SARBI MEHTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS writ petition arises out of a proceeding under section 48D of the Bihar Tenancy Act.

(2.) THE petitioner claims to be an under -raiyat having occupancy rights. He filed application (Case No. 35/93 -94) under section 48D of the said Act which was allowed by the Anchaladhikari, Rupouli on 8.3.94. Respondent no. 4 filed appeal (Case No. 4/94 -95) before the Sub -divisional Officer, Dhamdaha. By order dated 27.9.95 the SDO set aside the order of the Anchaladhikari and rejected the application of the petitioner. The petitioner has approached this court challenging the correctness of the said order of the SDO dated 27.9.95, copy whereof has been marked annexure -5 to the writ petition.

(3.) 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 under section 48D 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.