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2013 DIGILAW 709 (PAT)

Bugani Devi @ Bugni Devi v. State of Bihar

2013-06-27

BIRENDRA PRASAD VERMA

body2013
ORDER Heard the parties. 2. The petitioner, being aggrieved by the order dated 07.04.2004 (Annexure-2) passed in Appeal Case No. 36 of 2001-02 by the respondent Sub-Divisional Officer, Forbesganj reversing and setting aside the order dated 26.04.1997 (Annexure-1) passed in Case No. 15 of 1997-98 by the respondent Anchal Adhikari, Bhargama in exercise of his powers under Section 48D of the Bihar Tenancy Act, 1885 (in short “the B.T. Act”) declaring the petitioner as raiyat over the lands in question, has approached this Court under Article 226 of the Constitution of India assailing the validity and correctness of the impugned appellate order. 3. The dispute in the present proceeding is with respect to plots of land bearing Kayami Khata no. 639, corresponding to Sikmi Khata No. 262, appertaining to plot No. 4173 area 17 decimals and Plot no. 4174 area 15 decimals, total area being 32 decimals, situate at village-Kusmaul, P.S. Bhargama, District- Araria (hereinafter referred to as “the lands in dispute” in the present order). 4. It is not in dispute that one Saryug Das, the father of the petitioner, was having his possession over the lands in dispute as the Sikmidar. In the recent revisional survey proceeding, aforesaid Saryug Das has been recorded as a Sikmidar with respect to the lands in dispute and, accordingly, survey khatian was prepared in his name. So far as the private respondents are concerned, their father Shukal Khatbe is said to have purchased the lands in dispute through a registered sale deed dated 21.12.1983. 5. The case of the petitioner is that after death of her father namely Saryug Das, she, being his heir and legal representative, has inherited the lands in dispute as sikmidar and, therefore, she became the occupancy under raiyat under the meaning of Sections 48C and 48 D of the B.T. Act. The petitioner, being an occupancy under-raiyat, filed a petition in prescribed form C raising her claim under Section 48D of the B.T. Act for conferring upon her the raiyati right with respect to the lands in dispute. On the basis of the petition filed by the petitioner, Case No. 15 of 1997-98 was registered by the respondent Anchal Adhikari, Bhargama, the competent authority under the B.T. Act. On the basis of the petition filed by the petitioner, Case No. 15 of 1997-98 was registered by the respondent Anchal Adhikari, Bhargama, the competent authority under the B.T. Act. After holding an enquiry and following the procedure prescribed under the Rules framed under Section 48D of the B.T. Act, by an order dated 26.04.1997, as contained in Annexure-1 to the writ petition, her claim under Section 48D of the B.T. Act was allowed and she was declared as raiyat in terms of Section 48D of the B.T. Act. 6. It appears that after delay of more than four years on 12.10.2001 the respondent no. 4 to 6 filed an appeal before the respondent Sub-Divisional Officer, Forbisganj, giving rise to Appeal Case No. 36 of 2001-02. The appeal preferred by the respondent no. 4 to 6 has been allowed by the impugned appellate order dated 07.04.2004 (Annexure-2) and the original order dated 26.04.1997 passed by the respondent Anchal Adhikari, Bhargama has been set aside. 7. Learned counsel for the petitioner submits that father of the petitioner, being the Sikmidar, has been so recorded in the recent revisional survey khatiyan and the petitioner inherited such right after death of her father. It is contended that the respondent Sub-Divisional Officer has set aside the original order passed by the respondent Anchal Adhikari merely on the ground that the petitioner has not acquired status of occupancy under raiyat despite the death of her father and, therefore, the order passed by the Anchal Adhikari was set aside. It is contended that sikmi right is an inheritable right, but not a transferable right and as such the impugned appellate order is not sustainable and is fit to be set aside. 8. Learned counsel appearing on behalf of the respondent no. 4 to 6 has opposed the prayer made in the present application and has supported the impugned appellate order passed by the respondent Sub-Divisional Officer. It is contended by the learned counsel for the respondents that sikmi right is not an inheritable right and, therefore, the petitioner did not acquire the status of occupancy under- raiyat, though the sikmi khatian was prepared in the name of her father. In support of the above contention he has placed reliance on a judgment of this Court in the case of Johan Uraon (Ekka) Vs. Sitaram Sao (Bhagat) [AIR 1964 Patna 31]. 9. In support of the above contention he has placed reliance on a judgment of this Court in the case of Johan Uraon (Ekka) Vs. Sitaram Sao (Bhagat) [AIR 1964 Patna 31]. 