Sarbi Mehta vs The State of Bihar and Others

S.N. Jha, J.—This writ petition arises out of a proceeding u/s 48D of the Bihar Tenancy Act. The petitioner claims to the under-raiyat having occupancy rights filed application (Case No. 35/93-94) u/s 48D of the said Act which was allowed by the Anchaladhikari Rupouli on 8.3.94. Respondent (sic) appeal (Case No. 4/94-95) on 8.3.94. Respondent no. 4 filed appeal (Case No. 4/94-95) before Sub-divisional Officer, Dhamdaha. By order dated 27.9.95 the SDO set aside the order of the Anchaladhikar rejected the application of the petition. The petitioner has approached this challenging the correctness of the order of the SDO dated 27.9.95 copy whereof has been marked annexure-5 to the writ petition.

Counsel for the petitioner submits that in the revisional survey record-of-rights finally published on 8.3.58, the name of the petitioner has been shown as Sikmidar with respect to the land in question. His status as under-raiyat vis-a-vis landlord can not therefore be doubted. With the passage of time on completion of 12 years he must therefore be deemed to have acquired occupancy rights. However, the SDO has rejected his claim merely on the ground that the petitioner had executed a deed of Ladawi relinquishing his interest in the disputed land in favour of the respondents on 13.9.55. He pointed out that in the 70''s, proceeding had been taken for division of the crops u/s 69 of the Bihar Tenancy Act in which positive orders were passed. It was submitted that the said orders are also evidence of the petitioner''s claim.

Counsel for the respondents submitted that after partition of the joint family lands of the family of the respondents, the petitioner purchased lands of the same very plot from other co-sharer but filed the present application seeking tenancy rights u/s 48D against the respondent. As regards the orders passed u/s 69 of the Act it has been contended that the respondent was not party to those orders.

In the facts of the case, after hearing the counsel for the parties I am inclined to direct the SDO to pass fresh orders. In my opinion, if the SDO thought that the Anchaladhikari should have taken into account the deed of Ladawi he should have set aside the order and aksed the Anchaladhikari to consider the same. This however could not be a sufficient justification to finally reject the claim of the petitioner. In this connection. I would like to observe that a deed of so-called deed of Ladawi has little legal effect, for it does neither create nor extinguish one''s right or interest in the lands. Therefore, I do not think much importance should be attached to the document. The SDO also lost sight of section 103-B of the B.T. Act which creates presumption of correctness of the entries in finally published record-of-rights-both backward and forward. The record-of-right in question has been published in 1958, it is doubtful if the petitioner had executed the deed of Ladawi, its legal effect apart. In my opinion, proceeding u/s 4BD is to be decided on the basis of an independent enquiry after giving opportunity to the parties to adduce evidence and it would also be appropriate if before final order is passed, local inspection is made and the local residents are examined.

In these premises, I am of the opinion that the impugned order of the SDO should be set aside and he be directed to consider the matter afresh.

The order of the SDO dated 27.9.95, as contained in annexure-5, is accordingly set aside. The matter is sent back to him for fresh decision in accordance with law. This writ petition stands allowed.