S. J. Mukhopadhaya, J.

The petitioner have challenged the recommendation of Incharge Deputy Collector Land Reforms dated 21.8.1985, its order of approval dated 29.8.1985 passed by S.D.O. Hilsa as well as the appellate order dated 25.8.1986, whereby and where under tile settlement earlier made in favonr of the petitioners have been annulled under section 4 (h) of the Bihar Land Reforms Act. 1950 (in short 'the Act') and the same has been approved.

2. The land is dispute measuring 1.38 Acre of Plot No. 905 under khata No.341 is situated in Thana No. 263, Mauza Belchhi in the district of Nalanda. It was recorded as “Fairmazura Aam” In the records of rights after cadastral survey. According to petitioners the physical feature of land changed and public in general ceased right over the disputed land. It became ‘Bakast’ and ‘Khudkari Araji’ of ex-landlord who in pursuance of a registered partition is the family by dead dated 6th March, 1933 allotted the patti, including the land in dispute, in favour of Shri Shital Prasad Singh. The said Sital Prasad Singh, ex-landlord Subsequently executed a Hukumnama’ on 5 Kartik 1362 (1944-45) and settled the land in favour of petitioner no, 1. Thereafter rent receipts were issued, name of petitioners were shown while return was submitted by the ex-landlord ad and State of Bihar also accepted the petitioner as raiyat by creating Jamabandi in their favour.

3. Respondent no.5 in the year 1985 filed an application for settlement of land and application for settlement of the land in dispute in his favour which was registered as Settlement Case No.21/82 83. The petitioners were not impleaded as opposite party therein. However, said case was rejected on 25th June, 1982.

4. The petitioners name were mutated and Jamabadi was created in the name of petitioner no. 2 in pursuance of Case No. 187/12 of 1982-83. The petitioners claim to be in continuous possession over the same. It appears that the respondent no. 5 preferred an application under section 4(h) of the Act on 14th November, 1983. Thereafter, in the Appeal No.3 of 1983 84/10 of 1982 83 preferred by the petitioners, the prayer for interim relief was rejected. Ultimately after remand, the DCLR passed impugned order on 21st August, 1985 and recommended to annul the settlement. Against the said order the petitioners again preferred an Appeal No. 58/85, which remained pending. In the meantime, the respondent-State passed order on 19th May, 1987 after affirmed the application of settlement.

5. The counsel appearing on behalf of the petitioners made the following submissions namely;

(a) The settlement having been made in favour of the petitioner no. 1 in the year 1944-45, i.e. much prior to 1.1.1946, the collector Under the Act had no jurisdiction to annul the same in the proceeding under section 4 (h) of the Act.

(b) Even if it is presumed that the Collector had jurisdiction to look into the legality of settlement, he could not have annulled the some in absence of definite finding that the same was made with the object to defeat the provision of the Act or caused loss to the State or to obtain higher compensation.

(c) The evidences, including the Hukumnama, rent receipts granted by e-landlord rent receipt granted by the State of Bihar, order creating Jamabandi in favour of the petitioners etc. Which were brought on record by the petitioner were neither taken into consideration nor discussed in proper manner while the impugned order was passed.

6. The counsel also placed reliance on a decision of this Court in the case of Rohini Kumar Chaterji Vrs. The State of Bihar & ors., Reported in 1986 P.L.J.R. 963 and the case of Umesh Jha V. the State of Bihar and another reported in 1956 B.L.J.R. 229 in favour of the petitioner.

7. According to the respondents the land in dispute being ‘Gairmazarua Aam’, the story of bringing the name under cultivation by the e-landlord or settlement of the same with the petitioner can not be accepted being false. In fact the ex