IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12830 of 2004 PARAS SINGH Versus THE STATE OF BIHAR & ORS ----------- For the petitioner : Mr. S.S.Dwiwedi,Sr.Adv., Mr.R.S.Dwiwedi, Mr.R.K.Dubey & Mr.L.L.Pandey For the respondents: Mr.Keshav Srivastav Sr.Advocate. Mr. Vijay Kr. Srivastava Mr. S.A. Alam– S.C. (Ceiling) ____ 6. 13.8.2008 The writ petitioner, the purchaser, has assailed the order dated 16.8.2004 passed by the Addl. Member, Board of Revenue, in Revision Case No. 159/2003, whereby and whereunder the application of pre-emption filed under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter referred to as „the Act‟)has been allowed by reversing the order passed by the Collector under the Act as also the appellate order passed in favour of the purchaser writ petitioner. This Court having heard counsel for the parties is of the opinion that the application filed by the respondent no. 9 pre-emptor for claiming pre-emption under section 16 of the Act claiming himself to be 2 co-sharer of the Hareshwar Singh, whose name was shown as a boundary raiyat in the sale deed dated 06.10.2001 was itself not maintainable and as such, the Addl. Member, Board of Revenue, even after noticing the admitted facts leading to execution of sale deed by the civil court on behalf of Mahesh Singh, Gajadhar Singh, Baijnath Singh and Bishwanath Singh (father of the preemptor, respondent no. 9) in favour of the petitioner, ought to have not allowed the claim of the pre-emption of respondent no.9, the pre-emptor as the land in question was not the ancestral property of respondent no.9. This aspect of the matter would become absolutely clear from the fact that plot no. 2763, plot no. 5487, plot no. 5488 and plot no. 5496 being the disputed plot as described specifically in paragraph no. 4 of the writ application admittedly belonged to Mahesh Singh and Gajadhar Singh son of Ram Sundar Singh who had absolute right title and interest in the aforesaid land. Mahesh Singh and Gajadhar Singh as shown in the genealogical table (Annexure-2) were the 3 descendants of the branch of Bhudi Singh who seven generation earlier had separated from the branch of Ram Nath Singh, the own brother of Bhudi Singh and infact Baijnath Singh and Bishwanath Singh were the 4th generation descendants of Ram Nath Singh. It is also apparent that Ram Nath Singh and Bhudi Singh being own brothers had already been separate in mess and business on account of admitted partition between them and inter se in the subsequent generation thus when Mahesh Singh and Gajadhar Singh had executed an agreement for sale with the petitioner on 06.04.1971 for a sum of Rs. 2500/- and Baijnath Singh and Bishwanath Singh who happened to be gotia of Mahesh Singh and Gajadhar Singh got a sale deed executed in respect in disputed land despite knowledge of the aforementioned agreement for sale in favour of the petitioner, the petitioner had filed Title Suit no. 83 of 1971 in the court of 4th Munsif Chapra seeking a decree of specific performance of contract for sale wherein Mahesh Singh and Gajadhar Singh were impleaded as defendant no. 1 and 2 and Baijnath Singh and 4 Bishwanath Singh, respondent no. 7 and 8 to the writ application were impleaded defendant no. 3 and 4 in the said suit, which on contest was decreed in favour of the petitioner by judgment and decree dated 22.09.1976 and 05.11.1976 respectively in Title Suit no. 83/1971 as would be evidenced from a copy the decree being Annexure-3 to the writ application. As a matter of fact the appeal filed by the aforesaid four defendants including the father of preemptor respondent no. 9 being Title Appeal no. 17 of 1976 was dismissed by a judgment and decree dated 13.07.1979 passed by the 3rd Subordinate Judge, Chapra and a Second Appeal at their instance being Second Appeal no. 666 of 1979 was also dismissed by this Court by judgment and decree dated 11.09.1984 putting an end to the claim of the respondent no. 8, the father of respondent no. 9. In this background when the petitioner had filed execution case no. 28 of 1990 in the court of 4th Munsif Chapra for execution of the sale deed and had deposited the balance of consideration amount as per the terms of his agreement for 5 sale, the executing court on refused of judgment debtors including the father of respondent no. 9, had executed the sale deed dated 06.10.2001 on behalf of Mahesh Singh Gajadhar Singh, Bishwanath Singh and Baijnath Singh on 16.10.2001 and it is this sale deed dated 16.10.2001 which became the subject matter of the present preemption case of the instance of the respondent no. 9 who now came out with the claim of co-sharer of the boundary raiyat of Hareshwar Singh on the ground that