LETTERS PATENT APPEAL No. 313 of 2010 ***** Against the order dated 06.01.2010 passed in C.W.J.C. No. 14925 of 2009 by a learned Single Judge. ***** 1. MD. ARSHAD HUSAIN, SON OF MD. ABDUL LATEEF, RESIDENT OF VILLAGE- RAMAI TOLA, MURGIA CHAK, P.O.- SONAHULA, VIA- GHAGHA, P.S- SONAHULA, DISTRICT- BHAGALPUR. . . . . . . . (PETITIONER)- APPELLANT. Versus 1. THE STATE OF BIHAR, THROUGH REGISTRAR, JUDGESHIP, DISTRICT- BHAGALPUR COURT. 2. MD. AIYUB HASAN, SON OF LATE MAULVI LEAQUAT HUSSAIN, RESIDENT OF VILLAGE- DEOKUNDA, P.O.- CHAKNATHOO, P.S- SONAHULA, DISTRICT- BHAGALPUR—PURCHASER. 3. MD. SAKARIA, SON OF IRFAN GHANI, RESIDENT OF VILLAGE- DEOKUNDA, P.S-CHAKNATHOO, P.S.- SANAHULA, DISTRICT- BHAGALPUR (HOLDER OF POWER OF ATTORNERY). . . . . . . RESPONDENT 2nd PARTY. 4. MD. ABDUL LATEEF @ MD. ABDUL, SON OF LATE S. K. BHAGLI, RESIDENT OF VILLAGE- RAMAAI TOLA, MURGIA CHAK, P.O.- SANAHULA, VIA- GAGHA, P.S.- SANAHULA, DISTRICT- BHAGALPUR, AT PRESENT RESIDING AT/P.O./P.S. SENHA, DISTRICT- LOHARDAGA (JHARKHAND). . . . . . . . RESPONDENT 3rd PARTY. . . . . . . . RESPONDENTS. ***** P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH ----------- S. P. Singh, J. The instant appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been filed against the order dated 06.01.2010, passed in C.W.J.C. No. 14925 of 2009, whereby the learned Single Judge has affirmed the order of the learned Sub-Judge-III, Bhagalpur, holding that Pre-emption case no. 248 of 2004, is not maintainable in the Civil Court. 2. The facts of the case in short are as follows: 2 The appellant‟s father, Md. Abdul Lateef @ Md. Abdul (respondent no.4), executed a Power of Attorney in favour of respondent no.3, in respect of some agricultural lands located in village Sanhaulla under Sub-Registry Office, Kahalgaon, in the district of Bhagalpur. Respondent no.3, holder of the power of attorney, sold 03 decimals of the agricultural lands bearing plot no.709 of khata no.449 of village Sanhaula to respondent no.2 Md. Aiyub Hasan. The appellant filed suit being Pre-emption case no.248 of 2004, in the court of the learned Sub-Judge-III, Bhagalpur under Clause 231 (1) of Mulla‟s Commentary and Principles of Mahomedan Law. The appellant took the stand that Pre-emption matter concerning a Muslim would be governed by Clause 231(1), and not under the Ceiling Act. He claimed pre-emption on the ground that by virtue of being son of respondent no.4, he was co-sharer and co-raiyat of the land which has been transferred in favour of respondent no.2. 3. The case of the respondent/vendee is that the Pre- emption suit in the civil court under Clause 231(1) of Mulla‟s Commentary and Principles of Mahomedan Law is not maintainable in view of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as „the Act‟), which provides elaborate provision for disposal of pre-emption matter, irrespective of the parties being Hindus or a Muslims. It was further the case of the respondents that the only remedy before the appellant was by way of filing a pre-emption application 3 under Section 16 (3) of the Act before the Collector under the Act because a suit is barred under Section 43 of the Act. The vendee, who is respondent no.2 in this appeal prayed before the civil court to decide the question of maintainability as a preliminary issue which was rejected. The vendee preferred a review application which was also rejected by the trial court. The vendee (respondent no.2), filed two separate civil revision applications in the High Court against the aforesaid two orders. The civil revision preferred against the review application was taken up first and was dismissed with the observations that the dismissal would not affect any remedy against the substantive order. In due course, the second civil revision preferred against the substantive order refusing to consider the maintainability matter as a preliminary issue came up for hearing. The learned Single Judge allowed the revision application and directed the learned Sub-Judge in seisin of the Pre-emption case no. 248 of 2004, to decide the issue of maintainability as a preliminary issue. 