IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.588 of 2009 10 18.8.2010 Ayodhya Prasad @ Ayodhya Chaudhary son of Late Maheshwari Prasad, resident of village- Deo Tola Sarab Bigha, Police Station and P.O. Deo, district Aurangabad .... Petitioner / Appellant VERSUS 1. The State of Bihar through Member, Board of Revenue, Government of Bihar, 2. The Additonal Collector, Aurangabad 3. The Land Reforms Deputy Collector, Aurangabad 4. Durgawati Devi, wife of Sri Karamlal Chaudhary 5. Indu Devi, wife of Sri Raj Kumar Chaudhary 6. Munni Kuar, widow of late Kedar Chaudhary All ( respondents 4 to 6) residents of village- Deo Tola Surab Bigha, P.O. and P.S. Deo, District Aurangabad .... Respondents 1st set/ Respondents 1st set 7. Binod Prasad, son of late Yadunandan Prasad 8. Rajendra Prasad, son of late Raghunandan Ram Both are residents of village- Deo Tola Sirab Bigha, P.O. and P.S. Deo, District- Aurangabad .... Respondents 2nd set / Respondents 2nd set ------- For the Appellant : M/s Dhruv Narayan, Sr. Advocate Raghunandan Kr Singh, Advocate For the State : Mr Mithilesh Kr Upadhayay, AC to SC 2 (Ceiling) For Respondents : M/s Sanjay Kumar, Ram Das No.4 to 6 Singh and Birendra Kumar, Advocates. ------- Heard learned counsel for the appellant, learned counsel for the State and learned counsel appearing for respondents no.4 to 6. 2. This Letters Patent Appeal arises out of a writ 2 petition bearing CWJC No.4164 of 2007 preferred by the appellant against order dated 13.11.2006 passed by learned Additional Member, Board of Revenue, Bihar whereby Revision Case No.289 of 2005 preferred by him against rejection of his pre-emption application by the appellate authority was dismissed. The Writ Court found that no doubt the writ petitioner (appellant herein) was an adjoining raiyat with respect to vended plot but it found no good reason to interfere with findings of facts given by the appellate authority that respondents no.4 to 6, the purchasers are also adjoining raiyats. Hence, the Writ Court held that the issues are concluded by findings of facts and the pre-emption application filed by the writ petitioner under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 could not be allowed in view of concluded findings of facts. 3. The main issue raised on behalf of appellant is to assail the finding of the appellate authority, the learned Additional Collector, Aurangabad in his order dated 21.9.2005 passed in Ceiling Appeal Case No.120 of 2004- 3 05 that the purchasers are also adjoining raiyats of the vended land. 4. On this issue, we had directed the purchasers (respondents no.4 to 6) to disclose all the materials in support of their case that they are adjoining raiyats of the vended land. The first material pointed out is the sale deed itself in which the purchasers are mentioned to be boundary raiyat in the east. The second document is a report submitted by the Revenue Karmchari, Anchal Deo, Aurangabad to the learned DCLR, Aurangabad in response to his letter dated 523/ 23.9.2003 in the context of Land Ceiling Case No.7/ 2002-03. In that report the Revenue Karmchari has mentioned that as per local inspection of the spot the boundary of the vended land was as follows : North : Prem Choudhary ; South : (Illegible) Pind; East : House of Durgawati Devi in Plot No.2088 and West : Vakil Prasad and Madan Choudhary. The boundary on the eastern side noted above refers to house of Durgawati Devi, respondent no.4 herein. The purchasers have also produced before us a Sada deed of exchange dated 15.6.1966 to explain how they came to 4 acquire title and interest in Plot No.2088 which is admittedly adjacent east of the vended land in Plot No.2087. An affidavit by Vakil Choudhary son of Late Ram Swaroop Choudhary has been brought to our notice to highlight the fact that Vakil Choudhary is son of the person who had exchanged his 9 decimals of land in Plot No.2088 with 3 decimals of land belonging to Thakur Choudhary, ancestor of the purchasers. That affidavit dated 6.7.2004 was produced before the appellate authority in support of plea of exchange. It has further come on record through the counter affidavit of the purchasers that they have also been sanctioned financial assistance for building a house under Indira Awas Yojna over Plot No.2088, the land which they claim to have got through exchange. 5. On behalf of the appellant the claim of respondent purchasers that they got 9 decimals of land in Plot No.2088 through exchange has been strongly contested. According to the appellant, the story of exchange was not clearly placed before the original court of learned DCLR and a Sada deed of exchange has been subsequently 5 brought into existence to support such a claim which must be rejected as false. 6. No doubt, full details and facts in support of title and possession through exchange has been furnished by the purchasers only before the appellate authority and before the original authority i.e. DCLR and they were satisfied by placing reliance upon description in the sale deed showing them to be boundary raiyat on the east. It is also apparent that the alleged deed of exchange is not a registered document but is only handwritten, apparently on a piece of paper which appears to be quite old but does not bear any stamp etc. As per law, transfer of property in completion of exchange can be made only in manner provided for the transfer of such property by sale. Sale of an immovable property of the value of Rs.100 and upwards can be made only by a registered instrument. Hence, it has been argued on behalf of the appellant that in absence of registered document of exchange, the claim of purchasers should be rejected. 7. Ordinarily, the aforesaid plea on behalf of the appellant deserved to be accepted but the transaction of 6 exchange is old one, of the year 1966 and from a rural area where people work on trust and many a times avoid to take the trouble of creating registered document in support of exchange. The value of the lands as in 1966 is not mentioned in the deed of exchange or anywhere else. Even if the deed of exchange is treated to be not a valid document, it can be used to explain the nature of possession of the purchasers which is capable of yielding valid title over the exchanged land. They are shown in the sale deed in question as boundary raiyats and in the spot verification, the Revenue Karmchari has found their house in the adjacent east of the vended land. 8. Materials on record also show that the vended land and land in the neighbourhood has changed its nature and is being used for residential purposes. Purpose of pre- emption under the Ceiling law is only to facilitate agricultural activity and not to act as a clog on the right of people to have suitable and proper homesteads. 9. In such facts and circumstances, we are not inclined to interfere. Further, the findings of fact given by the appellate authority against the appellant which have not 7 been interfered by the revisional court or the Writ Court do not suffer from any infirmity. 10. In view of aforesaid facts and discussions, we find no merit in this appeal. It is accordingly dismissed. No costs. (Shiva Kirti Singh, J.) (Hemant Kumar Srivastava, J.) sk