IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10902 of 2005 1. SHEOJI SINGH S/O SRI RAJNATH SINGH R/O VILL BALIGAON P.O JOBRA P.S. NOKHA, DIST. ROHTAS --- PETITIONER. Versus 1 THE STATE OF BIHAR 2 ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR PATNA 3 ADDITIONAL COLLECTOR, ROHTAS 4 DEPUTY COLLECTOR LAND REFORMS SASARAM, ROHTAS --- RESPONDENT 1ST SET 5. HARI NANDAN SINGH 6. BISHWANATH SINGH SONS OF LATE SAHDEO SINGH RESPONDENT NOS. 5 AND 6 ARE R/O VILL. NAWADIH P.O. ROPHATHA, P.S. NOKHA, DIST. ROHTAS --- RE-EMPTORS/RESPONDENTS 2ND SET 7. SIDHNATH SINGH SON OF LATE SAHDEO SINGH R/O VILL NAWADIH P.O. ROPHATHA, P.S. NOKHA, DIST. ROHTAS, A/P RESIDING AT MOHALLA SIDHNATHPURI, P.O. DALMIANAGAR, P.S. DEHRI, DIST. ROHTAS --- VENDOR/RESPONDENTS 3RD SET. For the petitioner : Mr. Rewati Kant Raman, Advocate. For the respondents : Mr. Ram Naresh Ray & Mr. Yogendra Kumar, Advocates ----------- 08 25.04.2011 In a petition under Article 226 of the Constitution of India, petitioner has questioned the sustainability of Resolution dated 30.06.2005 (Annexure-9), passed by Respondent-Addl. Member, Board of Revenue in Revision Case No. 279 of 2004, whereby the same was allowed and the appellate order dated 30.10.2004 (Annexure-7) was quashed and set aside. Relevant facts leading to the writ petition in a nutshell are as follows: According to the writ petitioner, in the year 1987, a partition amongst four sons of Sahdeo Singh had taken place. The four brothers (sons of Sahdeo Singh) were allotted separate lands. On 16.09.2003, respondent no.7(one of the sons of Sahdeo Singh) 2 sold the land (subject land) in favour of writ petitioner appertaining to khata no.71, plot nos.98 and 99 measuring an area of 1 ½ decimal and 62 ½ decimals respectively. 17 ½ decimals of land appertaining to khata no.101, plot no.146 was also conveyed in favour of the writ petitioner. All the lands situate in village Nawadih, P.S. Nokha in the district of Rohtas. On 28.11.2003 respondents 2nd set filed an application under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act,1961(for short „the Act‟) giving rise to Case No. 22 of 2003-04. Such claim was anchored on the ground/plea that the pre-emptors are co-sharers of the vendor being full brother and the sale deed itself reflects the pre- emptors as adjoining raiyat(s) of the three vended plots. On notice, writ petitioner appeared and filed reply/show cause claiming himself to be the purchaser as well as adjoining raiyat of the vended plots. It was contended that there was already partition in the family inasmuch as the sale deed itself recites that there was separation amongst four sons of Sahdeo Singh. Respondent-DCLR by a proceeding dated 13.03.2004 (Annexure- 2), allowed the claim of pre-emption raised on behalf of respondents 5 and 6. Aggrieved by the said order, the writ petitioner filed appeal being Appeal No.06/04. After hearing both sides and on a consideration of documents/materials placed before it, the Addl. Collector, by a proceeding dated 30.10.2004 (Annexure-7), allowed the appeal and set aside the order passed by Respondent-Deputy Collector, Land Reforms. Aggrieved over 3 the said order, respondents 5 and 6 (pre-emptors) filed revision before the Board of Revenue which was allowed by Resolution dated 30.06.2005 (Annexure-9) leading to filing of the present writ petition. Heard learned counsel for the petitioner and respondent nos. 5 and 6 (pre-emptors) While assailing the revisional order, it is submitted that the appellate authority having regard to materials placed on record including the sale deeds enclosed along with the present writ petition as Annexures 3, 4, 5 and 6, came to the conclusion that the purchaser/writ petitioner is himself adjoining raiyats of all the vended plots. The revisional Court erred in concluding in para 3 of the resolution that documents indicating adjacency of the purchaser in respect of all the three vended plots have not been proved. Referring to subject sale deed, it is submitted that the father of the petitioner figures as adjoining raiyat in respect of at least one of the vended plot no. 98. It is next contended that the pre-emptors have not been able to demonstrate conclusively that they being two of the four sons of Sahdeo Singh are co shares of the vended land/plots. Third brother of the pre-emptors has not joined hands in claiming right of pre-emption. The subject sale deed itself recites that there had been partition amongst the four sons of Sahdeo Singh which is also reflected from the sale deed in question wherein