JUDGMENT
Chaudhary S.N. Mishra, J.
1. Heard learned Counsel for the petitioner and the respondents. With consent of the parties, this writ application is being disposed of at the stage of admission itself. In this writ application, the petitioner has challenged the order, dated 2.9.94 passed by respondent No. 2 the Sub divisional Officer, Forbesganj, whereby the concerned respondents have been directed to make entry into the-relevant. register, a copy of which has been made Annexure-3 to this writ application. It is stated that the land in question pertaining to Khata No. 786, plot No. 3783 having an area of 0.78 decimals and plot No. 3791 measuring an area of 1 acre were recorded in the name of the petitioner in Sikmi Khata No. 284 in the revisional survey Khatiyan, as per amended provisions of Section 48-D of the Bihar Tendency Act, 1885 (hereinafter referred to as the Act). The petitioner, filed an application before respondent No. 3, the Circle Officer, Bhargama Anchal, District Araria, for declaring him as an occupancy raiyat of the lands in question, which was registered as 48-D, B.T. Act Case No. 98 of 1992-93. The respondent-Circle Officer by his order, dated 18.1.93 accepted the claim of the petitioner and, accordingly the petitioner’s claim for his declaration as an occupancy raiyat was allowed. A copy of the aforesaid order, has been made Annexure-2 to this writ application. The private respondents No. 4 and 5, being aggrieved by the aforesaid order, filed an appeal before respondent No. 2, the Sub-divisional Officer, Forbesganj, which was registered as Appeal case No. 254 of 1992-93, who, by his order dated 2.9.94 allowed the appeal of the private respondents.
2. A counter-affidavit has been filed on behalf of the private respondents in this application stating, inter alia that though during the revisional survey, the name of the petitioner was recorded in the Khatiyan as Sikmidar, the respondents have no knowledge of the said entry as the name of the petitioner was recorded behind the back of the private respondents and that too without following the procedure, as required under the law. It is further stated that a consolidation proceeding was initiated in the year, 1994-95 and the consolidation authorities found the respondents in peaceful possession over the disputed land and even then the petitioner never raised any objection. It is further-stated that the petitioner has suppressed the material facts from this Court, inasmuch as, after the revisional survey entry the possession of the respondents was found by the consolidation authorities and as such the claim of the petitioner, as per the amended provision of Section 48-D of the Act is wholly baseless and malafide. It is further stated that the Halka Karmachari made spot verification of the disputed lands and found peaceful possession of the private respondents over the lands in question. A copy of the report of the Halka Karamchari has been made Annexure-A to the counter-affidavit. The respondent have further denied, in their counter-affidavit, that any notice was ever served on them by the respondent Circle Officer in 48-D, B.T. Act Case No. 98 of 1992-93 before passing the order, as contained in Annexure-2. However, when respondents came to know about the order having been passed by the Circle officer, as contained in Annexure-2, they sent Uma Shanker Rai, son of respondent No. 4 to make enquiry as to existing stage of the case, but curiously enough, they came to know that respondent No. 3, the Anchal Adhikari, without giving an opportunity to the private respondents 4 and 5 of being heard and without considering the report of the Halka Karamchari, allowed the claim of the petitioner. The respondent Sub-divisional Officer has firstly held that the claimant has not filed an affidavit to the effect that he does not possess land anywhere beyond the ceiling limit. The learned Sub-divisional Officer has further held that the zamabandi was created in favour of respondent 4 and 5 long ago and the same is continuing is their names. The respondent Sub-divisional Officer has further held that the respondent Circle Officer, without taking into consideration the (sic) of the lands and/or the report of the Halka Karamchari with regard to possession of the respondent over the lands, in question has decided claim in favour of the petitioner. He has further held that having regard to the stand taken by the respondents that their residential house over the lands, in question, the respondent Circle Officer ought not to have passed the order without verifying the claim of the petitioner. The respondent Sub-divisional Officer has lastly held that Circle Officer, without giving a finding regarding possession over the lands, in question, which is mandatory before passing the order in terms of the amended provisions of Section 48D of the Act, has passed the order. On the aforesaid consideration and findings, the respondent Sub divisional Officer has set aside the order passed by the respondent Circle officer and accepted the contentions of the respondents.
