Shiva Kirti Singh and C.M.Prasad JJ.

1. Heard learned counsel for the petitioners, learned counsel for the State and the learned counsel for the private respondent no. 5.

2. This writ petition arises out of a proceeding under Section 48E of the Bihar Tenancy Act (hereinafter, for the sake of brevity, referred to as the Act). It has a checkered history which spans a period of about 35 years. In 1975-76, the Case No. 58 of 1975-76 was instituted by late Rajeshwar Prasad Singh son of Respondent No. 5 seeking protection as under- raiyat as per the provisions of Section 48E of the Act. The claim was in respect of an area of 4 acres 29 decimals of land belonging originally to one Md. Abdul Batil. It appears that during the pendency of the proceeding, Mr. Batil died and the raiyati right over the land vested in his daughter Wahida Khatoon. From him, lands were purchased by the writ petitioners in the year 1984 and since then they are contesting the claim of under-raiyat.

3. For the purpose of deciding the relevant issues in this writ petition, it is not necessary to go into past history of the litigation which involved several orders by the authorities under the Act since 1977 and orders of remand even by this Court in an earlier writ petition. Ultimately as per directions contained in the order of remand, a Bataidari Board was constituted which submitted its report through the Circle Officer, the Chairman of the Board in the year 1989. That report has been confirmed and accepted by the D.C.L.R. by his order dated 14th February, 1989, contained in Annexure-9 to the writ petition. That order is in favour of the claim of under-raiyat. Petitioner challenged that order before the appellate court, the Collector, Patna who dismissed the appeal by a reasoned order dated 13th April, 1993 contained in Annexure-12. Those orders by the authorities under the Act are under challenge in this writ petition.

4. While admitting this writ petition on 11th August 1993, it was observed that it shall he heard by a Division Bench- and the interim order was passed for maintaining status quo as obtained on that date. From the appellate order, contained in Annexure-12, it appears that 4 questions or issues were raised on behalf of petitioners who were the appellant. Those issues were as under:

(i) The right of under-raiyat cannot be acquired through succession and, therefore, the decision to this effect by the D.C.L.R. is bad;

(ii) The name of Sri Indradeo Singh (respondent no. 5 herein) was not substituted in place of his son late Rajeshwar Prasad Singh, the original applicant.

(iii) The D.C.L.R. failed to keep in mind that Indradeo Singh became a party on account of succession but no efforts were made to find out whether he was also in actual physical possession over the land in question or not; and

(iv) In a proceeding under Sections 144 and 107 of the Code of Criminal Procedure the claim of Bataidari by said Indradeo Singh was not accepted.

5. In writ jurisdiction we have to confine ourselves to the facts as found by the authorities under the Act unless it could be shown that their findings in respect of facts were perverse and without any material. In this case, there is no such plea that any finding of fact is perverse. Hence, we are required only to answer the issues of law raised before this Court. Learned counsel for the petitioners has raised the issue of inheritance or succession in respect of right of under- raiyat and has placed reliance upon the Division Bench judgment of this Court in the case of B. Mishra vs. State of Bihar, 1995(1) BLJ 32 in support of his contention that under-raiyati interest is neither transferable nor inheritable. For this he drew our attention to the observations made in Para-23 of the judgment wherein it has been observed as follows:

"It may also be mentioned that the general rule that the under-raiyati interest are not transferable or heritable is subject to the exception of existence of the custom to the con