A suit challenging an order passed under section 48E of the BTA is maintainable in a Civil Court if the order is not duly made, i.e., if it has not been passed after following the procedure prescribed under the Act or it has been passed without following the fundamental principles of judicial procedure or is without jurisdiction.

Nagendra Rai, J.

1. The defendants-petitioners have filed the present application challenging the order dated 16.5.89 passed by the Munsif, Hilsa in Title Suit no. 24/1983 rejecting their objection to the maintainability of the suit.

2. The plaintiffs-opposite parties filed the aforesaid suit for declaration of their title, confirmation of possession to the suit land and for declaration that the claim of the defendants as Bataidar is false and untenable and in the alternative in case plaintiffs are not found in possession over the suit land then the delivery of possession may be given to them.

3. The facts necessary for disposal of the present case lie in a narrow compass. The dispute relates to a portion of plot no. 205 measuring 2 acres 42 Dhurs under Khata no. 2 of village Kosiaban, P.S. Ekangarsarai, District Nalanda. The plaintiffs case is that C.S. Plot no. 230 measuring 6 Acres and 42 Decimals belonged to Raghubansh Mani Singh and Yaduban Mani Pd. Singh both sons of Loknath Singh of village Kosiaban, who sold the same to Abu Singh in 1947 by a registered sale deed and said Abu Singh in 1947 by three registered sale deeds of the year 1961 sold the same to plaintiff opposite party Shivnandan Pd. and one Anup Das. Plaintiff-opposite party Shivnandan Pd. purchased 2 acres 42 decimals of land, which is in dispute in this case, and the same during the consolidation proceeding has been recorded as Chak no. 205 under Khata no. 2. The plaintiffs claim that no Mahanth of Nandiha Math including Garibanand Das has any concern with the said land. The defendants petitioners Lakhan Paswan, Ram Bachchan Rai, and Jang Bahadur Pd. falsely claimed that aforesaid Garibanand Das was the owner of the said land and filed a Bataidari cases before the D.C.L.R. Hilsa under section 48E of the Bihar Tenancy Act (hereinafter referred to as the Act) claiming Bataidari right against Mahanth Garibanand Das of Nandiha Math. The plaintiffs and other purchasers were not made parties and when they came to know about the proceeding they filed an application for being added as party but the same was not allowed and the D.C.L.R. decided the proceeding under section 48E of the Act in favour of the defendants Bataidars and on the basis of which the defendants threatened to remove them from the land in question and the same necessated filing of the suit.

4. The defendants filed a written statement and challenged the maintainability of the suit on the ground that the order passed by the D.C.L.R. under section 48E or on appeal under 48F of the Act is final and the same shall not be called in question in Civil Court. They also challenged the title and possession of the plaintiffs over the land in question, which is not to be detailed for the reason that the same is not necessary for disposal of the present controversy.

5. The defendants filed an application challenging the maintainability of the suit which was rejected by the court below and thereafter they came to this court in C.R. no. 1287/85 and this court by order dated 27.11.87 directed the court below to decide the maintainability of the suit as a preliminary issue and thereafter the court below has decided the said issue as a preliminary issue and has rejected by the impugned order.

6. The case was admitted and placed for hearing before the learned single judge who has referred the matter to a Division Bench for an authoritative decision on the question as to whether the suit in which the order under section 48E of the Act has been challenged is maintainable or not in view of the provisions contained under sections 48E and 48F of the Act.

7. Learned Counsel for the petitioners submitted that the suit in substance is a suit challenging the order passed by the D.C.L.R. Hilsa under section 48E of the Act which is not maintainable in view of the specific bar contained under section 48-F (4) of the Act which provides that an order duly made under section 48E of the Act or on appeal under section 48F sha