IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9936 of 2005 1. SOBH NATH SINGH YADAV @ SHUBH NATH SINGH YADAV 2. BISHWANATH SINGH YADAV @ BISHWANATH YADAV 3. BAIJNATH SINGH YADAV ALL S/O LATE CHIRAI YADAV R/O VILL-LOHRA, P.S. CHAINPUR, DIST. KAIMUR, AT BHABUA ---- PETITIONERS. Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER, BOARD OF REVENUE, GOVT. OF BIHAR, PATNA 3. COLLECTOR, KAIMUR AT BHABUA 4. ADDITIONAL COLLECTOR, KAIMUR AT BHABUA 5. DY. COMMISSIONER, LAND REVENUE, BHABUA 6. RAM SWARUP SINGH S/O LATE NANHAK SINGH R/O VILL LOHRA, P.S. CHAINPUR, DIST. KAIMUR. 7. LALLAN SINGH S/O LATE CHOUDHARAN SINGH, R/O VILL. BIRNA P.S. CHAINPUR, DIST. KAIMUR 8. RAMJI YADAV S/O LATE AJIYAR YADAV, R/O VILL. LOHRA, P.S. CHAINPUR, DIST. KAIMUR. ---- RESPONDENTS. For the petitioners : Mr. Prabhakar Singh, Advocate. For the State : Mr. Shashank Shekhar Jha, AC to G.P.22 For the respondent no.6 : Mr. V.Nath, Advocate. ----------- 04 08.04.2011 Petitioners are pre-emptors. They are aggrieved by resolution dated 19.07.2005 (Annexure-3), passed by respondent Additional Member, Board of Revenue in case no. 188 of 2004 ( Ram Swarup Singh vs. Bishwanath Singh Yadav & Ors.) whereby the same was allowed and the orders passed by respondent D.C.L.R. dated 06.06.2000 (Annexure-1), and the appellate order dated 16.07.2004 (Annexure-2), have been quashed and set aside. 2. Back ground facts leading to the present writ petition in a nut shell are as under:- On 24.09.1999, respondent no.7 sold 1.05 acres of land appertaining to R.S. plot no. 539, in favour of respondent no.6 2 (purchaser). The writ petitioners claiming themselves to be adjoining raiyat of R.S. plot nos. 515, 540 and 538, raised a claim under Section 16(3)of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act,1961, (hereinafter referred to as the „Act‟) giving rise to L.C. case no. 01 of 2000. Such claim was raised beyond the statutory period, and as such, an application under Section 5 of the Limitation Act was also annexed with the application. The respondent D.C.L.R. after having allowed the said limitation petition admitted the petition. Notices were issued whereafter the parties appeared. After hearing them, the said respondent by a proceeding dated 06.06.2000 (Annexure-1), allowed the claim of pre-emption. The writ petitioners were found adjoining raiyat in respect of the vended land/plot(s). Aggrieved by the aforesaid order the purchaser (respondent no.6), preferred an appeal before the respondent Collector vide appeal case no. 01 of 2000 - 2001/ 52 of 2003-04. The appellate Authority/ Court by a proceeding dated 16.07.2004 dismissed the appeal. Aggrieved over the said order dated 16.07.2004, the purchaser (respondent no.6) filed Revision case no. 188 of 2004. Respondent revisional Court, by impugned resolution dated 19.07.2005 allowed the said revision application leading to the filing of the present writ petition. 3. The writ petitioners impleaded Ramji Yadav as respondent no. 8. The purchaser (respondent no. 6,) suo motu appeared in the proceeding by filing vakalatnama. Having regard to the said fact, this Court by order dated 30.08.2006, directed for issuance of notice on 3 remaining respondent nos. 7 and 8. The said order was complied with only in respect of respondent no.7 (Vendor) but not in respect of respondent no.8. The matter was again taken up on 02.11.2006, when this Court, on the request of the counsel for the petitioners, granted two weeks further time to take steps for fresh service of notice on respondent no.8. The said order was pre-emptory in nature. The order dated 02.11.2006, was not complied with and, accordingly, the present application stood dismissed as against respondent no.8. No step was thereafter taken to get the same restored by filing any application. 4. I have heard learned counsel for the petitioners, respondent no.6 (purchaser) and the State. 5. It is submitted on behalf of the petitioners that the revisional Court accepted the respondent no.6 as Sikmidar (under raiyat) in respect of plot no. 537 owned by respondent no.8 (Ramji Yadav) which was also found adjacent/adjoining to the vended land/plots and accordingly the claim of the petitioners raised under Section 16(3) of the Act was negated. It is submitted that such claim was raised at the appellate stage by filing an affidavit affirmed by respondent no.8 (Ramji Yadav) accepting the status of respondent no.6 ( vendee) as under raiyat of his land appertaining to plot no. 537. It is submitted that the revisional survey records does not reflect the status of respondent no.6 (vendee) as under raiyat (Sikmidar) in respect of said plot no. 537. Such claim was not raised before the original Court. The appellate Court has, therefore, rightly refused to rely thereon and the revisional Court erred in placing reliance on the said affidavit affirmed 4 by respondent no.8 to hold that respondent no.6 (vendee) is under raiyat /sikmidar in respect of plot no. 537, owned by respondent no.8 which lay adjoining to the vended land/plots. Referring to Annexure- 4, it is submitted that aforesaid respondent no.8, after disposal of revision application by the Board of Revenue filed an affidavit affirmed on 30.07.2005, declaring therein that the respondent no.6 (vendee) is not under raiyat in respect of khata no. 19 plot no. 537. The affidavit produced on behalf of the respondent no.6 before the appellate Court was forged one. It is, thus, submitted that the revisional Court committed manifest error in setting aside the findings recorded by the two Courts below. 