LETTERS PATENT APPEAL No.263 OF 2005 ******** Against the judgment and order dated 09.02.2005 passed in C.W.J.C.No. 9827 of 2000 by a learned Single Judge ******* Smt. Shanti Devi Wife of Nand Kishore Singh, resident of Village- Banwar Bangara, P.O. Daudpur, P.S. Daudpur, District-Saran – Appellant. Versus 1. The State of Bihar. 2. The Additional Member, Board of Revenue, Bihar, Patna. 3. The Additional Collector, Saran, Chapra 4. The Deputy Collector Land Reforms, Saran, Chapra 5. Baij Nath Singh @ Baidyanath Singh son of late Gajadhar Singh, 6. Tarkeshwar Nath Singh son of late Ram Narayan Singh. Both residents of village- Banwar Bangara, P.O.- Daudpur, P.S.- Daudpur, District -Saran. 7. Smt. Muneshwari Devi wife of Prabhu Nath Singh, resident of village- Lakat Chapra, P.O. Jojian, P.S. Rasulpur, District- Saran -----Respondents. ********* For the Appellant: M/S M.N.Parbat with Praveen Prabhkar, Advocates. For Respondent Nos. 5 & 6: M/S Dhruv Prasad with Mukesh Prasad No.2 and Revati Kant Raman, Advocates. For the State : Mr. Krishna Chandra, A.C. to S.C.-24. ******** P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA B.P.Verma,J: This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna arises out of a proceeding 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 “Land Ceiling Act”). The appellant herein is aggrieved by the order dated 09.02.2005, passed in C.W.J.C.No. 2 9827 of 2000, by a learned Single Judge, whereby while allowing the aforesaid writ petition filed on behalf of respondent nos. 5 and 6 herein, their claim of pre-emption with respect to vended lands has been allowed, after setting aside the order dated 03.08.2006 (Annexure-6), passed by the learned Additional Member, Board of Revenue, Bihar, Patna. 2. The relevant facts essential for disposal of the present appeal are portrayed in short hereinafter. Lands of Plot No. 39 and 40, appertaining to Khata No. 192, area 1 katha 10 dhurs, situate at village- Banwar Bangara, P.O. Daudpur, P.S. Daudpur, District- Saran (Bihar), are the subject matter of dispute in the present proceeding and shall be referred to as the “lands in dispute” hereinafter. The appellant herein is the purchaser of the lands in dispute. Respondent nos. 5 & 6 are the pre-emptors/heirs of original pre-emptor, and respondent no. 7 is the vendor, whereas respondent nos. 1 to 4 are the official respondents. 3. Respondent no.7, Smt. Muneshwari Devi, claiming to be the owner of the lands in dispute, sold the same to the appellant herein by executing a sale deed dated 07.06.1994, for consideration amount of Rs. 10,000/-. The aforesaid sale deed dated 07.06.1994, was duly registered on 29.10.1994. Respondent no. 5, Baij Nath Singh @ Baidyanath Singh, and one Ram Narayan Singh, father of respondent no.6, Tarkeshwar Nath Singh, jointly filed an application under section 16(3) of the Land Ceiling Act on 13.12.1994, in the court of the learned Deputy 3 Collector, Land Reforms, Sadar, Chapra, claiming their right of pre-emption over the lands in dispute on the ground of being co- sharers of the vendor- respondent no.7, as also being the boundary raiyats of the vended plots. On the basis of aforesaid application, Land Ceiling Case No. 28 of 1994-95, was registered and after hearing the parties including the appellant herein, claim of pre-emption was allowed by order dated 24.10.1996 (Annexure- 3), by the learned D.C.L.R., Sadar, Chapra, after recording a finding of fact that the pre-emptors are the co-sharers of the vendor of the appellant and they are also the boundary raiyats of the vended plots. The appellant herein was directed to reconvey the lands in dispute in favour of the pre-emptors by executing sale deeds in their favour within a period of one month from that date. 4. The transferee- appellant herein, being aggrieved by the aforesaid order dated 24.10.1996 (Annexure-3), preferred Land Ceiling Appeal No. 24 of 1996, which was finally heard by the learned Additional Collector, Saran at Chapra, and by his order dated 22.04.1998 (Annexure-4), he dismissed the aforesaid appeal, and affirmed the order passed by the learned D.C.L.R. Thereafter the appellant herein filed Ceiling Revision Case No. 106 of 1998 before the Board of Revenue, Bihar, Patna, under the provisions of Section 32 of the Land Ceiling Act, which was finally heard by the learned Additional Member, Board of Revenue, Bihar, Patna, who, by his order dated 03.08.2000 (Annexure-6), allowed the aforesaid revision application and reversed the orders passed 4 by the original authority as also the appellate authority, mainly on the ground that, in the khatian, plot no. 40 has been recorded as homestead land and in the boundary of plot no. 39 some houses have been shown. It would be relevant to mention here that, during the pendency of Revision Case No. 106 of 1998, Ram Narayan Singh, one of the original pre-emptors, died and, therefore, he was substituted by his son, the present respondent no. 6, Tarkeshwar Nath Singh. 