Kapleshwar Yadav & Ors. vs The State Of Bihar & Ors.

(Per: HONOURABLE MR. JUSTICE SOURENDRA PANDEY)

Heard Mr. Narayan Singh, the learned Sr. Advocate, appearing on behalf of the appellants and the learned AAG-12, Mr. Md. Khurshid Alam appearing on behalf of respondents.

The appellants have preferred the present intra-court appeal being aggrieved by the judgment and order dated 14.11.2022 passed by the learned Single Judge in C.W.J.C. No. 2802 of 2022, whereby the writ petition preferred by them challenging the orders passed by the learned Sub-Divisional Officer, Forbesganj, in the appellate proceedings as well as by the Bihar Land Tribunal, Patna in B.L.T. Case No. 272 of 2019, came to be dismissed.

Learned senior counsel appearing on behalf of the appellants submits that the learned Single Judge has erred in dismissing the writ petition without properly appreciating the facts and the illegality committed by the learned appellate authority as well as the Bihar Land Tribunal. It is submitted that the Circle Officer, Narpatganj, through the Halka Karamchari and the Circle Inspector had conducted a spot inquiry in respect of the land in question and had found the appellants to be in cultivating possession thereof. During the course of such inquiry, the appellants were found to have raised crops over the land in question. On the basis of the said spot verification and the report submitted by the revenue authorities, the claim of the appellants for acquisition of Raiyati right under Section 48D of the Bihar Tenancy Act, 1885 hereinafter referred to as “B.T. Act”, 1885, was accepted by the Circle Officer and by an order dated 04.08.2009, he held that the writ petitioners/appellants fulfill all the conditions of being granted Raiyati rights and directed for depositing the amount upon which the appellants would acquire Raiyati rights over the land in question.

Learned senior counsel for the appellants further submits that it is a settled principle of law that where an under-raiyat remains in continuous cultivating possession for the requisite statutory period, he becomes entitled to the protection and rights contemplated under the B.T. Act. It is contended that neither the learned appellate authority nor the Bihar Land Tribunal has disputed the fact that the appellants were in continuous possession of the land as Bataidars. The said fact also stood corroborated by the spot inquiry conducted by the revenue authorities. According to learned counsel, the authorities below have, therefore, committed an error in rejecting the claim of the appellants merely on the ground that their ancestors had acquired Sikmi rights through a sale deed.

It is further submitted that the appellants have been claiming Bataidari rights over five plots, whereas the private respondent has claimed such right only in respect of .63 decimals of land. Despite this, the learned appellate authority as well as the Bihar Land Tribunal have declared the right and title of the private respondent in respect of Plot Nos. 1931 and 5003, together with Plot No. 2004, without properly considering the appellants’ long-standing cultivating possession. Learned counsel next submits that there is not even a reference in the order passed by the Circle Officer, Narpatganj, to the alleged sale deed of the year 1962 whereby sikmi rights were transferred in favour of their father. The finding of the Circle Officer, according to the appellants, was founded upon the actual and continuous possession of the appellants as found during the spot inquiry and not upon the said sale deed. It is, therefore, contended that the learned Single Judge has also erred in giving undue significance to the alleged transfer of Sikmi rights and in overlooking the effect of the appellants’ long and continuous possession.

Per contra, learned Additional Advocate General appearing for the State, opposing the appeal, submits that the learned appellate authority as well as the Bihar Land Tribunal have concurrently found that the claim of the appellants over the land in question traces its origin to the alleged purchase of Sikmi rights by their ancestors under a sale deed. It is submitted that the appellants cannot claim any independent statutory right merely on the basis of such possession when the very source of their possession is an impermissible transfer of Sikmi rights. Learned senior counsel further submits that the issue has been considered by the appellate authority, the Bihar Land Tribunal as well as the learned Single Judge, and all have rightly concluded that Sikmi rights, being non-transferable, could not have been validly conveyed in favour of the ancestors of the appellants. Consequently, the order passed by the Circle Officer accepting the appellants’ claim under Section 48D of the B.T. Act was wholly unsustainable.

We have considered the rival submissions advanced on behalf of the parties and have perused the materials available on record.

