SHEEMA ALI KHAN, J.

1. The petitioners are the sons of Late Baijnath Yadav who had purchased the lands in dispute from one Satya Narain Chaudhary, respondent no.4. Respondent no.4 had filed a title suit against the Shikmidar, respondent no. 5 for payment of rent. It is the case of the petitioners that an auction sale took place in which the original owner i.e. respondent no.4 purchased the said land. The petitioners has filed the documents related, to the proceeding of the auction sale, such as, the order of handing over possession to respondent no.4, the report of the Nazir who had reported that the possession was handed over to respondent no.4 which has been marked as Exts. A to E/1 ,in order to show that respondent no.4 came in possession over the land after the decree in the title suit. The petitioners father purchased the said land from respondent no.5 by a sale deed, dated 15.4.1981 and accordingly was put in possession of the said land.

2. The dispute arose when respondent no.5, the Shikmidar filed a claim under section 48E of the Bihar Tenancy Act (hereinafter referred to as the Act) claiming that he was the Bataidar of respondent no.4 since 1977, as such he had the right to remain in possession of the land and cultivate the lands in dispute. The matter was referred to the Conciliation Board. The Circle Officer was appointed as the Chairman of the Board. However, the Circle Officer did not come to any conclusion with respect to whether respondent no.5 was a Bataidar and the matter came to be heard by the Executive Magistrate Sadar, Purnea who allowed the case of respondent no. 5 by his order, dated 7.7.1990 (Annexure 2) which was challenged by the petitioners before the Additional Collector. The Additional Collector dismissed the appeal of the petitioners by order, dated 3.1.1991 (Annexure 3).

3. The petitioners have raised two issues in this case. The first point raised on behalf of the petitioners is that the Executive Magistrate ought to have followed the provisions of sub-section (10) of section 48E of the Act, when the matter was returned to him by the Chairman of the Board. The second point raised on behalf of the petitioners is that once the petitioners had claimed that they were small land holders, and were entitled to get the benefit of the prpvisions of section 48C of the Act, the authorities concerned i.e. Executive Magistrate ought to have held an enquiry regarding this aspect.

4. The case of respondent no.5, on the other hand, is that he was Shikmidar as well as the Bataidar of respondent no.4 and as such no interference is warranted in the orders impugned. It is his case that the petitioners have more than 100 bighas of land and as such they cannot claim any benefit by virtue of section 48C of the Act. It has also been stated in the counter affidavit that the right of Bataidari cannot be extinguished by a finding in the rent suit.

5. Sub-section (7) of section 48E of the Act envisages that where a Board does not succeed in bringing about an amicable settlement to the dispute, it is required that the Board should receive evidence, record its findings on the dispute and transmit the entire records to the Collector who would dispose of the proceeding in accordance with the terms of the findings of the Board. In case the Board does not record its findings, sub-section (10) of section 48E comes into play. Sub-section (10) of section 48E of the Act envisages that if the Board fails to record its findings or transmit the record as required under sub-section (7) aforesaid, within a period of six months, the Collector would have the power to call for the records from the Board and decide the dispute himself according to the averments of section 48E of the Act.

6. In the present case it is not disputed that the Board could not record its findings, within the prescribed period of six months, as such the matter was heard by the Executive Magistrate. The challenge is that the order of the Executive Magistrate