Occupancy rights in agricultural lands can be acquired by under-raiyats under certain conditions, and such rights may be transferable if the under-raiyat has held the land for a period of twelve years.

S. B. Sinha, J.

1. Both these applications involving common questions of law and fact were taken up for hearing together and are being disposed of by this common judgment.

2. The petitioners in this application inter alia have prayed for issuance of a writ of certiorari for quashing the order dated 19.8.1992 passed by the respondent no.3 whereby and whereunder he had refused to settle the lands in their favour.

3. The fact of the matter lies in a very narrow compass. One Kalanand Singh was the landlord of Garh Banaili Estate. After his death bis wife Rani Ralawati created a trust in favour of Shri 108 Jalijee. One Smt. Jagatmaya Devi was recorded as Nagdi Sikimidar. Allegedly she acquired an occupancy right in respect of the lands in question and thereafter sold the same to the petitioner no.1 his brother Bishwanath Mishra and his father Bhavdeo Mishra. The brother of petitioner no.1 had transferred some lands out of the above lands which has been purchased by the petitioner no.2.

4. The petitioners have contended that Chakbandi Khatians had been prepared in their names and they had been paying rent to the State government.

5. According to the petitioners there predecessor-in-interest acquired raiyati interest in respect of the lands in question and thereafter they transferred the same by reason of various deeds of sale and thus the petitioner have acquired valid right title and interest in relation to the lands in question.

6. A ceiling proceeding was initiated against the aforementioned deity. By Gazette notification dated 29 4 91 lands measuring 91.151/2 acres situate in village Mouza Sarachie and Sarro were acquired by the Government and out of the said land 72.75 acres were found fit for distribution.

7. The petitioners contended that the lands belonging to them have also been included in the said notification.

8. According to the petitioners they and/or their predecessors-in-interest had never any knowledge about the ceiling proceeding. The petitioners therefore filed an application for settlement. An enquiry was made by the different authorities and ultimately the respondent no.4 recommended that the lands should be settled with them.

9. The D. C. L. R. by his order dated 25.2.1992 directed the Circle Officer kasha, to issue green cards in their favour.

10. However, it was found that the petitioners are not Khatiyani sikmidars but they are purchaser from Sikimidars. He, therefore, refused to recommend the case of the petitioners Thereafter a case for distribution of the lands measuring about 40.52 acres had been initiated by issuance of red cards and by an order dated 19 8 1992 approval for settlement in favour of the private respondents was granted by the Collector.

11. Mr. Tara Kant Jha, the learned counsel appearing on behalf of the petitioners has raised a short question in support of these applications. The learned counsel submitted that the petitioners have all along been treated by the State of Bihar as their tenants and thus the State is estopped and precluded from contending the petitioners have acquired no right title and interest in respect of the land in question.

12. The learned counsel further submitted that the petitioners and/or predecessor-in-interest have acquired occupancy rights in respect of the lands in question and in that view of the matter, the lands became heritable and transferable.

13. The learned counsel in Support of his contention has relied upon section 29 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter reformed as the said Act) and sections 4, 23, 23a, 25, 26, 26a as also Sections 48c and 48o of the Bihar tenancy Act and submitted that in terms of the aforementioned provisions a sikimidar may also acquire an occupancy right which would render sub right to both transferable and heritable.

14. The learned counsel in support of his contention has relied upon a decision of this court in the case of Munilal Mandal V/s. Babuji