IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. No. 457 of 2006 Parichhan Rai S/o Late Mahabir Rai R/o Vill. Sadapur Mahua, P.O.+ P.S. Mahua, Dist. Vaishali --- Petitioner Vrs. 1. The State of Bihar 2. The Additional Member Board of Revenue, Patna 3. The Collector Vaishali 4. Land Reforms Deputy Collector, Mahua, Vaishali 5. srimati Mira Devi W/o Awadh Kumar Sinha, R/o Vill sirsha Biran P.S. Lalganj, Dist. Hazipur. 6. Dinesh Rai S/o Brahmdeo Rai R/o vill. Sadapur Mahua, P.O.+P.S. Mahua, Dist. Vaishali. ----Respondents. With C.W.J.C. No. 576 of 2006 Parichhan Rai S/o Late Mahabir Rai R/o Vill. Sadapur Mahua, P.O.+ P.s. Mahua, Dist. Vaishali ----Petitioner Vrs. 1. The State of Bihar 2. The Additional Member Board of Revenue, Bihar Patna 3. The Collector Vaishali, Hazipur 4. The Land Reforms Deputy Collector, Vaishali 5. Mahendra Prasad Yadav S/o Late Thakur Rai R/o Vill Sadapur Mahua P.O.+ P.S. Mahua, Dist. Vaishali 6. Dinesh Rai S/o Brahmdeo Rai R/o Vill. Sadapur Mahua, P.O.+ P.S. Mahua, Dist. Vaishali --- Respondents. With C.W.J.C.No. 474 of 2006 Parichhan Rai S/o Late Mahabir Rai R/o Vill. Sadapur Mahua, P.O.+ P.s. Mahua, Dist. Vaishali. --- Petitioner Vrs. 1. The State of Bihar 2. The Additional Member Board of Revenue, Patna 3. The Collector Vaishali 4. The Land Reforms Deputy Collector, Mahua 5. Chanderdip Das S/o Late Keshaw Das R/o Vill. Mukshudpur P.O. Nilkanthpur P.S.Mahua, Dist. Vaishali 2 6. Kusheshwar Rai S/o Sarjug Rai R/o vill. Sadapur Mahua, P.O.+ P.S. Mahua, Dist. Vaishali. 7. Dinesh Rai S/o Brahmdeo Rai R/o vill. Sadapur, Mahua, P.O.+P.S. Mahua, Dist. Vaishali. ---Respondents. For the Petitioners : Mr. Damodar Prasad Tiwary, Advocate. For the respondents : Mr. V.N. Sahay, Advocate. For the State : Ms Kumari Amrita, G.P.10 03 02.05.2011 All these writ petitions raise a common issue. They are directed against a common resolution dated 28.3.2005 passed by respondent Board of Revenue in Board Revision Case Nos. 239, 240 and 241 of 2004. The petitioners are the same. The vendor in all the cases is the same. At all stages, these matters were heard together. All the three writ petitions are, therefore, heard together and are being disposed of by the present order. Petitioners in all the writ petitions is pre-emptor within the meaning of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (for short the Act). He raises a grievance against the common resolution of the Board of Revenue dated 28.3.2005 as contained in Annexure-5A. For the sake of brevity, relevant facts shall be drawn from C.W.J.C. No. 457 of 2006. Background facts in a nutshell are as under:- On 6.4.2000, respondent No. 6 executed and registered three sales in respect of 3 ½ decimals, 4 ½ decimals and 4 decimals of lands all appertaining to Khata No. 325, Khesra No. 593, Chak No. 587 situated in Mauza Sadapur, Mahua in the district of Vaishali in favour of purchaser (respondent no. 5). 3 Three proceedings being L.C. Case No. 13, 14 and 15 of 2000-01 were lodged by the petitioner(s) claiming right of pre-emption in respect of three sale(s). Respondent Deputy Collector, Land Reforms heard all the matters analogously and by a common order dated 14.7.2001 (Annexures-3) rejected the claim of the pre- emption. Aggrieved by the aforesaid order, the pre-emptor-writ petitioner(s) filed three appeals being L.C. appeal Nos. 21, 22 and 23 of 2001. After hearing both the sides, the respondent Collector by a proceeding dated 20.8.2004 (Annexure-4) allowed those appeals and set aside the original order passed by the respondent D.C.L.R. In other words, the claim(s) of pre-emption raised by writ petitioner(s) in respect of all the three transactions were upheld. Aggrieved over the said order dated 20.8.2004, the purchasers (respondent No. 5) preferred three revision applications before the respondent Board of Revenue giving rise to Board Revision Case Nos. 239, 240 and 241 of 2004. Respondent No. 2, by a common resolution dated 28.3.2005(Annexure-5A), allowed all the three revision application, set aside the appellate order dated 20.8.2004 and restored the order dated 14.7.2001 (Annexure-3) passed by the original Court passaging filing of three writ petitions. I have heard learned counsel for the petitioner(s) as well as learned counsel representing the purchaser (respondent No. 5) who represents both the vendor and vendee (respondent Nos. 5 and 6). However, no counter affidavit has been filed on behalf of the contesting respondents. 