Mohan Lal Jamadar and Another vs The State of Bihar and Others

Narayan Roy, J.—Heard learned Counsel for the parties.

This writ application is directed against the order dated 21.11.1996 as contained in Annexure 6 passed by Respondent No. 3 whereby and whereunder the order passed by the Anchal Adhikari as contained in Annexure 5 dated 27.12.1995 declaring the Petitioners as occupancy under raiyats u/s 48D of the Bihar Tenancy Act (hereinafter referred to as the Act) has been set aside.

Learned Counsel for the Petitioners submitted that the learned appellate authority had wrongly allowed the appeal on the basis of surmises and conjectures and the findings arrived at by the Anchal Adhikari has not been reversed on the basis of evidence and materials on record. It is further submitted that the Petitioners were coming in peaceful possession over the land in question since long as the land in question was acquired by their father who was recorded as under raiyat in 1958 and there was no threat on the part of Respondent No. 5 to eject them and thus the Petitioners must be deemed to have acquired occupancy right over the land in question.

Mr. Dhrub Narayan, learned senior Counsel appearing on behalf of Respondent No. 5 on the other hand, submitted that the question of occupancy right cannot be determined u/s 48D of the Act without there being an adjudication u/s 48E of the Act. Learned Counsel further submitted that at no point of time the Petitioners had gone before the authorities and had placed their claim in terms of Section 48E of the Act and, therefore, there was no determination by the authority as to whether the Petitioners had occupied occupancy right. In this connection Mr. Narayan has placed reliance in the case of Kusumlal Mallah v. The State of Bihar and Ors. 1996 II P.L.J.R. 339 and in the case of Dinanath Singh and Ors. v. The State of Bihar and Ors. 1999 III P.L.J.R. 594.

I have perused the orders impugned. From the materials on record and also from the pleadings of the parties, it would appear that the Petitioners filed their claim u/s 48D of the Act and the same was allowed by the Anchal Adhikari and ultimately on appeal being preferred by the land holder the findings arrived at by the Anchal Adhikari allowing the claim of the Petitioners was reversed. In the case of Kusumlal Mallah v. The State of Bihar and Ors. (supra) this Court has held that an elaborate procedure has been prescribed u/s 48E of the Act to determine the sikmi right claimed by a party and in order to determine the rights of the parties in terms of Section 48D of the Act, the rights of the parties first must be determined u/s 48E of the Act which will be the basis for declaring the occupancy right u/s 48D of the Act. Again in the case of Dinanath Singh and Ors. v. The State of Bihar and Ors. (supra) this Court reiterated the same view and held that no declaration of raiyati right u/s 48D can be given till the claimant under raiyat is an occupancy under raiyat which is determined u/s 48C of the Act and the evidence, if any, led by the parties for declaring such right is to be determined u/s 48E of the Act.

Learned Counsel for the Petitioners stated that this Court in Civil Revision No. 37/96 in the case of Suryabansh Upadhyay v. Awadhesh Choudhary and Ors. 1999 BBCJ 537 : 1999 (2) PLJR 173 has interpreted the provision of Section 48C, 48D and 48E of the Act and on interpretation of those provisions, this Court held:

From a combined reading of Section 48C and 48D it is clear that a person by efflux of time on expiry of period of twelve years acquires occupancy right as well as raiyats'' rights, subject to declaration as such by the prescribed authority u/s 48D. It is noteworthy that Section 48C does not contemplate any proceeding. The person concerned acquires occupancy right by legal fiction by efflux of time on expiry of the prescribed period. Any enquiry in this regard as to whether he has in fact acquired occupancy rights in terms of Section 48C, that is to say, whether requisite conditions contemplated by that section are satisfied or not, can be made only u/s 48D.

This Court, in case of Suryabansh Upadhyay (supra) while dealing with a Civil Revision application where the question had arisen about the maintainability of suit for declaration of sikmi right held that the suit was not maintainable as there were provisions under the Act itself to determine raiyati right u/s 48C and 48D of the Act. This Court in this case, therefore, has not held as to whether the questions first should be determined u/s 48E or straightway u/s 48D of the Act. On reading the provisions of the Act under Sections 48E, 48C and 48D, it appears to me that a raiyats'' right must be determined first u/s 48E of the Act holding that he is the sikmidar and only thereafter his right as occupancy raiyat can be decided under the provisions of Section 48D of the Act. Since the sikmi right of the Petitioner has not been determined by the authorities under the Act, the claim straightway allowed by the Anchal Adhikari u/s 48D of the Act was not sustainable and, therefore, the learned appellate authority reversed the same.

Having considered the submissions made at the bar and in view of the legal propositions noticed above, I do not find any merit in this application. It is thus dismissed.