5. Respondent nos. 5 and 6 preferred C.W.J.C. No.9827 of 2000 before this Court with a prayer for setting aside the revisional order dated 03.08.2000 (Annexure-6), passed by the learned Additional Member, Board of Revenue, and for restoration of the original order dated 24.10.1996 (Annexure-3), passed the by learned Deputy Collector Land Reforms, Saran at Chapra, as also the appellate order dated 22.04.1998 (Annexure-4), passed by the learned Additional Collector, Saran at Chapra, allowing their claim of pre-emption with respect to the vended lands. After hearing the parties, a learned Single Judge, by the impugned order dated 09.02.2005, has allowed the aforesaid writ petition and has set aside the order passed by the learned Additional Member, Board of Revenue, Bihar, Patna. The writ Court has also restored the original order as also appellate order, after recording a finding of fact that the writ petitioners, respondent nos. 5 and 6 herein, are the co-sharers of the vendor and they are also adjoining raiyats of the vended plots. Hence the present appeal at the instance of the 5 purchaser/vendee of the lands in dispute. 6. Mr. Mahesh Narayan Parbat, learned counsel appearing on behalf of the appellant herein, has assailed the impugned order on the following grounds:- (A) The appellant herein is the lady and she has purchased the lands in dispute for construction of her house. Hence pre-emption application should have been rejected. (B) The lands in dispute have been recorded in the khatian as the homestead land and have never been used as agricultural lands. Hence, the pre- emption application was not maintainable. (C) The vendor of the appellant herein had acquired the lands in dispute through a deed of gift executed by her father on 26.07.1991 (Annexure-2) and the pre-emptors had challenged the validity of the aforesaid deed of gift by filing Title Suit No. 122 of 1994 and, therefore, since the pre-emptors are not accepting the right and title of the vendor- respondent no.7, they were not legally entitled to file the present pre-emption case. 7. Mr. Dhruv Narayan, learned Senior counsel appearing on behalf of respondent nos. 5 and 6, has supported the impugned order passed by the learned Writ Court and has further urged that the points of law raised on behalf of the appellant herein are not based on the of facts pleaded by the appellant either before the authorities concerned or before the learned writ Court. Hence, in his submission, points of law raised on behalf of the appellant are not applicable and the present appeal is fit to be 6 dismissed. 8. We have heard learned counsel for the parties at length, and have perused the materials available on record. Before adverting to the points raised by the parties for its decision, it would be apt to mention the relationship between respondent nos. 5 and 6, i.e., pre-emptors at one hand, and respondent no.7, i.e., vendor at the other hand. 9. According to the admitted genealogy given by the parties, one Gati Rai had two sons, namely, Nawrang Singh and Briksha Singh. Rannu Singh son of aforesaid Nawrang Singh had three sons, namely, Bindhyachal Singh, Gajadhar Singh and Ram Narayan Singh. Respondent no.7, Muneshwari Devi (vendor) is the daughter of aforesaid Bindhyachal Singh. Respondent no. 5, Baij Nath Singh @ Baidyanath Singh is the son of aforesaid Gajadhar Singh and respondent no. 6, Tarkeshwar Nath Singh is the son of aforesaid Ram Narayan Singh. Therefore, admittedly respondent nos.5 and 6 as also respondent no. 7 are the cousins and they all are the descendants of their common ancestor, Rannu Singh, who is admittedly one of the recorded raiyats in the revenue khatian. From the pleadings of the parties, it is apparent that the aforesaid Bindhyachal Singh, having no male issue, executed a deed of gift dated 26.07.1991 (Annexure-2), in favour of his daughter, Muneshwari Devi ( respondent no. 7), to the extent of 1/3rd share of his joint family property including the lands in dispute . From perusal of aforesaid registered deed of gift, it is apparent that in 7 the east of the lands in dispute, Gajadhar Singh, father of respondent no. 5, and in west of lands in dispute Ram Narayan Singh, father of respondent no. 6, have been shown as the boundary raiyats, and the relationship between the aforesaid Bindhyachal Singh and father of respondent nos. 5 and 6 have also been admitted. 10. In order to consider the claims of the parties, it is relevant to quote section 16(3) of the Land Ceiling Act, which reads as follows:- “16 (3) (i) When any transfer of land is made after the 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 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 pending for decision: Provided that where the application 8 is rejected, the co-sharer or the raiyat, as the case may be, shall be evicted from the land and possession there of 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 (V of 1908), shall be, so far as may be, followed.” Section 2(ee) of the Land Ceiling Act defines “family” and Section 2(f) defines “land”, which are quoted hereinbelow:- “2[(ee) – “family” means and includes a person, his or her spouse and minor children; Explanation I.- In this clause the word person includes any company, institution, trust association or body of individuals whether incorporated or not;] [ Explanation II.- The personal law shall not be relevant or be taken into, consideration in determining the composition of the family for the purposes of the Act;] “2 (f) - “land” means land which is used or capable of being used for agriculture or horticulture and includes land which is an 9 orchard, Kharhur or pasturage or 4[forest land or 5[also the land] perennially submerged under water] or the homestead of land-holder; Explanation I.