Letters Patent Appeal No.87 OF 2001 Against the order dated 6.5.1999 passed by a learned Single Judge in C.W.J.C.No.6672 of 1990. ---- SHEODAN MISHRA son of Ram Awadh Mishra, R/O village-Puraina, P.s.Bijayeepur,District-Gopalganj (Appellant) Versus 1(a). Bachhi Devi D/O Late Satya Narayan Dutta Thakur, W/O Gorakh Tiwary, R/O village Mathnia P.O. Gurwalia Distt-Kushi Nagar, Presently R/O Puraina, P.O.Maheshpur, P.S. Bijayeepur,Dist-Gopalganj, 1(b). Bimla Devi D/O Satya Narayan Dutta Thakur, W/O Hira Sharma of village Mahrauli P.O.Pihare P.S., Panupur, Dist Azamgarh, U.P, 1©. Urmila Devi D/W Late S.N.D.Thakur, W/O Shrikant Sharma of village-Mednapur P.s.Rudrapur, Distt-Deoriya, U.P. 1(d). Madhuri Devi D/W/ Late S.N.D.Thakur, W/O Hari Shankar Sharma, R/O Sukwatia, P.S.Sikriganj, Distt-Gorakhpur, U.P 1(e). Bishnu Dutta Sharma 1(f). Krishna Dutta Sharma, both sons of Late S.N.D.Thakur, of village Puraina, P.O.Maheshpur, Disttt-Gopalganj(Bihar) 2. Ram Das Bhagat S/o Late Bhrigurasan Bhagat 3. Dhananjy Bhagat S/o Bhrigunasan Bhagat 4. Rajmasti Devi, wife of Shri Gulab Bhagat, d/O Late Bhrigurasan Bhagat, 5. Pana Devi W/O Ram Bharose Bhagat, D/o Bhrigurasan Bhagat, R/O Paina, Distt-Deoriya, U.P. 6. Kusum Devi W/o Gopal Bhagat, D/o Late Bhrigurasan Bhagat, R/O village Paina, Deoriya,U.P 7. Mukhtan Mishra 8. Chandrika Mishra both sons of Late Ram Awadh Mishra, R/o village Puraina, P. S.Bijayeepur, Distt-Gopalganj 9. Karati Devi 2 10. Fulavati Devi both daughters of late Ram Awadh Mishra, R/O village Puraina, Distt-Gopalganj 11. Land Reform Deputy Collector, Gopalganj 12. Additional Member, Board of Revenue, Bihar, Patna 13. The State of Bihar…… -------- Respondents For the appellant : Mr.Ravi Shankar Dvivedi For respondent no.1 : Mr. Kumar Uday Singh P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE JYOTI SARAN ------- S.K.Katriar Jyoti Saran,JJ. The pre-emptor has preferred this appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna, and is aggrieved by the order dated 6.5.1999, passed by a learned Single Judge of this Court in C.W.J.C.No.6672 of 1990 (Satyanarayan Dutta Thakur Vs. Sheodan Mishra and others), whereby the writ petition preferred by the vendee (Respondent no.1 herein) has been allowed, and the claim of the pre-emptor (appellant herein) for pre-emption within the meaning of 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‟), has been negatived. 2. The brief statement of facts essential for disposal of the appeal may be indicated. Respondent 3 No.1 herein purchased the plot of land in question by sale deed executed in his favour on 29.8.1978, and registered on 15.9.1979. The description of the land as appearing in the pleadings of the parties is as follows: “The matter arises out of a ceiling proceeding initiated with respect to 3 katha and 15 dhurs lands out of Plot No.551, Khata No.14 of Village Puraina, P.S.Bijayeepur, District-Gopalganj. Admittedly, the sid lands belonged to respondent nos.2 and 3.” 3. The appellant herein filed an application under Section 16(3) of the Act claiming right of pre-emption with respect to the vended plot which was registered on 15.9.1979. The petitioner‟s application was allowed by order dated 1.12.1981 (Annexure-1 to the writ petition, passed by the learned Land Reform Deputy Collector, Gopalganj. Aggrieved by this order, the purchaser (Respondent No.1 herein) preferred appeal bearing L.C.A.Case No.58 of 1981-82, which was allowed by order dated 1.9.1989 (Annexure-3 to the writ petition), passed by the learned Additional Collector, Gopalganj. It was now the turn of the pre-emptor to file revision application which was registered as Revision Case No.497 of 1989 (Sheodan Mishra Vs. Satya Narain Dutta Thakur), and was allowed by order dated 4 28.6.1990 (Annexure -4 to the writ petition,) passed by the learned Additional Member, Board of Revenue, Bihar, Patna. Aggrieved by this order, the purchaser then preferred C.W.J.C.No.6672 of 1990 (Satya Narain Dutta Thakur Vs. Sheodan Mishra and others), which was allowed by the impugned order, whereby the learned Single Judge observed that the nature and character of user of the land in question has changed, has ceased to be agricultural land and now the purchaser has constructed his house thereupon. It has further been held that other persons have also constructed their houses on the adjoining plots. Hence this appeal at the instance of the pre-emptor. 