IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.48 of 2003 1. KUMARI MANORAMA SINHA,W/oSri Ramesh Prasad Singh, 2. Ramesh Prasad Singh, S/o Late Ram Ekbal Singh, 3. Alok Kumar, minor son of Sri Ramesh Prasad Singh, 4. Vivek Kumar, minor son of Sri Ramesh Prasad Singh, 5. Saurabh Kumar, minor son of Sri Ramesh Prasad Singh, All Nos. 3 to 5 are under the guardianship of their natural father Sri Ramesh Prasad Singh, all the petitioners are residents of Village –Ojhabigha, P.S. Kaler, Distt. Arwal……………… Petitioners Versus 1. THE STATE OF BIHAR, 2. The Addl. Member, Board of Revenue, Bihar, Patna, 3. The District Collector, Jehanabad (now Arwal), 4. The Subdivisional Officer, Arwal, Distt. Arwal, 5. Ran Vijay Kumar, son of Sri Ram Krishna Singh, resident of Village – Ojhabigha, P.S. Kaler, Distt. Arwal, 6. Jwala Prasad Singh, son of Sri Chhote Narayan Singh, R/o Village – Mainpura Chanda, P.S. Mehandia, Distt. Arwal ……………………………………………………. Respondents. ----------- For the Petitioners:- Mr. Birendra Prasad Verma, Sr. Advocate. For the State:- Mr. H.P. Singh, SC (Ceiling). For the Respondent No. 5:- Mr. Vindhyachal Singh, Advocate. ------------ 9. 28.07.2009. Heard Mr. Birendra Prasad Verma, learned Sr. Counsel for the petitioners, Mr. Vindhyachal Singh, learned counsel for the Respondent No. 5, and Mr. H.P. Singh, learned Standing Counsel (Ceiling) for the State. No one appears on behalf of the Respondent No. 6. The petitioners are aggrieved by the order dated 1.11.2002, passed by the Additional Member, Board of Revenue, 2 Bihar, Patna, as contained in Annexure-4 to this application, whereby Pre-emption Revision Case No. 144/2001 had been allowed. Portrayal of necessary facts are as under:- The Respondent No. 6, Jwala Prasad Singh transferred 23 decimals of land in favour of the Petitioner No. 1, Kumari Manorma Sinha by a registered sale deed executed on 29.05.2000, the descriptions of which, as would be apparent from the impugned order dated 1.11.2002 as well as a copy of the sale deed brought on record by the Respondent No. 2 as Annexure-A to his Counter affidavit, are as follows:- Village Khata No. Plot No. Areas Boundary Mainpura 71 2865 |North-Ranvijay Kumar Thana No.152 127 2454 |South- Sarwa Singh Dist. Arwal 127 1149 23Dec. |East –Ranvijay Kumar (Bihar) 127 2452 |West-Ranvijay Kumar From the aforesaid descriptions given in the sale deed as well as in the impugned order dated 1.11.2002, it appears that for all the plots, the same boundary has been given. Thus, it can be inferred that the plot nos. in question are adjacent and adjoining to each other. The Respondent No. 5 claimed right of pre-emption 3 by filing a petition under Section 16(3)(i) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, (hereinafter referred to as `the Act‟) on 20.06.2000. Notice was issued upon the petitioner no. 1 by the Sub Divisional Officer concerned. In response thereof the Petitioner No. 1 (purchaser) appeared on 10.07.2000 and filed his objection. Chiefly, four grounds were taken by the Petitioner No. 1; firstly, that the pre-emption application is not under the prescribed Form LC XIII; secondly, that the Challan, whereby the consideration money has been deposited, is not in the name of the Collector concerned; thirdly, that the land has been transferred for construction of a house, therefore, the provisions under Section 16(3) of the Act are not attracted. Further that the purchaser and pre-emptor both are on similar footing so far the claim of the pre- emptor of being the adjoining raiyat is concerned, whereas none of them are co-sharers and, lastly, that out of the aforesaid 23 decimals of lands, 21 and ½ decimals of lands have already been transferred by the Objector on 02.06.2000 in favour of her minor sons, Petitioners No. 3 to 5 herein through their father as their natural guardian (Petitioner no. 2 herein) by executing a deed of gift in their favour, which was registered later on 27.06.2000. Thus, the claimed major portion of the land having already been 4 transferred by the aforesaid deed of gift, it was contended that no pre-emption could be allowed for part of the transaction in question. It was further contended that since the transfer of land by way of gift is out of the ambit of the provision of Section 16(3) of the Act, no pre-emption will be available to the claimant against the subsequent transfer. The Sub Divisional Officer, Arwal after having considered the rival submissions of the parties dismissed the pre- emption application by order dated 26.07.2000, as contained in Annexure-2. The Respondent No. 5 preferred Ceiling Appeal No. 18/D.M./2000-2001, which was dismissed