IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1116 of 2009 RAN VIJAY KUMAR, SON OF SRI RAM KRISHNA SINGH, RESISDENT OF VILLAGE-OJHA BIGHA, POICE STATION-KALER, DISTRICT-ARWAL. .......... RESPONDENT/APPELLANT. Versus 1. THE STATE OF BIHAR. 2. THE ADDL. MEMBER, BOARD OF REVENUE, BIHAR,PATNA. 3. THE DISTRICT COLECTOR, JEHANABAD (NOW ARWAL). 4. THE SUB DIVISIONAL OFFICER, ARWAL, DISTRICT-ARWAL. ........... RESPONDENTS/RESPONDENTS-1ST SET. 5. JWALA PRASAD SINGH, SONE OF SRI CHHOTE NARAYAN SINGH, RESIDENT OF VILLAGE MAINPURA, CHANDA, P.S. MEHANDIA, DISTRICT- ARWAL. .........RESPONDENT/RESPONDENT-2ND SET. 6. KUMARI MANORAMA SINHA, WIFE OF SRI RAMESH PRASAD SINGH. 7. SRI RAMESH PRASAD SINGH, SON OF RAM EKBAL SINGH. 8. ALOK KUMAR, UNDER THE GUARDIANSHIP OF HIS FATHER SRI RAMESH PRASAD SINGH. 9. VIVEK KUMAR, UNDER THE GUARDIANSHIP OF HIS FATHER SRI RAMESH PRASAD SINGH. 10. SAURABH KUMAR, UNDER THE GUARDIANSHIP OF HIS FATHER SRI RAMESH PRASAD SINGH. ALL NOS. 6 TO 10 ARE RESIDENT OF VILLAGE OJHA BIGHA, POLICE STATION KALER, DISTRICT- ARWAL. ........... PETITIONERS/RESPONDENTS. For the appellant: Mr. Bindhyachal Singh and Mr. Umesh Kumar. For the respondent 1st set: Mr. O.P. Upadhyay (S.C(c)2). For the petitioners/respondents: Mr. Hemendra Prasad Singh, Mr. Dr. Mritunjay Kr. Gautam and Mr. Ram Naresh Roy. ----------- 03/ 03.01.2011 Heard Mr. Bindhyachal Singh, learned counsel for the appellant and Mr. Hemendra Prasad Singh, learned counsel for the respondent-writ petitioners. 2 This appeal arises out of judgment and order dated 28.07.2009 in C.W.J.C No. 48 of 2003, whereby and whereunder, the learned Single Judge has set aside the impugned order passed by the Additional Member, Board of Revenue, in pre-emption case no. 144 of 2001. The facts, which are not in dispute and would be sufficient to dispose of this writ application, lie in a very narrow compass. By a sale deed dated 24.05.2000, the respondent-writ petitioners had purchased 23 decimals of land of plot no. 2865, 2454, 1149 and 2452 in which the appellant was shown to be the boundary raiyat on the North, East and West side leaving only the south side in the name of one Sarwa Singh. The sale deed dated 24.05.2000 having been registered on 29.05.2000, an application for pre-emption under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961, (hereinafter referred to as ‘the Act’) was filed by the appellant on 20.06.2000 3 claiming pre-emption on the basis of being adjoining raiyat. It appears, that the after the notices of the said pre-emption application was served on the respondents- purchaser-writ petitioners, on 23.06.2000, she had transferred the land by a deed of gift in the name of her minor sons on 27.06.2000, wherein, 21½ decimals were sought to be gifted by the respondent-writ petitioners in the name of her minor sons under the guardianship of her husband, the father of the minors. Having done so and upon registration of gift of deed on 27.06.2000, she had appeared before the Collector under the Act, namely, S.D.O Jehanabad on 07.07.2000 and had taken a plea of she being no longer owner of the land against whom the right of pre-emption would be enforced by the appellant- pre-emptor. The D.C.L.R vide his order dated 26.07.2000 had dismissed the pre-emption application on the ground that since, both the appellant and the respondent-writ petitioners had purchased the land of the same plots and in fact of an equal area on the same day, they could not be held to adjoining raiyat to 4 each other and further that the respondent- writ petitioners having parted her rights by way of conveying the land through her deed of gift to her minors and that too for 21½ decimals could not have been subjected to an order of pre-emption. The said order of the D.C.L.R. was made subject matter of appeal at the instance of purchaser appellant and the Appellate Authority also by his order dated 07.07.2001 had dismissed the appeal primarily on the ground of respondent-writ petitioners ceasing to have any interest in the land after its being gifted to her minor sons. Both the orders passed by the original authority and the Appellate Authority dated 26.07.2000 and 07.07.2001 were made subject matter of a revision application under section 32 of the Act and the Additional Member, Board of Revenue, the revisional authority had allowed the revision by setting aside the orders dated 26.07.2000 and 07.07.2001, recording that the deed of gift was a sham and farzi transaction and in fact the pre-emption application was fit to be allowed. It was against this order of the Additional Member, 5 Board of Revenue dated 01.11.2002, in pre- emption case no. 144 of 20001 that the connected writ application C.W.J.C. No. 48 of 2003 was filed by the respondent-writ petitioners, the purchaser. The learned Single Judge on the basis of his detailed analysis had set aside the order of the Additional Member, Board of Revenue and in the operative portion it was held that the right of pre-emption of the appellant pre- emptor was defeated due to incurable defect in the proceeding before the original authority of not impleading the second/subsequent transferees as parties before