4. On remand, the learned Sub-Judge by the impugned order dated 07.02.2009, has held that the suit is barred under Section 43 of the Act. The appellant challenged the order of the learned Sub-Judge in C.W.J.C. No.14925 of 2009, which was rejected by the learned Single Judge on 06.01.2010. The learned Single Judge held that the provisions of the Ceiling Act would prevail over other laws, customs, and usage, in view of the over- riding effect of Section 3 thereof. The learned Single Judge held 4 that the Ceiling Act, being a statutory enactment would have precedence over customary Muslim Law to the extent the latter is contrary to the provisions of the Act. The learned Single Judge further observed that Section 16(3) of the Ceiling Act provides that if a person transfers a land to a third party, a co-sharer or adjoining raiyat would have a right of Pre-emption. The learned Single Judge further observed that Muslim Law is also in same terms and there is no conflict between the Customary Law vis-à- vis the Ceiling Act. The learned Single Judge observed that Section 16(3) of the Ceiling Act would apply to agricultural land irrespective of its owner, purchaser, or pre-emptor. The learned Single Judge also noticed that Muslim Customary law does not provide the procedure and it only recognizes the right, as such procedure prescribed under the Ceiling Act would have to be followed which would apply equally to Muslim and Hindu. Learned Single Judge has also held that Section 43 of the Ceiling Act bars the jurisdiction of civil court to entertain matters provided thereunder. 5. We have heard the learned counsel for the appellant as well as learned counsel for the State and perused the materials on record. The appellant submits that Pre-emption dispute amongst Muslim would be governed by Muslim Commentary on Principles of Mohammedan Law. He submits that respondent no.3, Md. Sakaria, who was holder of power of attorney on behalf of his father respondent no.4 Md. Abdul Lateef @ Md. Abdul has transferred the land in question to respondent no.2, 5 Md. Aiyub Hassan. The appellant filed a Pre-emption suit under Clause 231 (3) of Principles of Mohammedan Law, which is being produced herein below for easy reference: “231 (3) owner of adjoining immovable property (z) [shafi-i-jar], but not their tenants (a), nor person in possession of such property without any lawful title (b) [Bailie, 481]. A wakif or mutawalli is not entitled to pre-empt, as the wakf property does not vest in him (c). The first class excludes the second, and the second excludes the third. But when there are two or more pre-emptors belonging to the same class, they are entitled to equal share of the property in respect of which the right is claimed [Baillie, 500].” 6. The issue is whether the Principles of Mohammedan Law would have precedence over statutory enactment e.g. Ceiling Act, 1961 in Pre-emption matters. The Principles of Mohammedan Law detailed in Commentary by Mulla is in respect of both Customary as well as Personal laws. Muslim Law of pre-emption has been applied in certain parts of the country to the owners of the property prior to coming of Ceiling Act irrespective of the religious binding, which manifests that it was not applied as Personal Law to the Muslim but as a Customary Law of the local area till the Legislature framed Ceiling Laws, which provides elaborate procedure for pre-emption matters. Section 3 of the Ceiling Act states that the provisions of the Act would have preference over matters to the contrary contained in any other law, custom, usage or agreement. Section 3 of the 6 Ceiling Act is quoted herein below: “Provision of the Act to prevail over other laws.- The provisions of this Act shall have effect, notwithstanding anything to the contrary contained in any other law, custom, usage or agreement, for the time being in force or in any decree or order of any Court:” Provided that nothing contained in this Act shall be deemed to have any effect on the provisions of the Bihar Bhoodan Yagna Act, 1954 (Bihar Act XXII of 1954). 