IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.4354 OF 2004 GAURI SHANKAR PRASAD SINGH, SON OF LATE HARIHAR PRASAD SINGH, RESIDENT OF VILLAGE JAGDISHPUR, BARUARI, POLICE STATION GAIGHAT, DISTRICT MUZAFFARPUR ……………………………………………….PETITIONER VERSUS 1. THE STATE OF BIHAR 2. SHRI P. LAL, I.A.S., THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA 3. THE COLLECTOR, MUZAFFARPUR 4. THE LAND REFORMS DEPUTY COLLECTOR, EAST MUZAFFARPUR, DISTRICT MUZAFFARPUR 5. YADVENDU PRASAD SINGH 6. BALMIKI PRASAD SINGH 5 AND 6 SONS OF LATE RAMESHWAR PRASAD SINGH, RESIDENT OF VILLAGE JAGDISHPUR, BARUARI, POLICE STATION GAIGHAT, DISTRICT MUZAFFARPUR 7. INDU BHUSHAN PRASAD SINGH, SON OF LATE RAMESHWAR PRASD SINGH, RESIDENT OF VILLAGE JAGDISHPUR, BARUARI, POLICE STATION GAIGHAT, DISTRICT MUZAFFARPUR …………………………………………………………………………..RESPONDENTS *********** FOR THE PETITIONER :- MR. PREM KUMAR JHA, ADVOCATE MR. ASHOK KUMAR SINGH-2, ADVOCATE FOR THE S T A T E :- MS. KUMARI AMRITA, SC (CEILING) I FOR RESP. 5 & 6 :- MR. RAM SURESH ROY, SR. ADVOCATE MR. VINAY KIRTI SINGH, ADVOCATE *************** 6 20/09/2010 The petitioner is the purchaser, who has challenged the order dated 20.02.2004 passed by the Additional Member, Board of Revenue, Bihar in Case No. 31 of 2003, by which the Additional Member, Board of Revenue had rejected the plea of the purchaser that the lands in question were residential lands and were purchased for residential purposes. Respondent No. 7 executed a sale deed in favour of the petitioner on 03.05.2001. The respondents 5 and 6 filed a pre-emption application, claiming that they are the boundary 2 raiyats and co-sharers of the lands in question. The disputed lands appertain to Khata No. 25, Plot No. 1721, measuring 5.25 decimals (1 katha 4 dhurs) in village Jagdishpur. The Land Reforms Deputy Collector, East Muzaffarpur dismissed the application under Section 16 (3) of the Bihar Land Ceiling Act, 1961 on 20.03.2002 which was affirmed by the Collector, Muzaffarpur vide order dated 17.01.2003. The Additional Member, Board of Revenue, Bihar has reversed the orders of the Land Reforms Deputy Collector and the Collector and held in favour of the pre-emptor. The argument on behalf of the petitioner is that the land in question is situated in the middle of the village Jagdishpur, surrounded by residential houses and is on the main road. The claim of the pre-emptors, as stated earlier, is that they are co-sharers and boundary raiyats and, therefore, entitled to reconviance of the land in his favour. The sale deed shows the intention of the parties who purchased the lands. It is specifically stated in the sale deed that the nature of the lands are residential. As against this pleadings, Counsel for the respondents relies on the Khatiyan, which is contained in Annexure-A to the counter affidavit to argue that the land has been described to be bhith lands, meaning thereby that it is capable of being used for residential or agriculture purposes. The Land Reforms Deputy Collector has based his order on the enquiry conducted by the 3 Circle Officer, Gaighat. In the enquiry report, it has been specifically mentioned that the lands have been recorded as „bhith‟ land in the Khatiyan, but during the enquiry, it was found that the land is surrounded by pucca residential houses and it was situated in the middle of the village, besides the main road of the village. On the basis of the enquiry report, the Land Reforms Deputy Collector has rejected the application under Section 16 (3) of the Act. The petitioner thereafter filed an appeal and made a prayer that fresh enquiry should be conducted to ascertain the nature of the land in question, consequence of which, a fresh enquiry was conducted on 20.09.2002 by the Circle Officer, Gaighat. One of the points, on which the enquiry was to be conducted, was with respect to the nature of the lands. It has been specifically stated that east to the lands was the „Brahm Aasthan‟ and a road, besides the road, the Circle Officer found the house of Radha Mohan Singh. The next house to Radha Mohan Singh, was the house of the petitioner. South of the land was the house of Ram Narayan Singh, north of which was the house of Raj Nandan Singh. On the west side, Urmila and Jivak Singh had built their houses. In this manner, the Circle Officer found that the land in question was right in the middle of the village and was enclosed by residential houses. The Additional Member, Board of Revenue has misdirected himself inasmuch as he has recorded in his order that the 4 land has been described in the Khatiyan as agriculture and bhith land and, therefore, it would be presumed that the land was homestead land and thus, set aside the orders of the Land Reforms Deputy Collector and the Collector, allowing the pre-emption application. Learned Counsel for the petitioner submits before this Court that homestead land has been defined under Section 2 (f) of the Bihar Land Ceiling Act, 1961. Explanation 1 states that “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”. In the present case, the definition of homestead would not be applicable to the lands in question. Having regard to the fact that the sale deed clearly states that the land has been purchased for building a residential house. I may also distinguish between a homestead dwelling or house which is used for agricultural purposes, such as a „kacheiry‟, or a house having cattle rearing facilities. However, a house in the middle of the village cannot be deemed to be house for agricultural purposes and as such, the definition aforesaid would not apply in the facts of the present case. 5 Another aspect of the matter is that the lands purchased measures only 1 katha 4 dhurs, which is very small piece of land. Considering the size of the lands, it can easily be inferred that it is too small to be utilized for agricultural purposes. For this purposes, I may refer to the decision of this Court in the case of Vidya Prasad Singh vs. The State of Bihar & Others, reported in 2010 (2) PLJR 17, wherein this Court has considered this aspect of the matter and has come to a conclusion that the intention of the parties has to be gathered from the sale deed and not from the Khatiyan, as the nature of land changes from time to time. Considering all aspects of the matter, the order dated 20.02.2004 passed by the Additional Member, Board of Revenue, Bihar, Patna in Case No. 31 of 2003 as the provisions of Section 16 (3) of the Bihar Land Ceiling Act, 1962 would not be applicable in this case. This application is accordingly allowed in the aforesaid terms. A.F.R./Anand ( Sheema Ali Khan, J. )