Judgment 1. These two writ applications with consent of parties have been taken up together for disposal at the stage of admission itself, as apparently some common issues arise in both these writ applications. 2. Petitioners who are landlord have challenged the order of the Anchal Adhikari passed in terms of sec. 48D of the Bihar Tenancy Act 1885. Under the said provision on an application by an occupancy under-ra/yaf, the occupancy under raiyat could acquire raiyati right itself. In other words, Bataidar having been bataidar for over 12 years could claim to become the landlord or in other words a tenant for 12 years would be ousting the landlord to become the landlord itself. The said section provides for compensation to be paid to the outgoing landlord which is stipulated to be 24 time, the rent of the holding in the manner prescribed. One of the questions that arise is what is the meaning of "rent of the holding"? Is it the rent which is paid by the landlord to the State or is it the rent that is payable by the under-raiyat to the raiyati, i.e., is by the tenant to the landlord. 3. To my mind, this question of rent as contemplated under sub-section 3 of section 48D does not create any problem or any major issue. Reference to subsection 3 of sec. 48D would show that this is a compensation that has to be paid by the tenant (under-raiyat) to the raiyat (landlord) for divesting the landlord of his entire right, title and interest in the said land and acquiring the absolute right, title and interest as a landlord from that landlord of that land by the under-ra/yaf. Therefore, it is a compensation which is to be paid to the outgoing landlord by reason of loss of right, title and interest and thus, by reason of loss of income to him and has to be paid by the tenant who seeks to acquire the title by becoming raiyat. It is, therefore, to be seen as to what is the meaning of expression rent of holding as between the raiyat and the under-ra/yaf. "Rent" has been defined by sub-section 5 of sec. 3 of the Act to mean what is lawfully payable in money or kind by a tenant to his landlord and "holding" his define by sec. It is, therefore, to be seen as to what is the meaning of expression rent of holding as between the raiyat and the under-ra/yaf. "Rent" has been defined by sub-section 5 of sec. 3 of the Act to mean what is lawfully payable in money or kind by a tenant to his landlord and "holding" his define by sec. 3 (a) of the Act and means a parcel or parcels of land held by a raiyat and forming the subject of a separate tenancy. A conjoint reading of rent and holding with reference to sec. 48D (3) would thus clearly mean whatever is lawful payable by the under-ra/yaf to the raiyat for occupying and using the land of the raiyat. The Act provides a detailed procedure for fixation of such rent it is to be fixed on the basis of money value of the agricultural yield from the land in question. Therefore, it will be seen that the rent that is payable by the under-ra/yaf to the raiyat would be either a share in the crop produced or money value thereof. It is not the rent that the raiyat pays to the State. 4. Thus, while allowing the claim of under-ra/yaf in terms of sec. 48D of the Act the compensation that would be required to be paid would be the rent which in law the under-ra/yaf is required to pay to the raiyat multiplied by 24. This is a well settled principle for calculation of value of income yielding property known as "rent capitalisation method". For example if the total agricultural produce of the land in question is 100 quintals in a year if there being single crop. The landlord would be entitled to 35 quintals and the balance 65 would be retained by the under-ra/yaf subject to a contract to the contrary being proved otherwise. The under-ra/yaf would thus be required to pay 24 times the money value of 35 quintals of wheat to the landlord. This being the law in both the cases, the finding of the Anchal Adhikari that the private respondents was to pay Rs. 130 or to Rs, 544 for acquiring the raiyati interest was clearly vitiated as that was based on erroneous view of law that the rent of holding i as provided in Sec. 48D(3) was the rent that the landlord was to pay to the State. 130 or to Rs, 544 for acquiring the raiyati interest was clearly vitiated as that was based on erroneous view of law that the rent of holding i as provided in Sec. 48D(3) was the rent that the landlord was to pay to the State. I have already indicated above the correct view is otherwise. Accordingly, such a direction and finding is not sustainable. 5. I have decided this issue first as this was a common issue and such issues are arising everyday before this court. 