vide Annexure-3 dated 07.07.2001. Thereafter, the Respondent No. 5 preferred Ceiling Revision Case No. 144/2001 which was allowed in his favour. Learned counsel for the petitioners submitted that 21 and ½ decimals of lands out of total 23 decimals were transferred on 02.06.2000 itself by executing a deed of gift by Petitioner No. 1 in favour of Petitioners No. 3 to 5, prior to filing of the pre-emption application on 20.06.2000. Thus, the pre-emption for the part of the land, which remained with Petitioner No. 1, was not maintainable as it is well settled principle of law that part pre- emption cannot be allowed. In support of this submission, learned counsel for the petitioners placed reliance upon a decision of this 5 Court rendered in Ram Chandra Srivastava Vs. Prasidh Narayan Singh, [AIR 1971 Patna 302 (FB)]. The Full Bench of this Court in its aforesaid decision has held that the person claiming pre-emption must claim the right of recoveyance with regard to whole of the property to which it relates or to none at all. It is further submitted that the tenuous right of statutory pre-emption under Section 16(3) of the Act can be defeated by a valid bona fide gift by the original transferee made prior to filing of the application for pre-emption. Thus, the contention of the petitioners is that since the part of the land has been transferred by way of executing a deed of gift in favour of Petitioners No. 3 to 5, the same cannot be claimed under pre- emption, firstly, for the reason, that there is no pre-emption available for gift; secondly, since claim of pre-emption is not available against part of the original transaction and; thirdly, since the weak right of pre-emption could well be defeated by taking legitimate steps of transferring the land prior to filing of the pre- emption application by way of gift and, the last but not the least, since the donees (subsequent purchasers) having not been impleaded as parties before the original authority and since no pre- emption has been claimed against the subsequent transfer, such claim was bound to fail. 6 In support of the aforesaid submissions, learned counsel for the petitioners placed reliance upon several authorities. In Abdullah Mian Vs. Jodha Raut & Ors., (1977 PLJR 371), a Division Bench of this Court has held that if the applicant claiming pre-emption did not implead the subsequent transferee from the original transferee, although the fact of such transfer was known to him, such an omission is fatal, as the subsequent transferee had acquired a status by the aforesaid transfer. In yet another decision rendered by a Division Bench of this Court in Kuteshwar Choubey Vs. State of Bihar & Ors., (1979 BBCJ 121), it has been held that if the transferee transferred the land to another person before filing of the petition under Section 16(3) of the Act and, if the subsequent purchaser is not impleaded as a party to the proceeding, the pre-emption application cannot be allowed. However, the Court can make an investigation into the question of fraudulent or farzi or sham nature of subsequent transfer, provided the subsequent transferee is impleaded and fraud and collusion is pleaded and proved by the pre-emptor. Similar stand has been taken by this Court in Dhanik Lal Mahto Vs. Addl. Member, Board of Revenue, & Ors., (1985 BBCJ 597). 7 A Division Bench of this Court in yet another decision rendered in Raju Kumar Prasad & Anr. Vs. The Addl. Member, Board of Revenue, Bihar, Patna & Ors., (1985 PLJR 215) has held as follows:- “9. In the case of Ramchandra Yadav v. Anutha Yadav and others (1971 B.L.J.R. 994) this Court considered three situations of subsequent transfers by a purchaser, namely, (1) second purchaser taking a document executed and registered before the filing of the application. In such a case the second transferee gets a good title to the property and there is no question of his right being defeated by a subsequent application for pre-emption; (2) second sale deed being executed and registered after the filing of the application for pre-emption. In such a case the second transfer is clearly hit by the doctrine of list pendense; and (3) document of sale being executed before the filing of the application for pre-emption, but registered after its filing. In such a case also the application for pre-emption would fail on account of the fact of registration of the document dating back to the date of execution of the deed.” Again in Smt. Priyambada Devi V. The Addl. Member, Board of Revenue, Bihar, Patna & Ors., (1985 PLJR 662), a Division Bench of this Court has held that the deed of gift executed before filing of pre-emption