KRISHNA MOHAN THAKUR Vs. STATE

JUDGEMENT

(1.) THE petitioners pray for setting aside the entire proceeding of Revision Case no. 362/88-89 preferred against them by respondent nos. 5 and 6 since dead and substituted by their legal heirs. THE facts of the case in short is as follows.

(2.) THE petitioners claim to be the bataidars/under raiyats of plot no. 186, khata no.157-V of village Sadarpur Khurd in the district of Katihar of which late Amarnath Choudhary was the raiyat. Amarnath Choudhary, who is dead is now represented by respondent no.4 his substituted legal heirs. THE petitioners state that in the last survey, the plot in question stood recorded in the record of rights in the name of one Patwari Hembram. Taking advantage of the same Patwari Hembram constructed a hut over the same. THE petitioners filed Title Suit no.312/59 in the court of Munsif, Katihar, in which both respondent nos.4 as well as Patwari Hembram were defendants. Title Suit was decreed on 19.8.61. Patwari Hembram was ordered to vacate the plots holding that petitioners were in possession and had right interest over the same. Patwari being aggrieved preferred Title Appeal no.365/61 which was also dismissed. THEreafter he filed a petition for initiating a proceeding under section 144, Cr.P.C. which was also finally decided against him. According to the petitioners, on instigation of Patwari Hembram, respondent nos. 5 and 6 (now dead and represented by their legal heirs), filed bataidari case under section 48-E of the Bihar Tenancy Act (hereinafter referred to as `B T Act') being Case nos. 71/85-86 and 72/85-86. Both the bataidari cases were dismissed by order dated 24.6.86 under section 48(E)(l). Respondent nos. 5 and 6 neither filed any appeal or revision, nor did they move this Court against the order rejecting the bataidari cases. Instead, respondent nos. 5 and 6 filed a fresh bataidari under section 48E of B.T.Act being case no.20/86, which too was rejected vide order dated 18.10.87. Respondent nos. 5 and 6 this time preferred Revision Case no. 362/88-89 in the court of respondent no.2. THE petitioners filed objection in the revision application stating therein that the same is not maintainable. Over-ruling the objection of the petitioners, the revisional court appointed Pleader-Commissioner to ascertain the factual positions. THE petitioners have challenged the maintainability of appeal/revision before respondent no.2.

(3.) IN view of the discussions made above, we hold that section 48(E)(1) of the Bataidari Act does not visualize resolution of inter se disputes between two under-raiyats. An under-raiyat cannot bring proceedings under section 48(E)(1) against another under-raiyat against prevention of threatened ejectment or for restoration of possession of lawful ejectment. Thus the appeal filed before Collector under section 48(F) of the Act against an order rejecting the application filed under section 48(E)(1) of the Act was not maintainable. An appeal / revision could have been filed only against an order passed under sub-section 7 and sub-section 8 of Section 48(E) of the Act and that too if an under- raiyat is claiming against a raiyat and not against persons who themselves claim to be under-raiyats.