separate sons of late Sahdeo Singh has been indicated as adjoining raiyat of the vended plots. Petitioner being son of Raj Nath Singh ( adjoining raiyat of vended plot no.98) 4 and governed by Hindu Succession Act would be deemed to be adjoining raiyat of the vended plot no. 98. The description of boundary raiyat in respect of all the three vended plots would also indicate that they are holding lands in their own rights separately and distinctly. It is submitted that documents were filed on behalf of the writ petitioner to show that apart from the subject sale deed there were other sales taking effect between four brothers of Sahdeo Singh indicative of the fact recited in the subject sale deed that they were not living jointly and were separate by metes and bounds. Learned counsel for the respondent no.5 (pre-emptor), on the other hand, submits that the subject sale deed reflects the two sons of Sahdeo Singh (respondent nos. 5 and 6 herein) as adjoining raiyat(s) of all the vended plots. They have, thus, been recognized as adjoining raiyats of the three vended plots. It is further submitted that the purchaser has not been able to show that there was partition amongst the four sons of late Sahdeo Singh. It appears from the perusal of the appellate order (Annexure-7) that on a consideration of the case of the parties and after perusal of the documents filed in support of their respective claims the Additional Collector found, inter alia, as under:- (i) The subject sale deed itself recites about partition amongst the brothers of the vendor. (ii) The subject sale deed reflects two sons of late Sahdeo Singh (respondent nos. 5 and 6 herein) on the boundary raiyat of the vended plots. If the 5 case of the pre-emptors about jointness amongst themselves is to be accepted then the 4th brother of the vendor, namely, Ramjagi Singh has not joined hands in filing pre-emption application. (iii) Even in the sale deed the two brothers respondent nos. 5 and 6 have not jointly been reflected as adjoining raiyat(s) in respect of all the three vended plots. (iv) Diverse documents have been placed on record to show that there was inter se sale between the four brothers of the vendor. (v) The writ petitioner/purchaser based on documents of sale effected prior to the present sale in question was adjoining raiyats of all the three vended plots. The writ petitioner in the present proceeding has brought on record the sale deed executed on 14.04.1975(Annexure-3) in respect of plot no.88 which was purchased by the grand father of the purchaser/writ petitioner. The said plot no. 88 is adjoining East to vended plot no. 98. The father of the writ petitioner/purchaser had also purchased 97 decimals of land appertaining to plot no. 51 on 25.10.1980 by a sale deed (Annexure-4) which lie on the Southern boundary of vended plot no. 99. Similarly the lands appertaining to plot nos. 52, 99 and 73 measuring an area of 13 decimals, 6 ½ decimals and 57 decimals respectively were purchased by the father of the writ petitioner by a sale deed 6 registered on 17.02.1981 (Annexure-5). Plot nos. 52 is adjacent/adjoining to vended plot no. 99. It further appears therefrom that part of vended plot no. 99 measuring an area of 6 ½ decimals was purchased by the father of the writ petitioner. Petitioner being the son and governed by Mitakashara law will be treated as coparcener or co raiyat in respect of the land purchased in the name of his father namely Rajnath Singh. The claim of adjacency of plot nos. 88, 51 and 52 of the writ petitioner has been denied in paragraph nos. 21, 22 and 23 of the Counter affidavit filed on behalf of respondent no.6. However, there is no denial of the fact that father of the writ petitioner by sale deed dated 17.02.1981 (Annexure-5) had purchased at least 6 ½ decimals of land appertaining to plot no. 99 part of which vended under the subject sale deed. Nothing has been demonstrated on behalf of the respondents that the father of the petitioner became owner of part of vended plot no. 99 and thus became adjoining raiyat and/or co sharer in the said plot. It is already seen from para 5 of the writ petition that both the parties are descendents of common ancestors, namely, Bariyar Singh. If the purchasers themselves are adjoining raiyat of vended plot then they can defeat the claim of pre-emption which is a clog on the right to acquire land/property and thus a weak right. The Court of law cannot be oblivious of the fact that the purchaser has paid the consideration money for the purchase of land. The sale deed (Annexure-10 