IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.73 of 2006 1. CHIRAI DEVI, WIFE OF SHRI AWADHESH BIND 2. AWADHESH BIND, SON OF LATE SHRI AYODHYA BIND BOTH RESIDENTS OF VILLAGE & POST TELARI, P.S. CHENARI, DISTRICT ROHTAS. ----- PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE MEMBER, BOARD OF REVENUE, BIHAR, PATNA 3. THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA 4. THE DISTRICT COLLECTOR, ROHTAS AT SASARAM 5. THE ADDITIONAL COLLECTOR, ROHTAS AT SASARAM, DISTRICT ROHTAS 6. THE DEPUTY COLLECTOR, LAND REFORMS, SASARAM, DISTRICT ROHTAS 7. SHEO SHANKAR PRASAD @ SHANKER SAH, SON OF LATE SITA RAM, RESIDENT OF VILLAGE PHULWARIA, P.O. TELARI, P.S. CHENARI, DISTRICT ROHTAS 8. SHANKAR SINGH @ BHIM SINGH, SON OF LATE DEU SINGH, RESIDENT OF VILLAGE PHULWARIA, P.O. TELARI, P.S. CHENARI, DISTRICT ROHTAS. ------ RESPONDENTS For the petitioners :- Mr. Anjani Kumar Singh, Advocate Ms. Vineeta Sinha, Advocate For the Res. No. 7 :- Mr. Yugal Kishore, Sr. Advocate Mr. Dineshwar Tiwary, Advocate For the State :- Mr. O.P. Upadhyay, S.C. 2 (C) ----------- 6 15.9.2010 The petitioners are purchasers of lands appertaining to Plot No. 262, Khata No. 94 measuring 35 decimals. After the sale deed was executed and registered on 1.12.1999, the respondent no. 7 filed an application for pre-emption. The pre-emption application was allowed by the D.C.L.R. by Annexure-4 which was challenged by the petitioners before the Additional Collector where the petitioners succeeded. The order of the Additional Collector dated 20.12.2001 was challenged by the pre-emptor by filing a revision application before the Member, Board of Revenue. The stand taken by the petitioners before the D.C.L.R. was two fold. It was stated on behalf of the petitioner no. 1 that 2 her husband had purchased the lands in question in her name and her husband was a boundary raiyat to the lands purchased. The second point raised on behalf of the petitioners was that even if the Court rejects the plea that the land was held by her as a Benamidaar of her husband, she in her own right was a landless person and, therefore, entitled to argue that the pre-emption application should be dismissed. The D.C.L.R. by his order dated 27.12.2000 rejected the plea that the petitioner no. 1 was a landless person on the ground that she had not brought any material before the D.C.L.R. to indicate that she had no other land except land which is subject matter of the present dispute. The reasoning of the D.C.L.R. is defective, as once a plea is raised on behalf of a party claiming that the person concerned is landless, the onus to show that the person has other lands, would squarely file on the shoulders of the other party (in this case the pre-emptor). As such this Court cannot accept the findings given by the D.C.L.R. The Member, Board of Revenue has given a contradictory finding which is as follows: “The learned appellate court’s finding is vague and based on no reason, because O.P. No. 1 Chirai Devi is member of joint family and her husband namely Awadhesh Bind hold other land. So O.P. No. 1 (Chirai Devi) is neither landless, nor according to section 8 of Hindu Successor Act, 1956, a wife can succeed to the property of the husband’s ancestral property, if he is alive and in this case Awadhesh Bind is alive and so by virtue of 3 his ancestral land being adjoining his wife can not be treated as an adjoining tenant.” Both the statement in the aforesaid paragraph are contradictory to each other, if the Court comes to a conclusion that the petitioner no. 1 is the actual owner of the land and cannot raise the plea that she is holding the land as Benamidaar on behalf of her husband, who is boundary raiyat to the disputed land and at the same time, hold that since admittedly her husband has other property which makes him a boundary raiyat to the disputed land, she cannot be termed to be a landless person. At the same time, the Court has also found that the wife cannot be treated to be a member of the joint family as her rights in the property would accrue on the death of her husband. All these findings are contradictory to each other. Learned counsel appearing on behalf of respondent no. 7 the pre-emptor submits that the plea taken by the petitioner no. 1 contradicts her husband that she is a landless person. It is also submitted that a sale deed has been executed during the pendency of the writ application in favour of the pre-emptor, however, since he could not get possession of the lands in question, the pre- emptor has filed a Title Suit for eviction of the petitioners from the disputed lands described above. It is, therefore, submitted on behalf of the pre-emptor that the petitioners should raise all these pleas in the suit. Answering the last part of the submission, first this Court finds that the petitioners have challenged the order of the 4 Member, Board of Revenue dated 30.8.2005 in this Court by filing this writ application on 4.1.2006, any subsequent act or actions taken in pursuance of the order under challenge would be subject to the result of the writ application. Therefore, the plea of the respondent to send the entire matter for adjudication before the Civil Court, which is hearing the Title Suit has to be rejected. On the merits of the case, this Court finds that the petitioners could have taken all pleas available to her. Before this Court however, it is argued that the petitioner no. 1 is a landless person and, therefore, she is entitled to raise this plea to defeat the application filed for pre-emption. This Court finds that there is no material and in fact, no denial of the fact that petitioner no. 1 has no other land in her name except the land which is subject matter of this dispute. It is also well settled that under the Hindu Law the wife will succeed and inherent her husband’s property after his death. In the life time of her husband, the wife does not get any right to the property of her husband, unless by specific instrument the husband transfers the property to her. Under the circumstances, the Member, Board of Revenue could not have rejected the plea that the petitioner no. 1 is a landless person. The fact that protection is granted to a landless person is supported by a decision passed in the case of Jagdamba Galla Bhandar & Ors. Vs. Food Corporation of India & Ors. reported in 1997 (1) PLJR 850 wherein the Court has considered that all three parties i.e. the vendor, vendee and the pre-emptor have to be under raiyats to file a pre-emption application. It has also been held that “although the 5 right of pre-emption has been granted by statute, it is a clog on the right of a person to acquire land.” A landless person would be entitled to resist the application filed for pre-emption on the premises that it would put a fetter on his rights to acquire any property, as it may be subject for challenge by the pre-emptor. As such a landless person should not acquire land because of the statutory provision of Section 16(3) of the Bihar Land Ceiling Act. In the result, the order dated 30.8.2005, passed in Case No. 17 of 2002 is quashed. The writ application is thus, allowed. Sanjay/A.F.R. ( Sheema Ali Khan, J.)