application but registered 8 during the pendency of the application is excluded from the purview of pre-emption. Such a transaction can be hit by the provision of Section 16(3) of the Act only if there is an allegation of sham and farzi transaction and the authorities find the allegation true. Similar view was taken in Raja Ram Singh V. State of Bihar & Ors., (1985 BBCJ 458), wherein it has been held that right of pre-emption is a very weak right and the pre-emptor is required to follow each and every mandate of law. Failure of impleading the transferor in an application for pre-emption must be fatal to its maintainability and, as such, an application has to be dismissed at the initial stage itself. Reliance was also placed upon a decision of this court in Sushil Kumar Choudhary & Anr. V. State of Bihar & Ors., [1997 (1) PLJR 857]. In the aforesaid decision, the facts were to the effect that against the pre-emption application filed under Section 16(3) of the act, the purchasers took a stand that the lands were already transferred by way of gift and pre-emption was not maintainable because the donee was not made a party to the pre- emption proceeding. No step was taken by the pre-emptor to implead the donee before the original authority. However, he was impleaded for the first time before the revisional court. The Board 9 of Revenue upheld the claims of pre-emption on the ground that the subsequent gift deed was farzi and fraudulent and was intended to frustrate the claims of pre-emption. This Court, however, held that the claim of pre-emption was not maintainable because the second transferee / donee was not impleaded before the Court of first instance even though the fact of second transfer / gift had come to light from the show cause filed by the vendors. Learned counsel for the petitioners also placed reliance upon a decision of this Court in Ram Pravesh Singh V. The Addl. Member, Board of Revenue, Bihar, Patna & Ors., [1995 (1) PLJR 764] to demonstrate that right of pre-emption being a weak right, the pre-emptor in order to succeed must make out a full proof case, whereas transferee is only needed to point out the loopholes. This Court also held therein that pre-emption with regard to part of the transferred plot cannot be allowed. Learned counsel for the petitioners also pointed out a decision of the Apex Court rendered in Gokul Mahto V. State Bank of Bihar & Ors., (AIR 1999 SC 1331) wherein it has been held by the Supreme Court that gifts are excluded from the purview of Section 16(3) of the Act. That apart, learned counsel vehemently pressed that Petitioner No. 1 by purchasing several adjoining plots by the same 10 sale deed has herself become adjoining raiyats to all the plots and, thus, on that account also the Petitioner No. 1 has got better right than that of the pre-emptor. Learned counsel for the Respondent No. 5, on the other hand, contended that it has been held in Ram Paras Choudhary & Ors. V. The State of Bihar & Ors., [1993 (2) PLJR 260] that the requirements laid down under Rule 19 and Form LC XIII are only directory instructions and, if there is sufficient compliance thereof, the application for pre-emption can be validly entertained. Learned counsel drew attention of this Court towards a copy of the pre-emption application appended to the Supplementary Counter Affidavit filed on behalf of the Respondent No. 5 to demonstrate that if compared with LC Form XIII it would be apparent that there has been sufficient compliance of the requirements. Learned counsel for the petitioners was not able to contradict the same and, thus, it is held that in the pre- emption application filed, there has been sufficient compliance of the requirements, as per requirements under Rule 19 of the Bihar Land Ceiling Rules, 1963 and LC Form XIII and, thus, it is held that pre-emption cannot fail on this score. However, on the point of subsequent transfer by way of gift, which is the most important point for determination in this 11 case, learned counsel submitted that the same has been declared as sham and farzi transaction by the Board of Revenue and, thus, the same is just to be ignored. It is next contended that the pre-emptor has a right to raise the question with regard to subsequent transfer being showy, sham and farzi transaction. Upon such point being raised, the original authority, which was deciding the pre-emption matter, was bound to look into the matter and decide the same. However, it was not done by it and the original authority has only come to the conclusion that the subsequent transfer by way of gift can only be declared sham and farzi by a Civil Court of competent