CIVIL WRIT JURISDICTION CASE No.6350 OF 1993. - - - - - - - In the matter of an application under Article 226 and 227 of the Constitution of India. - - - - - - - 1.Balbhadra Prasad Singh 2.Shail Bhadra Prasad Singh. 3.Shiv Shankar Singh. 4.Uma Shankar Singh. 5.Umesh Prasad Singh. All sons of Maheshwar Singh of village Darbey, P.O. Bhadaur, P.S.Bhadaur District Patna…-------------Petitioners. Versus 1.The State of Bihar. 2.Anchal Adhikari, Pandarak, Barh. 3.D.C.L.R., Barh. 4.Collector, Patna. 5.Indradeo Singh son of Late Jugdeo Singh. Resident of village Darbey, P.O. Bhadaur, P.S.Bhadaur, District Patna, ------------- ------------ ------------- Respondents. ----------- For The Petitioner : Mr.Amish Kumar, Advocate. For the State : Mr. Rana Ishwar Chandra, J.C.to G.P.13 Fore the Respondent No.5 : Mr.Ram Suresh Roly,Sr.Advocate. : Mr.Arbind Kumar Singh, Adv. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH. THE HON'BLE MR. JUSTICE CHANDRA MOHAN PRASAD. Shiva Kirti Singh & C.M.Prasad,JJ Heard learned counsel for the petitioners, learned counsel for the State and the learned counsel for the private respondent no.5. 2. This writ petition arises out of a proceeding under Section 48E of the Bihar Tenancy Act (hereinafter, for the sake of brevity, referred to as the ‗Act‘). It has a checkered history which spans a period of about 35 years. In 1975-76, the case No. 58 of 1975- 76 was instituted by Late Rajeshwar Prasad Singh son of Respondent No.5 seeking protection as under-raiyat as per the provisions of Section 48E of the Act. The claim was in respect of an area of 4 acres 2 29 decimals of land belonging originally to one Md. Abdul Batil. It appears that during the pendency of the proceeding, Mr. Batil died and the Raiyati right over the land vested in his daughter Wahida Khatoon. From him, lands were purchased by the writ petitioners in the year 1984 and since then they are contesting the claim of under-raiyat. 3. For the purpose of deciding the relevant issues in this writ petition, it is not necessary to go into past history of the litigation which involved several orders by the authorities under the Act since 1977 and orders of remand even by this Court in an earlier writ petition. Ultimately as per directions contained in the order of remand, aBataidari Board was constituted which submitted its report through the Circle Officer, the Chairman of the Board in the year 1989. That report has been confirmed and accepted by the D.C.,L.R. by his order dated 14th February 1989, contained in Annexure-9 to the writ petition. That order is in favour of the claim of under-raiyat. Petitioner challenged that order before the appellate court, the Collector, Patna who dismissed the appeal by a reasoned order dated 13th April 1993 contained in Annexure-12. Those orders by the authorities under the Act are under challenge in this writ petition. 4. While admitting this writ petition on 11th August 1993, it was observed that it shall he heard by a Division Bench and the interim order was passed for maintaining status quo as obtained on that date. From the appellate order, contained in Annexure-12, it appears that 4 questions or issues were raised on behalf of petitioners who were the appellant. Those issues were as under: 3 i) The right of under-raiyat cannot be acquired through succession and, therefore, the decision to this effect by the D.C.L.R. is bad; ii) The name of Sri Indradeo Singh (respondent no.5 herein) was not substituted in place of his son Late Rajeshwar Prasad Singh, the original applicant. iii) The D.C.L.R. failed to keep in mind that Indradeo Singh became a party on account of succession but no efforts were made to find out whether he was also in actual physical possession over the land in question or not; and iv) In a proceeding under Sections 144 and 107 of the Code of Criminal Procedure the claim of Bataidari by said Indradeo Singh was not accepted. 5. In writ jurisdiction we have to confine ourselves to the facts as found by the authorities under the Act unless it could be shown that their findings in respect of facts were perverse and without any material. In this case, there is no such plea that any finding of fact is perverse. Hence, we are required only to answer the issues of law raised before this Court. Learned counsel for the petitioners has raised the issue of inheritance or succession in respect of right of under- raiyat and has placed reliance upon the Division Bench Judgment of this Court in the case of B. Mishra Vs. State of Bihar 1995(1) BLJ 32 in support of his contention that under-Raiyati interest is neither transferable nor inheritable. For this he drew our attention to the 4 observations made in Para-23 of the judgment wherein it has been observed as follows: ―It may also be mentioned that the general rule that the under-raiyati interest are not transferable or heritable is subject to the exception of existence of the custom to the contrary. If there exists a custom in terms whereof an under- raiyati interest also becomes transferable or heritable, the petitioners must be deemed to have acquired a valid interest.‖ 6. In the aforesaid case of B. Mishra (supra), the issue was whether the petitioner had acquired the status of occupancy under- raiyat or not. There was no sufficient material to enable the writ court to give a finding on that issue and, therefore, ultimately, the matter was remanded back to the authorities for deciding that issue. The observation made in Para-23, noted above, was as is clearly noticeable not in the context of under-raiyat with occupancy rights, but only in respect of a simple under-raiyat. On what basis or authority those observations were made is not disclosed in the judgment but that judgment does not stand in the way of contentions advanced on behalf of respondent no.5 that rights of the applicant under-raiyat who, at the relevant time, had remained as under-raiyat for more than 12 years and acquired the status of an occupancy under-raiyat were at least inheritable in view of clear provision to that effect in Section 48D of the Act as it stood prior to its amendment in 1987. At the relevant time Section 48D of the Act was as extracted below:- 5 ―48D, Rights of occupancy under-raiyats—An under-raiyat, who acquired a right of occupancy in any land under section 48A shall be subject to the same provisions with respect to rights in trees and bamboos and the use of, succession to, and eviction from, such land as an occupancy-raiyat.