- “Homestead” means a dwelling house for the purpose of living or for the purpose of letting out on rent together with any courtyard, compound, attached garden, orchard and out building and includes any out building for the purpose connected with agriculture or horticulture and any tank, liberty and place of worship appertaining to such dwelling houses. 1[Explanation II.- Land perennially submerged under water shall not include submerged in the bed of a river.] 11. Learned counsel for the appellant submitted that the appellant being a lady and she having purchased the lands in dispute for her homestead purposes, the pre-emption application filed on behalf of respondent nos. 5 and 6 was not maintainable and ought to have been rejected. He further submitted that out of the two vended plots, plot No. 40 having been recorded as homestead land, therefore, on that ground also the claim of pre- emption made by respondent nos. 5 and 6 was not maintainable with respect to aforesaid homestead lands. From a plain reading of section 2(f) of the Land Ceiling Act, it is apparent that the land is not confined to agricultural or horticultural land. Even homestead of the land-holder qualifies as the land and the claim of pre- emption with respect to such land cannot be legally rejected. A 10 similar issue came up for consideration before a Full Bench of this Court in the case of Syed Fakir Mohammad Vs. Sheikh Salahuddin and others, 1975 PLJR-1, wherein it was held that homestead of the land-holder is the land under the meaning of section 2(f) of the Land Ceiling Act and the pre-emption application against such land is maintainable. Again similar issue came up for consideration before a Division Bench of this Court in the case of Hiralal Chauhan vs. the State of Bihar & Ors, 2004 (2) PLJR-339, wherein it was clearly held that the homestead of a landholder is under the purview of section 16(3) of the land Ceiling Act. The land as defined under section 2(f) of the Land Ceiling Act is not confined to agricultural or horticultural land alone, rather the homestead of the landholder is under the sweep of the land. It would be apt to quote relevant portion of paragraph-8 of the said Division Bench judgment: “the case of the petitioner is that he purchased the land for constructing a house and, therefore, being homestead it falls outside the purview of section 16(3). Section 2 (f) of the Act defines „land‟ to mean “land which is used or capable of being used for agriculture or horticulture and includes land which is an orchard, kharhur or pasturage or forest or even land perennially submerged under water or the homestead of a land holder”. On a plain reading, it would appear, the definition of land is not confined to agricultural or horticultural land alone, orchard or forest land or land perennially submerged in water and homestead of land holder also come under its 11 purview. The plea that the land was purchased by the petitioner for constructing house is neither here nor there as the purpose of purchase is not relevant for determining the character of the land or maintainability of application under section 16(3) of the Act. As a matter of fact, as seen above, as per definition of the term, even homestead of a landholder qualifies as land and, therefore, even if it were true that the land in question was a homestead land, the only relevant question would be as to whether the person to whom it belonged was landholder or not.” 12. However, the matter would have been different if the appellant would have pleaded as a matter of fact that she is the landless lady and she or other member of her family including her husband had no other land, except the lands in dispute purchased by her. Learned counsel for the respondents has rightly pointed out that no such pleading has been made either before the original authority or even before this Court and in absence of such pleading, the appellant cannot be permitted to take stand that she has no other land, except the lands in dispute. In the same vein it was urged that in fact the husband of the appellant is having other homestead and agricultural lands. Learned counsel for the respondents also contended that the appellant along with her husband and other family members are living together at some other lands. Lands held by the appellant herein or her spouse shall be taken to be the lands of the family as defined under 12 section 2(ee) of the Land Ceiling Act. 13. It is true that homestead of a landless purchaser is not the land within the meaning of section 2(f) of the Land Ceiling Act. If a landless purchaser is not given protection of law, then in that case he/she cannot acquire any land even for homestead purposes, since the claim of pre-emption made by a co-sharer or boundary raiyat cannot be resisted by such landless purchaser. That would certainly put a landless purchaser to an unjust and inequitable position. Legislature has consciously not included the homestead of landless purchaser within the sweep of section 2(f) of the Land Ceiling Act. However, the appellant herein is not the landless purchaser. No such plea was raised earlier before the authorities under the Land Ceiling Act or before the Writ Court. Therefore, the questions of facts, which have not been pleaded before the authorities under the Land Ceiling Act or before the writ Court, cannot be permitted to be raised for the first time in the present appeal. Reference in this regard may be made to the observations in Para-5 of a Full Bench Judgment of this Court in the case of Ram Jiwan Singh vs. State of Bihar, 1969 PLJR 517 (FB). 