IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15887 of 2005 1. SUNIL KUMAR SAH 2. DILIP KUMAR SAH BOTH SONS OF SHRI PARMESHWAR PRASAD SAH RESIDENTS OF VILLAGE BHATWARA P.S.- KORHA, DISTRICT- KATIHAR. Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, OLD SECRETARIAT BUILDING, PATNA. 3. THE COLLECTOR, KATIHAR 4. SMT. DEVI SANJU GUPTA WIFE OF SHRI MAHENDRA SAH 5. SMT. RENU DEVI WIFE OF SHRI SOGENDRA SAH 6. SHRI MAHENDRA SAH, SON OF SHRI DHANPATI SAH NOS. 4 TO 6 RESIDENTS OF VILLAGE BHATWARA P.S.- KORHA, DISTRICT- KATIHAR 7. MD. JALIL 8. MD. ABID HUSSAIN, NOS. 7 AND 8 R/O- VILLAGE KHERIA, P.S.- KORHA, DISTRICT- KATIHAR. 9. SHRI ASHOK SAH, SON OF SHRI JAGDISH SAH, R/O- VILLAGE TETRI, P.S.- NAUGACHHIA, DISTRICT- BHAGALPUR. For the petitioners : Mr. Arun Prasad Ambastha, Advocate For the respondent Nos. 4 to 6: Mr. Praveen Kumar Jaipuriyar, Advocate ----------- 4 17.05.2011 Writ petitioners are purchasers of small tract of land measuring 03 decimals (less than a katha). They are aggrieved by resolution dated 27.3.2004 passed by respondent Board of Revenue in Case No. 11/2003 (Sunil Kumar Saw and Anr. versus Smt. Devi Sanju Gupta and Ors.) whereby their revision application was dismissed. 2. Background facts, in nutshell, are as under: Respondent Nos. 7 and 8 sold 03 decimals of land appertaining to Khata No. 129, Plot/Khesra No. 1870 (part) situated at village Kheria, P.S.- Korha in the district of Katihar. The sale deed (Annexure-1) was registered on 2 18.4.2000. Respondent No. 6 was shown as adjoining raiyat on the western side of the vended plot whereas a public road was shown on the southern side of the road. Since the plot of land shown on the western side of the vended land/plot was purchased in the name of respondent Nos. 4 and 5 (wife and brother’s wife of respondent No. 6), a joint application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (for short “the Act”) was lodged on 13.6.2000 by respondent Nos. 4 to 6 claiming their preferential right over the vended land giving rise to L.C. Case No. 01/2000. It is to be noted here that on 13.6.2000 itself, part of the vended land was sold by petitioner No. 1 in favour of respondent No. 9 which was also registered on 13.6.2000. This conveyance was made as per agreement of sale entered by and between the petitioner No. 1 (one of the original purchasers) with respondent No. 9 (subsequent purchaser) on 22.5.2000 vide Annexure-2. The purchasers, on notice, appeared and resisted the claim of preemption on amongst others, the ground that part of the vended land had already been sold on 13.6.2000 itself in favour of respondent No. 9. It appears that subsequently an application was filed on behalf of preemptors beyond 90 days of filing of the preemption application praying therein to implead the subsequent transferee (respondent No. 9) as party respondent to the 3 proceeding which was allowed. On a consideration of the claim(s)/counter claim(s), the respondent D.C.L.R. by an order dated 7.2.2001 (Annexure-4) dismissed the said application on the ground that there was non-compliance of provisions contained under Rule 19 of the Rules framed under the Act and that the preemptor could not prove that subsequent alienation made in respect of part of the vended land was sham/farzi transaction to defeat the claim of preemption. Aggrieved by the aforesaid order, respondent Nos. 4 to 6 (preemptors) filed appeal being Appeal No. 823 of 2001. Respondent No. 3 allowed the appeal by order dated 20.12.2002 (Annexure-5) holding that even if the preemptor has not been able to demonstrate/prove that subsequent alienation of part of the vended land in favour of respondent No. 9 was not farzi, still it will be hit by the principles of lis pendens. It was also found that the applicants/preemptors were the adjoining land holders of the vended plots. Aggrieved over the said order, the writ petitioners filed revision vide Revision Case No. 11 of 2003. It is to be noted here that the subsequent purchaser of part of the vended land (respondent No. 9) also assailed the appellate order (Annexure-5) by filing revision bearing Revision Case No. 15 of 2003. The respondent No. 2 considered both the revision applications and rejected the same by common resolution dated 27.3.2004 (Annexure-7) 4 leading to filing of the present writ petition. 3. Heard learned counsel for the petitioners and respondent Nos. 4 to 6 and perused the materials on record. A counter affidavit has been filed on behalf respondent Nos. 4 to 6. 