IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15299 of 2005 1. Chandra deo Chaudhary @ Chandradeo Singh son of late Twakal Chaudhary 2. Prem Prakash Chaudhary son of late Panchayan Chaudhary, Both R/o vill- Baghi, P.O. Saduri Karma, P.S. Barun Dist. Aurangabad(Bihar) ---Pre-emptors/petitioners Versus 1. The State of Bihar, through D.M. Aurangabad ( Bihar) 2. The D.C.L.R. Aurangabad (Bihar) 3. The Hon‟ble Member, Board of Revenue, Bihar, Patna. 4. Smt. Phulbasia Devi W/o Ramchandra Thakur R/o vill- Baghi, P.S. Barun, P.O. Saduri, Karma, Dist. Aurangabad (Bihar) --Purchasers/Respondents/Ist party 5. Rajdeo Thakur son of late Shivnandan Thakur 6. Satya Narayan Thakur, son of late Ram Ratan Thakur 7. Nagina Thakur, son of late Brechh Thakur. 8. Sita Thakur, son of late Ramjatan Thakur All R/o vill. Amba, P.O. Saduri Karma, P.S. Barun, Dist. Aurangabad ( Bihar) --- Vendors/respondents 2nd party With CWJC No.630 of 2006 1. Chandra Deo Chaudhary @ Chandradeo Singh son of late Tawakal Chaudhary 2. Prem Prakash Chaudhary son of late Panchayan Chaudhary, Both R/o vill-Baghi, P.O. Saduri Karma, P.S. Barun Dist. Aurangabad(Bihar) ---Pre-emptors/petitioners Versus 1. The State of Bihar, through D.M. Aurangabad ( Bihar) 2. The D.C.L.R. Aurangabad (Bihar) 3. The Hon‟ble Member, Board of Revenue, Bihar, Patna. 4. Smt. Phulbasia Devi W/o Ramchandra Thakur R/o vill- Baghi, P.S. Barun, P.O. Saduri, Karma, Dist. Aurangabad (Bihar) 5. Kiran Devi W/o Lalan Thakur, R/o vill- Baghi, P.S. Barun, Dist- Aurangabad ( Bihar) --Purchaser/respondent 1st party. 6. Rajdeo Thakur, son of late Shivnandan Thakur 7. Satya Narayan Thakur, son of late Ram Ratan Thakur 8. Nagina Thakur, son of late Brechh Thakur. 9. Sita Thakur, son of late Ramjantan Thakur All R/o vill. Amba, P.O. Saduri Karma, P.S.Barun, Dist. Aurangabad (Bihar) ---Vendors/respondents 2nd party. . ----------- 06 16.05.2011 Both the matters raise common issue. Contesting parties 2 are the same. They have been clubbed together. With the consent of the parties they have, thus, been heard together. Order present shall govern them. Petitioners in both the cases are preemptors. They raise a grievance with respect to the common resolution dated 30.08.2005 passed by the respondent Board of Revenue in case nos. 5 and 6 of 2004 ( Chandra Dev Chaudhary vs. Phul Basia Devi). For the sake of brevity, relevant facts shall be drawn from C.W.J.C. no. 15299 of 2005. By a sale deed the vendors respondent nos. 5 to 8 sold lands appertaining to khata no. 3, plot no. 51, (46 ¼ decimals) and khata no. 11, plot no. 62 (25 decimals) in favour of the purchaser/respondent no.4. The sale deed was registered on 26.07.1996. By yet another deed of sale registered on 20.09.1997 65 and ½ decimals of land appertaining to plot no. 177 was vended in favour of the purchaser respondent no.4 (subject matter of C.W.J.C. no. 630 of 2006). Two applicants ( writ petitioners) jointly filed two applications under Sections 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land ) Act,1961( for short „the Act‟) claiming their preferential right over the vended land. Both the matters were heard analogously and allowed by the respondent D.C.L.R. by order dated 19.08.1999 (Annexure-3). Aggrieved by the aforesaid order, the purchaser preferred two appeals being appeal no. 02 of 1999- 3 2000/10 of 2003-2004 and 11 of 2003-04. Said matter was disposed of whereagainst revision application(s) was/were preferred being Board Revision case no. 49 and 50 of 2001. The Board of Revenue by resolution dated 26.12.2002 set aside the order of the appellate authority/Court and remanded back the matter to the Appellate Court/authority to re-examine and record findings on two specific issues set out therein. After the remand, the two appeals were taken up afresh. A local inspection, as directed, was made after due notice to the parties and in presence of Revenue officials wherein Revenue records/documents were also perused in order to record a finding on the claim/counter claim of the parties. Let it be recorded that the claim of the purchaser from the very inception had been that the subject lands had been acquired for residential