IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7702 of 2003 ANIRUDH SHARMA, son of Jagannath Singh, resident of Village – Jarang Rampur, P.S. Vaishali, District – Vaishali ……….. (Purchaser) – Petitioner. Versus 1. STATE OF BIHAR through Collector, Vaishali, 2. D.C.L.R., Vaishali at Hajipur, 3. Sheo Chandra Mishra, son of Late Lakhan Mishra, resident of Village – Sihma Kanth, P.S. Vaishali, District – Vaishali, 4. Sardev Mishra, son of Gopalji Mishra, resident of Village - Sihma Kanth, P.S. Vaishali, District – Vaishali, and 5. Addl. Member, Board of Revenue, Bihar, Patna. …… Respondents. ----------- For the Petitioner:- Mr. Shirinandan Prasad Singh and Mr. Ashok Kumar No. 1, Advocates. For the State:- Ms. Kumari Amrita, S.C. - I © and Mr. Mirtunjay Kumar, JC to S.C. - I (C). For Respondent No. 3:-Mr. S.C.P. Sinha and Mr. Ratan Kumar Sinha, Advocates. ---------- 5. 19.08.2009. Petitioner seeks quashing of the order dated 28.02.2003 passed by the Addl. Member, Board of Revenue, Bihar, Patna, Respondent No. 5 in Ceiling (Pre-emption) Revision No. 219/2001, as contained in Annexure-4, whereby the revisional authority has set aside the appellate order passed by the Collector, Vaishali and confirmed the order passed by the Deputy Collector Land Reforms, Vaishali at Hajipur. Bereft of unnecessary details, short facts of this case are portrayed as follows:- Petitioner purchased 8 decimals of land appertaining to Khata No. 30, Khesra No. 636 of Mauza 2 – Sihma Kanth from Respondent No. 4 by a registered sale deed dated 10.01.1995. Respondent No. 3 filed a petition under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to be as `the Act’) claiming right of pre-emption thereupon. Claim of Respondent no. 3 was that prior to the aforesaid transaction, he had purchased 8 decimals of land from one Havildar Mishra, S/o Mahavir Mishra (the recorded tenant) on 18.01.1994 being part of Plot No. 636 appertaining to Khata No. 30. Subsequently, by two sale deeds, the Respondent No. 3 again purchased 12 dhurs of the same very Plot No. 636. Thus, the claim was that on purchasing a part of Plot No. 636 prior to the transaction under pre-emption, the Respondent No. 3 came into the boundary of the purchased plot. The petitioner appeared and filed an objection to the aforesaid application specifically raising a point that on 08.04.1999 the purchaser had already transferred 5 decimals of land in favour of Raghunath Mishra and Jaglal Mishra, S/o Late Basawan Mishra for valuable consideration and, as such, the right of pre-emption, which is a weak right, gets 3 defeated as the subsequent transferees were not impleaded as parties in the pre-emption case. This was also the contention of the purchaser before the authority at first instance that a part of the plot having already been transferred, no pre-emption could be allowed for remaining part of the land as there was no concept of allowing the claim of pre-emption in part in law. Respondent no. 2 decided the matter in favour of Respondent no. 3 upholding him admittedly to be in the boundary of the land in dispute and declaring that the subsequent transfer was made after filing the pre- emption application and with the purpose to defeat the process already initiated and, thus, the same could not be taken into account. The petitioner preferred an appeal against the aforesaid order passed by the Respondent No. 2, which was allowed, and the order passed by the Deputy Collector Land Reforms was set aside holding that in the adjacent plots of the plot in question there were houses and in the western side of the land, there was a road. Thus, it could be safely inferred that the land in question was a residential land. In such cases, provisions of the Act would not be attracted. 4 Respondent No. 3 filed a Revision before the Board of Revenue. The Board of Revenue noticed that the Respondent No. 3 is admittedly in the boundary of the purchased land and after rejecting the prayer of the petitioner with regard to the subsequent transfer on the ground that the same having taken place after filing of the pre-emption application would be in teeth of the principle of lis pendense. It had also held that there was nothing on record to show that the land transferred was a residential plot and would be, thus, outside the purview of the definition of land under Section 2(f) of the Act. Thus, it had set aside the appellate order and upheld the order passed by the authority at the first instance. I have heard learned counsel for