IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1405 of 2001 SMT. BANARSI DEVI Versus ADDITIONAL MEMBER, BOARD OF REVENUE &ORS. For the Petitioner : M/S Shashi Shekher Dwivedi(Sr. Adv.), Ravi Shankar Dwivedi, L.L.Pandey, R.K. Dubey, Advocates. For the private Respondents : M/S Vindhya Keshari Kumar(Sr. Adv.), Kapildeo Singh-I, Vijay Kumar, Advocates. For the State : Mr. Rajnish Kant (JC to SC-3, Ceiling). ----------- 8. 02.09.2008. Heard learned counsel for the petitioner and the counsel for the private Respondents. 2. Learned counsel for the petitioner has filed supplementary affidavit on behalf of the petitioner annexing the sketch map, Annexure-5 as also the survey map, Annexure-6A and the sale deed dated 3.4.1967 executed in favour of Singan Singh, the husband of the petitioner for the adjoining Plot No. 692, which is taken on record and the learned counsel for the petitioner has been permitted to make correction in the said two maps. 3. Petitioner is the purchaser of 7 Kathas of land from east in three plots, namely, 3 Kathas 15 ½ Dhurs, in Plot No. 694, 1 Katha 4 ½ Dhurs in Plot No. 696 and 1 Katha 15 Dhurs in Plot No. 678 from the father of Respondent Nos. 5 to 7 for a consideration of Rs. 28,500/- by virtue of sale deed dated 11.7.1995. She is aggrieved by the order dated 25.9.1998, Annexure-2 passed by the Additional Collector setting aside the order - 2 - dated 25.4.1997, Annexure-1 passed by the Deputy Collector, Land Reforms dismissing the pre-emption case. She is further aggrieved by the order dated 11.11.2000, Annexure-3 passed by the Board of Revenue whereunder the appellate order dated 25.9.1998, Annexure-2 has been affirmed. 4. Respondent No.4 filed Pre-emption Case bearing No. 3 of 1996-97 before the Deputy Collector, Land Reforms, Marhaura, Saran impugning the sale deed dated 11.7.1995 on the ground that he is the purchaser of the adjoining Plot Nos. 694 and 695 and thereby is the boundary raiyat of all the three vended plots and accordingly direction be issued to the purchaser petitioner to reconvey the lands in question in favour of the pre-emptor. Petitioner further claimed that his daughter-in-law is the purchaser of part of Plot Nos. 678 and 696 and thereby she is also in the boundary of the vended plots and the pre-emption application be allowed on both the grounds. 5. Petitioner purchaser opposed the prayer of the pre-emptor on the ground that she herself was the boundary raiyat of the vended plots by virtue of the purchase of portion of Plot No. 692 by her husband. 6. The Deputy Collector, Land Reforms under order dated 25.4.1997, Annexure-1 dismissed the pre- - 3 - emption case as he found that the husband of the petitioner Singan Singh was on the boundary of Plot No. 694 by virtue of his purchase of part of Plot No. 692 and on that basis held that petitioner purchaser was herself a boundary raiyat of the vended plot, he accordingly defeated the claim of pre-emption under order dated 25.4.1997. 7. Against the order dated 25.4.1997, Annexure- 1, private Respondent No.4 filed appeal before the Collector, Saran at Chapra which was transferred for hearing before the Additional Collector. During the hearing of the appeal, private Respondent No.4 submitted that the order dated 25.9.1998, Annexure-2 passed by the Deputy Collector, Land Reforms proceeds on the basis that the purchaser is herself the boundary raiyat of the vended plot by virtue of the fact that part of the adjoining Plot No.692 has been purchased by her husband Singan Singh. In this connection it was pointed out that Singan Singh, the husband of the purchaser may be on the boundary of the vended Plot No. 694 by virtue of his purchase of Plot No. 692 in part but such fact cannot defeat the pre-emption case, as according to the pre-emptor, the lands of the husband of the petitioner cannot be taken as the lands of the wife for the purposes of defeating the claim of pre-emption. The appellate court - 4 - considered the aforesaid submission as also the submission that the pre-emptor himself by virtue of his purchase in Plot Nos. 694 and 695(both in part) was in the northern boundary of Plot No. 694 and eastern boundary of Plot Nos. 696 and 678. In support of such submission, purchaser produced the sale deed showing purchase of the portions of Plot Nos. 694 and 695 by him and appreciating the contents of those sale deeds as also the sketch map of the lands in question, the appellate court under order dated 25.9.1998 passed by the Additional Collector allowed the appeal and the pre- emption case. 8. Against the appellate order dated 25.9.1998, Annexure-2 petitioner herein filed revision case before the Board of Revenue, which was also dismissed under order dated 11.11.2000, Annexure-3. Assailing the appellate order as also the revisional order, Annexures-2 and 3 the present writ application has been filed. During the hearing of this application learned counsel for the petitioner with reference to the sketch map, Annexure-5 submitted that while setting aside the order dated 25.4.1997, Annexure-1, the Additional Collector recorded a finding that pre-emptor was the boundary raiyat of the three vended plots by virtue of his purchase in Plot Nos. 694 and 695 but before recording such finding, the sale - 5 - deeds conveying title in the pre-emptor for part of Plot Nos. 694 and 695 was never produced and this Court should set aside the appellate order as also the revisional order and remand the matter to the appellate court once again to reconsider the finding of fact on the basis of the sale deeds by virtue of which pre-emptor, private Respondent No.4 is claiming title over the adjoining plots bearing No. 694 and 695 as those sale deeds were never produced before the appellate court and the revisional court. When such submission was made before this Court, this Court asked the learned counsel for the petitioner whether such submission about non- production of the sale deeds on the basis of which private Respondent No. 4 is claiming title over the adjoining plot was made before the Board of Revenue, as such, submission does not appear to have been considered in the order dated 11.11.2000, Annexure-3 passed by the Board of Revenue. In response to such query learned counsel for the petitioner with reference to the pleadings made before the Board of Revenue confirmed that no such submission was ever made before the Board of Revenue. 8. Having heard counsel for the parties and having perused the two impugned orders dated 25.9.1998 and 11.11.2000, Annexures-2 and 3, I am - 6 - satisfied that the appellate court having considered the pleadings of the parties as also the relevant documents recorded the findings that the pre-emptor, private Respondent No.4 is the boundary raiyat of the three vended plots and I do not see any valid reason to disturb the said finding of fact. As regards the claim of the petitioner that by virtue of the purchase made by her husband in Plot No. 692(in part) she is also the boundary raiyat of the vended plots, this Court with reference to the Full Bench Judgment in the case of Ram Jiwan Singh & Ors. Versus The State of Bihar & Ors reported in 1969(2) PLJR 517 holds that the land recorded in the name of the husband of the petitioner purchaser cannot be taken to be the land of the wife unless case of Benami is pleaded and proved before the authorities below. 9. In view of my discussions above, I do not find any illegality in the appellate order dated 25.9.1998, Annexure-2 as also the revisional order dated 11.11.2000, Annexure-3 and this writ application is, accordingly dismissed. Rajesh/ (V.N.Sinha,J.)