CIVIL WRIT JURISDICTION CASE No.6461 OF 1991 In the matter of an application under Articles 226 and 227 of the Constitution of India. ABDUL AZIZ, SON OF LATE SK. UMAR ALI OF VILLAGE LALGUNJ, TOLA BIKRAMPATTI, P.S. K.HAT, DISTRICT PURNEA. ----- PETITIONER Versus 1. THE STATE OF BIHAR 2. COLLECTOR, PURNEA 3. DEPUTY COLLECTOR INCHARGE, BATAIDARI SADAR, PURNEA. 4. NAGESHWAR PATHAK, SON OF BISHWANATH PATHAK 5. MALTI DEVI, WIFE OF NAGESHWAR PATHAK 6. AJAY KUMAR PATHAK 7. BIJAI KUMAR PATHAK SONS OF NAGESHWAR PATHAK, ALL RESIDENT OF MOHALLA MADHUBANI, DHOBI TOLA, P.S. KHAZANCHI HAT, DISTRICT PURNEA. ----- RESPONDENTS ----------- For The Petitioner : KHUIRSHID AHMAD SIDDIQ For The Respondent : S.C. 3 P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. This writ petition has been filed challenging the order, dated 3.1.1991 passed by the Deputy Collector, Purnea and the order, dated 31.5.1991 passed by the Collector, Purnea rejecting the application filed on behalf of the petitioner under section 48E of the Bihar Tenancy Act. Shortly stated the case of the petitioner is that he filed an application to be declared as the Bataidar of Nageshwar Pathak, the land holder on the ground that the respondent had a substantial piece of land in village Lalganj measuring about 12.71 acres. The petitioner was appointed as a servant of the respondents and worked in the 2 ‘Kamath’ of the respondents. The petitioner was paid Rs. 25/- as salary and was also given part of the usufructs by way of remuneration. The occasion to file Bataidari case arose when T.S. No. 90 of 1968 was filed by Salimun Nisa and Maimun Nisa before the Sub Judge, Purnea in which the respondents were brothers and sisters of the plaintiff. The petitioner was a witness on behalf of the respondents and he claimed that he was Bataidar of the petitioner while giving evidence. It is the case of the petitioner that he apprehended that after the evidence given by the petitioner in the title suit he would be dispossessed from the land and as such he has filed the case. After the judgment in the title suit, F.A. No. 276/1973 was filed by Sk. Bashir, the defendant in the title suit and an order of injunction was passed by the court in which it was said that the respondents should not be dispossessed from the properties which was in their possession. The petitioner filed a writ petition being CWJC No. 553 of 1983 before this court challenging the order of the D.C.L.R. on the ground that he has not given any valid reasons while passing the order rejecting the Bataidari claim. Vide Annexure 3 this court directed the D.C.L.R. to allow the petitioner to lead oral and documentary evidence in support of his case. On remand the impugned order, dated 3.1.1991 has been passed. I must appreciate the fact that order goes into details of the cases of the parties, oral evidence adduced on behalf of both the parties taking into account the effect of the title suit and other cases 3 pending between the parties. The D.C.L.R. has rightly come to the conclusion that the petitioner’s case falls flat on the ground as it is admitted by him that he was working as a servant in the Kamath of the respondents. A person who is working as a servant cannot claim that he is Bataidar and was cultivating the lands on behalf of the land holder on the basis of sharing the produce of the land. The D.C.L.R. has also taken into account the consolidation proceeding which took place in the village wherein it was found that the petitioner was not in possession of the land in question and the ordered that Chak should be created. It has also come on record that an application was filed with respect to plot no. 125 measuring 1.69 decimals in which the petitioner withdrew the Bataidari claim in favour of Late Jalal. This fact also leads to the conclusion that in fact Abdul Aziz was indeed not the Bataidar as claimed by him with respect to part plots of the land for which the claim has been staked. The evidence of the witnesses is also in favour of the respondents and the D.C.L.R. has rightly rejected the evidence of the petitioner as the petitioner’s witnesses have not supported his claim. After discussing all the aforesaid facts this court finds no illegality in the order of the D.C.L.R. The appellate order also deals with the oral evidence led in the case and has concluded that in fact no claim of Bataidari is made out by the petitioner. I may state here that F.A. 276/1973 filed on behalf of Sk. Rashid has been dismissed on 12.2.1998 by this court although the result of the First Appeal would not have affected the Bataidari 4 proceeding as respondents were not party in the suit and as such it is not binding on them. This court notices that a supplementary affidavit has been filed stating therein that Revision Case No. 153/1991 has been filed by the petitioner and notices have been issued in 1992. Counsel for the petitioner apparently has no instruction with respect to the result of the revision case. I may note that since the application was admitted for hearing and no objection was raised with respect to the plea of alternative remedy at any stage. I am not inclined to pass any order regarding this aspect. In the result, I uphold the orders dated 3.1.1991 and 31.5.1991 passed in Case No. 415/82-83 and Case No. 160/90-91 respectively. This application is allowed. Patna High Court 8th of July, 2010 N.A.F.R./Haque (Sheema Ali Khan, J.)