ORAL JUDGMENT

(Per: HONOURABLE MR. JUSTICE RAJIV ROY)

Date : 11-01-2024 Heard the parties.

2. The appeal arises out of order dated 27.02.2019 in CWJC No. 2721 of 2019 passed by the learned Single Judge by which holding that the appellant-petitioner failed to establish even, prima facie case, his claims of being a ‘Bataidar’ of respondent no. 5 under section 48E of the Bihar Tenancy Act, 1885 (henceforth for short, ‘the Act’), the writ petition was dismissed.

3. The facts of the case is/are as follows:

4. The disputes relate to a piece of land appertaining to Khata no.226, Plot no.46 (part) (area 2.88 acres) at Mauza- Supauli, Thana no.271, Bhawanipur in the District of Purnea (hereinafter referred to as the land in question).

5. One Jugeshwar Mandal preferred application under section 48E of ‘the Act’ in respect of land in question vide case no. 35 of 1993 which was dismissed.

6. In the year 2003, the appellant preferred another petition under section 48E of ‘the B.T. Act’ which gave rise to case no. 23 of 2003. In the said petition, he claimed himself to be the son of Kamleshwari Mandal stating therein that he has taken it as 'Bataidari' from his grand father, Bigan Mandal. The grand father of the petitioner died in the year 1988 whereafter his father was doing 'Bataidari' and after his death on 04.01.2002, the appellant took up the Bataidari, regularly giving share in produce. Since there was no custom of granting receipt, as such, it was claimed that he was not having receipt of the 'Bataidari'.

7. The DCLR vide an order dated 28.04.2005 declared him as ‘Bataidar’ based on local inspection effective 26.04.2003, the date when the landlords intimated him about vacating the land. The respondent no. 5 filed appeal before the Collector, Purnia in Revenue Appeal no. 109 of 2005 which came to be rejected on 08.02.2009.

8. Aggrieved, CWJC No. 18602 of 2011 was preferred by the respondent no. 5 and the Court vide an order dated 30.08.2016 allowed him to challenge the orders before the Bihar Land Tribunal (henceforth for short 'the Tribunal'). This followed B.L.T. Case No. 481 of 2017 where, after hearing the parties, the orders passed by the DCLR as also as the Collector were set aside vide an order dated 06.04.2018.

9. Aggrieved, the appellant preferred the writ petition. The matter was heard by learned Single Judge and vide an order dated 27.02.2019, the same was dismissed. It is relevant to incorporate paras 13 to 19 of the order which read as follows:

“13. What is clearly evident from the order of the Deputy Collector Land Reforms dated 28.04.20015 that he has not held the petitioner to be bataidar on the ground of his having inherited any such right consequent upon the death of his father. There is no finding by either the Deputy Collector Land Reforms or the Collector that the petitioner’s father acquired raiyati rights under Section 48D of the Act. The submission on behalf of the petitioner that the petitioner inherited any right from his father after his death as bataidar in 2002 cannot be entertained at all. Reliance has been placed by learned counsel for the petitioner on Division Bench decision in case of Balbhadra Prasad Singh (supra). In case of Balbhadra Prasad Singh (supra), the Division Bench has observed in paragraph 8 that ‘rights of occupancy under raiyat shall be inheritable on account of the words succession to, which occurred in Section 48D of the Act as it stood prior to its amendment. There is no finding by any competent authority that the petitioner’s father or his grandfather had acquired right of occupancy within the meaning of Section 48D of the Act. Paragraph 8 of the said decision in case of Balbhadra Prasad Singh(supra) is relevant and is being reproduced hereinbelow:

“8. There are judgments of this Court which have considered the effect of aforesaid legal provisions and have come to the conclusion that the rights of occupancy under- raiyat shall be inheritable but ‘not transferable’. This is on account of the w