jurisdiction. In that view of the matter, it was urged that the orders passed by the Sub Divisional officer as well as the Appellate Court were bad and, thus, those orders have rightly been set aside by the revisional Court. In support of his submission, learned counsel placed reliance upon a decision of this Court rendered in Ram Roop Yadav Vs. The Addl. Member, Board of Revenue, & Ors., (1984 BBCJ 390) wherein this Court has held that when it was pleaded on behalf of the pre-emptor that the subsequent transfer is farzi and sham then that has to be investigated by the authority. Thus, the case was remanded to the first court for allowing 12 opportunities to the parties to adduce evidence on the point and for deciding the matter. Reliance was also placed upon a decision in Ganesh Prasad & Ors. Vs. State of Bihar & Ors., (1985 PLJR 254), wherein a Division Bench of this Court, according to the Respondent No. 5, has held that it was not necessary to file a pre- emption application in respect of subsequent sale deed which was not registered on the date of filing of an application for pre- emption. Learned counsel further placed reliance upon a decision of this Court in Smt. Sarda Devi Vs. The State of Bihar & Ors., [2007 (4) PLJR 465] wherein it has been held that since the revenue authorities were correct in holding that the pre-emptor is entitled to claim pre-emption as the execution of the gift deeds by father and brother in favour of daughter and sister was with a view to defeat the claim of pre-emption. In yet another decision in Rajdeo Mahto Vs. The State of Bihar & ors. [2007 (4) PLJR 677], the Division Bench of this Court has held that it was the duty of the transferee to prove that the subsequent instrument was validly executed prior to filing or notice of pre-emption, that having not been done and registration took place after notice of pre-emption, the authorities were justified in holding that the subsequent transfer was sham and 13 farzi. Learned counsel for the Respondent No. 5 submitted that in the present case also the subsequent transaction by way of gifts was executed only 2-3 days after the first transaction and the same has admittedly been registered during the pendency of the pre-emption proceedings, therefore, the impugned order passed by the Addl. Member, Board of Revenue declaring the same as sham and farzi is perfectly in order and in accordance with law as well as in consonance with the aforesaid decisions of this Court. I do not find any force in the aforesaid submissions raised on behalf of the Respondent No. 5. It is well settled principle of law hallowed by time and quantified by decisions that the right of pre-emption is a weak right and, thus, the pre-emptor must make out a full proof case in order to succeed, whereas such weak and tenuous claim of pre-emption can be legitimately affected and defeated by a bonafide transaction of gift prior to application. As has been held in Raju Kumar Prasad & Anr. Vs. The Addl. Member, Board of Revenue, Bihar, Patna & Ors. (supra) that if the document of second sale being executed before filing of the application for pre-emption, but is registered after its filing, in that case also, right of pre-emption gets defeated by the subsequent transaction. Of course, it would be 14 a case when the authorities have not declared subsequent transfer as sham and farzi. But in a decision rendered in Chandradip Singh & Anr. Vs. The Addl. Member, Board of Revenue, Bihar, Patna & Ors., (AIR 1978 Patna 148), a Division Bench of this Court has held that in a case of allegation of fraudulent transfer by the pre-emptor, the onus would lie upon him to prove it. The fraud has to be pleaded and proved. For proving the fraud, the first court will have to investigate into the matter. For investigating into the matter, the primary requirement, in my opinion, would be of impleading the subsequent transferees as parties since such declaration would definitely affect their rights, omission of which has since been held to be fatal for claim of pre-emption. In Ganesh Prasad & Ors. Vs. State of Bihar & Ors., (supra), a Division Bench of this Court has held that there is no need to file a pre-emption application in respect of subsequent sale deed, if the same was not registered on the date of filing of the pre-emption application, but the subsequent purchasers are required to be added as parties. Similarly, in Sushil Kumar Choudhary & Anr. V. State of Bihar & Ors., (supra) also this Court has held that if the donee was not impleaded as a party at the authority of first instance then the pre-emption application would fail. This proposition also 15 finds