he was the own brother of his grandfather Deva Nandan Singh. . Such plea of respondent no. 9 however of acquiring the ancestoral interest of Hareshwar Singh could not be justified by him as would appear not only from the admitted genealogical table but even otherwise in as much as Hareshwar Singh is said to have died issueless in 1940 and his property had devolved upon his nephews namely Raghunath Singh Baijnath Singh and Bishwanath Singh (father of Respondent no. 9) by way of survivorship and later on the death of Raghunath Singh on Baijnath Singh and Bishwanath Singh. In view of the 6 admitted fact that Baijnath Singh and Bishwanath Singh were/are alive there was no question of the preemptor respondent no. 9, the son of Bishwanath Singh of acquiring any right by survivorship in the property of Hareshwar Singh who as indicated above was the brother of the grandfather of respondent no. 9 the preemptor. This position in fact is settled in law under Article 223 (3) of the Principles of Mulla Hindu Law, which reads as follows : - “(3) Property inherited from collaterals – property inherited from females – Excluding the case of property inherited from a maternal grandfather, it may be said that the only property that can be called ancestral property is property inherited by a person from his father, father‟s father or father‟s father‟s father. Property inherited by a person from any other relation is his separate property, and his male issues do not take any interest in it by birth. Thus property inherited by a person from collaterals, such as a brother, uncle, etc. or property inherited by him from a female, eg, his mother, is his separate property.” 7 Thus in the background of the aforementioned admitted fact even if the plea of the respondent no. 9 in his counter affidavit who in its paragraph no. 6 has admitted the genealogical table as contained in Annexure-2 to the writ application, is taking to be correct that he had separated from his father and brother prior to the filing of his preemption case, the question still would arise as to how he (respondent no. 9) could have acquired or inherited the property of Hareshwar Singh the brother of his grandfather in the lifetime of his father Bishwanath Singh. So as the claim the right of being a co-sharer? This court therefore will have no hesitation in holding that the whole story of respondent no. 9 of being co-sharer of the disputed plot by virtue of inheriting it through Hareshwar Singh is out and out a false story and is also impermissible in view of the settled position in Hindu Law. To that extent Learned Senior Counsel of the petitioner seems to be wholly correct in placing reliance on the judgment of the Apex Court 8 in the case of Commissioner of Wealth Tax, Kanpur Vs. Chandra Sen reported in AIR 1986 S.C. 1753 and in the case of Madanlal Phulchand Jain vs. State of Maharashtra reported in AIR 1992 S.C. 1254 holding that a Hindu can acquire interest in ancestral property as well as acquire his separate or self acquired property and that excluding the property inherited from a maternal grandfather the only property which can be characterized as ancestral property in the property inherited from a person from his father, father‟s father or father‟s father‟s father. The crucial question therefore would be that when Bishwanath Singh the father of the respondent no. 9 the preemptor with his brothers had inherited the ancestral property of Hareshwar Singh by survivorship on account of Hareshwar Singh having died issueless in 1940 leading to devolution of his share amongst the class one heir namely the grandfather of respondent no. 9 (brother of Hareshwar Singh) and upon his death amongst the three uncles of respondent no. 9 namely Baijnath Singh, Bishwanath Singh and Raghunath Singh 9 which became their separate property, how could the respondent no. 9 in the lifetime of his father Bishwanath Singh even claim the land in question allegedly inherited from collateral i.e. Hareshwar Singh to be ancestral property. Thus the very basis of the whole claims as staked by the respondent no. 9 of being co-sharer is out and out an absurd a cock and bull story which must be rejected on its face value. There is yet another significant aspect of the whole matter in as much as the disputed land in question were purchased by father of respondent no. 9 from the admitted recorded owners namely Mahesh Singh and Gajadhar Singh who were agnates some seven generations earlier, in respect of which there was a subsisting agreement for sale executed by Mahesh Singh and Gajadhar Singh in favour of the petitioner and ultimately the disputed land were conveyed to him (petitioner) through the process of the court by the