IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12538 of 2008 1.RAMANAND YADAV 2.Gayanand Yadav. 3.Daya Nand Yadav 4.Kripanand Yadav 5.Gunanand Yadav. 6.Vidyanand Yadav, all sons of Late Mohan Lal Yadav, resident of village Tarbi P.S.Palasi District Araria. Versus 1.THE STATE OF BIHAR 2.The Subdivisional Magistrate, Araria 3.The Anchal Adhikari,Palasi District Araria. 4.Kartik Lal Yadav, son of Late Sub Lal Mandal alias Yadav. 5.Devi Lal Yadav son of Late Sublal Mandal 6.Ganga Prasad Yadav son of Late Rameshwar Mandal alias Yadav. 7.Most. Tara Devi wife of Late Nasib Lal Yadav 8.Sundar Lal Yadav son of Late Nasib Lal Yadav 9.Sadanand Yadav son of Late Nasib Lal Yadav 10.Gayanand Yadav son of Late Nasib Lal Yadav 11.Maya Nand Yadav son of Late Nasib Lal Yadav 12.Parmanand Yadav son of Late Nasib Lal Yadav 13.Bipin Yadav son of Late Nasib Lal Yadav. ----------- 2 14.5.2009. Heard counsel for the petitioners and the State. This application has been filed by the petitioners for quashing the order dated 10.7.2007 passed by Subdivisional Magistrate, Araria in Case no.34 of 2005-06 whereby the order passed by Anchal Adhikari, Palasi in Case no.8 of 2005-06, declaring kaimi right of the petitioner under Section 48D of B.T.Act has been set aside. Petitioners case is that originally lands of Khata no.127, Plot no.603 measuring 39 decimals of Village Tarbi was recorded in the name of Sublal Mandal, Rameshwar Mandal and Nasib Lal Mandal as raiyat and grand father of the petitioners as sikmidar in possession of this land recorded as Sikmi Khata no.53. The respondents 4 to 13 are the legal heirs of original recorded raiyat 2 and the petitioners are the grand children of Jangli Mandal the recorded sikmidar. Petitioners filed application before the Circle Officer for declaration of their kaimi right with respect to lands of Sikmi Khata no.53 under Section 48D of B.T.Act. stating that they are residing over the land for more than 30-40 years by constructing their houses and also cultivating the lands as such their kaimi right be declared. Case no.08 of 2005-06 was registered and a report was called for from the Halka Karamchari. Notices were issued to respondents 4 to 13 but they did not appear. The Circle Officer, Palasi finally passed order in petitioners favour declaring their kaimi right with respect to lands of Sikmi Khata no.53under Section 48D of B.T.Act. However, respondents preferred appeal before the Subdivisional Magistrate, Araria and the order passed by the Circle Officer has been set aside by the impugned order. On perusal of the order I find that the Subdivisional Magistrate has set aside the order passed by the Circle Officer declaring Kaimi right of the petitioner under Section 48 D of the Act for the reasons that the notices were not properly served on the respondents and in a ex-parte proceeding the order has been passed. Second reason is that the respondents themselves are marginal raiyats having less than ten decimals of unirrigated land. In case of marginal raiyat Kaimi right can not be decided. Such declaration will bring the recorded raiyats in the category of land less person. For these reasons order passed by the Circle Officer, Palasi was set aside. 3 Petitioners along with writ application have annexed their affidavit furnished along with their application and also the enquiry report of the Halka Karamchari. The affidavit filed by the petitioners and the report of Halka Karamchari indicate that the petitioners have not claimed to be in cultivating possession of the land, rather they are claiming to have constructed their houses over the land of Sikmi khata no.53 and residing over it. It has also been stated that they have no other piece of land for their homestead. The report of Halka Karamchari also indicate that he found houses constructed over the land and kitchen garden of the applicant. Section 48D of the B.T.Act provides for declaration of Kaimi right of a bataidar, being in cultivating Possession of the land. Under Section Section 48D of the Act kaimi right can be declared only when the sikmidar/under tenant is in continuous cultivating possession of the land for more than 12 years. Even in case of a recorded sikmidar, an enquiry is mandatory to find out that on the date of filing application for declaration of right under Section 48D of the Act, he is still in cultivating possession of the land. In the present case there is admission of the petitioners that they are residing over the land. This is not their case that they are in cultivating possession of the land or they were sharing crops with the land holders. Considering the admitted facts of the case and the report of the Halka Karamchari I find that the application filed by the petitioners under Section 48D of the B.T.Act for declaration of kaimi right was not maintainable. The Circle Officer has passed the order in 4 favour of the petitioner without considering the legal requirement for declaring kaimi right under Section 48D of the B. T.Act. I do not find any error in the order passed by the Subdivisional Magistrate. Accordingly this application is dismissed. Sss/- (Mridula Mishra, J)