6. Coming to the facts of the first case that is C.W.J.C. No. 7639 of 2000, the order impunged is Annexure-7 and Annexure-11 which is the original order and the appellate order under Sec. 48D of the Act. It appears that at the instance of one Shri Nemo Manjhi @ Nibu Manjhi (Respondent no. 4) showing himself son of Anup Manjhi, an application was made before the Anchal Adhikari in terms of section 48D of the Act and registered as case no. 8/94-95. The said application is annexed as Annexure-4 and shows that the proceedings was sought to be initiated against Narayan Singh and others & Brahmadeo Prasad Singh and others and the said respondent claims to be in possession of the holding since 1948. It is the case of respondent no. 4, that he is the son of Anup Manjhi who has been shown as Sikmidar in the revisional survey of the land in question. He has since been coming in possession and tilling the land and claimed the right in terms of section 48D of the Act. The proceedings having been registered, it appears from the complete order sheet (Annexure-7) that on 7.9.1994, the service report was received stating that the landlords to whom notices were issued had died quite sometime back and as such respondent no. 4 was required to make substitution. It is not in dispute that no such steps were taken and by the impunged order dated 19.5.1995 the application of respondent no. 4 is allowed showing the landlords to be willfully absent from the proceedings. The petitioners state that the lands had been purchased by him by registered sale deed of the year 1962/1963. His further case is that respondent no. 4 is not son of Anup Manjhi rather he is grandson of Anup Manjhi being the son of Chhotku Manjhi which fact he (Respondent no. The petitioners state that the lands had been purchased by him by registered sale deed of the year 1962/1963. His further case is that respondent no. 4 is not son of Anup Manjhi rather he is grandson of Anup Manjhi being the son of Chhotku Manjhi which fact he (Respondent no. 4) has deliberately hidden for the reason that in the revisional survey the name of Anup Manjhi was sworn as sikmidar and after his death Chhotku Manjhi being his son executed a registered deed denouncing the survey entry and renouncing any right in the said land. This being the situation Nemo Manjhi@Nibu Manjhi could not claim to be continuing as under-raiyat and could not claim the right of occupancy under raiyat before the Anchal Adhikari. As there was no notices, the proceedings proceeded ex-parte. The appellate court has mainly dismissed the appeal on the ground that the petitioner though purchased the land 40 years back had not got his name mutated. He thus affirmed the order of Anchal Adhikari passed in terms of Sec. 48D in favour of Respondent no. 4. 7. On behalf of the petitioner it is submitted11 firstly that the proceedings itself are vitiated as no notices were issued to the landlords. Secondly, Nemo Manjhi @ Nibu Manjhi (respondent no. 4) not being the son of Anup Manjhi and deliberately conceding the true relationship could not claim any right as his father had himself denounced the survey entry and renounced his right in favour of the petitioner himself as far back as in 1965 by a registered document and thirdly that the claim on the face of it was fraudulent inasmuch as if (respondent no. 4) was continuing under raiyat, he would surely have known the name of his landlord with whom he has been sharing the crop, for surely he could not have been sharing the crop with persons who had died several years back. 8. In my view the proceedings stand vitiated right from the very beginning for non-substitution of the original landlords itself inspite of report of death. The proceedings were thus against dead person and invalid. However, I am of the opinion that so far as claim of respondent no. 4 is concerned that does not inspire confidence. 8. In my view the proceedings stand vitiated right from the very beginning for non-substitution of the original landlords itself inspite of report of death. The proceedings were thus against dead person and invalid. However, I am of the opinion that so far as claim of respondent no. 4 is concerned that does not inspire confidence. The reason is that first he should have known his landlord with certainty for he has accepted to be sharing crop every year with his landlord. That position has not been explained rather landlords have been shown to be people who were dead for several years. Secondly, the petitioner has annexed documents to show the parentage of respondent no. 4. Respondent no. 4 in this writ application has been made a party as son of Chhotku Manjhi. Though respondent no. 4 is represented in this court. Respondent no. 4 has chosen not to file any counter affidavit controverting any of the said factual assertion. The reason for change of parentage is apparent as apparently the father of respondent no. 4 had denounced the revenue entry of sikmidar and renounced in his right in favour of the petitioner by registered document as far as back in 1965. This was unexplainable by respondent no. 4 and only to avoid this, he chose to change his parentage. In that view of the matter the proceedings itself having been initiated against dead persons, the proceedings in this respet are liable to be quashed as such and are quashed in entirety. 9. In the second case i.e. C.W.J.C. No. 683 of 2004, respondent no. 5, the private respondents-earlier having got an order in his favour in terms of section 48E of the Act, but against one Devendra Narayan Chowdhury the husband of the petitioner against which order an appeal is pending at the instance of the present petitioner, he, the respondent no. 5 filed an application in terms of sec. 48D for being declared raiyat having been an occupancy under raiyat for over 12 years. 