Bhola Sharma and Others vs State of Bihar and Others

This writ petition arises from a proceeding u/s 48-D of the Bihar Tenancy Act (''the Act'' for short). The petitioners filed application for declaration of their status as tenant with respect to the land in question claiming to have acquired occupancy right as under-raiyat, before the Anchal Adhikari, Bhawanipur, the Collector under the Act for the purpose of Section 48-D. The said application was allowed after inquiry etc. on 15-5-2000. Against the order Paras Nath Mishra, Anku Kumari and Anshu Kumari preferred appeal before the Sub-divisional Officer, Dhamdaha, By order dated 4-4-2002 the appeal was allowed and the order of the Anchal Adhikari, Bhawanipur was set aside, The petitioners have approached this Court for quashing the order of the Sub-Divisional Officer.

The Sub-Divisional Officer, inter alia, held that should the petitioners so desire, to prove their possession over the land in question, they may file application u/s 48-E of the Act whereafter alone they would be entitled to claim status of Kayami raiyat u/s 48-D. Thus, after favourable decision in Section 48-E proceeding, if any, they would be entitled to file fresh application u/s 48-D.

The question as to whether for filing application u/s 48-D it is necessary for the applicant to first get declaration u/s 48-E, being common in CWJC Nos. 4250/2002 and 5043/2002 the petition was made analogous. However, the present case got stuck up at the notice stage. The other two cases were listed for hearing and decided on 10-2-2003. The judgment titled Dilip Goswami and Another Vs. Nil, . On consideration of authorities on the point the Court held as follows :--

"We have observed above that the provisions of Sections 48-C and 48-D on the one hand and Section 48-E on the other hand deal with different subjects. They lie in separate compartments having little nexus with each other. While Sections 48-C and 48-D deal with acquisition of occupancy right and raiyat''s rights by an under-raiyat, Section 48-E provides protection to an under-raiyat at large -- irrespective of whether he was acquired occupancy rights or remained in possession of the land for a particular period. Thus, for deciding the application u/s 48-E it is not necessary that he should have remained in possession of the land as under-raiyat for more than 12 years, and similarly, for deciding the proceeding u/s 48-D it is not necessary that there should be an adjudication of his under-raiyat''s status u/s 48-E."

The present case so far as it involves the question as to whether the petitioners should have obtained declaration u/s 48-E of the Act before filing application u/s 48-D would appears to be covered by the abovesaid decision of this Court.

Counsel for the parties nevertheless made submissions on merit of the case. On behalf of the petitioners it was submitted that the petitioners are descendants of Kuldip Mistri, the recorded Sikmidar after whose death they stepped into his shoes. In terms of Section 48-D read with Section 48-C of the Act, having remained in possession for more than 12 years they acquired right of occupancy in the land in question and, accordingly they are entitled to declaration of their raiyati rights. Initially, they impleaded one of the sons of Baidyanath Mishra, namely, Shailendra Mishra as opposite party. He did not appear to contest. One of his brothers Paras Nath Mishra later got himself added on the ground that his name stood mutated in the revenue records. The case of the opposite party, respondents herein, is that a title suit being Title Suit No. 732 of 1955 was filed against the petitioners'' father for declaration that he was not Sikmidar of the disputed land, which was decreed. The father of the petitioners had entered into a compromise in a criminal case wherein he accepted that he was not Sikmidar of the land. Further, the wife of another brother of Baijnath Mishra, namely Shila Mishra has half share in the land in question but she was not made party. On behalf of the petitioners it was submitted that T.S. No. 732 was decreed ex parte and prior to publication of the record of rights on 8-3-59. The relevant entry in the record of rights in favour of petitioners'' father was never challenged by the respondents.

The facts of the case have been briefly noted above for the sake of record. We are of the view that the claim of the respondents having been allowed on a wrong premise, the matter should be re-considered and in that view it would not be appropriate for this Court to go into details of this case and make any observation. The cases of Dilip Goswami and others were also remitted back for fresh decision after setting aright the error regarding maintainability of the proceeding u/s 48-D of the Act without filing any application u/s 48-E and seeking adjudication thereunder.

In these premises, the order of the Sub-Divisional Officer, Dhamdaha dated 4-4-2002 in Revenue Appeal No. 6 of 2000 is set aside and the matter is remitted back to the authority for fresh decision in accordance with law. The petition thus stands allowed. There will be no order as to costs.

As the matter has remained pending for some years, it is desirable that the appeal is disposed of at an early date, preferably within four months of the receipt of the order.