6. Learned counsel for the respondent no.6, per contra, supported the resolution (Annexure-3) passed by the revisional Court/Authority. It is contended that the pre-emption is a weak right. The raiyat who is laying claim thereunder has to prove that the applicant/pre-emptor is adjoining raiyat of the vended land and that the purchaser is not adjoining raiyat/under raiyat of any land /plot adjoining to the vended lands. No issue has been raised with regard to the factum that even an under raiyat can resist the claim of pre- emption. The affidavit affirmed by respondent no.8 produced before the appellate Court conclusively admit the status of the vendee ( respondent no.6) as under raiyat in respect of his plot appertaining to khata no. 19, plot no. 537 which was claimed to be adjoining to the vended land/plot. The appellate Court was not justified in not taking into account the said document merely on the ground that same was 5 not produced before the Court below. Refusing to rely on the said document prevented the appellate authority to consider further as to whether based thereon the vendee ( respondent no.6) also became adjoining raiyat of the vended land/plots. It is submitted that the revisional Court is final Court of fact, and all documents produced by the parties in the Courts below is/are required to be taken note of and findings recorded thereon. The revisional Court, has, therefore, considered the entire materials brought on record by the parties and on a consideration thereof has found as under:- “After hearing both sides I find that the petitioner purchaser being an under raiyat of the adjoining land in question, is himself a raiyat within the meaning of the Act as held in the aforesaid Division Bench judgment of the Patna High Court and therefore the claim of this opposite party for pre-emption is not maintainable. Moreover, the right of pre- emption being a very weak right, the claim of the opposite party cannot succeed in view the legitimate right of the petitioner to hold the land purchased by him.” Arguing further, it is submitted that the writ petitioners have made a veiled attempt to hoodwink this Court by producing another affidavit said to have been affirmed by respondent no.8 after disposal of revision application denying thereunder ( annexure-4) his earlier statement on affidavit accepting the status of respondent no.6 as under raiyat of his land. The writ application was allowed to be dismissed as against respondent no.8 (subscriber of the said affidavit). It, prima facie, demonstrate that the writ petitioners have not approached this Court with clean hands, and on this count alone, the writ petition is liable to be dismissed. 6 7. Learned counsel for the State, on the other hand, accepted well recognized principle that under raiyat is equivalent to raiyat and can resist the claim of pre-emption. It is further contended that purity of the judicial proceeding can not be sacrificed by a Court of law while deciding a lis before it. If the Court finds that the petitioners or any party to the proceeding has not approached the Court with clean hands then extraordinary and discretionary writ jurisdiction cannot be invoked to grant relief to such party. 8. I have heard the submissions advanced on behalf of the parties and perused the materials on record. There cannot be an issue with regard to the submission of the respondents that the revisional Court is the final Court of fact. The evidence in the shape of an affidavit affirmed by respondent no.8 was produced at the appellate stage in support of the claim of the respondent no.6 that he is adjoining raiyat of the vended plot/lands being under raiyat in respect of plot no. 537 which lay adjacent/adjoining to the vended plots. Such claim was raised based on an affidavit duly affirmed by the owner of the said plots of land. The appellate Court refused to take into account the said document on the ground that it was not produced in the Court below. The revisional Court considered the said document and held that the purchaser (respondent no.6) was under raiyat in respect of said plot no. 537 which lay adjoining to the vended plot(s). It appears that the said view was taken in the light of provisions contained under Section 33 of the Act wherein admission of evidence by affidavit is an acceptable mode. Writ petitioners in this proceeding has raised an 7 issue that the document produced in the shape of affidavit affirmed by respondent no.8 was forged and void in view of documents placed at Annexure-4 which, according to the writ petitioners, was affirmed by respondent no.8. In this factual scenario, respondent no.8 was required either to accept or deny the genuineness of said affidavit (annexure-4) which is said to have been affirmed by him after disposal of the revision application. The petitioners purposely allowed the present writ petition dismissed as against respondent no.8 ( the author of annexure -4), and thereby eluding this Court to call upon said respondent no. 8 either to accept or deny the genuineness/ authenticity of the said affidavit. In my view, such course was adopted by the writ petitioners „by design‟. This Court, therefore, has no hesitation in holding that the pre-emptor(s)/writ petitioners have not approached the Court with clean hands. The application, therefore, merits to be dismissed on this score itself. 9. I have gone through the reasons assigned by the revisional Court in the order impugned for allowing the revision application preferred by respondent no.6, after setting aside the orders passed by the Courts below allowing the claim of pre-emption in favour of the writ petitioners. The Revisional Court has assigned good and valid reasons therefore based on perusal of materials on record. Being the final Court of fact the findings recorded therein can be interfered with by this Court only if it is shown that they are perverse and /or based on manifest error of record. I, therefore, find no reason to interfere with the findings recorded by the revisional Court in Annexure-3. 8 10. For the reasons aforesaid, this Court finds no merit in this application. It is, accordingly, dismissed. 11. There shall be no order as to costs. Sym ( Kishore K. Mandal, J)