CIVIL WRIT JURISDICTION CASE No.4596 OF 1990 WITH CIVIL WRIT JURISDICTION CASE No.4595 OF 1990 WITH CIVIL WRIT JURISDICTION CASE No.4589 OF 1990 *** ( In the matter of applications under Articles 226 and 227 of the Constitution of India ) ****** 1. BIRENDRA NONIA, MINOR SON OF JAG NARAIN NONIA, UNDER THE GUARDIANSHIP OF JAG NARAIN NONIA, THE FAHTER OF THE GUARDIAN AND WELL WISHER 2. JITENDRA NONIA, MINOR SON OF SHYAM NONIA, UNDER THE GUARDIANSHIP OF SHYAM NONIA, THE FATHER OF THE GUARDIAN AND WELL WISHER BOTH ARE RESIDENT OF VILLAGE SEMARI, POLICE STATION KUTUMBA, DISTRICT AURANGABAD ………………………..……………………...PETITIONERS (CWJC NO. 4596/1990) WITH 1. SURENDRA NONIA 2. SATENDRA NONIA 3. HARENDRA NONIA 4. MAHENDRA NONIA ALL ARE MINOR SONS OF JAG NARAIN NONIA, RESIDENT OF VILLAGE SEMARI, POLICE STATION KUTUMBA, DISTRICT AURANGABAD ………………………………PETITIONERS (CWJC NOS. 4595 & 4589/1990) VERSUS 1. THE STATE OF BIHAR 2. THE MEMBER, BOARD OF REVENUE, PATNA, BIHAR 3. THE ADDITIONAL COLLECTOR, AURANGABAD 4. THE LAND REFORMS DEPUTY COLLECTOR 5. GANAURI DUSADH, SON OF LATE BALKESHWAR DUSADH 6. BUDHAN DUSADH, SON OF LATE BALKESHWAR DUSADH 7. RAJESHWAR DUSADH, SON OF LATE BALKESHWAR DUSADH 8. MOSTT. DEO RANI DEVI, WIDOW OF LATE BALKESHWAR DUSADH 5 TO 8 ARE RESIDENT OF VILLAGE SEMARI, POST OFFICE DESHPUR, AMBA, POLICE STATION KUTUMBA, DISTRICT AURANGABAD 9. BISUNDEO TIWARY, SON OF TRILOKI TIWARY, RESIDENT OF VILLAGE SEMARI, POLICE STATION KUTUMBA, DISTRICT AURANGABD ……………………………………………….RESPONDENTS (IN ALL THE CASES) ******************** FOR THE PETITIONERS :- MR. KESHAV SHRIVASTAVA, SR. ADV. (IN ALL CASES) MR. BHUNESHWAR PRASAD, ADVOCATE FOR THE S T A T E :- MS. JUHI KUMARI, AC TO SC III (IN ALL CASES) ********** P R E S E N T 2 THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. Earlier notices were issued to the respondents 5 to 9. Although, the notices were validly served, nobody has appeared to represent them in these matters. The petitioners are the purchasers of land appertaining to R.S. Khata No. 03, R.S. Plot No. 155 which was purchased through three sale deeds numbered as 7000, 7001 and 7002 dated 17.07.1987 by which three plots of land measuring 1 katha, 2 kathas and 2½ kathas of land were transferred to the petitioners by the vendor. The boundary of the purchased land is described in paragraph 7 of the writ applications, which indicates that Prahlad Tiwary was on the north of the boundary, Basisth Tiwary and Balkeshwar Dusadh were on the south boundary, the vendor was on the east and Dhrub Mahto was on the west of the vended land. Three pre-emption applications were filed with respect to the sale deeds in question claiming that the pre- emptor is a boundary raiyat. The admitted facts are that the pre-emptor had his lands on the boundary of the lands which are the subject matter of the three sale deeds. The pre-emptor had purchased part of Plot No. 155, Khata No. 03 and as such claims to be a boundary raiyat to the vended land. Undisputably, the respondents are the boundary raiyats. The 3 point that has been raised on behalf of the petitioners is that the lands in question are meant to be utilized for residential purposes, as the entire vended land is surrounded by houses. For this purpose, the petitioners’ Counsel refers to the sale deed which indicates that Dhrub Mahto has his house on the western boundary of the vended lands. Besides which, Counsel for the petitioners also refers to the order passed by the Land Reforms Deputy Collector, wherein, he has considered the spot verification and enquiry conducted by the Circle Officer, regarding the nature of the lands. It has been mentioned that the Khesra No. 155 measures a total area of 3.50acres which has been