IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.15998 of 2001 1. Raghunath Singh, son of late Inder Singh. 2. Jatadhari Singh @ Sakaldeo Singh, son of Raghunath Singh. Both resident of village- Brahmesthan, P.S. Bhagwanpur, District- Siwan. ...... Petitioners. Versus 1. The State of Bihar. 2. The Member, Board of Revenue, Bihar, Patna. 3. The Collector, Siwan. 4. The Deputy Collector, Land Reforms Siwan. 5. Smt. Kalawati Devi, D/o Ram Charitar Singh, W/o Grishdeo Singh, resident of village- Brahmasthan, P.S. Bhagwanpur Hat, P.O. Bhagwanpur, District- Siwan. 6. Ram Binod Singh, son of Suraj Singh, resident of village- Brahmsthan, P.S. Bhagwanpur Hat, District- Siwan. ..... Respondents. ****** 06- 30.9.2008 Heard Mr. Shailendra Kumar Singh for the petitioners, Mr. Rajnish Kant, learned junior counsel to Standing Counsel No.3 (Ceiling) for respondent nos.1 to 4, and Mr. Ashutosh Jha for respondent no.5. None appears for respondent no.6. 2. This writ petition is directed against the order dated 17.10.2001 (Annexure-7), passed by the learned Member, Board of Revenue, in Case No.234 of 2000 (Smt. Kalawati Devi Vs. Raghunath Singh and others), whereby he has allowed the revision application in terms of Section 32 of the Bihar Land Reforms (Fixation of Ceiling Area 2 and Acquisition of Surplus Land) Act 1961 (hereinafter referred to as „the Act‟), preferred by respondent no.5 herein, has set aside the appellate order (Annexure-6), and has rejected the petitioners‟ pre-emption application under section 16(3) of the Act. 3. A brief summary of facts is essential for the disposal of the writ petition. Respondent no.6 alienated a portion of plot no.967, covering an area of 1 katha, appertaining to khata no.67, situate at village Brahmsthan, district Siwan, in favour of respondent no.5. The deed of sale was executed on 30.12.1985, and was registered on 12.2.1986 (Annexure-1). The two petitioners filed an application under section 16(3) of the Act which was registered as Case 488/85-86 (Raghunath Singh Vs. Kalawati Devi). The petitioners have taken the stand in their application under section 16(3) of the Act that they were adjoining raiyats as well as co-sharers of the land in question and, therefore, claimed right of pre-emption with respect to the portion of plot no.967. The same on contest was rejected by the learned L.R.D.C., Siwan, by his order dated 9.12.1986 (Annexure-5), on the ground that the 3 land in question was sold for construction of a house, and also for the reason that the same was the subject-matter of dispute in a proceeding under section 145 Cr.P.C. 4. Aggrieved by the same, the petitioners preferred appeal which was registered as Pre-emption Appeal No.268/86-87 (Raghunath Singh and others Vs. Kalawati Devi and others), which was allowed by order dated 26.9.2000 (Annexure-6). The order of the learned L.R.D.C. (Ananexure-5) was set aside, and the petitioner‟s claim for pre-emption was upheld. The learned appellate authority held that the land has really never been used for the purpose of construction and no house stands there as on the date of the appellate order. He dealt with one more contention advanced by respondent no.5 herein, the purchaser, that, according to the registered deed, the petitioners‟ land and the vended lands are separated by one feet of land and, therefore, the petitioners are not adjoining raiyats. The learned appellate authority repelled the vendee‟s contention and held that the same is really not the factual position and is so stated in the document to defeat the possible claim for pre-emption. 4 5. Aggrieved by the appellate order (Annexure-6), the purchaser preferred revision application which has been allowed by the impugned order dated 17.10.2001 (Annexure-7), rejected the petitioners‟ claim for pre-emption and held that the petitioners‟ land does not touch the vended plot and, therefore, they are not the adjoining raiyats. Hence this writ petition at the instance of the pre-emptor. 6. While assailing the validity of the impugned order, learned counsel for the petitioners submits that the learned revisional authority has erroneously held that the petitioners‟ land does not touch the vended land. He has also submitted that the learned revisional authority has erroneously read the document to hold that the land was alienated for construction of house. He relies on a Division Bench judgment of this Court, reported in 2004 (2) P.L.J.R. 339 (Hiralal Chauhan Vs. The State of Bihar and others). 7. Learned counsel for respondent no.5 has supported the impugned order. He submits that in view of 145 Cr.P.C. proceeding inter- parties with respect to the same land, the application under section 16(3) of the Act was 5 not maintainable. He next submits that in view of the clear recital in the registered document, the learned revisional authority has rightly held that the petitioners‟ land is separated by one feet from that of the vended plot. He further submits that the learned revisional authority has rightly read the document to hold that the land in question has been alienated for the purpose of construction and, therefore, it is not covered by the terms of Section 16(3) of the Act. 8. