CIVIL WRIT JURISDICTION CASE No.9285 OF 1988 *** (In the matter of an application under Articles 226 and 227 of the Constitution of India) **** 1. JAMMALLUDDIN 2. ALLAUDDIN BOTH MINOR SONS OF SAHABUDDIN UNDER THE GUARDIANSHIP OF THEIR FATHER SHRI SAHABUDDIN AND THE FATHER HAS NO ADVERSE INTEREST AGAINST THE MINOR, RESIENT OF VILLAGE MAINIDIH, POLICE STATION KATEYA, DISTRICT GOPALGANJ ……………………………………………………………………………PETITIONERS VERSUS 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA 3. THE COLLECTOR, GOPALGANJ 4. THE DEPUTY COLLECTOR LAND REFORMS, GOPALGANJ 5. GULAB SAH 6. BHOJ SAH 7. JAISHRI SAH 8. PRASURAM SAH 5 TO 8 ARE SONS OF ATAMA SAH, RESIDENT OF VILLAGE MAINIDIH KATEYA, POST OFFICE JAISAULI, POLICE STATION KATEYA, DISTRICT GOPALGANJ 9. PARASNATH SINGH, SON OF LATE KAILASHPATI SINGH, RESIDENT OF VILLAGE LAKHRAO, POST OFFICE AND POLICE STATION KATIYA, DISTRICT GOPALGANJ …………………………………………………………………………….RESPONDENTS ******** FOR THE PETITIONERS :- MR. ANSHAY BAHADUR MATHUR, ADV. MR. NITYANAND TIWARY, ADVOCATE FOR THE S T A T E :- MR. N. K. SINHA, A.A.G. X MR. MD. ANIS AKHTAR, AC TO AAG X ********** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN O R D E R Sheema Ali Khan, J. The petitioner has challenged the orders passed by the Additional Member, Board of Revenue in Revision Case No. 229 of 1987 confirming the order of the - 2 - Collector, Gopalganj contained in Annexure-2 and the order of the Deputy Collector Land Reforms, Gopalganj as contained in Annexure-1 deciding in favour of the pre- emptor 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). The petitioners purchased 7 kathas of lands of plot no. 133 and 05 dhurs of lands of plot no. 132 from one Paras Nath Singh through a registered sale deed dated 07.05.1985. The case of the petitioners is that they were minor at the time of purchase. Respondents 5 to 8 filed an application under section 16 (3) of the Act within time and paid the security amount of 10 per cent of the consideration amount. Further case of the petitioners is that they are the co-sharers of the land recorded in the name of Kudrat Mian, with respect to plot no. 130, which is in the boundary of both plot nos. 133 and 132. The said Kudrat Mian is the uncle of the petitioners. On perusal of the original sale deed produced by Mr. Mathur, this Court finds that the petitioners have been described as the vendors in the sale deed and have not been shown as minors. This Court, therefore, cannot come to the conclusion that the petitioners were minors on the date on which the sale deed was executed. Even for the sake of argument, if it is accepted that the petitioners were - 3 - minors on the date on which the sale deed was executed, it does not help their case in any manner. The Mohammedan Law does not envisage the concept of being co-sharer in a property. A joint family property of a Muslim would be divided between the brothers and children of the brothers would only inherit after the death of their father in accordance with the share granted to their father, unless the land is gifted or in some way endowed to a particular person. Therefore, the submission of the petitioners that by virtue of being a co- sharer in plot no. 130, they become the boundary raiyat of plot nos. 132 and 133 has to be rejected. Learned Counsel relies on the judgment delivered in CWJC No. 9323 of 1988, disposed of on 03rd August, 2007 where in similar facts, the matter was remanded in view of the decision rendered in the case of State of Bihar vs. K. M. Zuberi, reported in AIR 1986 Pat 166. The decision envisages that the personal law would not be taken into consideration for determining the holdings under the Act, as it was held that the minor sons of a family governed by Mohammedan Law should be equally entitled to a unit under the Ceiling Act as major sons of a family governed by Mitakshara School of Hindu Law. The Five-Judge Bench’s decision has been set aside by the Supreme Court in the case reported in 1996 (2) PLJR 55 - 4 - (SC) and as such the petitioners cannot get any benefit by virtue of the judgment delivered in CWJC No. 9323 of 1988. The second point raised on behalf of the petitioners is that the pre-emptor can only claim to be boundary raiyat over plot no. 133 by virtue of the sale deed in his favour in the year 1982. It is submitted that plot no. 132 is intervened by plot no. 133 measuring 7 kathas, which is the subject matter of the present sale deed, dated 07.05.1985. A map has been provided for the perusal of this Court which was annexed as Annexure-A before the Additional Member, Board of Revenue. The map indicates that the purchased plot no. 133 is in the boundary of plot no. 132. Therefore, by virtue of the sale deed dated 07.05.1985, the respondents would also be the boundary raiyat of plot no. 132. It may be clarified that the entire area of plot no. 132 is the subject matter of the sale deed. Considering all these aspects, this Court comes to a finding that the pre-emption application has rightly been allowed by all the three courts below. This application is accordingly dismissed. ( Sheema Ali Khan, J. ) Patna High Court Dated, the 03rd August, 2010 NAFR/ANAND