IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No. 457 OF 2007 IN (CWJC 12889/2000) VIJAY KUMAR YADAV, son of late Dorik Yadav, resident of village – Pajarkatta, P.S. Narpatganj, District – Araria, presently residing at village – Khaira Garahia, P.S. – Narpatganj, District – Araria. ------- Petitioner-Appellant. Versus 1. The State of Bihar 2. The Additional Member, Board of Revenue, Old Secretariat, Patna. 3. The Additional Collector, Araria, 4. The ©C.L.R. Araria, 5(A). Ramanand Yadav, son of Late Hulal Yadav 5(B). Dayanand Yadav, son of Late Hulal Yadav 5© Umanand Yadav, son of Late Hulal Yadav All are resident of village- Pajarkatta, P.S. – Narpatganj, District – Araria, residing at village Khair Garahia, P.S. – Narpatganj, District – Araria. 5(D). Sakuntala Devi, wife of Arjun Pd. Yadav, D/o – Late Hulal Yadav, R/o – village Deviganj, (Dargahiganj), P.O. – Deviganj, P.S. – Narpatganj, District – Araria. 5(E). Durbalia Devi, W/o – Rajendra Yadav, D/o – Late Hulal Yadav, residing at Mohalla – Ward No. 3P, Farsiganj, P.O. + P.S. – Farbisganj, District – Araria. 6. Jagdish Prasad Yadav, son of late Dwarik Yadav @ Dorik Yadav, resident of village- Pajarkatta, P.S. – Narpatganj, District – Araria. --------- Respondents-Respondents. ================================================================= ======== CORAM: HONOURABLE JUSTICE SMT. T. MEENA KUMARI AND HONOURABLE MR. JUSTICE AKHILESH CHANDRA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE AKHILESH CHANDRA) ******** Akhilesh Chandra, J. This Letters Patent Appeal has been preferred by writ petitioner-appellant against order dated 13.04.2007 passed by learned Single Judge dismissing C.W.J.C. No. 12889/2000, and refusing to 2 interfere with the order of Member, Board of Revenue dated 23.11.2000 in Revision No. 317/1993. 2. The short relevant fact is that one Dwarik Yadav @ Dorik Yadav died in the year 1970 leaving behind his son Jagdish Prasad Yadav, respondent no. 6, through his first wife and five other sons including appellant and second wife Sanjha Devi and subsequently his heirs got the properties inherited partitioned through a compromise decree passed in Partition Suit No. 480/1973. 3. Respondent no. 6 transferred 1.11 decimals of land bearing Khata No. 1096 Plot No. 3495 of Mauza – Khaira, to respondent no. 5 through a sale deed no. 10123 executed on 27.12.1984 and by depositing required money within the stipulated period the appellant preferred Land Ceiling Case No. 2/1986-87 before the D.C.L.R. Araria under section 16(3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the „Act‟), claiming himself to be a co-sharer of the vendor as well as person having land in boundary of the land so transferred. And in support of contention before the court concerned, the appellant produced not only village map but also some deeds of transfer in his favour 3 besides the compromise decree. 4. The purchaser respondent no. 5, initially appeared in the proceeding but failed to file his objection permitted the proceeding to be decided ex parte in favour of the appellant vide order dated 13.01.1988. 5. Roughly after three years, respondent no. 5 preferred land ceiling Appeal no. 69/1991 before the Collector, Araria, with a prayer for condonation of delay but ultimately the appeal was dismissed vide order dated 16.06.1993 passed by the Additional Collector, Araria, giving rise to Revision Case No. 317/1993 before the Member, Board of Revenue, who allowed the Revision vide order dated 27.02.1999, which was challenged by the appellant preferring C.W.J.C. No. 4891/1999 and ultimately vide order dated 12.08.1999 of this court, writ application was allowed and matter was remitted to the Revisional Court for a fresh order after giving opportunity of hearing to the appellant i.e. opposite party there. However, after hearing vide order dated 23.11.2000, the Revisional Court again finding the respondent no.5 being a boundary raiyat on basis of simultaneous purchase of partition of some plot falling into his share through another unchallenged 4 deed of sale executed by respondent no. 6. allowed the revision leading to filing of C.W.J.C. No. 12889/2000 by the appellant. 6. Before learned Single Judge, it was contended on behalf of the appellant that he is the person holding land in the boundary of the land so transferred since before and he has genuine claim of pre-emption over the subject matter. It was also contended that by another sale deed, respondent no. 6, on same day transferred remaining portion of the land under proceeding besides a piece of another plot not belonging to him for which mother of the appellant had already filed a suit before competent civil court which is still pending and this was the reason for the appellant for not preferring claim of pre-emption against the land so transferred by subsequent deed of same day. The learned Single Judge did not accept the explanation and dismissed the writ application holding the right of pre-emption is a weak right and finding respondent no. 5 being purchaser of remaining portion of the land under proceeding himself as a raiyat in boundary whose right cannot be ignored. 7. To rebut the above findings before us, learned counsel for the appellant by placing reliance 5 upon decision of Apex Court in a case Suresh Prasad Singh Vs. Dulhin Phulkumari Devi reported in (2010) 6 Supreme Court Cases 441; contended that neither right of pre-emption being a statutory right is a weaker one nor only because the transferee being a complete stranger in spite of having a piece of land in the boundary through a purchase has any right to resist the claim of pre-emption raised by a co-sharer or boundary raiyat since before. 