sale deed dated 16.10.1981 after the culmination of the title suit no. 83 of 1971 and title appeal no. 143/1976 as stated above. Thus if the father of 10 respondent no. 9 namely Bishwanath Singh had lost his right over the said land by virtue of the sale deed executed by the court on his behalf as well (i.e. the father respondent no. 9), it would be very difficult to aspect the absurd proposition being advanced on behalf of respondent no. 9 that his father would eve cute the sale deed for the disputed land (in view of the judgment and decree of the civil court ) and yet his son respondent no. 9 would still be entitled to claim preemption in respect of the same sale deed by staking his claim of being a co-sharer. If such plea is accepted that by itself would be a mockery of law. Faced with this situation, Mr. Keshaw Srivastava Learned Senior Counsel appearing on behalf of preemptor, respondent no. 9, who did not dispute any of the aforesaid facts as stated by the petitioner in the writ application had supported the impugned order by taking a new plea, not raised earlier before the authorities under the Act that the respondent no. 9 had already separated from his father and brother and as such was not bound by the judgment and 11 decree of the civil court to which he was also not a party and therefore, could claim his independent right of preemption in capacity of co-sharer of the land in question. This Court would however find that there would be no difference in law even if the story of partition between the father and respondent no. 9 is accepted because in that case also what could be inherited by respondent no. 9 in the lifetime of his father Bishwanath Singh (respondent no. 8) would be only his ancestral property i.e. the property inherited by his father from his father namely Deo Nandan Singh and not the property of Hareshwar Singh who was the brother of the grandfather of respondent no. 9, As a matter of fact in view of Article 223(3) of Mulla Hindu Law, it has to be held that the property of Hareshwar Singh was not the ancestral property of respondent no. 9 atleast till the lifetime of the father of respondent no. 9 and in that view of the matter the very h plea of the respondent no. 9 to be co-sharer of Hareshwar Singh, the brother of the his grandfather for staking claim of preemption of the disputed plot was 12 itself unsustainable. This Court in fact also finds merit in the other part of the submission of Mr. Dwiwedi, learned senior counsel, that even by way of claiming right of survivorship the land in question would not devolve upon respondent no.9 because he was not the heir of Hareshwar Singh, the brother of his grand-father as both Baijnath Singh and Bishwanath Singh were alive and to that extent reliance placed by Mr. Dwiwedi on the Division Bench judgment of this Court in the case of Nand Kishore Pandey & ors. Vs. P.P.Agarwal & ors., reported in AIR 1972 Pat. 389, is fully justified. The Addl. Member, Board of Revenue, in fact has failed to take into consideration that the sale deed for the land in question was executed on behalf of the father of respondent no.9 by the court in a duly contested suit and the petitioner could not have been denied the usufruct of that litigation by a plea of pre-emption raised by respondent no.9. The Addl. Member, Board of Revenue, ought to have taken into consideration that the pre-emption is a very 13 weak right and can be defeated by any legitimate means. Here when the Civil court itself had executed the sale deed for the land in question in favour of the petitioner, in a proceeding duly contested by the father of respondent no.9 and the petitioner, as noticed above and the same could not have been even made subject matter of a proceeding under section 16(3) of the Act at the instance of respondent no.9. This Court in fact cannot approve the impugned order for yet another reason inasmuch as the claim of pre-emption of respondent no.9 was rejected by the Collector under the Act as also the appellate authority by giving cogent reasons but the revisional authority, the Addl. Member, Board of Revenue, without meeting such findings has set aside their order on a premises which cannot be upheld in law. This Court, therefore, will have no hesitation in setting aside such an order of Addl. Member, Board of Revenue, and restoring the order of the Collector under the Act as affirmed by the appellate authority. Consequently while allowing this writ application and quashing 14 the impugned order, this Court would also dismiss the pre-emption application filed by respondent no.9. In the result, this writ application is allowed but there would be no order as to costs. ( Mihir Kumar Jha,J.) Surendra/