3. Learned Counsel for the petitioner, in support of this writ application, has submitted that as per the entry made in the revisional survey record since 1952 Fasli corresponding to English calendar year 1845, the petitioner will be deemed to have acquired the occupancy right with respect to the lands, in question, in terms of Section 48-D of the Act. While developing his argument, learned Counsel submits that the said survey record entry has not been challenged by the respondents at any point of time and at this stage, the respondent cannot be advised to dispute the said entry in the survey record. It is further submitted that the report of the Halka Karamchari supports the possession of the petitioners over the lands, in question, which has been considered by the respondent Circle Officer, while allowing the claim of the petitioners.
4. Learned Counsel for the respondents has, however, submitted that the so-called entry made in favour of the petitioner cannot be taken into consideration for deciding the question of possession of the parties as the respondents were not aware of the said survey entry which was made behind their back. It is further submitted that the zamabandi created in favour of the respondents long ago and the same is continuing all date, which will go to prove the possession of the respondents over the lands, in question. It is further submitted that the consolidation Courts, which are exercising power of the Civil Court for the purpose of determining the right, title and possession of the respective parties have found the possession of the respondents in a properly constituted consolidation proceeding. Over and above, it is further submitted that the residential house of the respondents is situate over the lands, in question and as such provisions of Section 48-D of the Act will not apply to the instant case.
5. In order to appreciate the contention of the parties, it is relevant to quote pre-amended Section 48-D of the Act which reads thus:
48-D. Acquisition of raiyati right by occupancy under-raiyat.–(a) An occupancy under-raiyat shall if he makes an application in this behalf in the prescribed manner, be entitled to acquire the right of a raiyat subject to the payment by the State Government and the right of the landholder in such land shall extinguish.
Provided that the land on which he acquires such right along with other land held by him anywhere in the State does not exceed the area he may hold under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act XII of 1962.)
2. The remaining area, if any, in which the under raiyat does not acquire the right of a raiyat shall continue to be held by the raiyat under whom the under raiyat held the land.
(3) The land owner in respect of whose land the under raiyat acquires the right of a raiyat under Sub-section (1) shall be paid as compensation an amount equivalent to twenty-four times the rent of the holding in the manner prescribed in this behalf.
Section 48-D, as quoted above, has subsequently been amended by a notification, dated the 11th March, 1992, wherein, inter alia, it is envisaged that there can be no difficulty in passing the order in terms of Section 48-D on the basis of the entry made either in the cadestral survey and/or revisional survey.
6. After hearing the parties and after taking into consideration the relevant provisions of the Act, I am of the view that mere entry in the survey record cannot be a sufficient ground for allowing the claim of the parties in terms of Section 48-D of the Act on the ground, firstly, that such entries are often made behind the back of the real landholders and the land-holders are not make aware of such entries for several. When the landholders come to know regarding the incorrect entries made in the survey records, they challenge the same before the appropriate authority. Some times, it so happens that the land-holders do not know about such entries till a dispute with respect to the lands, arise. Even after the entry in the survey records, the jamabandi is created in favour of the land-holders only on the basis of their possession, irrespective of the adverse entries made in the survey records. Creation of jamabandi, prima fade, establishes of possession. Apart from the reasons assigned by the respondents Sudivisional Officer in non-suiting the petitioner from the lands, in question, one thing is apparent that an elaborate procedure has been prescribed under Section 48-E of the Act to determine the Sikmi right of the parties. From a mere perusal of the Section, it would appear that the parties can ventilate their grievances by initiating-a proceeding under Section 48-E of the Act, where provision, have been made for constituting a Board, examination of the witnesses, filing of documents as well as nomination of Panches to represent the parties in support of their respective claim, so that the genuine claim of the parties cannot be defeated easily. In the light of the provisions made in the Act, I am of the opinion that it is not safe to determine the possession of the parties only on the basis of the survey entry. In order to determine the right of the parties in terms Section 48-D of the Act, one should first get his right determined under Section 48-E of the Act, where a detailed procedure and safeguard have been provided in order to determine the rights of the parties. The order passed under Section 48-E of the Act should be the basis for declaring the occupancy right under Section 48-D of the Act. The respondents Sub divisional Officer in the premises, has rightly non-suited the petitioner with respect to the land, in question, and as such, I do not find an illegality in the same. This writ application is, accordingly dismissed.