14. In view of admitted relationship amongst respondent nos. 5 to 7, and in view of admission made in the deed of gift (Annexure-2), executed by Bindhyachal Singh, uncle of respondent nos. 5 and 6, in favour of his daughter, namely, respondent no. 7, it is apparent that respondent nos. 5 and 6 are 13 co-sharers of respondent no. 7. The facts that respondent nos. 5 and 6 are having their lands in adjacency of the vended plots, have not been disputed even by the appellant herein. The appellant has nowhere made any claim that she or her husband or any of her family members was having any land in adjacency of the vended plots. Apparently the appellant happens to be stranger to the family of respondent nos. 5 to 7, and even if the right of pre- emption is a weak right, then in that case also in view of mandate of section 16(3) of the Land Ceiling Act, the claim of pre-emption made on behalf of respondent nos. 5 and 6 has to be allowed. The scheme and scope of right of pre-emption under the Punjab Pre- emption Act (1 of 1993) came up for consideration before a constitution Bench of the Supreme Court in the case of Shyam Sunder vs. Ram Kumar, A.I.R. 2001 SC- 2472, wherein at paragraph-18 it was held as follows: “In modern time, the right of pre-emption based on statutes is very much a maligned law. During hearing of these appeals such rights have been characterized as feudal, archaic and outmoded and so on. But is origin which was based on custom and subsequently codified was out necessity of the then village community and society for its preservation, integrity and maintenance of peace and security. In changed circumstances, right or pre-emption may be called outmoded, but so long it is statutorily recognized, it has to be given the same treatment as any other law deserves. The right of pre-emption of a co-sharer is an incident of 14 property attached to the land itself. It is some sort of encumbrance carrying with the land which can be enforced by or against the co- owner of the land. The main object behind the right of pre-emption either based on custom or statutory law is to be prevent intrusion of stranger into the family holding or property. A co-sharer under law of pre-emption has right to substitute himself in place of stranger in respect of portion of the property purchased by him meaning thereby 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 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. The Court has no option but to grant decree of pre-emption where there is a sale of a property by another co-sharer.” [ Emphasis added ] 15. The Apex Court, while dealing with a case under the provisions of Land Ceiling Act, has recently held in the case of Suresh Prasad Singh vs. Dulhin Phulkumari Devi, 2010 (2) PLJR 167 (SC), that any co-sharer of the transferor has statutory right of pre-emption under section 16(3) of the Land Ceiling Act and he can claim reconveyance of the said land on 15 the same terms on which it was transferred to a stranger to the family. The authority under the Land Ceiling Act has no discretion but to allow his application considering the mandatory nature of the right of pre-emption conferred by section 16(3) of the Act. 16. From the materials available on record, it is apparent that the original authority as also the appellate authority, after taking into consideration the facts pleaded by the parties, had allowed the claim of pre-emption made by respondent nos. 5 and 6. The revisional authority had rejected the claim of pre- emption only on the ground that one of the two vended plots has been recorded in the khatian as homestead lands. However, learned revisional authority has completely ignored the mandate of section 2 (f) of the Land Ceiling Act, which contemplates that homestead of the landholder is the land within the purview of section 2(f) of the Land Ceiling Act. Learned revisional authority has also not taken into consideration the ratio laid down by a Division Bench of this Court in the case of Hiralal Chouhan vs. State of Bihar (supra), and by a Full Bench in the case of Syed Fakir Mohammad Vs. Sheikh Salahuddin and others (supra), and has apparently come to a wrong conclusion by reversing the orders of the learned D.C.L.R. and learned Additional Collector. The order of the revisional authority, being patently illegal, has rightly been set aside by the learned writ Court. 16 17. We find no infirmity in the order passed by the learned Writ Court. We entirely agree with the conclusions arrived at by the learned Writ Court. Hence this appeal fails and is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs. I agree. S. K. Katriar,J. Patna High Court, Patna. Dated the 15th November,2010 BTiwary( AFR) ( Birendra Prasad Verma, J.) ( S. K. Katriar, J.)