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2008 DIGILAW 771 (PAT)

Niro Devi v. State Of Bihar

2008-06-25

SHEEMA ALI KHAN

body2008
Judgment 1. The petitioners are aggrieved by the order of the Sub-divisional Magistrate-Cum-Sub-divisional Officer, Kishanganj passed in Appeal No. 9 of 2002 u/s. 48D of the Bihar Tenancy Act, 1885 (hereinafter referred to as the Act)/B.T. Act. 2. The petitioners case is that they had filed an application u/s. 48D of the B.T. Act wherein they have claimed to be the Sikmidars of the landlord and have asked for a declaration to acquire the right as a raiyat and pay rent to the landlord i.e. the State of Bihar. The lands in question are situated in Mauza- Kukurbaghi appertaining to Khata No. 130, Khesra No. 3001 measuring 4.35 acres which is the kaimi land of the predecessors in interest of the private respondents. 3. The petitioners are claiming to be Sikmidars of Sikmi Khata Nos. 145 and 146, Khesra Nos. 3023 and 3024 measuring 0.58 and 0.14 acres respectively. The petitioners claimed that the lands aforesaid were recorded in the name of Tarachand Singh as Sikmidar and Babu Nanku Prasad Jaiswal was the recorded Kaimidar of the land aforesaid. Ramesh Singh was the son of the Sikmidar Tarachand Singh and the petitioners 7 and 8 are the daughters of the recorded Sikmidar whereas petitioners 1 to 6 arc the legal heirs of Ramesh Singh. The Circle Officer, Thakurganj, District;- Kishanganj after issuing notice on 21.8.2001 passed an order on 28.8.2001 holding that the claim of the petitioners as Sikmidars was tenable and also passed an order on 21.9.2001 directing that the petitioners should pay Rs. 720/- to the Kaimidar and directed that a correction slip should be issued in favour of the petitioners. 4. The landlords who are respondents 4 and 5 in the writ application filed an appeal against the order dated 21.9.2001. The case of the respondents is that they did not receive any notice with regard to the proceedings u/s. 48D instituted nt the instance of the petitioner. The respondents case is that Tarachand the Sikmidar had executed a registered Ladabinama dated 10.12.1958 relinquishing his interest and possession during his life time in favour of the recorded tenant Babu Nanku Prasad Jaiswal as a result of which Sri Jaiswal came into actual physical possession over the said land. The respondents case is that Tarachand the Sikmidar had executed a registered Ladabinama dated 10.12.1958 relinquishing his interest and possession during his life time in favour of the recorded tenant Babu Nanku Prasad Jaiswal as a result of which Sri Jaiswal came into actual physical possession over the said land. Babu Nanku Prasad Jaiswal by a registered sale deed dated 17.4.1967 sold 2 acres 51 decimals from Plot No. 130, 1.40 decimuls from Khesra No. 3001, 58 decimals and 4 decimals from Plot No. 3023 and 3024 respectively which are the lands in dispute. Sri Jaiswal also sold 6 decimals and 33 decimals from Plot No. 3041 and 4044 respectively which are not the subject matter of dispute. The said plots were sold to one Dhorai Singh, who got his name mutated and had been paying rent to the State of Bihar. Dhorai Singh in turn sold 1 acre 47 decimals to one Dev Singh and 1 acre 4 decimals to Sri Baidyanath Singh by a registered sale deed no. 2646 and 2645 dated 24.4.1985. The vendees came into possession of the said lands and were granted rent receipts after getting their names mutated in the records of the State of Bihar. Dev Singh and Sri Baidyanath Singh sold the lands by registered sale deed no. 5147 dated 1.10.1994 to Bhagwan Das respondent no. 4. Respondent no. 4 claims that he got his name mutated in the records of right and was also paying rent to the State of Bihar. It is also the case of the respondents that Babu Nanku Prasad Jaiswal in the year 1966 by a registered deed dated 17.3.1966 sold an area of 2 acres from Plot No. 130 (which is not the subject matter of the dispute) and 1.96 from Plot No. 3001 which lands are the subject matter of the present dispute to Jitan Singh and to others. The purchaser Jitan Singh by a registered sale deed no. 3350 dated 24.6.1989sold the land to Khona Singh and respondent no. 5 claims to be a purchaser from Khona Singh vide registered sale deed no. 4052 dated 3.6.1975, Yamuna Prasad respondent no. 5 got his name mutated in the revenue records of the State Government and is paying rent to the State of Bihar. 5. Mr. 3350 dated 24.6.1989sold the land to Khona Singh and respondent no. 5 claims to be a purchaser from Khona Singh vide registered sale deed no. 4052 dated 3.6.1975, Yamuna Prasad respondent no. 5 got his name mutated in the revenue records of the State Government and is paying rent to the State of Bihar. 5. Mr. Lalit Kishore appearing on behalf of the respondents 4 and 5 submits that the petitioners forefathers had relinquished their right as Sikmidar and in the alternative submits that Sikmidar rights are not heritable. To substantiate his submissions he relies on an order of a Division Bench passed in C.W.J.C. No. 6807 of 1991 decided on 22.4.1993. From the order sheet it appears that the order has been passed in a proceeding under Sec. 48E of the Bihar Tenancy Act. The order is being quoted below:- "Heard learned counsel for the petitioners and learned counsel for the State. The petitioners predecessor in interest filed an application u/s. 48(E)(i) of the Bihar Tenancy Act claiming himself to be bataidar of the private respondents. It is now well known that sikmi right is neither heritable nor transferable unless a custom prevailing in the village is pleaded and proved. No such custom prevailing in the village has been pleaded by the petitioners in this writ application. In this view of the matter, the petitioners cannot be said to have locus standi to question the impugned order. This application is, therefore, dismissed." 