In order to acquire raiyati right under section 48D of the B.T. Act, a person must first be declared an occupancy under-raiyat under section 48C of the Act.

S.J. Mukhopadhaya, J.

As both the writ petitions have been preferred by common petitioners and common point involved, they were heard together and are being disposed of by this common order.

2. The dispute relates to land measuring 3.08 acres out of Plot No. 179/1021 under Khata No. 68/26 of village Kauriram, P.S. Mohania, district Kaimur in C.W.J.C. No. 241/99 and in the other case C.W.J.C. No. 350/99, the dispute relates to land measuring 1.48 acres of Plot No.10 under Khata No.48 of the said village Kauriram, P.S. Mohania, District Kaimur.

3. It appears that Respondents Nos. 4 to 8 of C.W.J.C. No. 241/99 claimed to be occupancy raiyats in respect of land dispute therein and preferred application under section 48D of B.T. Act. It was registered as Batai Case No. 3/94-95. Similar claim was made by Respondent No. 3 of C.W.J.C. No. 350/99, who claimed to be occupancy raiyat in respect of land, in dispute in the said case. It was registered as Batai Case No. 1/95-96.

4. Batai Case No. 3/94-95 was earlier decided by Circle Officer on 29th November, 94 in favour of Respondents 4 to 8 (appellants). The other Batai Case No. 1/95-96 was also decided in favour of Respondent No. 3 (appellant). The petitioners preferred Appeal No. 305/95-96 which was rejected by the Collector, Kaimur, vide order dated 7th May 96 on the ground that it was time barred. The petitioners at that stage moved before this Court and challenged the orders dated 29th November' 94 and 28th July' 95 passed in the aforesaid batai cases in C.W.J.C. No. 11014/96 and C.W.J.C. No. 11077/96 respectively. Both the aforesaid cases were heard together by this Court and disposed of by common judgment and order dated 28th July'98.

This Court relying on a Bench decision of Kusum lal Mallah vs. State of Bihar, reported in 1996(2) P.L.J.R. 339, held the orders illegal, ratio laid down having not followed and remitted the matter to the Respondents.

5. It appears that on remittance of the case, the impugned orders have been passed on 28th November, 98 and decided in favour of the contesting Respondents.

6. According to the counsel for the petitioners, the Respondent Circle Officer had not followed the provisions laid down under section 48E of the B.T. Act and thereby flouted the Court's order and judgment passed on 28th July, 98 in C.W.J.C. No. 11016/96 and analogous cases.

7. The constesting Respondents have appeared. According to them, the Circle Officer, on remand, after hearing the parties, had passed the order. However, the counsel accepted that no specific provision under B.T. Act has been followed.

8. In Chapter-VI of B.T. Act, 1885, provisions have been laid down for recovery of rent; produce rent; restriction on payment of certain kinds of rent; acquisition of rights; prevention of threatened ejectment etc. of under-raiyat. While acquisition of "right of occupancy by under-raiyat has been laid down under section 48C; acquisition of raiyati right by occupancy under-raiyat has been stipulated under section 48D of the said Act. There is no separate provision laid down for determination of question as to whether a person is under-raiyat or not, except the provision laid down under section 48E of the B.T. Act where procedure laid down for prevention of threatened ejectment.

No declaration of raiyati right under section 480 can be given till the claimant under-raiyat is “an occupancy under-raiyat”. Whether such under-raiyat is “occupancy under-raiyat” or not, can be determined only under section 48C of the Act.

Until the amendment introduced by section 48C of the Act, there could be no occupancy right acquired by under-raiyat, except under some custom or use duly recognised in this behalf (refer 1987 B.L.J. 636).

Since introduction of section 48C of the Act, Bihar Act XXIV of 1955, an under-raiyat who for a period of 12 years has continuously held the land, whether under a lease or otherwise, shall be deemed to have acquired the right of occupancy on the expiration of that period, subj