CIVIL WRIT JURISDICTION CASE No.2282 OF 1990 In the matter of an application under Articles 226 and 227 of the Constitution of India. 1. SMT. MUKHIYA DEVI, WIFE OF SHRI RAMESHWAR SINGH 2. SMT. NATHIYA DEVI, WIFE OF SHRI RAMCHANDRA SINGH BOTH RESIDENT OF VILLAGE GOWAL BISHA, P.S. KARAI PARSURAI, DISTRICT NALANDA ------------------------------------------------------- PETITIONERS Versus 1. THE MEMBER, BOARD OF REVENUE, BIHAR, PATNA. 2. THE ADDITIONAL COLLECTOR, NALANDA 3. THE D.C.L.R., HILSA, NALANDA 4. MUNESHWAR YADAV 5. BINDESHWAR YADAV 6. LALOO PRASAD YADAV ALL (RESPONDENT NOS. 4 TO 6) SONS OF LATE DEONANDAN PRASAD YADAV 7. DEOLAL YADAV, SON OF LATE BISHUN DAYAL YADAV 8. NARSINGH SINGH, SON OF DEOLAL YADAV 9. MOST. JASODA DEVI, WIFE OF LATE JIWAN SINGH ALL RESIDENTS OF VILLAGE GOWAL BIGHA, P.O. NANAURI, P.S. KARAI PARSURAI, DISTRICT NALANDA -------------------------------------------------------- RESPONDENTS For The Petitioner : MR. KESHAV SHRIVASTAVA, SR. ADVOCATE MR. DHUSNESHWAR PRASAD, ADVOCATE For The Respondents: MR. RAJENDRA PRASAD, ADVOCATE MR. PRAMOD KUMAR, ADVOCATE P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN S.A. Khan, J. The petitioners are the purchasers before this Court. The sale deed was executed on 5.6.1987 registered on 27.1.1988 with respect to Plot Nos. 634, 635, 636, 633 and 631 in favour of petitioners by respondent no. 9. Although the plot is a big chunk of land, the total land sold were 29 decimals. Two sale deeds were purportedly executed in favour of petitioners for a consideration amount of Rs. 10,000/- each. The petitioners filed a pre-emption 2 application within time which was allowed by order dated 30.7.1988 by the D.C.L.R., the appeal and revision of the petitioners were dismissed by order dated 13.6.1989 and 1.1.1990. 2. Mr. Keshav Shrivastava learned senior counsel appearing on behalf of the petitioners submits that the pre-emption should fail on account of the fact that Rule 19 of the Bihar Land Ceiling Rules have not been followed which require that the purchased money together with the sum equal 10% thereof should be deposited in the treasury/sub treasury of the district within which the land has been transferred. It is also submitted that the respondents are separate and have partitioned the lands in between their three branches, the apportionment of the land which is subject matter of the dispute is virtually impossible between them, if this Court upholds the orders aforesaid. Lastly, it has been submitted that the purchasers are also the adjoining raiyats of the said lands. 3. The respondents’ case is that Bishundeyal Singh died leaving behind three sons namely Deonandan, Deolal and Jiwan Singh. Deonandan Singh also died leaving behind the applicants respondent nos. 4, 5 and 6. The vendor is the wife of Jiwan Singh. It is specific case that there was a partition of Plot Nos. 634, 635 and 636. Western 1/3rd was allotted to the sons of Deonandan Singh’s branch whereas the Eastern 1/3rd was allotted to Deolal Yadav’s branch and 1/3rd in the middle was allotted to Jasoda Devi, the vendee. By virtue of the said partition, it is apparent that the pre-emptors are boundary raiyats of the land in question. Referring to the points raised 3 on behalf of the petitioners, this Court will first take up whether the pre-emption application failed due to non-fulfillment of Rule 19 of the Bihar Land Ceiling Rules. The submission on behalf of the petitioners is that there are two sale deeds which have been executed for a consideration amount of Rs. 10,000/- each, and as such the pre-emptor ought to have deposited Rs. 20,000/- + 10% of the value of the lands. It is submitted that necessity of executing a second sale deed arose, when the vendor realized that the actual amount paid was Rs. 20,000/, whereas the sale deed mentioned a sum of Rs. 10,000/-. It is submitted that an affidavit was filed by Jasoda Devi vendor, stating therein that the second sale deed had been executed for the reason as mentioned aforesaid. 4. Learned counsel for the respondents on the other hand submits that by virtue of the first sale deed, the entire lands stood transferred in favour of the petitioners and the second sale deed has been deliberately executed in order to defeat the pre-emption application. The recitals of the second sale deed do not explain the reason or necessity for executing the second sale deed, which goes to show that the parties were well aware of the fact that a pre-emption application would be filed with respect to the sale deed and the second sale deed has been executed deliberately by the vendors in connivance with the vendees. The explanation or the so called affidavit filed on behalf of the vendor explaining the necessity of the second sale deed has been filed after the pre-emption application was filed which supports the case of the respondents that the second sale deed was 4 deliberately executed in order to defeat the pre-emption application. This Court finds that the recitals of the second sale deed, the reason for execution of second sale deed, do not disclose any reason although both were executed on the same day. which appears to be a deliberate attempt on behalf of the vendor to defeat the right of the pre-emptor. 5. The second issue raised on behalf of the petitioners is that, it would be virtually impossible to apportion the piece of land between respondent nos. 4 to 8. This aspect of the matter need not concern the petitioners as it would be up to the respondents to adjust 29 decimals of land between them and this cannot be a reason for setting aside the orders impugned or defeating the pre-emption application. 6. Lastly, it has been submitted that the petitioners are adjoining raiyats by virtue of having their house on the northern side of the plot. The sale deed dated 5.6.1987 in fact does not show that the petitioners have any house on the northern side. All three Courts have discussed this aspect of the matter and have specifically stated that the claim of the petitioners that they have their huts on plot nos. 578 is not correct in view of the fact that plot no. 578 is recorded as ‘Gair Mazrua Aam’ land. On spot verification, it is found that the petitioners were filling mud on the land and have put up their ‘Kutcha huts’ in order to justify the fact that they are adjoining raiyats. Since the land is recorded as ‘Gair Mazrua Aam; persons who are encroachers, and have illegally occupied the land cannot be 5 considered to be land holders of such lands and as such I find that the Courts below are justified in holding that the petitioners are not boundary raiyats. 7. In view of the discussions aforesaid, I see no reason or justification to interfere with the orders dated 30.7.1988, 13.6.1989 and 1.1.1990 passed by the Court of D.C.L.R., Hilsa, the Collector, Nalanda and Member, Board of Revenue respectively. This application is dismissed. Patna High Court, The 5th of August, 2010 N.A.F.R./Sanjay (Sheema Ali Khan, J.)