IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12179 of 2004 1. BISHWANATH YADAV 2. MANOJ YADAV, BOTH SONS OF SARJU YADAV, RESIDENTS OF VILLAGE- ALAMPUR, P.S. SHEO SAGAR, ROHTAS …PETITIONERS Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER BOARD OF REVENUE, BIHAR PATNA 3. THE ADDITIONAL COLLECTOR, ROHTAS AT SASARAM 4. THE DEPUTY COLLECTOR, LAND REFORMS, ROHTAS AT SASARAM 5. SURAJ SAH SON OF LATE BUDHAN SAH, RESIDENT OF VILLAGE ALAMPUR P.S. SHEOSAGAR DISTRICT ROHTAS 6. LALLU SAH SON OF LATE BANDHU SAH RESIDENT OF VILLATE ALAMPUR P.S. SHEOSAGAR DISTRICT ROHTAS RESPONDENTS With CWJC No.12003 of 2004 1. BISHWANATH YADAV 2. MANOJ YADAV, BOTH SONS OF SARJU YADAV, RESIDENTS OF VILLAGE ALAMPUR P.S. SHEO SAGAR DISTRICT ROHTAS. …PETIIONERS 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR PATNA 3. THE ADDITIONAL COLLECTOR, ROHTAS AT SASARAM 4. THE DEPUTY COLLECTOR, LAND REFORMS, ROHTAS AT SASARAM 5. SURAJ SAH, SON OF LATE BUDHU SAH 6. LALLU SAH SON OF LATE BANDHU SAH, RESIDENTS OF VILLAGE ALAMPUR P.S. SHEOSAGAR, DISTRICT ROHTAS RESPONDENTS For the petitioners :Mr. Sudama Singh & :Mr. Rajani Kant Singh For the State :Mrs. Sunita Kumari, A.C. to G.P.15 ----------- 05. 09.02.2011 Heard learned counsel for the petitioners and the State. Nobody appears on behalf of the respondent-pre-emptor 2 in spite of service of notice. Both these matters arise out of common order passed by respondent-Additional Member, Board of Revenue in Case No. 324/02 and 325/02. Order passed in Case No. 324/02 (Suraj Sah vs. Lallu Sah & Ors.) gave rise to CWJC No. 12179 of 2004, whereas order passed in Case No. 325/02 has given rise to CWJC No. 12003 of 2004. Both the matters have, therefore, been heard together and are being disposed of by the present order. The two petitioners in both the writ proceedings are purchasers. Respondent no.5 (Suraj Sah) is the pre-emptor, whereas respondent no.6 is the vendor. It appears that the writ petitioners by reasons of two sale deeds purchased land(s) appertaining to khata no.335, plot no.3068 (47.5 decimals) and khata no.335, plot no.3068 (7.5 decimals) khata no.3069 (03 decimals) from the vendor, namely, Lallu Sah. Both the sale deeds were registered on 06.05.1999. The pre-emptor filed two application giving rise to L.C. Case Nos. 13 of 2000 and 14 of 2000. Respondent-Deputy Collector by the order dated 18.09.2001, disallowed both the applications preferred by the pre-emptor holding that by reasons of two sale deeds effected on the same day, the purchasers had themselves become adjoining raiyats in respect of those vended land/plots. It has been further found therein that the pre-emptor has failed to demonstrate that he was a co-sharer of the vendor(respondent no.6) in respect of those lands. Aggrieved over the said order, 3 respondent no.5 preferred two appeals being L.C. Appeal No.25/01-02 and 7/01-02. Respondent-Collector by order dated 06.11.2002 dismissed those appeals concurring with the findings recorded by respondent-Deputy Collector, Land Reforms. Feeling aggrieved by those orders, pre-emptor, respondent no.5 preferred two revision applications before the Board of Revenue being Case Nos. 324/02 and 325/02. It appears that those matters were heard analogously and by a common resolution dated 28.05.2004, respondent-Additional Member, Board of Revenue allowed those revision applications giving rise to the present writ petitions. Learned counsel for the petitioner draws attention of the Court to paragraphs 3,4 and 5 of the Resolution of the respondent-Additional Member, Board of Revenue which are quoted as under: “3. By two registered sale deeds dated 23.2.2000 the opposite parties IInd set purchased a total of 58 decimals of land bearing plot nos. 3068,3069 of khata no.335. The petitioner claims to be the co-sharer and boundary raiyat of the aforesaid lands in question and filed a pre-emption application before L.R.D.C. which was rejected. The petitioner then filed an appeal which was also dismissed. 