4. Learned counsel for the petitioners, while assailing the order, submitted that the claim of preemption raised by the preemptor(s) is bound to fail on the ground that the purchasers are landless persons. A very small tract of land (less than a katha) was purchased by them for their residential purposes which cannot be said to be the homestead land of a raiyat capable of being used in any manner for agriculture purposes. The topography of the lands indicates that it is close to a bazaar and adjacent to a public road. The purpose for which Section 16(3) of the Act has been engrafted is not going to sub-serve by allowing the claim of preemption raised by the respondent Nos. 4 to 6. It is next submitted that the day on which the claim for preemption was lodged, the petitioner No. 1 had already alienated part of the vended land (on the same day) by registering a deed of sale in favour of respondent No. 9 in furtherance of an agreement reached by and between petitioner No. 1 and respondent No. 9 on 22.5.2000 (Annexure-2). Learned Appellate Court erred in concluding that the subsequent alienation of part of vended land/plot in 5 favour of respondent No. 9 would be hit by principles of lis pendens. He relies on a Division Bench judgment of this Court since report in 1985 P.L.J.R. 215 (Raju Kumar Prasad versus Additional Member, Board of Revenue, Bihar). It is further submitted that from the very inception, the petitioners had taken a plea that they are landless and except the subject land they purchased, they do not hold any other land. It is submitted that the Appellate Court as well as Revisional Court failed to consider said aspect of the matter and record a finding thereon. In this regard, he relies on averments made in paragraph Nos. 19 and 23 of the writ petition as also the memo of revision filed before the respondent Board of Revenue (Annexure-6). If the claim of the petitioners is accepted that they are landless then the claim of preemption would fail in view of ratio laid down by this Court in case reported in 1997 (1) P.L.J.R. 848 (Nathuni Singh Yadav versus State of Bihar). It is also contended that three persons joined hands in filing claim of preemption. According to the finding on record, the land which was found adjoining west to the vended land was purchased by respondent Nos. 4 and 5 only although name of respondent No. 6 was reflected in the subject sale deed (Annexure-1) as adjoining raiyat but, in fact, the said land stood recorded in the name of only respondent Nos. 4 and 5. One of the preemptors (namely respondent No. 6) has not 6 been able to demonstrate before any Court that he too in his own right was/is tenant/raiyat of any adjoining land of the vended plots. In the submission of the petitioners, the claim of preemption would fail on this count also. 5. Learned counsel for the preemptors (respondent Nos. 4 to 6), per contra, supported the resolution as well as the appellate order (Annexure-5). It is submitted that if the subsequent transfer registered on the date of filing of preemption application (13.6.2000) is found farzi and/or sham transaction then the claim of preemption would prevail as propounded in the case of Raju Kumar Prasad (supra) which has been relied upon by counsel for the petitioners. It is further submitted that there is finding recorded by all the three Courts below that preemptors are adjoining raiyats of the vended plot. This Court by invocation of its writ jurisdiction may not interfere with the aforesaid concurrent findings recorded by all the Courts below. No argument, however, has been advanced with respect to the stand taken by the petitioners that they are landless persons. 6. Averments made in paragraphs 19 and 23 of the writ petition have not been replied specifically in the counter affidavit filed on behalf of the preemptors. This Court can, therefore, hold that the said claim of the purchaser(s) has not been denied by the preemptors (respondent Nos. 4 to 7 6). 7. In Raju Kumar Prasad (supra), a Division Bench of this Court in paragraph Nos. 8 and 9 held as under: “8. Be that as it may, the fact that the registration of the sale deeds in question in favour of third parties on 17.12.77 would date back to their execution on 21.11.77 in view of section 47 of the Registration Act, is now a well settled law as repeatedly held by this Court including in the cases of (1) Sudama Devi (supra) and (2) Chandradip Singh (supra). The claim for right of the pre- emptor on the ground of being an adjacent raiyat to the vended lands in favour of the petitioners would have clearly succeeded on this ground inasmuch as, to neutralize that right, the plea of the petitioners being also adjacent raiyats to the plots vended in their favour from before, was given up before us. Question therefore, is as to what will be the effect on the obvious right of the preemptor by transfer of the properties to third parties by the petitioners. 