Letters Patent Appeal No.516 OF 1995 Against the order dated 15th of December,1994 passed in C.W.J.C.No. 3403 of 1984 by the learned Single Judge of this Court. AMIRUDDIN & ORS----------------------------------Appellant Versus THE STATE OF BIHAR & ORS-----------------------Respondents For the Appellant : Mr. Shabbir Ahmad, Advocate For the State : Mr. Shashi Bhushan Kumar,SC16 Mr. J.K.Roy, JC to SC 16 ---- P R E S E N T THE HON’BLE MR. JUSTICE CHANDRAMAULI KUMAR PRASAD THE HON’BLE MR. JUSTICE SHAILESH KUMAR SINHA Prasad & Sinha, JJ. Writ petitioners-appellants aggrieved by the order dated 15th December, 1994 passed in C.W.J.C.No. 3403 of 1984, dismissing the writ application have preferred this appeal under Clause 10 of the Letters Patent. The writ petitioners-appellants (hereinafter referred to as the petitioners) had purchased the land without permission of the competent authority from members of the scheduled tribe. The members of the scheduled tribe i.e. private respondents in the writ application and respondent nos. 6 to 13 herein filed application under section 49K of the Bihar Tenancy Act, 1885 for setting aside the transfer. Collector by its order dated 8th of November, 1982 passed in Case No. 558 of 1977-78 held that the petitioners have 2 purchased the land from the members of the scheduled tribe without obtaining the permission, and as such, fit to be declared as illegal. Accordingly, the Collector by the aforesaid order declared the transfer effected to be illegal in law and directed the petitioners to return the land. Aggrieved by the same petitioners preferred revision before the Commissioner of Kosi Division, Saharsa and the Commissioner by order dated 24th of April, 1984 passed in Revenue Revision No. 62/1982-83 dismissed the revision application. Petitioners filed the writ application for quashing the aforesaid orders of the Collector and Commissioner. Said writ application has been dismissed by the impugned order. It has been contended before us that the petitioners i.e. transferee being in continuous possession over the land transferred for more than twelve years the Collector does not possess any power to set aside the transfer. In this connection our attention has been drawn to proviso (a) of section 49K of the Bihar Tenancy Act, 1885. It has been pointed out that petitioners have stated that they are in possession of the land transferred by virtue of the sale deed and the sale deed being of a period earlier than twelve years it has to be assumed that they are in continuous possession of the land. We do not find any substance in the submission of the learned counsel for the petitioners. We are of the opinion 3 that whether the petitioners had been in continuous possession for twelve years over the land or not is essentially a question of fact. It does not appear either from the order of the Collector or for that matter the Commissioner that the question of continuous possession for twelve years was ever canvassed before them. Pleading of the petitioners in this regard is not very specific. Further the said question of continuous possession for twelve years having not been canvassed either before the Collector or the Commissioner, it is inexpedient for us to go into this question in the present appeal. Thus, petitioners have not established their continuous possession over the land transferred their case does not fall within proviso (a) to Section 49 K of the Bihar Tenancy Act, 1885. We do not find any merit in the appeal. It is dismissed accordingly. In the facts and circumstances of the case there shall be no order as to costs. Patna High Court Dated the 3rd of July, 2008 N.A.F.R./ Manish/- ( Chandramauli Kumar Prasad,J.) ( Shailesh Kumar Sinha,J.) 4