the Court of first instance and also for the reason that as a result of subsequent transfer by way of gift of the part of purchased property no right of pre- emption had remained available upon remaining part thereof. Mr. Bindhyachal Singh, learned counsel appearing on behalf of the appellant- pre- emptor has submitted that clear definition of family under section 2(ee) and the definition of minor under section 2(eee) of the Act would leave 6 nothing for speculation that once both the father and mother were party to the proceedings, the issue of impleadment of minors, the subsequent transferees could not have outweighed the requirement of law, wherein, if on the date of registration of sale deed a co-sharer/adjoining raiyat to the plot conveyed/transferred has proved his being in existing raiyat. To that extent, he has also canvassed that the deed of gift in fact, was a sham and farzi transaction, and it was also noted by the first authority in holding that the stamp papers which were used for conveying the deed of gift were actually first used by the respondent-writ petitioners in a transaction with bank but subsequently by getting the same antedated through her stamp vendor, it was used for creating a deed of gift. Mr. Singh, therefore, proceeds that either of the two reasons on which the learned Single Judge had allowed the writ petition by setting aside the order of Additional Member, Board of Revenue cannot be sustained in law, especially when the deed of gift itself was a sham and farzi transaction and parting 7 with 21½ decimals of 23 decimals of land by the mother, the writ petitioner to her minor sons was a clear ploy to frustrate the object of section 16 of the Act. Mr. Hemendra Prasad Singh, on the other hand while supporting the judgment of the learned Single Judge has concentrated on the issue that the appellant, the pre- emptor was in fact not an adjoining raiyat and in fact he had no piece of land in any of the boundary on the date the land was conveyed by Jwala Prasad Singh to the appellant- pre- emptor. In this context, he has tried to draw strength from findings recorded by the first authority and has impressed upon us that since this finding was never upset either by the Appellate Authority or by the revisional authority, it must be presumed that the finding of the appellant being not an adjoining raiyat is concluded question of fact. In our considered opinion, when the sale deed by itself having given the description of all the four plots together mentions the existence of the appellant- pre- emptor in three sides, namely, in 8 North, East and West, nothing more was required to be gone into on this issue as has been noted by the Additional Member, Board of Revenue in his revisional order. The pleadings also in this respect as can be culled out from the writ petition is quite clear, wherein, the respondent-writ petitioners did not question the recording of fact by the Additional Member, Board of Revenue while assailing his order. That apart we have ourselves gone into the issue of findings recorded by the first authority, namely, the S.D.O Jehanabad and we find that he has somehow ignored to look into the schedule appended to the pre-emption application filed by the appellant- pre- emptor. In this schedule, it has been clearly mentioned that apart from 23 decimals of the four plots purchased by the appellant, he had already 30 decimals of land in Khata No. 71, plot no. 2865, 72 decimals in plot no. 1148 and 2½ bighas in plot no. 2448. The area for which the pre- emption was being claimed was only 23 decimals and therefore we would find no difficulty in rejecting that part of the 9 submission of Mr. Hemendra Prasad Singh that by virtue of sale deeds of the same day both in the name of the appellant as also in the name of the respondent- writ petitioners, they had become adjoining raiyat to each other, rahter the plea of existence of the three plot no. 2865 , 1148 and 2448 as clearly mentioned in the pre-emption application and also supported in the sale deed itself was sufficient to show that the appellant was an adjoining raiyat to the plots conveyed to the writ petitioners. This issue in fact, of the appellant being not adjoining raiyat was never raised by the respondent- writ petitioners in the writ application and therefore, the learned Single Judge has also not gone into this aspect. The next submission that the pre- emption application filed by the appellant had to fail on account of subsequent transfer by deed of gift would again require a consideration from the angle as to whether the absence of the minors being impleaded as party to the proceedings has prejudiced them in any manner. As has been noted above it 10 was during the pendency of the pre-emption application that the deed of gift was registered on 27.06.2000 and thereafter, the objection was raised by respondent-writ petitioners, purchaser on 10.07.2000 that she had already alienated her interest by way of deed of gift in the name of her minor sons. In that view of the matter, if the definition of family is examined it would be found that the same is an inclusive definition and includes a person, his