IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3826 of 2004 1. MANJOGA KUER W/O LATE JAMUNA CHAMAR, BISHUNPUR PIPRAHI BHATHA SONHO, AMNOUR, SARAN, CHAPRA. 2. BIRENDRA RAM 3. SURENDRA RAM 4. SURESH RAM, ALL SONS OF LATE JAMUNA CHAMAR 5. PHUL KUMARI DEVI W/O SUNIL RAM D/O LATE JAMUNA CHAMAR 6. SARSWATI DEVI W/O BHOLA RAM D/O LATE JAMUNA CHAMAR 7. KUNTI DEVI W/O CHANDESHWAR RAM D/O LATE JAMUNA CHAMAR. Versus 1. THE STATE OF BIHAR 2. COMMISSIONER , SARAN DIVISION, SARAN 3. DISTRICT MAGISTRATE, SARAN 4. ADDL. COLLECTOR, SARAN 5. DCLR, SARAN 6. BHUPENDRA UPADHYAYA, KAITUKA LACHI, AMNOUR. 7. MOST JAGESHWARI W/O LATE MAHENDRA CHAMAR, BISHUNPUR PIPRAHI BHATHA SONHA ----------- 10. 31.03.2010. Petitioners have come to this court for quashing order dated 1.9.2003, passed by the Deputy Collector, Land Reforms, Saran in Bataidari case no. 4/1976-77, as contained in annexure 4, by which he has rejected the claim of Bataidari of petitioner (Jamuna Chamar), since deceased, who now is substituted by heirs vide order dated 3.2.2010 of this court, in I.A. No.8659/2009. This case has chequered history. The ancestors of the - 2 - petitioner (Jamuna Chamar), namely, Tapsi Chamar (father) and Jitan Chamar (uncle) claimed Sikmi right over Khata no. 7 as well as Khata no. 9 in village Bisunpur Piprahi Police Station Amnour, Saran. The petitioners state that Tapsi Chamar and Jitan Chamar died in the year 1939 and 1940 respectively. The inheritance right in bataidari had come in effect in the year 1938 by amendment in the Bataidari Act, 1985. After death of Tapsi Chamar, their heirs came in Sikmi possession of the land in question. As they feared threatened dispossession from the land, Jamuna Chaman (now dead) filed Bataidari case no. 4/76- 77 under section 48 F of the Bihar Tenancy Act. After hearing the parties and following the provision under section 48(E) of the Act, including constitution of Bataidari board, the application of the petitioner was allowed. The father of private respondents went in appeal before the Addl. Collector in Bataidari case no. 17/1980 u/s 48F of the B.T. Act which was rejected on 12.7.1982. He then moved the Collector, as Addl Collector was not appropriate authority, which too was rejected on 3.2.1983 as time barred. Thereafter, the father of private respondents went in revision before the Commissioner which was allowed vide order - 3 - dated 26.9.1984 in case no. 117 of 1982. The learned Commissioner vide order dated 26.9.1984 remanded the matter for fresh adjudication. Thereafter, the Collector, Saran vide order dated 16.10.2000, passed in Misc appeal no. 63 of 1982/85, contained in annexure 3 remanded the matter to the DCLR for fresh consideration. Thereafter, the DCLR vide impugned order dated 1.9.2003 contained in annexure 4 dismissed Bataidari case. The petitioner has challenged the impugned order on following grounds:- He submits that the DCLR, Saran ought to have held that Jamuna Chamar and Tapsi Chamar died in the year 1939 and 1941 respectively, as such, the applicants claiming through them would inherit Bataidari right which came into effect after 1938 amendment in B.T.Act, 1885. He submits that DCLR, Saran ought to have again constituted a Bataidari board after annexure 1. He further submits that private respondent ejected him during the proceeding. Mr. Kamal Nayan Choubey, learned Sr. counsel appearing for the private respondent states that in the first instance Bataidari Board was already constituted and as such, there was no need for constituting Bataidari Board again, on - 4 - remand from superior courts. He further submits that except for their own affidavits, petitioners have not produced any document in support of their claim that Tapsi Chamar and Jitan Chamar, the original sikmidars died after 1938. Learned counsel further submits that onus was on the petitioner to show that their ancestors died after 1938. Heard learned counsel for the parties. The petitioner filed Bataidari case way back in the year 1976-77. The case of the petitioners is that their ancestors were bataidars and they died after 1938, as such, they inherited the Bataidari right in view of 1938 Amendment in B.T. Act conferring such right of inheritance. The DCLR, Saran found that Jitan Chamar and Tapsi Chamar through whom the petitioners are claiming bataidari right, died much prior to 1938. The petitioners have not produced any document before the DCLR, Saran to show that their ancestors died after 1938. Till insertion of 1938 Amendment, bataidari right was restrictive and it was not heritable. After 1938 Amendment, the Bataidari right became heritable and heirs of original bataidar would automatically step into his shoes as bataidar/sikmidar. The petitioners having failed - 5 - to produce any document before the DCLR or other authorities in support of such claim spanning over 30 years, cannot take benefit of 1938 Amendment on bald claim based on his own affidavit. The persons claiming benefit under an enactment has the onus to prove and substantiate his claims. Furthermore, once that DCLR, Saran had constituted the Bataidari board, it is not necessary for him to constitute the same again, on remand by the Superior court, unless and until there is a direction for constituting it again. Finally, it would appear from the order of learned DCLR that the original petitioner Jamuna Chamar has admitted in his deposition that it is the private respondents who are in the possession. In this view of the matter, I find that the petitioner has not made out any case for interfering with the impugned order dismissing Bataidari case 4/1976/77. The petitioners, if advised, may take recourse to any other remedial measure available in law. Shashi. (Samarendra Pratap Singh,J.)