IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3218 of 2002 UPENDRA SAHANI son of Ram Saran Sahani, resident of village- Baruar, P.S.- Baboo Barhi, District- Madhubani. Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL COLLECTOR, MADHUBANI 3. DEPUTY COLLECTOR, LAND REFORMS, MADHUBANI 4. CIRCLE OFFICER, CIRCLE BABOO BARHI, MADHUBANI 5. LAKSHMIN DEVI WIFE OF AMBODH SINGH D/O LATE RAM AHODHYA RAI, RESIDENT OF VILLAGE- BARUAR, P.S.- BABOO BARHI, DISTRICT- MADHUBANI. ----------- For the petitioner : Mr. D.K.Sinha, Senior Advocate Mr. Ram Bilash Roy ‘Raman’, Advocate For the State : Mr. Dhirendra Kumar, AC to SC V For pvt. Respondent : Mr. S.S.Dwivedi, Senior Advocate **** 7 26.02.2009 A counter affidavit has been filed on behalf of the respondents no. 6 & 7. As prayed for, learned counsel for the petitioner is permitted to make necessary correction in the plot number mentioned in paragraph 5 of the supplementary affidavit. Heard learned counsels for the petitioner and the State. Petitioner is aggrieved by the order dated 14.01.2002 (Annexure-7) passed by the Additional Collector, Madhubani, respondent no.2, in Bataidari Appeal No. 23 of 2001-02, whereby he set aside the order dated 30.07.2001 (Annexure-7) passed by the Land Reforms Deputy Collector, Madhubani, respondent no.3, in Bataidari Case No. 5 of 1986-87/ 1 of 2000-01. - 2 - It is submitted on behalf of the petitioner that the respondent no.2 set aside the order passed by the respondent no.3 ignoring the materials available on record to substantiate that the petitioner was in cultivating possession of the land in question for about 25-30 years. As such the respondent no.2 ought not to have set aside the order. Learned counsels appearing for the respondents submits that the appellate authority while considering the order passed by the respondent no.3 has considered the materials including the evidences of the witnesses adduced on behalf of the parties. Upon considering the evidences/materials available on record, the appellate authority found that the very identity of the land i.e. the area of the plots, khata number, tauzi number etc. are not clear from the petition filed by the petitioner under section 48(E) of the Bihar Tenancy Act. It is further submitted that for instance one of the plot number claimed by the petitioner was 929 whereas the consideration was in respect of the plot no. 939. Besides the above, it is submitted that the appellate authority rightly discarded the evidence of some of the witnesses who deposed that the petitioner was in cultivating possession of the land for about 25-30 years without even ascertaining the competency of those witnesses to depose such statement on - 3 - questions of possession. In other words, the submission is that the appellate authority rightly set aside the order. Considering the rival submissions of the parties and on perusal of their respective pleadings, it appears that the matter in issue rests totally on considering the disputed questions of fact with regard to possession over the land in question and the identify of land as claimed by the petitioner. Therefore, in my opinion, while setting aside the order dated 30.07.2001 (Annexure-6) the appellate authority ought to have directed the respondent no. 3 to pass a fresh order specifically considering the identity of the land and the evidences in support of the possession. In this view of the matter, the order dated 14.01.2002 (Annexure-7) is modified to the extant that the respondent no.3, Land Reforms Deputy Collector, Madhubani to pass a fresh order in accordance with law after hearing both the parties and considering the materials available on record specifically with regard to identity of land in question as also the evidences adduced by the respective parties on questions of possession. The writ application is disposed of with the above observations/directions. Manish/- ( Shailesh Kumar Sinha,J.)