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2007 DIGILAW 734 (PAT)

Dinesh Kumar Chaudhary v. Collector, Purnea

2007-04-12

NAVANITI PRASAD SINGH

body2007
Judgment 1. Having heard the parties and perused the pleadings on records this application is being disposed of at the stage of admission itself. 2. It appears that one Shivanand Jaiswal was the landlord (raiyat) in respect of plot no. 3027 under Khata no. 1472 at Banmaknkhi The said plot, it is not disputed, has a total area of 70 decimals. It further appears that one Biramchi Das was recorded as sikmidar (occupancy under raiyat) in respect of some part of the said polot. On 6.12.1983 respondent no. 4 (Baldeo Prasad Yadav) purchased the sikmi right from Nageshwar Das @ Nageshwar Sharma, who was the son of the sikmidar Biramchi Das. This was purchased in respect of 17 decimals of land out of the said plot no. 3027. 3. On 4.1.1985 petitioners father also purchased the sikmi right from the same Nageshwar Das @ Nageshwar Sharma in respect of 8.25 decimals from the same plot no. 3027. 4. Thereafter on 5.7.1996, after the death of the petitioners father the petitioner purchased from the original landlord (raiyat) Shivanand Jaiswal by registered sale deed, the landlords entire interest in the land in respect of 8.25 decimals appertaining to the same plot no. 3027. Apparently, this purchase of landlords right is in respect of the same land for which he had earlier purchased the sikmi right. Petitioners case is that first having purchased the sikmi right and then the landlords full right, he became entitled to be the absolute owner of the land and no other persons, muchless, the respondent no. 4 could exercise any right in relation to those lands. 5. The case of respondent no. 4 is that the land in respect of which he had purchased the sikmi right though appertains to plot no. 3027, it is distinct and different from the land of the petitioner. The application filed under sec. 48D of the Act by him, which was disallowed at the first instance but allowed at the appellate stage by the Sub-divisional Officer could not thus be opposed by the petitioner as he had no dispute with the petitioner. On the other hand, the petitioner submits that private-respondent is claiming his land as a sikmidar which is not permissible because there could not have been a transfer of sikmi right and no custom is established. On the other hand, the petitioner submits that private-respondent is claiming his land as a sikmidar which is not permissible because there could not have been a transfer of sikmi right and no custom is established. Secondly, the moment Nageshwar Das @ Nageshwar Sharma sold his sikmi right, the Bataidari, which is the landlord and tenant relationship between Nageshwar Das and Shivanand ended and as the landlord not did not agree to induct the private respondent as an under raiyat, the private respondent did not acquire any right. 6. To my mind, the two contentions above are necessary to be decided on basis of facts to ultimately decide the case. First, it is to be decided whether the two parties i.e. the petitioner and the respondent no. 4 are litigating in respect of same land or partly overlaped land or distinct land. Unless they are litigating in respect of same land, petitioner would not have a locus to challenge the application of respondent no. 4. This fact can be established by true facts. One by comparing the boundary of the sale deed of purchase of sikmi right by the two parties being deed dated 4.1.1995 in favour of the petitioner and deed dated 6.12.1993 that of the respondent no.4. If the boundary overlaped or clash only then petitioner can oppose the application of respondent no. 4 but if they are separate and distinct petitioner would have no locus to oppose the application of respondent no.4. The second is by local inspection whereby the areas of petitioner and respondent no.4 could be demarcated. 7. The next question that requires to be determined is whether sikmi right could at all be transferred. In the appellate orders there are references to custom in this regard. 8. Having gone through the entire order it is clear that the learned Subdivisional Officer has so held merely because the petitioner and the respondent no.4 had so purchased sikmi right. In my view, two illegal acts or acts in violation of law would not make a custom. To establish the custom it has to be established that for a long period such is a practice and it has been accepted by all concerned. Stray incident cannot make custom. 9. Therefore, these two issues with regard to boundary and establishment of custom have to be first decided at the original stage from which will follow the decision. To establish the custom it has to be established that for a long period such is a practice and it has been accepted by all concerned. Stray incident cannot make custom. 9. Therefore, these two issues with regard to boundary and establishment of custom have to be first decided at the original stage from which will follow the decision. Therefore, the authorities not having been done this exercise, which was incumbent upon them to undertake, I am left with no option but to set aside both the orders i.e. order dated 4.8.1998 of Circle Officer, Banmankhi, rejecting the application of respondent no.4 and the order dated 25.9.2001 of S.D.O., Banmankhi i.e. the appellate order of the Subdivisional Officer allowing the appeal of respondent no. 4 and remand the matter to the Circle Officer to proceed in accordance with law and the direction as given above. 10. This writ application is accordingly disposed of.