BABUJAN RAI v. THE STATE OF BIHAR

having considered the rival submission, has come to the conclusion that without recording a finding that the petitioners have acquired occupancy right, the Anchal 4 Adhikari has allowed the prayer of the petitioners and declared him to have acquired the raityati rights under Section 45D of the Act. Thus, he allowed the appeal. Learned counsel for the petitioners submits that though, it has been held by the appellate court that the original order is bad and appeal has been allowed but no positive finding has been recorded by the appellate court on the issue. He further submits that it is settled principle that in certain area where such custom is prevailing, the Sikmi rights are acquired by successor also. On this question also, which has been dealt with by the original authority, the appellate authority has not recorded positive finding. Learned counsel for the respondent No. 6 submits that while passing an order and declaring that a person has acquired raiyati rights under Section 46D of the Act, the authorities must record a finding that the person is Sikmidar (occupancy Raiyat). His further submission is that it is not recorded in the original order as to whether the petitioners were coming in possession for last how many years and there is also no positive finding that either by possession for more than 12 years, or on account of succession, the petitioners have acquired or deemed to have acquired Sikmi rights. Having considered the rival submissions, in 5 my opinion both the original as well as appellate orders suffer from defects. The order passed by the Anchal Adhikari, Banmankhi, suffers from major illegality as the notices were issued against a dead person and order has also been passed against a dead person. Learned counsel for the petitioners fairly concedes that he is not in a position to controvert the fact stated by the respondent No. 6 in his counter affidavit that the recorded tenant Gyan Chandra Sah died in the year 1975 and notices have been issued as well as order have been passed against a dead person. Further, the Anchal Adhikari has not recorded any reason for coming to the conclusion that in Banmankhi area, such custom is prevalent that Sikmi rights can be acquired by succession also. A Bench of this Court in Md. Yunus & Anr. Vrs. Moinuddin and Ors. reported in 2002(4) PLJR, 31 has held that it is now well known that sikmi right is not transferable unless a custom prevailing in the village is pleaded and proved. The person making such claim has to make out a case in support of such custom prevailing in the village or the locality. Further, it is also manifest from the order passed by the Anchal Adhikari that no positive finding has been recorded that the petitioners have acquired sikmi rights. In the appellate order also on the point of 6 acquiring Sikmi rights of successor, no positive finding has been recorded. In view of the above, I set aside both, the order passed by the Anchal Adhikari as well as the appellate order passed by the S.D.O., Banmankhi as contained in Annexures 3 and 4. However, liberty is granted to the petitioners to file a fresh application if they desire so, before the Competent Authority concerned impleading the private respondents as party. If such application is filed within two months from today, then that shall be disposed of by such authority in accordance with law after hearing the parties. With the aforesaid observations and directions, this writ application stands disposed of. S.Ali (Dr. Ravi Ranjan,J.)