The Jamabandi entry is conclusive proof of the raiyati status of the petitioners, and the tank did not vest in the State under Section 4(2) of the Bihar Land Reforms Act, 1950, as the petitioners were not ex-landlords. Section 35 of the Santhal Parganas Tenancy Act, which prohibits settlement and cultivation of water reservoirs, was not applicable as the petitioners were raiyats and not landlords.

Satya Brata Sanyal, J.

1. The petitioners have moved this Court for quashing the order of the S.D.O. (Respondent No. 3) dated 29-7-1977 as contained in Annexure 2 and the order of the Additional Collector dated 16-1-1978 as contained in Annexure 3 passed under the Bihar Land Reforms Act 1950 (hereinafter to be referred to as the Act.)

2. To appreciate the points raised in this application some necessary facts have to be stated. The petitioners ancestors had taken settlement of plot No. 399 of Jamabandi No. 1 having an area of 310 acres. It is stated that a tank was excavated which have been coming in the peaceful possession of the petitioners. There was survey and a copy of the Jamabandi has been filed as Annexure 1 to this application which stands in the name of petitioner No. 1 and Pashupati Sadhu father of petitioner No. 3. It may be stated that petitioner No. 2 is the son of petitioner No. 1. It is further stated that the plot of Land was rent free and therefore the petitioners never paid rent of this land. Petitioner No. 2 under wrong advice and under some misconception of law filed an application for fixation of the rent of the tank though it was rent free. A proceeding under the Act was started by respondent No. 4 who also noticed 16 annas raiyats of the village and objection was filed by some of the raiyats stating inter alia that the tank was a kas one and had vested in the state of Bihar after the act had come into force and the petitioners were therefore not entitled for fixation of the rent. They along with other villagers also claimed to have been using the tank for their domestic purposes. Respondent No. 3 by his order date 29-7-1977 as contained in Annexure 1 held that although the Jamabandi was recorded as a tank it belonged to the ex-landlord and it had vested in the State. He therefore rejected the claim of the petitioners for fixation of rent and further directed that the tank should be treated as a sairat and should be settled by auction. Against the aforesaid order the petitioners preferred an appeal and respondent No. 2 by his order dated 16-1-1978 dismissed the appeal by Annexure 3 holding that the tank was being used by the general public and 16 annas tenants of the village and in that view of the matter no settlement could be made under Section 35 of the Santhal Parganas Tenancy Act. Being aggrieved by the aforesaid order the petitioners have moved this Court. A counter affidavit has been filed on behalf of the State in which it is stated that the petitioners had never been coming in possession of the tank rather it was in the use of the general public. In paragraph 7 it has been stated that the tenants are all ex-landlords and the tenancy is not raiyat meaning thereby that after the Act came into force the aforesaid tank vested in the State. In that view of the matter the petitioners had no right over the tank and the authorities were justified in not fixing the rent.

3. Mr. Ghosal learned Counsel appearing on behalf of the petitioners had submitted that the tank was recorded as a raiyati which is clear from the certified copy of the Jamabandi Annexure 1 and in that view of the matter Section 4(2) of the Act was not attracted it Is further been urged that in view if the provisions of Sec.25(3) of the Santhal Parganas Settlement Regulation 1892 the entry was final and could not be questioned and it was the conclusive proof of the fact that the petitioners were the raiyat of the tank. Lastly it has been submitted that Sec.35 of the Santhal Parganas Tenancy Act which relates to water reservoir and channels for irrigation is not applicable to the facts of this case because it prohibits settlement and cultivation of such water reservoir or channels. Learned Standing Counsel No. 1 appearing on behalf of the state has however submitted that there is a clear assertion in the counter affidavit that the tenants were ex-landlords and therefore the tank will not be protected and will vest under the provis