purposes and that the purchaser was landless lady. On a consideration of the materials on record, the appeal(s) was/were allowed by order dated 06.12.2003 (Annexure-2) and the order of the respondent D.C.L.R. dated 19.08.1999 (Annexure-3) was set aside. Aggrieved by the appellate order the petitioners/ preemptors preferred two revisions which was/were considered and rejected by a common resolution dated 30.08.2005 passaging filing of two writ petitions. Heard learned counsel for the petitioners and the purchaser (respondent no.4). Assailing the revisional order, it is submitted on behalf of the petitioners that local inspection made by the appellate 4 authority/Court on which reliance has been placed to hold that the purchaser is landless lady and that she is adjoining raiyat in respect of one of vended plots no. 51 is collusive. The previous acquisition of land made by the petitioners indicate that Chandra Dev Chaudhary, one of the preemptors is adjoining raiyat to the vended plots. It is wrongly indicated in one of the subject sale deeds that the sons of petitioner no.1 were the adjoining raiyat(s). It is submitted that the two original preemptors were full brothers, and as such, they can jointly maintain application seeking preemption although the name of one of the preemptors has been shown as adjoining raiyat of the vended plot(s). The claim of the purchaser being landless has also been disputed. Learned counsel for the respondents, on the other hand, submits that the purchaser herself became adjoining raiyat by purchasing 15.1/4 decimals of land appertaining to plot no. 51 on 27.07.1996. It is next submitted that objection with regard to local inspection was never made in the Court below. In the writ petition also there is no such specific pleadings. It is next contended that in course of local inspection made by the appellate authority it was found, as a matter of fact, that the purchaser did not hold land more than 01 acre on the day when such claim was raised and as such she was a landless lady against whom claim u/s 16(3) of the Act would fail as laid down by Division Bench of this Court in case reported in 1997(2) PLJR 287 (Nathuni Singh Yadav & Anr. Vs. State of Bihar & Ors.). 5 Learned counsel for the petitioners, in reply, submitted that the vendor was left with no portion of land in plot no. 51 and as such the sale in respect of 15.1/4 decimals of land appertaining to khata no. 3, plot no.51 was created only to defeat the claim of preemption. Law is well-settled that if two persons join hands in filing application seeking claim of preemption then each of them has to prove/demonstrate that they are adjoining raiyat(s) in their own rights in respect of the vended lands/plots. Respondents have placed reliance on a judgment of this Court since reported in 1989(2) BLJ 294 ( Mst. Rajrani Asha Devi & Ors. Vs. State of Bihar & Ors.) and 1995(1) PLJR 764 (Ram Pravesh Singh Vs. The Addl. Member Board of Revenue & Ors.) to support the contention. Even if the case of the writ petitioners is accepted for the sake of argument, it would appear that the name of petitioner no.1 only appeared as adjoining raiyat in respect of some of the plots vended by the subject sale deed(s). As about sale appertaining to plot no. 177 (subject matter of C.W.J.C. no. 630 of 2006), it would appear from the subject sale deed that the sons of petitioner no.1 have been shown as adjoining raiyat. Respondent appellate Court, in view of the order of remand passed by the Board of Revenue, made local inspection of the lands in question after due notice to the parties. Revenue authorities such as Circle officer/Circle Inspector assisted him in carrying out local inspection and perusal of concerned Revenue records. The 6 preemptor(s) was found adjoining raiyat only in respect of one plot vended under the sale deed, although claim was raised in respect of both the plots. In that view of the matter, the claim of preemption was negated as the preemptor(s) was not found adjoining raiyat of both the vended plots. It has also been found, as a matter of fact, that Phul Basia Devi (the purchaser) had less than one acre of land and as