IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12121 of 2002 1. SRI RAMCHANDRA MISTRY 2. SRI BACHCHU MISTRY BOTH SONS OF LATE RAMDHIR MISTRY, RESIDENT OF VILLAGE KARAP, P.S. RAFIGANJ, DISTRICT AURANGABAD (BIHAR) ----------------------------------------------------- PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA 3. THE ADDITIONAL COLLECTOR, AURANGABAD 4. L.R.D.C., AURANGABAD 5. SMT. DEVANTI DEVI, WIFE OF SRI SURESH SHARMA 6. MEENA DEVI, WIFE OF SHIVENDRA SHARMA 7. GITA DEVI, WIFE OF SATYENDRA SHARMA RESPONDENT NOS. 5 TO 7 RESIDENT OF VILLAGE KARAP, P.S. RAFIGANJ, DISTRICT AURANGABAD (BIHAR) 8. (A) MD. MOFIZ 8. (B) MD. MUSTAKIN @ NAKIM BOTH SONS OF LATE MD. ZAFAR ALI 9. MD. KHALIL, SON OF MD. ZAFAR ALI- OPPOSITE PARTTIES 1ST SET/RESPONDENTS RESIDENTS OF VILLAGE KARAP, P.S. RAFIGANJ, AURANGABAD (BIHAR) ------------------------OPPOSITE PARTIES 2ND SET VENDORS/RESPONDENTS For the petitioners :- Shri Sidheshwari Prasad Singh, Sr. Adv. Shri Narendra Kr. Jha, Adv. Sri Nilesh Kumar Nirala, Adv. For private respondents :- Mr. Ashutosh Ranjay Pandey, Adv. no. 5, 6 & 7 For the State :- Mr. O.P. Upadhyay, S.C. 2 (ceiling) ----------- 11 26.7.2010 Petitioners are the purchasers who have lost in all the three Courts on the ground that it has been held that the respondents are boundary raiyats and therefore were entitled to claim the land under Section 16(3) of the Bihar Lands Reforms (Fixation of Ceiling Area and Fixation of Surplus Land) Act, 1961. 2. The petitioners purchased the land appertaining to Plot No. 2374 from Smt. Devanti Devi on 22.11.2002 measuring 6 decimals appertaining to Village Karap, P.S. Rafiganj, District Aurangabad for a sum of Rs. 20,000/-. The sale deed is annexed 2 and marked as annexure – 4 to the writ application. The boundary given in the sale deed is Noth- Niji (Vendor), South- 5 Kari Niji (Vendor), East- Niji (Vendor) and West- Rasta and Niji (Vendor). 3. Both the parties have given the map of the lands which is subject matter of the dispute. At page 43 the respondent nos. 5, 6 and 7 have drawn out the map, and annexure- 6 is the map by the petitioners. There is no difference between both the maps. 4. On perusal of the map of the land purchased, it is clear that 5 Karis of land and Rasta belonging to the vendor late Devanti Devi has been left out on three sides of plot no. 2374 which was sold to the petitioners. On the south of the disputed land, the respondents had purchased a piece of land in the year 1992 intervened by 5 Kari of land belonging to Devanti Devi, on the west of the disputed land is a land which was subsequently purchased by respondent nos. 5, 6 and 7 on 4.12.2002, after the sale deed was executed on 22.11.2002. The land which is west to the disputed land purchased by the respondent is also intervened by lane which has been separated from the land that was sold to the respondents and the petitioners. The reason for retaining the small strip of land on the north, east, west, and the south i.e. all four sides, is apparent, as the map shows that the house of Devanti Devi is situated opposite to the lands which was sold to the respondents 5 to 7 on 5.12.2000 and the 5 karis of land allow the petitioners free egress and ingress to the house. Since the only dispute is with respect to whether the respondents are boundary raiyats or 3 not, the map as produced by the respondents in the counter affidavit which is being given below:- 5. I may now refer to the fact that the Karamchari has also given a report contained in annexure-5 and the report of the Circle Officer contained in annexure- 5A which indicates that Devanti Devi had retained a lane on all sides of her house. Having sold the land from three sides, she had retained some land in order to facilitate her movements. 6. Learned counsel for the respondents on the other hand submits that even before the pre-emption application was filed, they were boundary raiyats, having purchased a piece of land south to the disputed land in the year 1992. It is further submitted that the 5 karis of land, in between two plots could not be treated to be detrimental to their claim and they cannot be non suited on account of the lane being present in between the land purchased by them, and the land of the purchaser. 4 7. Learned counsel refers to a decision of this Court in the case of Ram Chandra Yadav Vs. Sri A Wati Ao, Additional Member Board of Revenue & Ors. (1997 BLJ 412). In the case of Chandra Yadav, the Court has held, that as the purchaser had purchased another piece of land before filing pre-emption application which brought him in the category of an adjoining raiyat, the right of the purchaser could not be defeated if on the date of filing of the pre-emption application the purchasers also because of adjoining raiyat. It is submitted by the counsel for the respondents that a ratio of the above case would not apply to them as the respondents had also purchased a piece of land prior to the filing of the pre-emption application. It is well settled by several decisions of this Court that the date for considering the claim of pre-emption is the date on which the pre-emption application is filed. This Court in the aforesaid case has held that there is no doubt about the fact that the pre-emption application is maintainable but the right of the pre-emption would be defeated by the fact that the purchaser had also purchased an adjoining piece of land prior to filing of the pre-emption application. In any event this Court finds in the facts of this case that the respondents cannot claim the right of pre-emption on the ground that a vendor had for a valid reason, retained a part of the land belonging to her in order to have ingress and egress from all sides of her residential house, and as such the submission that the intervening lane was retained in order to defeat his right of pre-emption has to be rejected. 5 8. In the result, I quash the orders contained in annexure-1 dated 11.2.2002, annexure-2 passed by the Collector and the order dated 30.8.2002 passed by the Member Board of Revenue. 9. This writ application is allowed. Sanjay (Sheema Ali Khan, J.)