9. In the case of Ramchandra Yadav v. Anutha Yadav and others (1971 B.L.J.. 994) this Court considered three situations of subsequent transfers by a purchaser, namely, (1) second purchaser taking a document executed and registered before the filing of the application. In such a case the second transferee gets question of his right being defeated by a subsequent application 8 for pre-emption; (2) second sale deed being executed and registered after the filing of the application for pre-emption. In such a case the second transfer is clearly hit by the doctrine of lis pendens; and (3) document of sale being executed before the filing of the application for pre-emption, but registered after its filing. In such a case also the application for pre-emption would fail on account of the fact of registration of the document dating back to the date of execution of the deed. The instant cases, however, are not covered by any of the above situation inasmuch as here the execution of the sale deeds in favour of the third parties was done on the very date of the application for pre- emption. I sitting singly, was faced with exactly a similar situation in the case of Mir Rafique v. Additional Member, Board of Revenue, Bihar and others (1981 B.B.C.J. 83; 1980 P.L.J.R. 432) where after consideration of the authorities on the point I held that in such a case it was not possible to decide the question of priority of either the execution of the sale deed or the making of the application for pre-emption in point of time and, therefore, it must be assumed that both the events took place simultaneously and stood on equal footing. Mr. Singh could not indicate any reason to take a different view in such a situation. He had to concede that it would be very difficult to find any way out to reach to a conclusion regarding 9 priorities. In that view of the matter, the rule of lis pendens would not apply to such a case as the transaction was made before the lis (application for pre-emption) would have started its duration to attract this doctrine. The only ground on which the transfer by a purchaser in favour of third parties could be defeated was to establish that the subsequent transfer was either farzi or a sham transaction. Undisputedly the burden to prove this fact would lie on the head of the person who makes out such a case (see Chandradip Singh’s case- supra)…….” 8. In the case at hand, there was already an agreement reached by and between the petitioners and respondent No. 9 on 22.5.2000 (Annexure-2) and in consequence thereof, part of the vended land was disposed of by registering the sale deed on 13.6.2000. On 13.6.2000, the present application was filed by the preemptors. This Court in view of the position in law set out in the case of Raju Kumar Prasad (supra) has no hesitation in holding that the subsequent alienation made by one of the petitioners in favour of respondent No. 9 (subsequent transferee) would not be hit by the principle of lis pendens. The parties are in agreement that if it is found that the subsequent sale was a farzi and/or sham transaction then the preemptor would have been entitled to relief. It does not appear from materials on record that any such plea was taken much less proved with reference to evidence/materials 10 by the preemptors. Based on the submission of the counsel for the respondent Nos. 4 to 6 that part of the vended land was sold for an alarmingly escalated price would not be sufficient to hold that the transfer made by the petitioner No. 1 in favour of respondent No. 9 was farzi and/or sham transaction. It is to be kept in focus that the subsequent transferee also assailed the appellate order before the respondent Board of Revenue. Thus claim of preemption was bound to fail on this count also. 9. Since the writ petition is bound to succeed on this point alone, this Court refrains from considering other issues involved in the application and the submissions made in support thereof by the parties. 10. In the result, the application is allowed. The resolution dated resolution dated 27.3.2004 passed by respondent Board of Revenue in Case No. 11/2003 is quashed and set aside. The claim of preemption made on behalf of the preemptors (respondent Nos. 4 to 6) fails. 11. There shall be no order as to costs. pkj ( Kishore K. Mandal, J)