4. From perusal of the records as well as the impugned orders it appears that the petitioner is undisputedly adjoining raiyat of the lands in question. The courts below have disallowed the petitioner’s claim of pre- emption on the ground that on the very date dale of lands in question i.e. on 23.2.2000 the opposite parties no.3 and 4 because the adjoining raiyat of the said land. 5. It is significant to note that there are two plots involved in this case. The petitioner claimed his pre-emption over both the plots. 4 Admittedly the petitioner is a adjoining raiyat of the land in question, whereas the opposite parties IInd set is not a co-sharer and not even an adjoining raiyat of the plot in question otherwise than by virtue of the aforesaid sale deeds dated 23.2.2000. Both the Authorities below arrived at the finding of fact, concerning the opposite parties IInd set as adjoining raiyats by the implication of the sale deeds in question, which can not be sustained in law as well as in fact, because the Ceiling act gives right to the adjoining raiyat to purchase the land first, which has been transferred to another person who was neither the co-sharer or the adjoining raiyat of the land before or at the time of transfer. Therefore, becoming adjoining raiyat of the land in question after transfer as the opposite parties are here can not preclude the right of pre-emption of the petitioner.” It is submitted that the respondent-revisional authority committed serious illegality in allowing the claim of pre- emption in the light of the findings recorded by two courts below under him. Relying on the judgment of this Court rendered in the cases of Ram Roop Yadav vs. State of Bihar since reported in 1987 PLJR 455, Nathuni Mahto vs. State of Bihar & Ors. Since reported in 2004 (2) PLJR 334 and Smt. Shakunia Devi vs. State of Bihar since reported in 2011(1) BBCJ 369, it is submitted that consistent view of this Court is that if by reason of two sale deeds effected on the same date the purchaser(s) is/are able to demonstrate that he/they has/have become adjoining raiyat of the vended plot(s) then the right of pre-emption being a weak right shall not survive. This Court had an occasion to deal with previous judgments of this Court in Smt. Shakunia Devi (Supra) wherein it has been found as under in paragraph 6: “6. Learned counsel for the petitioner has 5 relied on a Division Bench decision of this Court in the case of Nathuni Mahto vs. State of Bihar & Ors., reported in 2004 (2) PLJR 334 and in the case of Ram Roop Yadav Vs. State of Bihar, reported in 1987 PLJR 455. In the aforesaid two decisions, this Court has held that the purchaser who has purchased a plot or piece of land by two sale deeds becomes an adjoining raiyat of the lands so purchased by virtue of purchase by other sale deed vice-a- versa and as such the pre-emptor cannot claim land on the ground of being adjoining raiyat, as the appellant is already an adjoining raiyat. This being the legal position, this Court does not think it necessary to go into the other issues raised on behalf of the petitioner regarding the nature of lands in question.” In my view, the submissions of the petitioners find support from these judgments relied upon by him. It is seen from the orders passed by respondents D.C.L R. as well as respondent-Collector that the purchaser(s) himself/themselves had become adjoining raiyats of the vended plot(s) by reason of two different and distinct sale deeds executed by the vendor and registered on the same day i.e. 06.05.1999. In that view of the matter, the order passed by respondent-Addl. Member, Board of Revenue, Bihar, Patna (Annexure-4) is fit to be set aside. Both the applications are allowed. The Resolution of the Board of Revenue dated 28.05.2004 passed in Case Nos. 324 of 2002 and 325 of 2002 (Annexure-4) is quashed. No order as to costs. hr ( Kishore K. Mandal )