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to me that the pendency of 145 Cr.P.C. proceeding inter- parties with respect to the land in question is wholly irrelevant for the purpose of maintainability of an application under section 16(3) of the Act. The purpose of 145 Cr.P.C. is to avoid rupture peace and tranquillity between the parties and from that limited angle seeks to decide as to which party was in possession of the land in question for a period preceding two months. The contention is rejected. 9. It further appears to us that the learned revisional authority has erred in 6 holding that the petitioners are not the adjoining raiyats with respect to the vended plot. It is manifest on a perusal of the registered deed (Annexure-1) that the boundaries of the vended plot delineated therein states that one feet wide strip of land on the southern side of the plot in question belongs to respondent no.6. It would be attaching needless importance to this aspect of the matter, inter alia, for the reason that the appellate authority has found that it is a false description in the deed only to defeat a possible claim of pre-emption. The utility of one feet width of land appears to be a fraud on the parties. There is absolutely no use of such a narrow strip and the land beyond that on the southern side of the vended plot admittedly belongs to the petitioners. Thirdly, the document is in between respondent no.6 and respondent no.5 who were free to write all that they wanted to write therein. The petitioners were obviously not parties to the same. We have no manner of doubt that the description of the boundaries on the southern side is a mala-fide action only to defeat a possible claim of pre- emption. 7 10. It further overlooks another important aspect of the matter. The petitioners had purchased portion of the said plot no.967 by a registered deed of absolute sale from respondent no.6, registered on 30.8.1955 (Annexure-4). The petitioners had similarly purchased another portion of the same plot from respondent no.6 by a registered deed of absolute sale dated 11.10.1985 (Annexure-2). Obviously the petitioners are present on the three sides of the vended plot. I am not for the present purpose taking into account the third purchase of the petitioners, namely, he purchased another portion of plot no.967 by a registered deed of absolute sale dated 6.2.1986 (Annexure-3), from respondent no.6. I have, therefore, no manner of doubt that the finding recorded by the learned revisional authority that the petitioners are not adjoining raiyats is perverse and is fit to be set aside. 11. I must deal with the second reasoning assigned by the learned revisional authority that respondent no.5 purchased the land in question for the purpose of construction it ceased to be agricultural land and, therefore, beyond the scope of an application under section 8 16(3) of the Act. It appears to me that this is based on a complete misreading of the definition of „land‟ occurring in Section 2(f) of the Act, which is reproduced hereinbelow for the facility of quick reference: “2(f). “land” means land which is used or capable of being used for agriculture or horticulture and includes land which is an orchard, Kharhur or pasturage or [forest land or even land perennially submerged under water] or the homestead of a land-holder; Explanation I.- “Homestead” means a dwelling house for the purpose of living or for the purpose of letting out on rent together with any courtyard, compound, attached garden, orchard and out-building and includes any out building for the purpose connected with agriculture or horticulture and any tank, library and place of worship appertaining to such dwelling house. Explanation II.- Land perennially submerged under water shall not include submerged in the bed of a river.” „Land‟ for the purpose of section 16(3) of the Act is one which is capable of being used for agriculture and also includes a homestead. The learned revisional authority has overlooked both the aspects of the matter. On a plain reading of the registered document, it appears that the property has been described as „dkLr dk;eh„ which means for agricultural purpose. It 9 is further stated in the body of the deed that possession of the same is being handed over to respondent no.6 for the purpose of „iSnkokj„, or it will be open to him to construct a house thereupon. It is thus evident on a plain reading of the registered deed that the land is really for agricultural purpose and is covered by the first portion of the definition of „land‟ which says that it is capable of being used for agriculture. In the alternative situation, it covers by the expression „homestead‟. In a situation like the present one, where the petitioners‟ have their own lands, being portions of the same plot, on three sides of the vended plot, they may like to construct a house which would clearly be covered by the expression „homestead‟ occurring in section 2(f) of the Act. Furthermore, the learned appellate authority has found, as an issue of fact, that no house has been constructed thereupon. 12. In view of the foregoing discussion, I am of the view that the learned revisional authority has erred in reaching the conclusion that the petitioners are not adjoining raiyats with respect to the vended plots, and rejecting the pre-emption application under section 16(3) 10 of the Act. The impugned order is hereby set aside, and the petitioners‟ application under section 16(3) of the Act is hereby allowed. 13. The writ petition is accordingly allowed. (S K Katriar, J.) S.K.Pathak/