KUSUMLAL MALLAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and the respondents. With consent of the parties, this writ application is being disposed of at the stage of admission itself. In this writ application, the petitioner has challenged the order, dated 2.9.94 passed by respondent No. 2 the Subdivisional Officer, Forbesganj, whereby the concerned respondents have been directed to make entry into the relevant register, a copy of which has been made Annexure-3 to this writ application. It is stated that the land in question, pertaining to Khata No. 786, plot No. 3783 having an area of 0.78 decimals and plot No. 3791 measuring an area of 1 acre were recorded in the name of the petitioner in Sikmi Khata No. 284 in the revisional survey Khatiyan, as per amended provisions of Section 48-D of the Bihar Tenancy Act, 1885 (hereinafter referred to as the Act). The petitioner, filed an application before respondent No. 3, the Circle Officer, Bhargama Anchal, District Araria, for declaring him as an occupancy raiyat of the lands in question, which was registered as 48-D, B.T. Act Case No. 98 of 1992-93. The respondent-Circle Officer, by his order, dated 18.1.93 accepted the claim of the petitioner and, accordingly the petitioner's claim for his declaration as an occupancy raiyat was allowed. A copy of the aforesaid order, has been made Annexure-2 to this writ application. The private respondents No. 4 and 5, being aggrieved by the aforesaid order, filed an appeal before respondent No. 2, the Sub-divisional Officer, Forbesganj, which was registe-red as Appeal case No. 254 of 1992-93, who, by his order dated 2.9.94 allowed the appeal of the private respondents.

(2.) A counter-affidavit has been filed on behalf of the private respondents in this application stating, inter alia that though during the revisional survey, the name of the petitioner was recorded in the Khatiyan as Sikmidar, the respondents have no knowledge of the said entry as the name of the petitioner was recorded behind the back of the private respondents and that too without following the procedure, as required under the law. It is further stated that a consolidation proceeding was initiated in the year, 1994-95 and the consolidation authorities found the respondents in peaceful possession over the disputed land and even then the petitioner never raised any objection. It is further stated that the petitioner has suppressed the material facts from this Court, inasmuch as, after the revisional survey entry the possession of the respondents was found by the consolidation authorities and, as such the claim of the petitioner, as per the amended provision of Section 48-D of the Act is wholly baseless and malafide. It is further stated that the Halka Karmachari made spot verification of the disputed lands and found peaceful possession of the private respondents over the lands in question. A copy of the report of the Halka Karamchari has been made Annexure-A to the counter-affidavit. The respondent have further denied, in their counter-affidavit, that any notice was ever served on them by the respondent Circle Officer in 48-D, B.T. Act Case No. 98 of 1992-93 before passing the order, as contained in Annexure-2. However, when respondents came to know about the order having been passed by the Circle Officer, as contained in Annexure-2, they sent Uma Sanker Rai, son of respondent No. 4 to make enquiry as to existing stage of the case, but curiously enough, they came to know that respondent No. 3, the Anchal Adhikari, without giving an opportunity to the private respondents 4 and 5 of being heard and without considering the report of the Halka Karamchari, allowed the claim of the petitioner. The respondent Sub-divisional Officer has firstly held that the claimant has not filed an affidavit to the effect that he does not possess land anywhere beyond the ceiling limit. The learned Sub-divisional Officer has further held that the zamabandi was created in favour of respondents 4 and 5 long ago and the same is continuing in their names. The respondent Sub-divisional Officer has further held that the respondent Circle Officer, without taking into consideration the (sic) of the lands and/or the report of the Halka Karamchari with regard to possession of the respondent over the lands, in question, has decided claim in favour of the petitioner. He has further hell that having regard to the stand taken by the respondents that their residential house stands over the lands, in question, the respondent Circle Officer ought not to have passed the order, without verifying the claim of the petitioner. The respondent Sub-divisional Officer has lastly held that Circle Officer, without giving a finding regarding possession over the lands, in question, which is mandatory before passing the order in terms of the amended provisions of Section 48D of the Act, has passed the order. On the aforesaid consideration and findings, the respondent Subdivisional Officer has set aside the order passed by the respondent Circle officer and accepted the contentions of the respondents.

(3.) Learned Counsel for the petitioner, in support of this writ application, has submitted that as per the entry made in the revisional survey record since 1952 Fasli corresponding to English calendar year 1845, the petitioner will be deemed to have acquired the occupancy right with respect to the lands, in question, in terms of Section 48-D of the Act. While developing his argument, learned counsel submits that the said survey record entry has not been challenged by the respondents at any point of time and at this stage, the respondents cannot be advised to dispute the said entry in the survey record. It is further submitted that the report of the Halka Karamchari supports the possession of the petitioners over the lands, in question, which has been considered by the respondent Circle Officer, while allowing the claim of the petitioners.