such she was landless and the claim of preemption was negated. It does not appear that any objection was filed by the petitioner(s) alleging the same to be collusive and/or without notice to the parties. Learned counsel for the petitioners has contended that the rent receipt produced in the proceeding Annexure1/A would show that the purchaser had 1.09 and ½ acres of land. A bare perusal of the rent receipt shows that the same pertains to the year 2002-2003, which includes the subject land against which claim for preemption was made by the preemptor(s). Learned revisional Court considered the said submissions of the petitioners and answered the same in the following manner:- “So far rent receipts showing 1.01 Acres land is concerned that land has been purchased after the filing of the pre- emption case. Only such land could be looked into and considered which was retained by Opposite Party no. 1 on and before 26.7.1996 not after that on and before 26.7.1996. Opposite Party No. 1 retained only 0.86 ½ Acres land. Hence, opposite party no. 1 is a landless lady. Secondly the Addl. Collector himself visited the spot and made an enquiry and held that the petitioner is in boundary of only plot no. 51. When opposite party no. 1 had already purchased part of plot no.51 on 27.7.1996, she herself became boundary land holder of that land. It is well settled law that partial pre-emption is 7 not maintainable and if the vendee is already in boundary then pre-emption can not be allowed, 1995(1) P.L.J.R. page 764 also deals with the same thing and the case of Opposite Party no. 1 is squarely covered by the aforesaid order. So far as plot in 177 is concerned the petitioner is claiming pre-emption on the ground of boundary land holder as well as co-sharer. But his claim is baseless because in the boundary of plot no. 177, the name of the petitioner is not appearing rather the name of petitioner‟s son is appearing. Petitioner‟s son should have filed the pre- emption application, in absence of that the instant case must go. A judgment reported in A.I.R. 1972 Patna Page 389 in which it has been said that even if the land is in the name of same family member but any of the family members can not claim it by way of pre-emption…..” If a joint application is filed by more than one person seeking claim of preemption then each of them has to demonstrate that they are separately holding lands adjoining to the vended plots/lands. Law is well-settled in this regard. Learned counsel for the petitioners has also not disputed this position. Materials on record including the impugned order(s) do not indicate that both the brothers (applicants) were found having land(s) adjoining to the vended plot(s)/land(s). Even if the case of the petitioners is accepted, for the sake of argument, that petitioner no.1 Chandra Deo Chaudhary is adjoining raiyat of the vended plots and name of his sons were wrongly mentioned as adjoining raiyat(s) in respect of vended plot no. 177 (subject matter of C.W.J.C. no. 630 of 2006) there is no materials on record to show that both the original preemptors were adjoining raiyat(s) in their own rights in 8 respect of plots vended under the two sale deeds. The claim of preemption would thus fail on this count also. Further, the appellate Court after due notice to the parties, made local inspection and perused the concerned revenue records to hold that on the date when such claim was raised by the petitioners the purchaser held less than 01 acre of land and was thus landless as held by this Court in Nathuni Singh Yadav (Supra). Said finding has been upheld by the revisional Court. Petitioners have failed to demonstrate that the said finding is perverse or suffers from any manifest error. On a consideration of the submissions and in view of my aforesaid conclusions, this Court is not inclined to invoke its extra ordinary writ jurisdiction to set aside the findings recorded by the appellate Court and affirmed by the revisional Court for negating the claim of preemption raised on behalf of the petitioners. Accordingly, both the applications are dismissed. There shall be on order as to costs. Sym (Kishore K. Mandal, J.)