7. From a bare perusal of Section 3 of Ceiling Act, it would appear that the provisions of the Act would have precedence, and prevail, over any other law, custom, usage or agreement to the extent they are contrary. In case of Dasrath Sao and ano. Vs. The Additional Member, Board of Revenue, Bihar and Ors, reported in 1985 PLJR 653, a learned Single Judge observed that the principles and provisions of Mohammedan Law governing the right of pre-emption must give way to specific laws including the Ceiling Act. In case of The State of Bihar Vs. Sri K.M. Zuberi and Ors., reported in 1986 PLJR 67, more or less a similar issue fell for consideration before the Special Bench consisting of five learned Judges. One of the issue in case was: “1. Whether the personal law applicable to the family has to be taken into consideration for the determination of its holding under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, despite the insertion of 7 clause (ee) and Explanation II thereto in section 2 of the said Act?” 8. In the aforesaid case, the stand of the State was that a child of a Mitakshara coparcenary on attaining majority having interest in an undivided Hindu family would be entitled to a separate unit under the Act, which would be prohibited in case of a major son in a family governed by Mohammedan Law. The stand of the State was that Muslim Personal law restricts inheritance of joint family property in life time of the father. The Special Bench held that as per the provisions of the Ceiling Act, a major son of a Muslim would also be entitled to a separate unit as applicable to a Hindu coparcener. The Special Bench held as follows: “(i) that the personal law applicable to the family is not to be taken into consideration for the determination of its holding under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, after the insertion of clause (ee) and Explanation II thereto in section 2 of the said Act; (ii) that if the major sons of a family governed by the Mitakshara school of Hindu Law are entitled to a separate unit under the Act then the major sons of a family governed by the Mohammedan Law are equally entitled to the same, and (iii) that with the deepest deference Imamul Hassan Choudhary vs. State of Bihar and others (1982 BBCJ 203: 1982 PLJR 321) does not lay down the law correctly and is hereby overruled.” 8 9. Though the Mohammedan Law also recognizes the right of pre-emption, it has not provided the procedure. A suit in respect of pre-emption right could have been maintainable in civil court till the time laws barring such jurisdiction was not made through special enactments. Ceiling Act, 1961 was enacted with one such object and Section 43 bars entertainment of suit thereof. Section 3 of the Act giving it an overriding effect over Customary Laws, usages and other laws including Muslim Customary law, if the same is contrary to the provisions contained in the Act. Thus both the learned Single Judge and trial judge have rightly held that civil court would have no jurisdiction to decide or deal with issues required to be settled in accordance with the provisions of the Act, 1961. 10. The appellant has also raised a grievance that the trial court decided the issue of maintainability without taking additional evidence. We find no merit in this submission, as the issue whether the Customary Principles of Mohammedan Law of pre-emption enshrined in Clause 231 of Mulla‟s Law would prevail over the statutory provisions of Ceiling Act, 1961, barring filing of suit in pre-emption matter, is a pure question of Law. The issue can be decided by adverting to the provisions of 1961 Act and Mulla‟s Commentary and Principles of Mahomedan Law. As parties had appeared and placed on their pleadings, the trial court did not commit error in not taking additional evidence in deciding such pure question of law. 11. In view of the over-riding provisions of Ceiling 9 Act, 1961, the learned Single Judge rightly affirmed the order of Sub-Judge-II, Bhagalpur in Pre-emption case no. 248 of 2004, that a civil court does not have jurisdiction to entertain a suit of pre-emption for which detailed procedure is provided under Ceiling Act, 1961. We have deliberately not gone into the issue whether the appellant would be a co-sharer in his father‟s property during his life time. Thus we do not find merit in this appeal and is accordingly rejected. I agree S. K. Katriar: Patna High Court Dated, 22nd April, 2011 Uday/N.A.F.R. (S. P. Singh, J.) (S. K. Katriar, J.)