6. The facts of this case aforesaid are not known and as such this court is not aware of the issues before the court and in any event there are disputed questions of fact involved In the present writ application which are yet to be decided by a competent Court and as such this Court cannot rely on the aforesaid order. Reference has also been made to the case of Md. Yusuf V/s. Narayan Ghosh and Ors., AIR 1953 Pat 308 and the case of Ramadhar Upadhyaya and Anr. V/s. Baldeo Aheer and Ors., AIR 1976 Pat 349 . 7. The question whether Sikmi rights are heritable or not were not considered in those cases. In the case of Ramadhar Upadhyaya the question before this Court was whether an occupancy right can be transferred for the satisfaction of a decree for mensc profit. V/s. Baldeo Aheer and Ors., AIR 1976 Pat 349 . 7. The question whether Sikmi rights are heritable or not were not considered in those cases. In the case of Ramadhar Upadhyaya the question before this Court was whether an occupancy right can be transferred for the satisfaction of a decree for mensc profit. This Court held that the occupancy right of a raiyat cannot be sold away in execution proceeding as they are not transferable. Section 48C should not be read along with the provisions contained in Sec. 48D of the Bihar Tenancy Act. The Court further held that the provisions contained in Sec. 26A are not included in Sec. 48D although Sec. 26A makes an occupancy right transferable this Court held that the provisions of Sec. 26A of the B.T. Act can only apply to raiyats as would be clear from the definition of the terms "holding" and "under raiyat" in Sec. 3(9) and 5(3) respectively of the B.T. Act. 8. Similarly in the case of Md. Yusuf supra the Court held that Sikmi rights of an under raiyat in an execution proeeeding cannot be sold unless it is the opinion of the Court that without sale the decree could not be satisfied. Such an order can only be passed if the Court records a finding that the decree could not have been satisfied without the sale of the Sikmi interest. 9. In the present case the respondents 4 and 5 are challenging the right of the petitioner as a Sikmidar. The challenge is based on several documents and several sale deeds by which the respondents claim that they are holding title and possession of the lands which are claimed by the petitioner as Sikmi and as such disputed facts with respect to title and possession have been raised which can only be decided by a competent Civil Court and cannot be adjudicated by this court in its writ jurisdiction. Section 48D is the process by which an occupancy under raiyat shall be entitled to acquire the right of a raiyat subject to the payment to be made as may be prescribed by the State Government to the raiyat and the right of the land holder shall stand extinguished thereafter. Section 48D also prescribes that the land owner in respect of whose land the under raiyat acquires the right of a raiyat shall be paid a compensation. Section 48D also prescribes that the land owner in respect of whose land the under raiyat acquires the right of a raiyat shall be paid a compensation. This Act of the State Government of declaring an under raiyat to be a raiyat and fixing the amount of compensation to be paid to the raiyat whose rights have been extinguished thereafter fixing rent for the land is an act of the State performed by the State Government as a landlord. It is a power which it holds as a landlord and as such what can be challenged in a writ jurisdiction is the only manner in which the power has been exercised and not disputed facts of title and possession. To give a few examples; if the Circle Officer, Thakurganj, District- Kishanganj does not follow the prescribed procedure u/s. 48D as for example; not issuing notice to the landlord or not verifying the status of the land in dispute then this Court in its writ jurisdiction may interfere with the order u/s. 48D. 10. The petitioner has challenged the order of the appellate Court on several grounds. It is contention of the petitioner that the Circle Officer, Thakurganj, District-Kishanganj had passed an order in favour of the petitioner the appellate Court had remanded the matter back to the Circle Officer. It is submitted on behalf of the petitioner that the order which has been challenged is dated 21.9.2001 and the appellate authority has not set aside the main order dated 21.8.2001 by which the application of the petitioners u/s. 48D was allowed and as such the appellate authority could not upset the findings passed in the order dated 21.8.2001. 11. I find no merit in the submission as the order dated 21.9.2001 is a consequential order which has been passed in view of the findings that the petitioner had acquired the right of a raiyat by virtue of being a Sikmidar and the main reason for remanding the matter to the Circle Officer, Thakurganj, District- Kishanganj is the finding that proper notice was not issued to the landlord apart from other findings of the appellate Court. Therefore, in the facts of this case as pointed out earlier there is a violation of the process of natural justice and the Circle Officer could not have passed the order holding the petitioner to be a raiyat u/s. 48D without hearing the landlord (raiyat). Therefore, in the facts of this case as pointed out earlier there is a violation of the process of natural justice and the Circle Officer could not have passed the order holding the petitioner to be a raiyat u/s. 48D without hearing the landlord (raiyat). 12. Thus this is a fit case where this Court would entertain the writ application and exercise its discretion under writ jurisdiction. 13. In the facts of this case I find that there is no infirmity in the order of the appellate authority for the reasons mentioned and as such the writ application stands dismissed.