4. The learned counsel for the appellant (the pre-emptor) raises a grievance that the appellant is admittedly a boundary raiyat from two sides of the land in question and it has now been consistently held by the learned authorities below that respondent No.1 (the purchaser) is neither a co-sharer, nor an adjoining raiyat. In other words, in his submission, he has clearly established his right of pre-emption. He next submitted that the change of character or user of the land has to be determined as on the date of pre-emption application. It is then submitted that 5 the learned Single Judge has recorded the finding regarding the change of nature, character, and user of the land without any solid basis and without any material before him. In his submission, the learned Single Judge has recorded the finding on the sole basis of the submission of the learned counsel for the purchaser. He relied on the judgment of the Full Bench of this Court in the case of Ram Chandra Srivastava Vrs. Prasidh Narain Singh AIR 1971 Patna 302. He lastly submits that it is evident from the photographs of the land in question placed on record that there is no construction on the plot and continues to be fallow land. 5. Learned counsel for Respondent No.1 submits that the appeal is hopelessly barred by limitation. He has also made submissions on the merits of the case. 6. We shall first deal with the submission advanced on behalf of respondent no.1 regarding limitation. A Division Bench of this Court admitted this appeal by order dated 6.2.2001 and passed the following orders: “The appeal is barred by limitation. After having heard learned counsel for the appellant and taking into consideration the facts and circumstances mentioned in the limitation petition, the delay in filing the appeal is restored, subject to any objection that may be 6 raised by the other side on their appearance. The limitation petition, accordingly, stands disposed of. This appeal will be heard. Issue notice to respondents no.1 to 3 on Talbana etc being filed within one week, failing which, this appeal as against them, shall stand dismissed without further reference to a Bench.” 7. Learned counsel for respondent No.1, is therefore, entirely correct in his submission that the question of limitation is still at large in a situation whereby the order dated 6.2.2001 was passed in his absence. 8. We have perused the materials on record and considered the submission of learned counsel for the parties. The order of the learned Single Judge is dated 6.5.1999, and the present appeal was filed on 30.1.2001. There was thus a delay of one year and eight months in filing the appeal. In his pleadings, learned counsel for the appellant has tried to explain the same by stating that the appellant was not aware of the order on the writ petition. He learnt of the result of the writ petition by circulation of the rumours in the village and rushed to his lawyer in Patna, who was unable to explain his failure to inform him. The issue is not free from difficulties and it is a possible situation that the learned counsel for the 7 pre-emptor in the writ petition may not have informed him resulting in the delay in filing the appeal. However, it is equally a possible situation that the appellant‟s plea may be an after-thought. 9. We would, however, prefer to hold that the delay is not properly explained in a situation where respondent No.1 is armed with a registered sale deed. Furthermore, we would, in case of doubt on difficulty, prefer to lean in favour of the purchaser, who has on merit put forth a valid purpose. Construction of a house on an agricultural plot of land is not prohibited. We, therefore, prefer to dismiss the appeal on the ground of limitation. In that view of the matter, we do not wish to examine the remaining questions raised at the Bar. The purchaser has been subjected to harassment as the matter which commenced on 29.8.1978, has passed through a series of litigations 10. The appeal is dismissed. (S.K.Katriar,J.) (Jyoti Saran,J.) Patna High Court, Dated, the 19th August, 2009 NAFR/ ahk