NARAYAN ROY, J.

Heard learned counsel for the parties.

2. This writ application is directed against the order dated 21.11.1996 as contained in Annexure-6 passed by respondent No. 3 whereby and where under the order passed by the Anchal Adhikari as contained in Annexure-5 dated 27.12.1995 declaring the petitioners as occupancy under raiyats under Section 48-D of the Bihar Tenancy Act (hereinafter referred to as the Act) has been set aside.

3. Learned counsel for the petitioners submitted that the learned appellate authority had wrongly allowed the appeal on the basis of surmises and conjectures and tt18 findings arrived at by the Anchal Adhikari has not been reversed on the basis of evidence and materials on record. It is further submitted that the petitioners were coming in peaceful possession over the land in question since land as the lane in question was acquired by their father who was recorded as under raiyat in 1958 and there was no threat on the part of respondent No. 5 to eject them and thus the petitioners must be deemea to have acquired occupancy right over the land in question.

4. Mr. Dhrub Narayan, learned senior counsel appearing on behalf of respondent No.5 on the other hand, submitted that the question of occupancy right cannot be determined under Section 48-D of the Act without there being an adjudication under Section 48-E of the Act. Learned counsel further submitted that at no point of time the petitioners had gone before the authorities and had placed their claim in terms of Section 48-E of the Act and, therefore, there was no determination by the authority as to whether the petitioners had acquired occupancy right. In this connection Mr. Narayan has placed reliance on the case of Kusumlal Mallah v. The State of Bihar and others 1996 Vol. II PLJR and in the case of Dinanath Singh and others v The State of Bihar and others 1999 Vol. III PLJR 594.

5. I have perused the orders impugned. From the materials on record and also from the pleadings of the parties, it would appear that the petitioners filed their claim under Section 48-D of the Act and the same was allowed by the Anchal Adhikari and ultimately on appeal being preferred by the land holder the findings arrived at by the Anchal Adhikari allowing the claim of the petitioners was reversed. In the case of Kusumlal Mallah v The State of Bihar and others, (supra) this Court has held that an elaborate procedure has been prescribed under Section 48-E of the Act to determine the sikmi right claimed by a party and in order to determine the rights of the parties in terms of Section 48-D of the Act, the right of the parties first must be determined under Section 48-E of the Act which will be the basis for declaring' the occupancy right under Section 48-D of the Act. Again in the case of Dinanath Singh and others v The State of Bihar and others, (supra) this Court reiterated the same view and held that no declaration of raiyat right under Section 48-D can be given till the claimant under raiyat is an occupancy under raiyat which is determined under Section 48-C of the Act and the evidence, if any, led by the parties for declaring such right is to be determined under Section 48-E of the Act.

6. Learned counsel for the petitioners stated that this Court in Civil Revision No. 37/96 in the case of Suryabansh Updhyay v. Awadhesh Choudhary and others, 1999(1) BBCJ 537 has interpreted the provision of Section 48-C, 48-D and 48-E of the Act and on interpretation of those provisions, this Court held:

"From a combined reading of Sections 48-C and 48-D it is clear that a person by efflux of time on expiry of period of twelve years acquires occupancy right as well as raiyats' rights, subject to declaration as such by the prescribed authority under Section 48-D. It is noteworthy that Section 48-C does not contemplate any proceeding. The person concerned acquires occupancy right by legal fiction by efflux of time on expiry of the prescribed period. Any enquiry in this regard a