support from another decision of this Court cited by the petitioners, i.e., in Abdullah Mian Vs. Jodha Raut & Ors. (1977 PLJR 371). That having not been done, merely raising a point of subsequent transfer being a sham and farzi one would not help the pre-emptor even if the original authority avoided the question of sham and farzi to be decided, by it. The Board of Revenue had found that since the subsequent transfer by gift was done merely after three days of first transaction, that itself showed the misconduct of the Petitioner No. 1, as the same was merely for the purpose of avoiding pre-emption, thus, it had declared the subsequent transfer as sham and farzi. In my opinion, the aforesaid stand taken by the revisional court is in teeth of law laid down by the Division Bench of this Court in Chandradip Singh & Anr. Vs. The Addl. Member, Board of Revenue, Bihar, Patna & Ors. (supra) as the finding has been recorded by the revisional court merely on the basis of suspicion, surmises and conjectures. There is absolutely no evidence on record indicating the subsequent transfer being farzi or sham. That apart the pre-emption proceeding suffers from the fatal defect of non-impleading the subsequent transferees as parties before the court of first instance. Subsequent addition of party of the transferees at appellate or 16 revisional stage is of no help, as has been held in Sushil Kumar Choudhary & Anr. V. State of Bihar & Ors. (supra). In Smt. Sarda Devi (supra) this Court, while taking a stand that since the subsequent transfer by way of gift was an in-house transaction with a view to defeat the claim of pre-emption and the revenue authorities having found them as sham and malafide, even though it was claimed by the purchaser that there is no such evidence on record to prove it, then there was no requirement of any interference under Article 226 of the Constitution of India, has not noticed the earlier decisions rendered by a Division Bench of this Court in Chandradip Singh & Anr. (supra). It has been held therein that merely raising suspicion with regard to farzi and sham transaction would not be sufficient. The onus would be upon the person, who claims a transaction to be farzi and sham, to prove it by leading evidence. Similarly, the Division Bench also in Rajdeo Mahto (supra) has not noticed the various previous decisions of this Court, e.g. Kuteshwar Choubey (supra), Raju Kumar Prasad & Anr. (supra) wherein it has been held that even if the document making subsequent transfer is registered after filing of pre-emption case, if executed prior to the claim of pre-emption, in such case also pre-emption would fail. Without noticing the earlier decision of the Division Bench in the case of Chandradip Singh 17 (supra) it has been held in Rajdeo Mahto (supra) that the subsequent purchaser has to prove in a particular case, wherein registration of subsequent transfer is after filing of pre-emption case, that the execution of document was actually done prior to claim of pre-emption. The ratio decidendi in the case of Rajdeo Mahto (supra) and Chandradip Singh (supra) appears to be contrary to each other as aforesaid, but as the subsequent Division Bench had not noticed the earlier Division Bench decision of this Court, thus, in my opinion, the subsequent Division Bench judgment of this Court is per inquiriam of the earlier judgment and is not a binding precedent on the aforesaid ratio, as discussed above. In this context it would be pertinent to refer to the observation of the Apex Court in Jaisri Sahu Vs. Rajdewan Dubey and Ors., (AIR 1962 SC83), which is quoted as under:- „(10) x x x x x x x x x x Law will be bereft of all its utility if it should be thrown into a state of uncertainty by reason of conflicting decisions, and it is therefore desirable that in case of difference of opinion, the question should be authoritatively settled. It sometimes happens that an earlier decision given by a Bench is not brought to the notice of a Bench hearing the same question and a contrary decision is given without reference to the 18 earlier decision. The question has also been discussed as to the correct procedure to be followed when two such conflicting decisions are placed before a later Bench. The practice in the Patna High Court appears to be that in those cases, the earlier decision is followed and not the later. In England the practice is, as noticed in the judgment in ILR (1940) Mad 454 : (AIR 1940 Mad 356) (FB) that the decision of a Court of Appeal is considered as a general rule to be binding on it. There are exceptions to it, and one of them is thus stated in Halsbury‟s Laws of England,