IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12798 of 2003 MD.ANISUR RAHMAN, SON OF ABDUL MAJEED, RESIDENT OF VILLAGE DAY MARKET DERAMARI, POLICE STATION- KOCHADHAMAN, DISTRICT-KISHANGANJ. …………………………………………………………….PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE SUBDIVISIONAL MAGISTRATE, KISHANGANJ. 3. THE CIRCLE OFFICER, KOCHADHAMAN, DISTRICT KISHANGANJ. 4. BIBI SAVERA KHATOON, DAUGHTER OF LATE ABDUL HAKIM. 5. BIBI RABIYA KHATOON, DAUGHTER OF LATE ABDUL HAKIM. 6. MAZHAR ALAM. 7. BABUL RASHID. 8. MANZAR ALAM. 9. NAIYER ALAM. SONS OF LATE ABDUL HAFIZ. 10. SITARA KHATOON. 11. RUKIYA KHATOON. 12. MAHAJABEEN. 13. DIL AFROZ. DAUGHTERS OF LATE ABDUL HAFIZ. NO.4 TO 13 ARE RESIDENT OF VILLAGE BURHIMARI, POLICE STATION-KOCHADHAMA, DISTRICT-KISHANGANJ. 14. BIBI CHAIN BANU, WIFE OF MD. QASIMUDDIN. 15. BIBI SITARA , WIFE OF MD. JASIMUDDIN. 16. BIBI WIRAFUL ALIAS BIBI FATEMA, WIFE OF ABDUL RASHID. 17. BIBI SUMERA KHATOON, WIFE OF MD. ABU HAQAR. 18. MD. ZAKARIA, SON OF HAJI MD. BEKOL ALI. NOS.14 TO 18 ARE RESIDENT OF VILLAGE MOJABARI POLICE, POLICE STATION, KOCHADHAMAN, DISTRICT- KISHANGANJ. ………………………………………………………..RESPONDENTS. ----------- For the Petitioner : Mr. Firoz Ahmad, Advocate. For the State : Mr. Binod Kumar, A.C. to S.C.V. For Respondent Nos.6 to 13 : Dr. Alok Kumar ‘Alok’, Advocate. ------------ 4. 10.9.2009. Heard learned counsel for the petitioner, learned counsel for - 2 - the State and learned counsel for the Respondent Nos.6 to 13. However, none appeared on behalf of Respondent Nos.4, 5 and 14 to 18 despite service of notices upon them. The writ petitioner seeks quashing of the appellate order dated 4.7.2003 passed by the Sub-Divisional Magistrate, Kishanganj, Respondent No.2 in Appeal Case No.06/02, as contained in Annexure- „5‟, whereby the earlier order passed by the Respondent No.3, Anchal Adhikari, Kochadhaman, District-Kishanganj, as contained in Annexure-„4‟ allowing the application of the petitioner under Section 48-D of the Bihar Tenancy Act, 1885 (hereinafter referred to as “the Act”) declaring him to have acquired the raiyati rights with regard to the lands in question, has been set aside. The petitioner filed an application under Section 48-D of the Act for declaring him that he had acquired the raiyati rights with regard to lands appertaining to khata no.41, plot no.1243 measuring 3 acres 12 decimals of Mauja Kadhaiwadi. It appears that during the pendency of Case No.103 of 2001 registered upon the aforesaid application filed by the petitioner, recorded tenant had died and notices were issued upon the legal representatives of the deceased recorded tenant. The elder son of the deceased recorded tenant appeared before the authorities and had stated that his other three brothers were living outside and they did not have any objection. The legal representatives aforesaid of the recorded tenant had accepted the claim of the petitioner and upon such acceptance and on the basis of the inquiry as well as other records, the - 3 - authority concerned had allowed the prayer of the petitioner upon certain terms and conditions as contained in order dated 30.3.2002 (Annexure-„4‟). Respondent Nos.14 to 18 had filed Appeal No.06/02 before the Respondent No.2, the Sub-Divisional Magistrate, Kishanganj, and notices were issued upon the opposite parties including the petitioner. The opposite parties filed a rejoinder and raised objection also questioning the appeal on being time barred as the same was filed after more than three months whereas the statutory period of limitation for filing such appeal is one month. It appears from the impugned order that a petition under Section 5 of the Limitation Act for condoning the delay in filing the appeal had been filed. Learned counsel for the petitioner submitted that the appellants were stranger to the disputed lands having no interest upon the same and, thus, they had no right to file an appeal specially in view of the fact that the landlord himself had accepted the claim of the petitioner before the original authority. It is further submitted that without passing any order with regard to condoning the delay in filing the appeal, the aforesaid appeal has been heard and allowed. It has been stated that without recording any finding based on records available or any local inspection or verification having been done, contrary to the earlier verification report at the time of proceeding before the authority at first instance, the appellate court has illegally set aside the order of the Circle Officer concerned as contained in Annexure-„4‟. - 4 - Learned counsel for the State submitted that the details of the case of the parties have been discussed in the impugned order. However, he could not demonstrate as to what were the right of the appellants upon the lands in dispute and how were they aggrieved by the order passed by the original authority, as contained in Annexure- „4‟. He also failed to show from the impugned order that a petition for condoning the delay in filing the appeal had been considered and delay was condoned by the court concerned. None had appeared on behalf of the Respondent Nos.14 to 18 who were the appellants before the Respondent No.2 in Appeal No.06/02. Dr. Alok Kumar „Alok‟, learned counsel appears on behalf of the Respondent Nos.6 to 13 and files affidavit. It is manifest from the aforesaid affidavit that they are legal representatives of the recorded tenant and they have supported the claim of the petitioner. In view of the aforesaid discussions, this Court is of the opinion that the order as contained in Annexure-5‟ suffers from several errors. For example, there is no finding at all as to how the appellants were claiming right on the disputed lands, as a result of which they were aggrieved by the order of the authority concerned as contained in Annexure-„4‟. Further, while the finding of the authority concerned at first instance was based on the basis of acceptance of the case by the landlord himself as well as report of Anchal Nirikshak and Halka Karmchari with regard to the possession, how the appellate court reached to a different conclusion. There is also no discussion in the impugned order with regard to condoning the delay in filing the - 5 - appeal except that a Limitation Petition for condoning the delay in filing the appeal had been filed on behalf of the appellants. As a result, the order dated 4.7.2003 is quashed and the matter is remitted back to the Sub-Divisional Magistrate concerned, Respondent No.2 to decide the issue afresh after hearing all the parties and taking into account the observations, made as aforesaid, preferably within six months from the date of receipt or production of a copy of this order. Accordingly, this writ application is allowed. P.S. (Dr. Ravi Ranjan,J)