AIR 1979 PATNA 169 ::(1979) BLJ 67 ::1979 BLJR 101 ::1978 BBCJ 750 ::(1979) Pat LJR 82

Patna High Court

Hon'ble Judge(s): K. B. N. Singh , C.J. AND P. S. Sahay , J

(A) Civil P.C. (5 of 1908) , S.11— Matter left undecided in prior proceeding - S.11 places no bar. Bihar Tenancy Act (8 of 1885) , S.48E— The prior proceeding under S.48-E Bihar Tenancy Act as it stood prior to Bihar Act 8 of 1970 for declaration of Bataidari right of the raiyat dismissed as not maintainable for want of averment of dispossession held did not operate as res judicata and a subsequent proceeding under the same Section was possible.(Para 5) Anno : AIR Comm. Civil P.C. (9th Edn.), S.11 N.105. (B) Bihar Tenancy Act (8 of 1885) , S.48E— Word 'may' in Sub-S. (3) means 'shall' - Collector bound to refer proceeding to the Board - He can decide it himself only in stated circumstances. Promotion of settlement between the under-raiyat and the landlord through the good offices of the Board being the principle underlying the scheme of the Act its constitution and reference of the dispute to it under Sub-Sec. (3) of S.48 is a must on the proceeding being entertained and initiated by the Collector. The word 'may' in the Sub-Sec. (3) should be construed as 'shall'. Circumstances viz., that the Collector can differ from the Board's findings and come to its own decision based on reasons as provided for under Sub-Sec....