or her spouse and minor children. Obviusly, when the mother, the purchaser had transferred the land in question by creating a deed of gift to her own minor children, she still remains the part of the family. The minors in fact on the date of registration of deed of gift on 27.06.2000, which was subsequent to the filing of the pre-emption application dated 20.06.2000, were therefore still represented by the mother who was not an alien and in fact covered by the definition of family. The whole aspect can be looked into from another angle, inasmuch as, the father who was shown to be the natural guardian in 11 the deed of gift created by the mother, the respondent-writ petitioner, was subsequently added as a party, of course at revisional stage. If the father had also therefore been party to the proceedings, the minors interest was well protected and thereafter the Additional Member, Board of Revenue was quite justified in going to the issue of validity of the deed of gift. Once the validity of the deed of gift was gone into by the Additional Member, Board of Revenue, his finding cannot be said to be perverse, inasmuch as, as has been noted above on 29.05.2000, the sale deed in favour of the respondent-writ petitioner was registered and on 02.06.2000, she is said to have given any gift to her minor children by showing them to be under the guardianship of her husband, i.e the father of the minors. It is about this stamp paper of deed of gift that even the first authority had found that it was a procured document in fact having been taken out of the bank where it was earlier deposited by the respondent-writ petitioner and later on used it by antedating through the help of stamp vendor. 12 The cancellation of licence of the stamp vendor, therefore, would go a long way to show that this deed gift was created only in order to defeat the pre-emption application already filed by the appellant even before its being registered on 27.06.2000. Once we come to this conclusion that there was something fishy about creation of deed of gift, rest of the case of the respondent- writ petitioner becomes absolutely invulnerable, inasmuch as, it is found that she had retained 1½ decimals of 23 decimals and had transferred the ownership of remaining 21½ decimals from portion in which the appellant had been shown to be in the area of plot no. 2865, whereas, shown about he had already 30 decimals of land even before execution of the sale deed. Mr. Hemendra Prasad Singh, however, was still emphatic that in order to justify the claim of pre-emption, the pre-emptor has to have land in all the adjoining plots conveyed in the sale deed and therefore, this issue has to be gone into by way of leading of evidence and since that was not done by the appellant before the first 13 authority and the findings recorded by the first authority was also not specifically assailed before the Appellate Authority or revisional authority, it has to be held that the appellant was/is not an adjoining raiyat. As we have noted above, at least the sale deed in question clearly shows the appellant to be a boundary raiyat in three sides but since the first authority having held the application of pre-emption not to be in prescribed proforma had also gone to record that both the appellant and the respondent-writ petitioner became the adjoining raiyat to each other and had an equal right, this issue would require reconsideration. We must make it clear that the evidence on the issue of adjoining raiyat has to be led by both the parties and not only by the pre-emptor alone. In fact, the moment the purchaser comes out to defeat the sale deed, he will also have to show that the pre-emptor is not a boundary raiyat. Next issue as with regard to part pre-emption, we must record that it will be entirely depend on the inquiry as with 14 regard to the validity of the gift of deed. In such inquiry, it will have to be gone into as to whether it was sham and farzi transaction created by the respondent-writ petitioner in order to defeat pre-emption. Nothing of this sort also has been done in detail and though the first authority had put a question mark on the creation of deed of gift by use of same stamp paper after its being taken away from the bank antedating by the stamp vendor no clear finding has been recorded even in this regard. In that view of the matter, we would find it necessary to remit the matter back to the original authority who would now go into both the questions, namely, (i) Whether the appellant-pre- emptor is adjoining raiyat of the plots in question conveyed to the respondent- writ petitioner by Jwala Prasad Singh, respondent no. 5 to this application. (ii) Whether the deed of gift dated 02.06.2000 registered on 27.06.2000 is a farzi or a sham transaction. We accordingly allow this appeal and set aside the order of the learned 15 Single Judge and remit the matter back to the Sub-divisional Officer, Jehanabad who would now decide the issue afresh without being influenced by any observation and findings recorded by any of the authority and the learned Single Judge of this Court. Ranjan/ Surendra (T. Meena Kumari,J) (Mihir Kumar Jha,J)