IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10118 of 2001 MANRUP MANDAL Versus THE STATE OF BIHAR & ORS ----------- 3. 15.09.2008. Heard learned counsel for the petitioner and the State. 2. Petitioner is aggrieved by the order dated 20.07.2000 passed by the Sub-Divisional Officer, Dhamdaha, Purnea, Respondent No.2 in Case No. 12 of 1997, Annexure-7, whereunder he set aside the order dated 18.04.1996 passed by the Circle Officer, Dhamdaha, Purnea, Respondent no.3 in Case No. 56 of 1993-94, Annexure-6 rejecting the claim of Private Respondent No.4 for grant of occupancy status under Section 48D of the Bihar Tenancy Act, 1885 (hereinafter referred to as “the Act”) as Private Respondent No.4 was not even aware that the lands in-question stood transferred in the name of the petitioner vide registered sale deed executed on 04.03.1980, Annexure-2 as also mutated in the records of the State of Bihar and that petitioner had less than five acres of land and further Respondent No.4 had relinquished his Bataidari claim. 3. Aforesaid appellate order dated 20.07.2000, Annexure-7 is being assailed on the ground that close perusal thereof indicates that while setting aside the original order the learned appellate court has accepted the memo of appeal and has thereby granted Private Respondent No.4 the status of occupancy raiyat ignoring the fact that petitioner possesses even less than five acres of land and cannot be made amenable to the provisions under Section 48D in view of the proviso to Section 48C of the Act. It is further submitted on behalf of the petitioner that had the appellate authority taken into account the sale deed executed in favour of the petitioner by the original raiyat as also the mutation order passed in the light of the sale deed - 2 - together with the fact that petitioner does not even possess more than five acres of land then he should not have passed the impugned order, Annexure-7 accepting the memo of appeal as proceeding under Section 48D is not maintainable against a raiyat who has lands less than five acres. It is further submitted on behalf of the petitioner that while passing the appellate order the admission made by Private Respondent No.4 that he is not in possession of the lands in-question in the registered deed of relinquishment dated 27.08.1955, Annmexure-1 was also not considered and had the said Relinquishment Deed considered by the appellate court, the order accepting the memo of appeal, Annexure-7 could not have been passed. 4. None has chosen to appear on behalf of Private Respondent No.4 inspite of service of notice on him. In the circumstances, this writ application is disposed of with observation that the impugned order dated 20.07.2000 passed by the Sub-Divisional Officer, Dhamdaha, Purnea, Respondent No.2 in Case No. 12 of 1997, Annexure-7 is a remand order and the Circle Officer should consider the matter in the light of the statements made in the registered deed of relinquishment as also the subsequent sale deed executed in favour of the petitioner as also the certificate of the Circle Officer that petitioner does not possess more than five acres of land. 5. With the aforesaid observations, this writ application is disposed of. P.K.P. (V.N.Sinha,J.)