‖ 7. In order to understand the rights of occupancy-raiyat including succession to and eviction from the land which are available to an occupancy under raiyat also by virtue of Section 48D,it will be useful to extract hereunder Section 26A of the Act which is as follows: ―26 A. Transfer and bequest of occupancy holdings or portions thereof –(1) Every occupancy-holding or a portion thereof, together with the right of occupancy therein shall be capable of being transferred and bequeathed in the same manner and to the same extent as other immovable property and all transfers made by sale, exchange or gift and all bequest shall, subject to the provisions of sub-section(2), be binding on the landlord. (2) Every transfer of an occupancy-holding or a portion thereof, together with the right of occupancy therein, by sale, exchange or gift and every bequest of such holding or portion, together with the right of occupancy therein shall be made in the same manner and subject to the same condition as a permanent tenure in respect of registration and the payment of landlord‘s registration fee.‖ 8. There are judgments of this Court which have considered 6 the effect of aforesaid legal provisions and have come to the conclusion that the rights of occupancy under-raiyat shall be inheritable but ‗not transferable‘. This is on account of the words ‗succession to‘ which occurred in section 48D of the Act as it stood prior to its amendment. By way of illustration, we may refer to the judgment in the case of Padarath Chaudhary Vs. Mostt. Jogtia (1987 BLJ 636. in which reliance was placed upon a Division Bench Judgment of this Court in the case of Shrikishun Vs.Harihar (ILR 27 Patna 194) and the judgment of the single judge in the case of Bibi Jaloosan vs. Bhulai Baitha (1981 BBCJ 466) to come to a conclusion in Para-10 of the judgments that an under-raiyat having occupancy rights by dint of his continuous possession for more than 12 years can have rights to succession etc. but cannot have the rights to transfer. A similar view has been taken in a recent judgment by a single judge of this Court in the case of Dehal Mahton Vs. Nathuni Ram Marwari 2006(2) PLJR 642. 9. On behalf of petitioner, reliance was also placed upon the judgment of a learned single judge of this Court in the case of Md. Yunus Vs. Moinuddin, 2002(4) PLJR 31 in support of the proposition that Sikmi right i.e. right of under-raiyat is not transferable unless a custom prevailing in the village is pleaded and proved. 10. In this case, the issue of right to transfer a sikmi right is not involved and it is nobody‘s case that after death of original applicant Rajeshwar Prasad Singh, his father, present respondent no.5 claimed sikmi right over the land in question by any document of 7 transfer. In fact, in his original applications under Section 48E of the Act Late Rajeshwar Prasad Singh had disclosed in Para-5 & 7 the fact that the lands in question were in possession of his grand-father and since then he and his father also were continuing to cultivate the land as Bataidars. Thus, on a complete reading of the pleadings in the application under Section 48E of the Act it is manifest that a joint Hindu family claimed to be Sikmidar over the lands involved in this case and, hence, there appears merit in the submissions advanced on behalf of the respondent no.5 that he was impleaded as a party after the death of his son in 1984 because he was also an under-raiyat as per the pleadings made by his son Rajeshwar Prasad Singh and it has further been contended that even as per the right of succession available to an occupancy raiyat, respondent no.5 as father of late Rajeshwar Prasad Singh could maintain the application under Section 48E of the Act. 11. The main issue is, therefore, whether the sikmi right i.e. right of an under-raiyat having occupancy right will include the right of succession or not. As per the application of Rajeshwar Prasad Singh, he, his grand father as well as father (respondent no.5)were under- raiyat for much more than 12 years. Even in the judgment, referred to above in the case of Md. Yunus (supra) and relied upon by the learned counsel for the petitioner, it has been held that such under-raiyats having occupancy right can have the right to succession etc. but cannot have the right to transfer. Thus, on consideration of relevant case laws and the legal provisions as existing in the year 1984, when Rajeshwar Prasad Singh died and his father respondent no.5 was impleaded as a 8 party, we hold that respondent no.5 had the right to be impleaded both as a member of the family claiming sikmi right as well as in the capacity of a successor, being the father of late Rajeshwar Prasad Singh. 12. Thus, the main contention raised on behalf of petitioners is decided against the petitioners. 13. From the discussions made in the orders under appeal, it is clear that as a fact it has been found that respondent no.5 was made a party to the proceeding under Section 48E of the Act on his application and in view of discussions made above, we are of the view that the authorities did not commit any mistake in allowing the respondent no.5 to maintain the application under Section 48E. 14. No other issue of any substance was raised before us. We find no merit in this writ petition. It is accordingly dismissed, but without costs. Patna High Court, Patna. Dated 5th March, 2010. A.F.R. Jay/ (Shiva Kirti Singh, J) (C. M. Prasad, J.)