IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2003 of 2008 SMT. MANJU SINGH Versus SHREE NARENDRA KUMAR SINGH&ANR ----------- 2 2/12/2008 Heard counsel for the petitioner. Counsel for the petitioner with reference to the prayer made in the plaint and also other averments would submit that the suit in question is clearly barred under the provisions of Section 43 of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Ceiling Act). He would further emphasize that any claim for preemption as has been sought to be pressed in the present suit by the plaintiffs-opposite parties cannot be entertained by the Civil Court and therefore on a plain reading of the plaint itself the court below was required to decide this aspect in terms of Order VII, Rule 11 (d) of the Code of Civil Procedure. In the opinion of this Court counsel for the petitioner seems to be correct. Section 43 of the Act reads as follows:- “43. Bar of jurisdiction 2 of Civil Court-(1) Save and except as provided in this Act no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Board of Revenue, the appellate authority or the Collector.” If the aforementioned bar against the Civil Court is so specific that no Civil Courts will have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Board of Revenue, the appellate authority or the Collector, it cannot be said that when the plaintiffs-opposite parties came to know of the sale deed in question on 25.4.2006 as with regard to execution of sale deed dated 17.3.2006, such claim of preemption instead of being raised before the Collector under Section 16 (3) of the Act could have been raised before the Civil Court. In this context it would be also necessary to notice the provision of Section 16 (3) of the Act, which reads as follows:- “16 (3)-(i) When any transfer of land is made after the 3 commencement of the Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document, of the transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed : Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten percent thereof is deposited in the prescribed manner within the said period. (ii)on such deposit being made the co-sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under Clause (i) is pendidng for decision : Provided that where the application is rejected, the co- sharer or the raiyat as the case may be, shall be evicted from the land and possession thereof shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten percent of the purchase money out of the deposit made under clause (i). (iii) If the application is allowed, the Collector shall by an order direct the transferee to convey the land in favour of the applicant by executing and registering a document of transfer within a period to be specified in the order and, if he neglects or refuses to comply with the direction, the procedure prescribed in Order 21, rule 34 of the Code of Civil Procedure, 1908 4 (V of 1908), shall be, so far as may be followed.” Thus, in this background, bare perusal of the plaint in question (Annexure-1) would itself reveal that the suit in hand was out and out a suit claiming right of preemption. This fact would be also evident from paragraph nos. 8, 9 and 10 of the plaint which reads as follows:- “8.That from the facts stated in preceding paras it is apparent that the plaintiff who is the co- sharer of Khesra No.1337, is entitled to assert his right of Pre-emption under the principle of Mohammedan Law and has already fulfilled the requirement of law to assert the right of pre- emption. 9.That the right of Pre-emption under the Mohammedan law is recognized by custom amongst the Hindus domiciled in Bihar and thus the said right of Pre- emption is available to the plaintiff and the plaintiff is exercising the said right of Pre- emption to purchase the suit land for a value of Rs.47500.00 as mentioned in the aforesaid sale deed no. 2173 dated 17.03.2006. 10.That besides the above right of Pre-emption available to the plaintiff under Mohammedan law, the plaintiff is also entitled to purchase the suit land on the basis of his preferential right to acquire the suit land available to the plaintiff under section 22 of Hindu Succession Act, 1956. The plaintiff has always been and still is ready and willing to 5 purchase the suit land for the consideration of Rs.47500.00 for which the suit land was transferred by defendant second party in favour of defendant first party through registered sale deed dated 17.03.2006. The plaintiff is also exercising his preferential right to purchase the suit land available to him under Section 22 of Hindu Succession Act, 1956.” The aforesaid averments in the plaint read with other statements thereunder in fact get crystallized from the relief portion which reads as follows:- “a)On adjudication of the facts stated above the court be pleased to pass a decree of pre-emption directing the defendants or whoever the defendant the court find liable to execute a registered sale deed with respect to the suit land detailed in Sch.I of the plaint in favour of the plaintiff after receiving consideration of Rs. 47500.00 within the date to be fixed by the learned court. b)That on failure of the defendants to comply the above direction a sale deed with respect to the suit land be executed and get registered on behalf of the defendant in favour of the plaintiff through the process of the court and a date be fixed for deposit of consideration of Rs.47500.00 by the plaintiff. C.That the learned court be further pleased to put the plaintiff in possession of the suit land through the process of the court. d.That a decree of costs of the suit be passed in favour of the 6 plaintiff against the defendants. e.That a decree of any other relief or reliefs for which the plaintiff may be found entitled in the opinion of the court be passed in favour of the plaintiff against the defendants. Genealogical Table Kamal Singh / / Randheer Singh Mathura Singh / NarendraKr.Singh Anil Kr SinghNisht Schedule-I. Description of the suit land transferred by defendant second party in favour of defendant first party through registered sale deed dated 17.03.2006. 9(nine) decimal land situated at village kundal under p.s. Runnisaidpur District Sitamarhi Anchal Runnisaidpur p.s. no. 195 Jamabandi no. 548. Khata No. 132 Khesra No. 1337 (part.) Area- 9dec. Boundary:- N-Road S-Portion of Khesra no.1337 E-Portion of Khesra no.1337 W-Gaya Prasad Singh. (nine decimal land within the boundary mentioned above is the undivided portion of Khesra no. 7 1337). The question thus arise whether such a suit for pre-emption would be maintainable in terms of section 43 of the Act. In the opinion of this Court for examining this aspect the court below without going into the pleadings of the defendant-petitioner could have found from the reading of the plaint itself as to whether such plaint was fit to be rejected in terms of order VII, rule 11 (d) of the Code of Civil Procedure. The provision of order VII Rule 11 (d) of the Code in this regard needs to be noticed which lays down that the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law. Obviously, when the plaintiff-opposite party claiming to be a co-sharer is claiming any agricultural land by way of pre-emption, the provision of Ceiling Act applicable in the State of Bihar would be definitely applicable. It is this Ceiling Act and its section 43 which stands as a bar for maintaining a suit by way of claiming pre- emption. 8 The approach of the court below to have been swayed by clever drafting of the plaint by seeking protection of right of pre-emption under Mohammedan law or under Hindu Succession Act was required to be gone into for deciding the issue as to whether suit was clearly barred under section 43 of the Ceiling Act. The Court in order to decide the question of rejection of plaint under Order Vii, rule 11 (d) of the C.P.C. has therefore a duty to find out as to whether suit as framed is prima-facie barred by any law and to that extent it has to apply its own independent mind without being guided by cleaver drafting of the plaint as was held by the Apex Court in the case of ‘N.V.Sriniwasa Murti Vs. Mariyama’, reported in AIR 2005 SC 2897. That having been not done, the court below has patently committed a jurisdictional error by rejecting the petition of defendant- petitioner on mere ipse dixit, and so called applicability of Mohammedan law to a Hindu community in Bihar in preference to directly staring provision of section 9 43 of the Ceiling Act. In the opinion of this Court since the aforesaid aspects of the matter has not at all been gone into by the court below it would be necessary for the court below to reconsider the matter in the light of the bar under section 43 of the Ceiling Act. In that view of the matter, the impugned order is set aside and the matter is remitted back to the court below to decide the matter afresh in accordance with law. This application is accordingly allowed. (Mihir Kumar Jha, J.) Abhay Kumar