CIVIL WRIT JURISDICTION CASE No.8466 OF 1990 In the matter of an application under Articles 226 and 227 of the Constitution of India. 1. GADAWARI DEVI, WIFE OF SHRI GAUTAM UPADHYAYA AND DAUGHTER OF SHRI SUDAMA TIWARY 2. MOST. YASHODA DEVI, WIDOW OF LATE SUDAMA TIWARY BOTH ABOVE ARE THE RESIDENTS OF VILLAGE BELSAR, TIWARY TOLA, VIA-ZAMO BAZAR, P.S. BARAULI, DISTRICT GOPALGANJ. ---------------------------------------------------------------------------------------------- PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE HON’BLE MEMBER BOARD OF REVENUE, BIHAR, PATNA. 3. THE ADDITIONAL COLLECTOR, GOPALGANJ. 4. THE DEPUTY COLLECTOR LAND REFORMS, GOPALGANJ 5. DHARMNATH TIWARY, SON OF SHRI SURAJ TIWARY 6. SMT. CHANDRAKALI DEVI, WIFE OF SHRI YOGENDRA TIWARY RESPONDENT NOS. 5 AND 6 ARE THE RESIDENTS OF VILLAGE BELSAR, TIWARY TOLA, P.S. BARAULI, DISTRICT GOPALGANJ. -------------------------------------------------------------------------------------------- RESPONDENTS For the petitioner :- Mr. Kaushalendra Kumar Sinha, Advocate Mr. Awadhesh Kumar Singh, Advocate For Res. 1 to 4 :- Mr. Md. Anis Akhtar, A.C. to A.A.G. 10 For Res. 5 & 6 :- None P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. A pre-emption application was filed on behalf of Sudama Tiwary with respect to a piece of land which were transferred on 12.7.1979 to Chandrika Devi. The pre-emption application was dismissed for default on 28.1.1980 and was later restored. Again the pre-emption application was dismissed for not depositing the cost imposed by the D.C.L.R. in lieu of restoration of the pre- emption application. The pre-emptor filed an 2 appeal numbered as 40 of 1982-83 and 59 of 1988-89. 2. Learned counsel for the petitioners submits that during pendency of the appeal the parties compromised the matter and a sale deed was executed by the vendee Chandrakali Devi in favour of Sudama Tiwary on 5.7.1983. The pre-emptor withdrew 10% of the amount deposited in the court of the D.C.L.R. Thereafter, a compromise petition was filed on 14.7.1983 which is Annexure ‘4’ to this application. However, it appears that the appeal remained pending and Sudama Tiwary died in the mean time. Notices were issued to the heirs of Sudama Tiwary. The heirs appeared and inspected the records. However, they did not file their appearance before the Additional Collector. The Additional Collector dismissed the appeal on 17.4.1990 on the ground that no body had appeared on behalf of the appellant and as such the appeal abated. Learned counsel submits that a compromise petition was filed before the appellate authority after the death of Sudama Tiwary on17.7.1989 which ought to have been taken into 3 consideration by the appellate authority while considering the appeal. 3. The vendee has not appeared in this court despite notice. As far as the pre-emption application is concerned, there was never any finding with respect to the maintainability or merits of the case. It would appear from Annexure ‘4’ that a joint application was given by Sudama Tiwary and Chandrakala Devi for permission to withdraw 10% which was deposited in the court of the D.C.L.R. at the time of filing of the pre- emption application. 4. The whole issue revives when the vendee gave an application that she wants to contest the case after filing the joint compromise petition in the year 1989. 5. In the circumstances, the question that arises before this court whether this court can remand the matter back to the D.C.L.R. for a decision on the merits of the pre-emption application. I think not. For nothing remains in the application in view of the fact that the parties entered into a compromise and as a result of the compromise the vendee 4 Chandrakali Devi, executed a sale deed in favour of the pre-emptor Sudama Tiwary. Sudama Tiwary’s death at the appellate stage, is relevant as the heirs who were brought on records also compromised the matter by filing a compromise petition. In furtherance with their intention to effect a complete compromise, the pre-emptor and the vendee filed a joint petition, by which pre- emptor withdrew 10% of the consideration amount deposited in compliance of section 16(3) and Rule 19 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as ‘the Act’). 6. The argument advanced before this court that respondent purchasers would derive a right by virtue of the order of the Additional Member, Board of Revenue dismissing the revision application under section 32, cannot be sustained by the court. In fact the Additional Member, Board of Revenue ought to have called for the records and decided the case on merits, as the dismissal in this matter will create a situation which is not legally sustainable. 5 Having entered into a compromise and acted on the compromise not only by executing a sale deed, but by also allowing the pre- emptor to withdraw the statutory amount required to maintain a pre-emption application, leaves nothing to imagination. The subsequent act of withdrawing from the earlier stand is not permissible. The sale deed executed by Chandrakali Devi would be binding on her and her heirs and can only be set aside by a civil court. In fact, the title passed to the pre-emptor on execution of the sale deed and cannot be undone by an affidavit to say, that the purchasers now want to pursue the case, as such the order of the Additional Member, Board of Revenue will not create a clout over the title of the heirs of Sudama Tiwary, who are petitioners before this court. 7. There is another aspect of the matter. Should the court allow parties to take a stand and then resile on the stand taken? The principles of probate and reprobate envisage, that once a party takes a stand, which end in a compromise, and also acts on the compromise, such a party cannot 6 be allowed to take a contrary stand, unless the earlier stand is against all known principles of law. 8. In the result this court holds that the purchasers cannot resile from the earlier stand and the pre-emptor has right and title over the lands in question by virtue of the compromise entered between the parties. The orders impugned are quashed. While concluding I must add a word of caution that this order has been passed on the pleadings and annexures to the writ petition and on the presumption that after the compromise between the parties, the sale deed was executed in favour of the pre- emptor. 9. This writ petition is, thus, allowed. Patna High Court 5.1.2011 N.A.F.R./Sanjay ( Sheema Ali Khan, J.)