This appeal under Clause 10 of the Letters Patent of Patna High Court has been preferred against the order dated 2-8-2010 passed in CWJC No. 12277 of 2010 by the learned Single Judge whereby the learned Single Judge has been pleased to direct the Collector, Banka (Respondent No.2) to consider whether the Board within the meaning of Section 48E of the Bihar Tenancy Act, 1885 (in short ‘the Act’) has been properly constituted in accordance with Section 48E and sub section 5 of the Act and whether it is essential to constitute a new Board in view of efflux of time and the appearance of a third party in the proceeding and pass appropriate orders accordingly.

2. The facts of this case are not much in dispute.

3. Khantar Pandit, father of the appellant filed a petition before the learned Deputy Collector Land Reforms, (hereinafter referred to as the DCLR), Banka, district, Banka under 48E of the Act with the plea that the respondents were trying to evict him from the land belonging to respondents Nos. 5 to 8 over which the said Khantar Pandit was in cultivating possession. The land in question has been described as Khata No. 1; Khesra Nos. 1053 (1425 hectare), 683 (1160 hectare), 696 (4210 hectare) and 82 (0475 hectare). The respondents Nos. 5 to 8 appeared before the DCLR, Banka and filed objection. After hearing both sides, vide order dated 5-6-1992 (annexure-1) the DCLR referred the matter to the Board in accordance with Section 48E (3) of the Act and a Bataidari Board was appointed by the Collector, Banka (respondent No.2). The Circle Officer, Banka (Respondent No.4) was appointed as Chairman of the Board. The private respondents preferred a writ petition before this court vide CWJC No. 6366/1992 challenging the order dated 05-06-1992 (annexure-1). The writ petition was, however, permitted to be withdrawn by this court vide order dated 20-5-1993.

4. In case No. 13 of 1991, which was initiated on the application of Khantar Pandit, learned DCLR passed the order dated 6-12-1993 (annexure-2) and dismissed the application on the basis of the report of the Chairman of the Board-cum-Circle Officer, Banka on the ground that the land in question fell within the limits of Banka Municipality over which the Act was not applicable. The said Khantar Pandit, thereafter, preferred an application before the Collector, Banka (Respondent No.2) being Bataidari Case No. 185/93-94. The Collector, Banka (Respondent No.2) vide order dated 17-7-1995 came to the conclusion that the land in question could not be said to be within the limits of municipal area as there was no notification to this effect and set aside the order dated 6-12-1993 (Annexure-2) passed by the DCLR; vide his order dated 17-7-1995 (annexure-3).

5. In the meanwhile said Khantar Pandit died on 1-4-1995 which would be evident from the contents of the order dated 17-7-1995 (Annexure-3), who had claimed to be a Bataidar. Whether the appellant, being son of Khantar Pandit could also claim to be Bataidar by way of inheritance or whether the proceedings could have come to an end immediately after his death are the questions which also cropped up in course of hearing of the present Letters Patent Appeal.

6. Be that as it may, the fact remains that the present appellant, on the death of his father Khantar Pandit, got himself substituted in the appeal proceeding being Bataidari case no. 185/93-94 before the Collector, Banka in which proceeding, as referred to above, final order dated 17-7-1995 (annexure-3) was passed.

7. In view of the order dated 17-7-1995 (annexure-3) passed by the learned Collector, Banka the Bataidari Board continued with the proceeding and came to a finding in its report dated 23-12-1995 that ancestors of the appellant were in cultivating possession over the land and held that the appellant was under-raiyat (Bataidar) and, accordingly, recommended to the Collector, Banka for disposal of the proceeding in terms of the findings, as required under Section 48E (7) of the ‘Act