLJR 399 ; a member of a scheduled castes could transfer the property in favour of any other person as Section 46 of the Chotanagpur Tenancy Act was declared ultra vires"

9. It has been submitted by the learned counsel for the defendants appellant that Chijwa Chamain and Budhan Chamar have admittedly executed the sale deed in favour of the defendants appellant and there is no dispute in respect thereof. It is also an admitted fact that the vendors and the vendees are the members of scheduled caste and both the parties are resident of the same village within the local limits of the district within which the suit land is situated. Section 46 of the Chotanagpur Tenancy Act provides that no transfer of a raiyat of his right in his holding or any portion thereof shall be valid but its proviso mandates that an occupancy raiyat who is a member of the scheduled caste may transfer with the previous sanction of the Deputy Commissioner his right in his holding or portion of his holding by sale, exchange, gift, will or lease to another person who is a member of the scheduled caste and who is the resident within the local limit of the district within which the land is situated. Here in this case no previous sanction of the Deputy Commissioner has been obtained for execution of the sale deed by the vendors i.e. the plaintiffs respondent for executing the sale deed in favour of the defendants appellant but the said provision of Section 46 of the Chotanagpur Tenancy Act has been declared ultra vires and non est by the ratio of the case of Smt. Budhni Mahtoain and Anr. v. Gobardhan Bhogta @ Gobra and Ors. 1984 PLJR 399 , by the Bench of this Court and the learned appellate Court below had lost sight of the said ratio and has committed an error in allowing the appeal and setting aside the judgment and decree of the trial Court. However, the learned counsel for the defendants appellant has fairly submitted that the ratio of the case of Budhni Mahtoain, (supra) has been subsequently overruled as per incurium and not a good law by the ratio of the case of Mathura Singh v. Tetli Dom and Ors. : 1996 (2) PLJR 260 , by a larger Bench of this Court and in this view of the matter the substantial question framed in this case has lost all its relevance.

10. The learned counsel for the plaintiffs respondent has submitted that admittedly the sale deed executed by Chijwa Chamain and Budhan Chamar in favour of the defendants appellant is without the previous sanction of the Deputy Commissioner and as such in view of the ratio of the case of Mathura Singh, (supra) the sale deed (Ext. C) is ab initio void, illegal and inoperative and no right title and interest has ever accrued in favour of the defendants appellant and in view of the ratio aforesaid this appeal is fit to be dismissed.

11. Here in this case the plaintiffs respondent had filed Title Suit No. 11 of 1983 against the defendants appellant of declaration that the suit land is their occupancy ratyati land and the defendants appellant have absolutely no interest therein and they have further sought the relief of confirmation of possession and in the alternative for recovery of possession in respect thereof. The specific case of the plaintiffs respondent is that the sale deed dated 12.7.1971 (Ext, C) executed in respect of the suit land in their favour by Chijwa Chamain and Budhan Chamar is without the previous sanction of the Deputy Commissioner as required under Section 46 of the Chotanagpur Tenancy Act and thus the sale deed (Ext. C) is void ab initio and it conferred no right, title and interest on the defendants appellant in respect of the suit land. The learned appellate Court below has also held that the sale deed (Ext. C) has seen the light of the day without the previous sanction of the Deputy Commissioner as mandated in Section 46 of the Chotanagpur Tenancy Act. Therefore, the fact in controversy in the suit is as to whether the sale deed (Ext. C) in favour of the defendants appellant executed by Chijwa Chamain and Budhan Chamar, the ancestors of the plaintiffs respondent is in violation of Section 46(1) of the Chotanagpur Tenancy Act, The relevant provision of Section 46(1) of the Chotanagpur Tenancy Act runs thus :

"46. Restrictions on transfer of their rights by raiyats.--(1) No transfer by a raiyat of his right in his holding or any portion thereof--

(a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or

(b) by sale, gift or any other contract or agreement, shall be valid to any extent.

Provided that a raiyat may enter into a Bhugut Bandha mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgage be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B & O Act VI of 1935) for any period not exceeding fifteen years :

Provided further that :

(a) an occupancy-raiyat who is a member of the Scheduled tribes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person who is a member of the scheduled tribes and who is a resident within the local limits pf the area of the police station within which the holding is situate.

(b) an occupancy raiyat who is a member of the Scheduled Castes or backward classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person who is a member of the Scheduled Castes or, as the case may be backward classes and who is resident within the local limits of the district within which the holding is situate.

(c).....

(d).....any occupancy raiyat who is not a member of the schedules tribes, scheduled castes or backward classes, may transfer his right in his holding or any portion thereof by sale, exchange, gift, will, mortgage or otherwise to any other person....."

12. Section 46 of the said Act put restrictions on transfer of the rights by the raiyats and any transfer by a raiyat of his right in holding or any portion thereof by mortgage, lease exceeding five years or by sale, gift or any other contract or agreement shall not be valid to any extent. However, proviso (b) of Section 46 of the said Act mandates that an occupancy raiyat who is a member of the scheduled castes or backward classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift, will or lease to another person who is a member of the scheduled castes or, as the case may be, backward classes who is resident within the local limits of the district within which the holding is situate. The vires of Section 46 of the said Act was questioned in the case of Sasthi Pado Sekhar and Anr. v. Anandi Chaudhary and Ors. , and it was held that the provisos to Section 46(1) of the said Act are not violative of Article 19(1)(f) of the Constitution. However, the said ratio was not brought to the notice of the Bench of this Court while deciding the case of Budhni Mahtoain, (supra). It has been observed in the case of Budhni Mahtoain, (supra) which runs thus :

".....It is manifest that Article 19(1)(f) (before the 44th Amendment) being a fundamental right on the question of property right conferred on the citizen of India unrestricted right to acquire, hold and dispose of the property with the only restriction imposed upon such right as is envisaged under Clause 5 of the said Article. Therefore, the restrictions imposed by Section 46(1) proviso (b) in relation to members of the scheduled castes became nullified and devoid of any legal force or binding effect."

13. The vires of Section 46 of the said Act again came for adjudication by the larger Bench of this Court on reference being made in the case of Mathura Singh, (supra) and it was observed that the ratio of the ease of Budhni Mahtoain, (supra) does not lay down the correct law and it was also rendered per incurium. It, therefore, appears that proviso (b) of Section 46 of the said Act is completely immune from attack of violation of Article 19(1)(f) in view of its inclusion in the IXth Schedule at item No. 209 of the Constitution. Therefore, in view of the ratio of the case of Mathura Singh, (supra), the substantial question formulated in this case has become non- est Admittedly the sale deed (Ext. C) executed in favour of the defendants appellant is in violation of Section 46 of the said Act and in this view of the matter the defendants appellant have acquired no right title and interest in the suit land and the sale deed (Ext. C) is ah initio void. The impugned judgment of the learned appellate Court below is hereby affirmed.

14. There is no merit in this appeal and it fails. The appeal is hereby dismissed. In the facts and circumstances of this case there shall be no order as to costs.