4 Learned counsel for the petitioner(s), while assailing the revisional order, submits that the pre-emptor and the vendor belong to one family. Petitioner is nephew of the vendor namely Dinesh Rai. Purchaser/respondent no.5 has no land on the boundary of the vended land under the sale deed(s). The pre- emptor, on the other hand, is co-sharer of the vendor and has land adjoining to the vended land. Learned counsel for the petitioner(s) referred to and relied upon a recent judgment of the Hon’ble Apex Court rendered in the case of Suresh Prasad Singh vs. Dulhin Phulkumari Devi & Ors. since reported in 2010(2) PLJR SC 167 to submit that the right of pre-emption is a statutory right and the same has to be given effect to once it is found that the purchaser is neither co-sharer nor adjoining raiyat of the vended land/plot. Learned counsel appearing on behalf of the respondent/purchaser, on the other hand submits that although the petitioner is co-sharer of the vendor but the purchaser herself was held to be adjoining raiyat on the Northern side of the vended land having purchased the same from one Chander Devi @ Chandri Devi who had defined share in the land along with the vendor. I have heard the submissions made on behalf of the parties and perused the materials on record. It is the stand of the petitioner(s) that although the petitioner is co-sharer of the vended land and has land adjoining to the vended land but designedly he was not reflected as such in the subject sale deed in order to defeat his legal right to claim preferential right over the vended plot(s). 5 Respondent D.C.L.R. has found in his order dated 14.07.2001 (Annexure-3) that although the pre-emptors are co-sharer of the vendor and thus a co-sharer in the vended land but the purchaser herself is adjoining raiyat on the Northern side having purchased land appertaining to khata no. 325, Khesra no. 593 and Chak no.560. Respondent D.C.L.R. in view of the such claim raised on behalf of the purchaser relying on the aforesaid Chak/khata no. 560 found and held that the purchaser herself was adjoining raiyat. It appears that the preparation of chak in the name of aforesaid Chander Devi @ Chandri Devi was objected to by the petitioner before the respondent Director, Consolidation which was allowed and the name of aforesaid Chander Devi @ Chandri Devi appearing in Chak/khatiyan was directed to be deleted. Aggrieved by the aforesaid order aforesaid Chander Devi @ Chandri Devi filed a writ proceeding which was dismissed by order dated 05.04.2000 (Annexure-1). Dissatisfied with the aforesaid order aforesaid Chander Devi @ Chandri Devi filed a writ appeal being L.P.A. No. 673 of 2000 which also stood rejected by order dated 14.07.2000 (Annexure-2). Having found the aforesaid factum appearing from the record the appellate Court found and held that the pre-emptor was co-sharer as well as adjoining raiyat of the vended plot whereas the purchaser was not adjoining raiyat of the land on the Northern side having claimed acquisition from, aforesaid Chander Devi @ Chandri Devi who lost her title over the land up to writ appeal stage. In the case of Suresh Prasad Singh (Supra) Hon’ble 6 Apex Court recognizing statutory spectrum of the provision contained under Section 16(3) of the Act and referring to its earlier judgment rendered in the case of Shyam Sunder & Ors. vrs. Ram Kumar & Anr. reported in 2001 (8) SCC 24, held as under in para 13. “… Thus, even if there has been a long lapse of 19 years, the High Court could not have rejected the claim of the appellant for pre-emption when the claim was recognized by the statuete, had been lodged in accordance with the statute and within the time prescribed by the statute and in the manner provided by the statue.” If the petitioner is admittedly co-sharer of the vended land and the respondent purchaser is complete stranger having no status of co-sharership with the vendor and holder of adjoining land to the vended plot/land then the claim of pre-emption has to succeed. Respondent revisional Court, in my view, failed to keep in focus the subsequent adjudication made by the Consolidation Authority whereby Chander Devi @ Chandri Devi was not held to be owner of the land which was assailed by her in this Court unsuccessfully up to the writ appeal stage and thus erroneously restored the order of the respondent D.C.L.R. based on the chak/khatiyan which stood subsequently modified/set aside by the consolidation Authorities under Section 35 of the Bihar Consolidation of Holding and Prevention of Fragmentation Act 1956 and thereby erred in interfering with the finding(s) of fact recorded by the appellate Court in appellate order dated 20.08.2004 (Annexure-4). 7 In the result, the applications are allowed. The common resolution dated 28.03.2005 passed by respondent Additional Member, Board of Revenue is quashed and set aside and the order dated 20.08.2004 passed by respondent Collector as contained in Annexure-4 is hereby restored. There shall be no order as to costs. Sym/pkj (Kishore K. Mandal, J.)