to the rejoinder to the counter affidavit) itself indicates the father of the petitioner as adjoining 7 raiyat in respect of vended plot no. 98. There is nothing on record to indicate that there has been partition between the petitioner and his father. Petitioner/purchaser in such circumstance can be held to be adjoining raiyat in respect of at least one of the vended plots from the subject sale deed itself. A learned Single Judge of this Court had an occasion to deal with similar facts situation in Arjun Singh & ors. (in both) v. the State of Bihar & ors. (in both) since reported in 2009(2) PLJR 964. Scanning different pronouncements on the said issue including the ratio laid down in Ram Chabila Singh (supra) learned Single Judge observed as under in para 8:- “8. That apart the right of pre-emption is a weak right and if at all the purchasers could have been unsettled by pre-emptor respondent no.5 the same was to be based on a case to be established by the pre-emptor to the extent that not only the pre- emptor in order to succeed himself proves that he is either co-sharer or the transferor or adjoining raiyat of all plots he had also to prove the purchaser is neither co-sharer nor adjoining raiyat of the land in question. As a matter for fact, this aspect of the matter has been gone into by the Division Bench of this Court in the case of Ram Chabila Singh and Another vs. Ramsagar Singh & others reported in 1968 PLJR 279 wherein it was held that if the pre- emptor happens to be adjoining raiyat in respect of some of the plots, he cannot claim any right of pre- emption under Section 16(3) of the Act. The whole issue in fact has again been examined by this court in the case of Ram Pravesh Singh vs. Addl. Member, Board of Revenue & Ors. reported in 1995(1) 764 where law has been laid down after taking into account not only the judgment of the Apex Court in the case of Bombay Dyeing & Manufacturing Company Ltd. Vs. The State of Bombay & Others reported in 1958 SC 328 and two Division Bench judgments i.e. 1971 Patna 302 and Ram Chabila Singh ( Supra) to the extent that nature of the right of pre-emptor under the Act is a weak right and thus the pre-emptor in order to succeed must make out a fool proof case. The 8 transferee in fact needs only a loophole in the case of pre-emptor and thus the purchaser i.e. transferee and pre-emptor do not stand on the same footing. Therefore where as pre-emptor in order to claim pre-emption must establish that he is either co- sharer or adjoining raiyat of all the plots, where the land comprises of more than one plot, the transferee is not required to do so. The transferee on the other hand may successfully resist the claim of the pre- emption if he is able to show that he is an adjoining raiyat in some of the plot, even one of them and he cannot therefore be made to re-convey those plots except where the transfer of other plots can be identified as separate transaction.” In the backdrop of these conclusions appearing from the record and the law on the subject, this Court disagrees with the findings/conclusion recorded by the revisional Court in para 3 of the order dated 30.06.2005 (Annexure-9) that the pre-emptor has failed to prove his status as boundary raiyat with respect to any of the vended plots. The appellate Court considered the documents of title produced on behalf of the petitioner in respect of adjoining plot nos. 88, 51, 52 in the light of survey map of the concerned Mouza and thereafter concluded that the purchaser himself was adjoining raiyat in respect of the vended plots namely, plot nos. 98, 99 and 146. It has also considered the concept of coparcenery in a joint Hindu family in order to hold that the petitioner/purchaser is a raiyat and holds land adjacent/adjoining to vended plots although purchased in the name of father. At the cost of repetition, this Court reiterates that no argument has made on behalf of the parties with regard to separation amongst the father and his four sons one of them being the writ petitioner. In view of my discussions made hereinabove and for the 9 reasons recorded above, the application is allowed. The resolution dated 30.06.2005 passed by the Additional Member, Board of Revenue, Bihar Patna in Ceiling Revision no. 279 of 2004 as contained in Annexure-9 is quashed and set aside and order dated 30.10.2004 passed by the Additional Collector, Rohtas at Sasaram in Pre-emption appeal case no. 6 of 2004 as contained in Annexure-7 is hereby restored. There shall be no order as to costs. Sym/hr (Kishore K. Mandal, J.)