10. This claim he makes in respect of total area of 6.08 acres as per the khatian. The proceedings were initiated against Narendra Narayan Chowdhury and Shailendra Narayan Chowdhury who were originally landlord and were dead long back. The proceedings were registered against Devendra Narayan Chowdhury and notices were issued to him. 10. This claim he makes in respect of total area of 6.08 acres as per the khatian. The proceedings were initiated against Narendra Narayan Chowdhury and Shailendra Narayan Chowdhury who were originally landlord and were dead long back. The proceedings were registered against Devendra Narayan Chowdhury and notices were issued to him. From the order sheet (Annexure-6) it appears that there is a report that he refused to accept the notice and as such the proceedings proceeded ex-parte and the private respondent no. 5 was declared to be acquiring the right of the raiyat. As by then, the report of the Halka Karamchari had been received which pointed out that substantial lands, several decades back, had already been acquired by the Goverment, the balance land i.e. about 3.18 acres was then declared to be raiyati land of the private respondent on bare compensation payable by him to the alleged landlord amounting to Rs. 544.80. This order was appealed against by the petitioner on the ground that the petitioner was the true and only raiyat. She had never been made a party. No notices were issued to her either in the 48E proceedings or in the 48D proceedings.The lands originally belonged to her husband late Devendra Narayan Chowdhury and his co-sharers but they had been gifted by registered deed of the year 1962 and pursuant thereto the peti- tioner had got her mutation also done and the jamabandi stood in her name, yet she was not made a party. The other ground taken was that the claim itself was fraudu- lent in asmuch as if the respondent no. 5 was a true bataidar (under-ra/ya/) then apart from knowing the true landlord, he should have known the true area of land under his cultivation. The falsity of the claim is established from the fact that the respond- ent had merely looked into the khatiyan which was in respect of about 6.08 acres of land and showing the ancestors of peti- tioners husband as the raiyat. Merely on the basis of those record, the claim was made forgetting that several decades back the Government had acquired substantial lands and what was left was only 3.19 acres and not 6.08 acres. The appellate court rejected the claim of the petitioner j on the ground that in the 48E proceedings the husband had defended the matter with- out disclosing the ownership. The appellate court rejected the claim of the petitioner j on the ground that in the 48E proceedings the husband had defended the matter with- out disclosing the ownership. In the present proceedings also, the notices were sent to the husband of the petitioner who refused to receive it. 11. Having considered the matter, I am of the opinion that for a proceeding in terms of 48E or 48D first there has to be established a landlord tenant relationship i.e. the relationship of raiyat and underraiyat under him. The raiyats interest in the landlord is a legal interest and the relationship must coexisted between such persons in fact and in law. In the present case, it was the petitioner who was the legal and lawful raiyat. This cannot be disputed as she had received the land by way of registered gift and was duly mutated also in the jamabandi. The husband of the petitioner had no right, title or interest in the property after the gift was made in the year 1962. Notwithstanding the aforesaid, the petitioner was never made a party. As petitioners husband had not right title and interest, he cannot be said to be the raiyat or the landlord in respect of the said land and therefore, there cannot be any relationship between him and respondent no. 5 as an under-ra/yaf, for the petitioners husband was not the raiyat. Secondly, any declaration of the jural relationship as between the husband of the petitioner and respondent no. 5 is non-est in the eye of law. Respondent no. 5 never claimed to be under-raiyat of petitioner. In that view of the matter, the claim of respondent no. 5 was non-est claim based on misconceived facts. I am satisfied as to the falsity of the claim as well. The simple reason is that if respondent no. 5 was a true under-raiyat of the petitioner then he should have known his landlord and named him. He did not do so. If he was actual under-ra/yaf then he should have known the extent of land under his tillage. His claim was 6.08 acres which was found to be wrong as per report of the Halka Karamchari as it was pointed out that after acquisition of land by Government several decades earlier only 3.18 acres was left. He did not do so. If he was actual under-ra/yaf then he should have known the extent of land under his tillage. His claim was 6.08 acres which was found to be wrong as per report of the Halka Karamchari as it was pointed out that after acquisition of land by Government several decades earlier only 3.18 acres was left. This basic facts were lost sight of by both, by the Anchal Adhikari and the appellate authority, the Sub-Divisional Officer. The proceedings having been initiated and granted against persons who had no right, title and interest in the property. Such an order is non-est and cannot bind the petitioner in any manner. 12. In that view of the matter, I have no option but to quash the entire proceedings as well. 13. In view of the aforesaid, both the writ application are allowed and both the proceedings impunged therein are quashed.