At the outset, it would be appropriate to examine the very foundation of the appellants’ claim. The claim under Section 48D of the B.T. Act was considered by the Circle Officer on the basis of the appellants’ asserted possession over the land in question. It is true that the revenue authorities, during the course of spot verification, found the appellants to be in possession and cultivating the land. However, the report of the Halka Karamchari itself records that the claim of the appellants emanated from the alleged purchase of Sikmi rights by their ancestors through a registered sale deed and that, thereafter, the appellants and their ancestors continued in possession as Sikmidars.

Thus, the question which assumes significance is not merely whether the appellants were physically cultivating the land for a considerable period, but whether such possession, having originated from an alleged transfer of Sikmi rights, could furnish the legal foundation for acquisition of an independent statutory right under Section 48D of the B.T. Act.

The learned appellate authority as well as the Bihar Land Tribunal have concurrently found that the appellants’ claim is traceable to the alleged transfer of Sikmi rights in favour of the father of the appellants. The learned Single Judge, while exercising jurisdiction under Article 226 of the Constitution, has also considered the said aspect and found no infirmity in the concurrent findings recorded by the statutory authorities.

It is no doubt true that the revenue authorities found the appellants to be in actual cultivating possession. However, mere long possession cannot, by itself, validate the source of possession when the appellants themselves trace their claim to a transaction by which a non-transferable right was purportedly conveyed. The question of possession and the question of the legal character of such possession are distinct. The former may be a question of fact, whereas the latter necessarily depends upon the statutory rights available to the person claiming such possession.

In the present case, the appellants cannot simultaneously rely upon the alleged sale deed through which their ancestors acquired the Sikmi rights and contend that, notwithstanding the invalidity of such transfer, the same transaction and the possession flowing therefrom have conferred upon them an independent right under Section 48D of the B.T. Act.

At this juncture, we may reiterate that Section 48D is available to an occupancy under Raiyat and therefore, the applicant must first establish that he had acquired occupancy right under Section 48C of the B.T. Act. Unfortunately, in the present case, neither the report of the Halka Karmchari nor the order of the Circle Officer records any finding that appellants had acquired the right of occupancy raiyats under Section 48C of the B.T. Act.

Section 48C of the B.T. Act requires a definite finding apart from others, on the period of occupancy i.e., 12 years. From perusal of the report, we do not find any specific statement/finding with regard to their occupancy period, rather than a word that they are in possession at present (orZeku) over the land.

It would be apt to reproduce the provisions of Sections 48C and 48D of the B.T. Act for ready reference:-

Such report, in our considered opinion, does not fulfill the conditions of holding the appellants as occupancy under raiyat over the land and therefore, the order passed by the Circle Officer suffers from non-compliance of the mandatory provisions of Section 48D(1) of the B.T. Act, thus is unsustainable in law.

The submission that the spot inquiry had established continuous cultivation by the appellants, therefore, does not, in the facts of the present case, advance their claim any further. The existence of possession is not in serious dispute; what is in dispute is the legal consequence that can flow from such possession. Once the foundation of the appellants’ claim is found to be an impermissible transfer of Sikmi rights, long possession alone cannot be treated as sufficient to confer a right which the statute does not recognise, especially considering the fact that neither the report of the Halka Karmchari nor the order passed by the Circle Officer records any finding about the occupancy period of the appellants muchless there being any finding that the appellants had acquired the right of occupancy raiyats under Section 48C of the B.T. Act.

We also find no substance in the submission of the learned senior counsel for the appellant to the effect that the appellate authority and the Bihar Land Tribunal failed to consider the report of the revenue officials. The factum of possession was noticed and considered. However, the authorities proceeded to examine whether such possession could result in the acquisition of the right claimed by the appellants. The conclusion reached by the authorities below is based upon the nature and source of the appellants’ claim and not upon a mere denial of their physical possession.

In view of the aforesaid discussion, we find no jurisdictional error, perversity or manifest illegality in the judgment and order passed by the learned Single Judge warranting interference in the present intra-court appeal. The appellants have failed to establish that their long-standing possession, in the circumstances of the present case, could confer upon them a right notwithstanding the admitted position that the claim originated from an alleged transfer of Sikmi rights.

The appeal is, accordingly, dismissed. There shall be no order as to costs.