IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14677 of 2011 Md. Sanowar S/O Sk. Ajimuddin @ Sk. Ajim, R/O Vill.- Ghatera, P.O.-Auria, P.S.-Barahat, Distt.-Banka… … … Petitioner Versus 1. The State Of Bihar, 2. The Commissioner, Bhagalpur Division, Bhagalpur, 3. The Collector, Banka, 4. The Deputy Collector Land Reforms, Banka, 5. Hafiz Mohammad Faiyaz Ahmad S/O Late Sk. Niyamat Hussain R/O Vill.-Ghatera, P.O.-Auria, P.S.-Barahat, Distt.- Banka, 6. Sk. Ajimuddin S/O Late Sk. Shekhawat R/O Vill.-Ghatera, P.O.-Auria, P.S.-Barahat, Distt.-Banka … .. … Respondents For the Petitioner: Mr. Rajib Ranjan Jha, Advocate For the State: Mr. Vijay Bharti, AC to SC 26 … 3 20.09.2011 Heard learned counsel for the petitioner and the State. Petitioner seeks quashing of the order dated 06.04.2011 passed in Banka Land Ceiling Revision Case No. 09/08-09 by the Commissioner, Bhagalpur Division, Bhagalpur, respondent no. 2, whereby the appellate order passed by the Collector, Banka, respondent no. 2, has been set aside. The factual matrix of the case is as under:- The father of the petitioner, i.e., respondent no. 6 executed a sale deed dated 29.09.2003 for a consideration of Rs. 20,500/- favour of the respondent no. 2 5 with regard to 33 decimals of land appertaining to plot no. 2424/1861, khata no. 531/24 of Mouja Bhurna in the District of Banka which was registered on 19.12.2003. The petitioner filed an application under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred to as “the Act”) claiming right of pre-emption over the aforesaid land and for reconveyance of the land in his favour on the ground that the petitioner, being the owner of the land appertaining to plot no. 18692, khata no. 78 having total area of 2.08 acres, which was transferred to the petitioner by a oral gift by his father in the year 1981, is the boundary raiyat from eastern and western side. Whereas the purchaser is neither a co-sharer nor the adjoining raiyat. The pre-emption application was dismissed by the Deputy Collector Land Reforms, Banka vide order dated 27.08.2004 passed in Ceiling Case No. 12/2003-04. The petitioner preferred an appeal before the Collector, Banka, respondent no. 3, which was allowed on the ground that the petitioner in view of the oral gift was the adjacent raiyat of the purchased land and, thus, he was entitled for the claim of pre-emption. The aforesaid 3 decision was challenged by the respondent no. 5 by filing a revision in Land Ceiling Revision Case No. 09/08-09 before the Commissioner, Bhagalpur Division, Bhagalpur, respondent no. 2. The aforesaid revision was allowed vide order dated 06.04.2011 and the appellate order was set aside chiefly on the ground that even in view of the oral gift in his favour, the petitioner could not have attained the status of adjoining raiyat in view of the fact that the aforesaid oral gift would be void as per the provisions as contained in sub-section (2)(iii) of section 16 of the Act. A stand has been taken that even a mutation in favour of the petitioner on the basis of the aforesaid oral gift would be of no value. It has been noticed by the authorities that the father of the petitioner, obviously being the vendor, had denied the aforesaid oral gift. Learned counsel for the petitioner submits that the oral gift was acted upon and the petitioner has even sold part of the land acquired by way of oral gift by executing a sale deed upon which the father of the petitioner has put his signature as witness. Thus, the contention of the petitioner is that in view of the aforesaid position, the petitioner had attained the status of raiyat and 4 as such, he could be the adjoining raiyat. On the other hand, learned counsel for the State submitted that no right or title upon execution of such oral gift is recognized under the Act in view of the express bar created by the provisions as contained in section 16(2)(iii) of the Act. That apart, learned counsel has placed reliance upon a decision of this Court in Dasrath Sao and another v. The Additional Member, Board of Revenue and others (1985 Patna Law Journal Reports, 653). It is submitted that identical issue was before this Court for consideration in the aforesaid cases wherein it has been held that the principles and provisions of the Mohammedan law governing the right of the pre-emptor must give way to specific law. Oral gift is not valid due to the non-obstante provision contained in section 16(2)(iii) of the Act. I find force in the submission of learned counsel for the State. The issue is no longer res integra as in Dasrath Sao and another(supra) this Court has examined the issue concerned in detail and controversy has been set at rest by holding that no right, title or interest in view of oral gift even under Mohammedan law can be 5 recognized in view of the non-obstante provision contained in section 16(2)(iii) of the Act. The provisions as contained in Sections 12 and 26A of the Bihar Tenancy Act was also examined and it has been held that the alleged transfer by way of oral gift by the father of the pre-emptor of the plots in question, which are agriculture in nature, would be apart from being void in view of the aforesaid provisions of the Act and would also be in violation of the restrictions under Sections 12 and 26A of the Bihar Tenancy Act being not transferred by a registered document. Secondly, it had also been held that though the pre-emptor’s son may be successor-in-interest of his father, however, since under the Mohammedan law right in property by mere birth is not recognized, the right of an heir apparent or presumptive heir comes into existence for the first time only on the death of the ancestor. Till that he would not be entitled to any interest in the property to which he would succeed as an heir if he survived the ancestor. In above view of the matter, this Court being in full agreement with the decision of this Court in Dasrath Sao and another(supra) is also of the view that the pre- 6 emptor could not have claimed his right of pre-emption being adjoining raiyat claiming ownership of adjacent land on the basis of an oral gift by his father. Thus, this Court does not find any infirmity in the revisional order passed by the respondent no. 2. Accordingly, this writ application is dismissed. SC ( Dr. Ravi Ranjan, J.)