described as BASGIT land. It has further been indicated in the enquiry report that 0.94 decimals belongs to Balkeshwar Dusadh and 13.14 decimals belong to Dhrub Mahto who has his house and courtyard over the said lands. Besides which, it has been said that Dhrub Mahto has his house and lands on the western boundary of the vended lands. Counsel for the petitioners submits that the house of Balkeshwar Dusadh, the pre- emptor and Dhrub Mahto adjoin the vended plot, which indicates that the land is being used for residential purposes, and as such, respondent no. 5 to 8 cannot get the benefit of Section 16 (3) of the Ceiling Act. The Land Reforms Deputy Collector, on the basis of the enquiry report rejected the pre- emption application. Respondents 5 to 8 filed an appeal which was disposed of by order dated 05.02.1989 confirming 4 the order of the Land Reforms Deputy Collector, whereas the Member, Board of Revenue had reversed both the orders on the ground that the pre-emptor is a boundary raiyat and thus, his right of pre-emption has been accepted. Regarding the findings of the Additional Collector and the Land Reforms Deputy Collector with respect to the nature of the lands being residential, The Board of Revenue has rejected the plea on the ground that the petitioner had not led evidence to show that the lands in question were purely residential in nature. The pre-emptor has not challenged the spot verification, of the Circle Officer, who has come to definite finding that the lands are Basgit lands. Therefore, there is no reason for this Court to reject the claim that the lands purchased by the petitioners are for residential purposes. Since this Court has come to a finding that nature of land is not covered by the definition of the term ‘Land’ as defined under Section 2 (f), the conclusion is that the application for pre-emption is not maintainable. This Court does not agree with the finding of the Member, Board of Revenue that the three sale deeds were executed to defeat the provisions of Section 16 (3) of the Ceiling Act. The reason stated in the impugned order is that the land purchased is one block and there was a deliberate attempt to execute three sale deeds, and thus bifurcate the lands in question. This Court finds that it is justifiable and reasonable to purchase the entire block in the name of the 5 three petitioners, considering that the purchase was made for residential purposes, so that all the three brothers, can build their houses together at one place, and thereby also ensuring that all three vendees would have equal right and title of the vended plot. It goes without saying that if the lands were purchased in the name of only one of the brothers, it may and would probably lead to problems in future regarding the partition of the said lands. The other point in favour of the petitioners is the fact that the petitioners by virtue of the three sale deeds have themselves become the boundary raiyats to each of the plots, which is sufficient for the purpose a legitimately defeating the rights acquired under Section 16 (3) of the Ceiling Act. This proposition has been decided in the case of Ram Roop Yadav vs. The State of Bihar & Others, reported in 1987 PLJR 455 and in the case of Nathuni Mahto vs. The State of Bihar and Others, reported in 2004 (2) PLJR 334. In both the aforesaid cases, the Division Bench has held and concluded that the purchases would become boundary raiyat by virtue of the sale deed in their favour. These writ applications are, therefore, also allowed by virtue of the fact that the purchasers have become the boundary raiyats to the vended lands. ( Sheema Ali Khan, J. ) PATNA HIGH COURT DATED, THE 17TH AUGUST, 2010 N.A.F.R./ANAND