IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2241 of 2002 Shree Nandan Mahto, son of Sri Deo Nandan Prasad Mahto Resident of Village-Dainee, P.S. K. Nagar, District-Purnea at present residing at Lanka Tola-Madhubani P.S. and District- Purnea. ………………………………………..Petitioner. Versus 1. The State of Bihar. 2. The Additional Collector, Purnea. 3. The Deputy Collector-Incharge Bataidari, Sadar Purnea. 4. The Sub-Divisional Magistrate, Sadar Purnea. 5. The Anchal Adhikari, K. Nagar within the District of Purnea. 6. Sri Pratap Sah, son of Late Ganeshi Sah at present resident of Village- Kritya Nand Nagar, P.S. K. Nagar, District-Purnea. ………….Respondents. For the petitioner :- Mr. Ajit Kumar Singh For the Respondent. For the State :- Mr. Anwar Karim,J.C.to S.C.V ------------------ 4. 20.01.09. Heard learned counsel for the petitioner and the State. The petitioner aggrieved by the order dated 16. 10. 2001, passed by the Sub Divisional Officer, Sadar Purnea (Respondent No.4) in Appeal No. 2/2001-2002 as contained in Annexure-7, whereby he has been set aside the order dated 31. 10. 2000, passed by the Anchal Adhikari (Respondent No.5) in Case No. 51/1999-2000 under Section 48 D of the Bihar Tenancy Act as contained in Annexure-6. It is submitted on behalf of the petitioner that land in question is of commercial nature and as such the provision of Section 48 E whereby the Respondent No. 6 had filed an application for declaring his Raiyati Right could not have been maintained. Therefore, order passed by the Respondent No. 5, rejecting the application of Respondent No. 6, whereof order dated 31. 10. 2000 (Annexure-6) was legal and valid. - 2 - It is further submitted that appeal filed by Respondent No. 6 against the aforesaid order dated 31. 10.2000, was barred by limitation. However, without condoning the delay the Appellate Court decided the matter on merit, although the petitioner was also heard. Learned counsel for the petitioner further submits that order passed on petition filed by Respondent No. 6, for declaring him as Bataidar was finally affirmed by order dated 17. 5. 1994 passed by Respondent No. 2 in Revenue Appeal No. 8 of 1993-1994 as contained in Annexure-4, did not challenge the said order. Although, Respondent No. 2 had no jurisdiction to pass order as he has no power to do so. Respondents on other hand in opposition submits that admittedly the Respondent No. 6 was held to be Bataidar as per order dated 25. 6. 93, passed by Respondent No. 3 in Bataidar Case No. 60/1991-1992, vide Annexure-3 and affirmed on appeal filed by the petitioner as per order dated 17. 5. 1994, contained in Annexure-4. Thereafter, Respondent No. 6, filed an application for his Rayati right in terms of provisions of under Section 48 D of the aforesaid Act. The same was disallowed by Respondent No. 5, as order dated 31.10.2000 (Annexure-6) ignoring the order passed with regard to the Bataidari right of Respondent No. 6 vide order dated 25. 6. 93 (Annexure-3) and later affirmed on appeal. It is further submitted that the Anchal Adhikari while rejecting the application under Section 48 D as per his order dated 31. 10. 2000, did not consider the report of the Halka - 3 - Karmachari on record which supported the case of Respondent No. 6, that the land in question, was in cultivating status. On appeal filed by the Respondent No. 6, in Appeal No. 2/2001-2002, the Appellate Court as per his order dated 16. 10. 2001(Annexure-7) allowed the appeal and set aside the order dated 31.10.2000 after considering the material on record by making even local inspection, and as such , the appeal was rightly allowed. As regard the objection of Limitation filing the above appeal it is submitted that the petitioner had since appeared and contested the appeal on merit the question of limitation no longer subsists. Considering the submissions of the parties and on perusal of the order impugned it would appear that the same is passed on considering the relevant materials including the previous order declaring the Respondent No. 6 as Bataidar as well as report of Halka Karmachari on the question of possession as such he rightly set aside the order dated 31.10..2000(Annexure-6). I do not find any error in the impugned order dated 16.10.2001 (Annexure-7). The findings recorded in the impugned order are based on record referred therein and thus are concluded the findings of facts. The writ application being devoid of merit and the same is accordingly dismissed. m.p. (Shailesh Kumar Sinha, J.)