B.S. Sinha, J.

The petitioners prayer in this application is to quash Annexures 4 and 5 annexure 4 is an order, dated the 5th June 1975 passed by the Additional Collector, Monghyr in Miscellaneous Case No. 137/74-75 by which he has cancelled the jamabandi opened in the name of the petitioners in Miscellaneous case No. 131/62-63. Annexure 5 is the order dated 24.7.1975 by which the Commissioner, Bhagalpur Division in Miscellaneous appeal no. 26/75-76, has upheld the aforesaid order of the Additional Collector.

2. The petitioners case is that by a sada Hukumnama dated 15.6.1940 they obtained settlement of 61 acres of Gairmazarua malik land bearing plot no. 95 appertaining to khata no. 204 of village Jinhara from Raj Banaili Although the Banaili Raj vested in the State of Bihar in 1952 yet because of certain dispute, the Raj which was being managed by a Receiver, handed over charge of this area in 1959. As the holding had fallen into arrears, in the return filed by the Raj, this plot was not shown to have been settled with the petitioners. Accordingly on 20.12.1962 the petitioners applied for the correction of the Lagit on which the Anchal Adhikari of Lakshmipur started Lagit case no. 131/62-63. Subsequently after obtaining a report from the Halka Karamchari, the Anchal Adhikari, on 12.3.1963, corrected the Lagit and opened a Jamabandi in the name of both the petitioners with regard to the above mentioned plot. Thereupon the petitioners on 31.3.1963 paid up all the due rents from the date of vesting of the Banaili Raj and obtained rent receipts accordingly. Since' then the petitioners have been paying rent to the State every year and rents have been paid up to 31.3. 1975. It Is also their case that after 1940, the petitioners have been in cultivating possession of the above mentioned plot and from time to time obtained receipts even from Banaili Raj. They have further constructed houses on the land and for irrigational facilities have also made an Ahar and dug well having 10ft. diameter. On 7.12.1974, petitioner No. 1 alone was served with a notice where by he was asked to appear before the Additional Collector and produce the relevant documents including receipts showing settlement of plot no. 95 with him. In obedience to such notice, petitioner no. 1 showed cause on 5.6.1975 and produced nine documents in support of the settlement. By an order of the same date, the Additional Collector, as stated above, cancelled the Jamabndi, which had been opened in favour of the petitioners. The appeal tiled by petitioner no. 1 before the Commissioner of Bhagalpur Division was also rejected summary on 24.7.1975.

3. On behalf of petitioner no. 2, it has been further stated that his half interest in plot no. 95 is looked after by one Chundra Kishore Singh, who resides in a house built upon that land itself and petitioner no. 2 off and on goes there to supervise the cultivation. Regarding the order passed by the Additional Collector and the Commissioner, he for the first time, learnt about it when he visted the land in the first week of February, 1976.

4. The petitioners have further stated that subsequent to the passing of the above mentioned orders, the Additional Collector is illegally taking steps to distribute the whole area amongst Harijans and Adivasis. Accordingly, a further prayer was made in the application that during the pendency of it, the respondents be restrained from doing anything which would disturb the possession of the petitioners. On 26.12.1976, when this writ application was admitted, it was ordered by a Bench of this Court that during the pendency of this application, status quo would be maintained.

5. A counter affidavit has been filed on behalf of the respondents in which it is stated that although petitioner no. 1 is settled Raiyat of village Jinhara, it was not correct to say that the petitioners had taken the settlement of the land form Raj Banaili. It has been asserted therein that the land in question being gair