9. After having heard the parties this Court finds that the only issue involved in the present proceeding is as to whether the sikmi right is inheritable or not. If sikmi right is inheritable right, then in view of the fact that sikmi khatian was prepared, in the recent revisional survey proceeding, in the name of the father of the petitioner, then after his death the petitioner inherited such right and has become occupancy under- raiyat, and in that case the impugned appellate order passed by the respondent Sub-Divisional Officer, Forbesganj cannot be sustained. However, if the sikmi right is not an inheritable right then in that case certainly the petitioner would not acquire status of occupancy under- raiyat, particularly in absence of any proceeding lodged by the petitioner or any order passed in her favour under Section 48E of the B.T. Act by the competent authority, and in that case, the impugned appellate order cannot be validly assailed. 10. Fortunately, the issue involved herein is no longer res- integra and has been decided by a learned Single Judge as also a Division Bench of this Court in the recent past. In the case of Md. Yunus Vs. Moinuddin [ 2002(4) PLJR 31 ], a learned Single Judge of this Court in paragraph-6 has held that sikmi right is not transferable unless a custom prevailing in the village is pleaded and proved. However, an under-raiyat having occupancy right by dint of his continuous possession for more than 12 years can have the rights to succession etc., but cannot have the right to transfer. Similar view has been taken by another learned single Judge of this Court in the case of Dehal Mahton Vs. Nathuni Ram Marwari [ 2006(2) PLJR 642 ]. The learned Single Judge, after taking into consideration the large number of judgments of this Court has recorded his conclusion in paragraph-19 that an under raiyat having occupancy right by dint of his continuous possession for more than 12 years can have right to succession, but he cannot have right to transfer. Nathuni Ram Marwari [ 2006(2) PLJR 642 ]. The learned Single Judge, after taking into consideration the large number of judgments of this Court has recorded his conclusion in paragraph-19 that an under raiyat having occupancy right by dint of his continuous possession for more than 12 years can have right to succession, but he cannot have right to transfer. The ratio laid down in the aforesaid two judgments have been affirmed by a Division Bench of this Court in the case of Balbhadra Prasad Singh Vs. State of Bihar [ 2010 (3) PLJR 27 ]. Paragraph 11 of the said judgment would be relevant and is reproduced herein below:– “11. The main issue is, therefore, whether the sikmi right i.e. right of an under-raiyat having occupancy right will include the right of succession or not. As per the application of Rajeshwar Prasad Singh, he, his grandfather as well as father (respondent no.5) were under-raiyat for much more than 12 years. Even in the judgment, referred to above in the case of Md. Ynus (supra) and relied upon by the learned counsel for the petitioner, it has been held that such under-raiyats having occupancy right can have the right to succession etc. but cannot have the right to transfer. Thus, on consideration of relevant case laws and the legal provisions as existing in the year 1984, when Rajeshwar Prasad Singh died and his father respondent no. 5 was impleaded as a party, we hold that respondent no. 5 had the right to be impleaded both as a member of the family claiming sikmi right as well as in the capacity of a successor, being the father of late Rajeshwar Prasad Singh.” 11. So far the reliance placed by the learned counsel for the respondent No. 4 to 6 in the case of Johan Uraon (Ekka) Vs. Sitaram Sao (Bhagat) (supra) is concerned, one has to bear in mind that the aforesaid case was not considering the scheme and scope of Section 48C and 48D of the B.T. Act. Therefore, principles laid down there cannot be applied in the present case. 12. Sitaram Sao (Bhagat) (supra) is concerned, one has to bear in mind that the aforesaid case was not considering the scheme and scope of Section 48C and 48D of the B.T. Act. Therefore, principles laid down there cannot be applied in the present case. 12. On consideration of entire materials and the law laid down by the learned Single Judges as also by a Division Bench of this Court, referred to above, I am of the considered opinion that sikmi right created under the provisions of B.T. Act is an inheritable right, but it is not a transferable right. That being the legal position, the petitioner inherited the sikmi right over the lands under dispute, after death of her father Saryug Das in whose name a survey khatian was prepared in the recent revisional survey. Accordingly, the petitioner became occupancy under-raiyat under the meaning of Section 48C and 48D of the B.T. Act and, therefore, respondent Anchal Adhikari was fully justified in allowing the claim made on behalf of the petitioner under Section 48D of the B.T. Act. Respondent S.D.O. without considering the scheme and scope of Section 48D of the BT Act and without considering the judicial pronouncements made by this Court, referred to above, has allowed the appeal filed on behalf of the respondent no. 4 to 6, which cannot be sustained in the eye of law. 13. In the result, the present writ petition is allowed. The impugned appellate order dated 07.04.2004 passed in Appeal Case No. 36 of 2001-02 (Annexure-2) by the respondent Sub-Divisional Officer, Forbesganj is set aside and the order dated 26.04.1997 (Annexure-1) passed by the respondent Anchal Adhikari, Bhargama is restored. However, parties are left to bear their own costs.