IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9673 of 2001 MANGALI DEVI Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : Mr. Madhav Roy, Advocate. For the Private Respondents : Mr. Uday Bhanu Roy, Advocate. For the State : Mr. Dhirendra Kumar(JC to SC-V), Advocate. 05. 12.09.2008. Heard learned counsel for the petitioner and the counsel for private respondents. 2. Petitioner is aggrieved by the order dated 27.5.2001 passed by the Sub-Divisional Magistrate, Farbisganj, Araria in Case No.168 of 1994, Annexure-7 whereunder order dated 24.2.1994 passed by the Circle Officer, Farbisganj, Araria in Case No. 02 of 1993-94, Annexure-2 declaring the petitioner as an occupancy raiyat of the lands in question under Section 48D of the Bihar Tenancy Act, 1885(hereinafter referred to as “the Act”) has been set aside. 3. It is submitted on behalf of the petitioner that the impugned order dated 27.5.2001, Annexure-7 has been passed even without condoning the delay in filing Case No. 168 of 1994 as the same was filed much beyond the period of limitation. It is further submitted on behalf of the petitioner that perusal of Memo of Appeal, Annexure-5 would also indicate that the order dated 24.2.1994, Annexure-2 was never challenged, yet under the impugned order, the same has been set aside. - 2 - 4. Counsel for the private respondents has opposed the aforesaid submission. He states that there may be omission on the part of the private respondents to specifically challenge the order dated 24.2.1994, Annexure-2 but the fact remains that Memo of Appeal, Annexure-5 was filed against order dated 24.2.1994, which submission was made during the hearing of case No. 168 of 1994 and appreciating such submission the court below set aside the impugned order dated 24.2.1994, Annexure-2 with reference to the findings recorded in Title Suit No. 1082 of 1964 on the basis of the admissions made by the husband of the petitioner under judgment dated 17.11.1973 and the impugned order dated 4.6.2001 settling aside the order dated 24.2.1994, Annexure-2 has been passed only after perusing the said judgment. 5. Aforesaid submission of the private respondent have been controverted by the counsel for the petitioner in rejoinder as according to him neither the Memo of Appeal, Annexure-5 nor the impugned order dated 27.5.2001, Annexure-7 indicates that the judgment dated 17.11.1973 passed in Title Suit No. 1082 of 1964 was ever produced before the appellate authority and in this view of the matter he submits that this Court should not record any finding on the basis of such judgment as - 3 - the same has not even been produced before this Court. 6. Having heard counsel for the parties and having appreciated the submission as also the averments made in the writ application, I am of the view that both the impugned orders dated 24.2.1994, Annexure-2 as also the appellate order dated 27.5.2001, Annexure-7 be set aside and the matter be remitted back to the Circle Officer, Farbisganj, Respondent No.3 where both petitioner and the private respondents should produce their documents including the judgment dated 17.11.1973 passed in Title Suit No. 1082 of 1964 and if the Circle Officer is satisfied that in the said title suit husband of the petitioner had admitted the possession of the private respondents over the lands in question then pass appropriate orders in accordance with law. Until disposal of the matter by the Circle Officer, status quo as existing on 8.2.2002 shall be maintained. 7. This writ application is, accordingly disposed of. Rajesh/ (V.N.Sinha,J.)