8. On carefully going through the decision of the Apex Court (Supra) wherein in paragraph 22 of the judgment, there is a citation of paragraph 17 of the earlier decision of the Apex Court in Shyam Sundar Vs. Ram Kumar (2001) 8 SCC 24 which reads as such: - “17. -------- The right of pre- emption of a co-sharer is an incident of property attached to the land itself. It is some sort of encumbrance of the land. The main object behind the right of pre- emption, either based on custom or statutory law, is to prevent intrusion of a stranger into the family holding or property. A co- 6 sharer under the law of pre- emption has right to substitute himself in place of a stranger in respect of a portion of the property purchased by him, meaning thereby that where a co-sharer transfers his share in holding, the other co-sharer has right to veto such transfer and thereby prevent the stranger from acquiring the holding in an area where the law of pre-emption prevails. Such a right at present may be characterized as archaic, feudal and outmoded but this was law for nearly two centuries, either based on custom or statutory law. It is in this background the right of pre- emption under statutory law has been held to be mandatory and not mere discretionary.” (underlined by us) And it is held that right of pre-emption under statutory law is mandatory. 9. The Apex Court further in the same 7 decision in paragraph 21 has held that : “……. The object of Section 16(3) of the Act is to recognize the right of pre-emption of the co-sharer of the transferor or any raiyat holding land adjoining to the land transferred and this object would be frustrated if strangers are allowed to first buy one plot of land and then resist the claim of right of pre-emption of a co-sharer or a boundary raiyat on the basis of such first purchase of a plot of land.” (Underlined by us) 10. While being confronted with the above findings of the Apex Court, the learned counsel for the respondents fairly and rightly conceded that had the appellant pursued his claim of pre-emption against both the transfers of same day made by respondent no. 6 in favour of respondent no. 5, the objector respondent no. 5 could have left with no case. 11. But at the same time it is further submitted that respondent no. 5 cannot be held to be stranger once his purchase of the remaining portion of land of the plot under proceeding on same day 8 remained intact without any claim of right of pre- emption. The learned counsel placed reliance upon the decisions of this court in a case of Ram Chandra Srivastava & Ors Vs. Prasidh Narain Singh & Ors reported in 1970 PLJR 579 and Ram Roop Yadav Vs. State of Bihar reported in 1987 PLJR 455. It is also contended that the appellant for the reasons best known to him, at no point of time, right from the original court of D.C.L.R. up to the Revisional Court offered any explanation for non-preferring his claim of pre-emption over such transfer of land rather he kept concealed the fact of second transfer of same day by respondent no.6 as regard to remaining portion of the land fallen in his share in the plot covered under the deed of transfer i.e. subject matter of the proceeding. And for the first time in writ application, an explanation has been offered but once it emerged as an established fact that simultaneous to purchase of the land under proceeding, the respondent no. 5 becomes a raiyat holding land in the boundary over which the pre-emptor has preferred no claim, the writ petitioner/appellant cannot succeed. 12. Learned counsel for the appellant tried to submit that since there was one Title Suit bearing no. 192/1985 was pending in the competent civil court at 9 the instance of mother of the appellant disputing such transfer through another deed. The appellant was not in a position to seek right of pre-emption over the same but no explanation has been offered as to what prevented the appellant from placing all such facts along with copy of the pleadings before the original court i.e. court of D.C.L.R., where the proceeding under section 16(3) of the Act was initiated at his instance. 13. Having heard the learned counsels at length and on going through the materials on record, we find that for the first time in this court, in paragraph 12 of the writ application on behalf of appellant it is stated : “ That the petitioner did not filed any pre-emption application with regard to sale deed no. 10124 which was also executed by respondent no. 6 in favour of respondent no. 5 on 27.12.1984 itself with regard to portion of land of Khata No. 1096 plot no. 3495 and 3494 measuring 1.11 decimals because plot no. 3495 with an area of 1.98 decimals 10 was recorded in the name of Sanjha Devi mother of the petitioner. The respondent no. 6 did not have any right, title and possession for transferring this lands. The sale-deed itself was under dispute for which T.S. No. 192/1985 was pending in the competent civil court. Due to this reason no pre-emption application was filed with regard to sale-deed no. 10124.” 14. From the plain reading of the above, it appears that even before the High Court no explanation has been offered, for concealment of such worth consideration material facts, from the courts below. It further goes to show that the appellant with active concealment of material facts tried to obtain an order under section 16(3) of the Act, which is not at all permissible under law. One coming before any court seeking enforcement of his right is bound to come with clean hands and place all relevant materials, otherwise, is bound to suffer the consequences. Thus, in view of such active concealment of material facts alone, the petitioner- 11 appellant has no right to maintain his claim before the original court consequently the writ application, rather he deserves to be non suited. 15. In view of the above, without examining any other aspect, we find no reason to interfere with the order of learned Single Judge in C.W.J.C. No. 12889/2000. Hence, this Letters Patent Appeal stands dismissed. ( Akhilesh Chandra, J.) I agree. (T. Meena Kumari, J.) Patna High Court Date : The 8th July 2011 Rajeev/A.F.R.