the petitioner, learned counsel appearing on behalf of the State and learned counsel for the respondent no. 3. None appeared on behalf of the Respondent no. 4 despite valid service of notice upon him. Learned counsel for the petitioner submitted that the petitioner had purchased a small piece of land for construction of a house thereupon which stood encircled by several plots in which residential houses had been 5 constructed and at one side of the plot, there was a road. Thus, the land concerned was outside the scope and sweep of the Act as the same did not fall within the definition of land under Section 2(f) of the Act. To substantiate his claim, the petitioner had appended an agreement for sale purported to be entered upon by him and the subsequent purchaser, Raghunath Mishra, to whom he had ultimately sold the land. It had been stated therein that Raghunath Mishra desired to purchase the land for the purpose of construction of a house thereupon. In support of his aforesaid submission, learned counsel for the petitioner placed reliance upon a decision of this Court rendered in Deonarain Roy Vs. State of Bihar & Ors., (AIR 1996 Patna 145). However, learned counsel for the petitioner fairly conceded that the subsequent transaction would be hit by the principle of lis pendense as had been laid down by the Ranchi Bench of this Court in Charku Ram Vs. The State of Bihar & Ors., [1998 (3) PLJR 756]. Learned counsel for the respondent no. 3 contended that there was nothing on record to show that 6 the plot in question was a residential plot. In fact, he himself had purchased more than 10 decimals of land, which was being used for agricultural purposes. The statement that the land was purchased for residential purpose is completely missing in the sale deed under the claim of pre-emption. Admittedly, the plot was a vacant land and only for the reason that a road passed beside, it could not be inferred that it was a residential plot. In the absence of any material on record to show that the particular piece of land was out of the purview of the land as per Section 2(f) of the Act, it could not be presumed to be a residential plot. With respect to the deed of agreement, as contained in Annexure-1, it was contended that the same had been executed in favour of a person, who was a witness to the sale deed and it being a subsequent document after execution of the sale deed in question, it could be safely construed to be an afterthought. According to the aforesaid respondent, admittedly he was in the boundary and the subsequent sale was admittedly in teeth of the principle of lis pendense. Thus, there was no need to implead the subsequent transferee in the proceeding concerned. 7 I find substance in the submissions raised on behalf of the respondent no. 3. Admittedly, the respondent no. 3 is the adjoining raiyat. It is also admitted that the subsequent transfer was made after filing of the pre-emption application and now it has been admitted even by the petitioner also that the same would be hit by the principle of list pendense. Once that is accepted to be so, there would be no need for impleading the subsequent transferee. Thus, this Court is also of the same view as has been taken in Charku Ram (supra). So far the question as to whether the plot was a residential plot or not, the petitioner has placed reliance upon a decision of this Court in Md. Yusuf Vs. The Member, Board of Revenue & Ors, [AIR 1973 Patna 97 (V 60 C 387)]. However, in that case, admittedly, the transferred property was a homestead which was held not to be a homestead of the landholder. Thus, the Division Bench of this Court has held that the homestead not being homestead of the landholder would be out of the purview of the definition of land under Section 2(f) of the Act. In Deonarain Roy (supra), the property was 8 homestead and the fact that the purchase was for construction of Dalan was not disputed whereas in the present case admittedly the land under purchase is a vacant land and it has been held by the revisional court that there is nothing on record to show that it is a residential plot. Thus, the aforesaid decisions of this Court would not be applicable in the present case. As a result, it is held that the decision taken by the authority at first instance as well as the revisional authority is in conformity with the law laid down in this regard, as has been mentioned above. As a result, this writ application fails and the same is dismissed. dk ( Dr. Ravi Ranjan, J. )