IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7213 of 2005 RAJDEO SINGH S/O LATE GHARBHARAN SINGH, R/O VILL. SOHADA, P.O & P.S. KACHCHHAWAN, DIST. ROHTAS. ---- PETITIONER Versus 1. THE STATE OF BIHAR 2. THE MEMBER BOARD OF REVENUE, BIHAR PATNA 3. THE ADDITIONAL DISTRICT COLLECTOR, ROHTAS AT SASARAM 4. THE L.R.D.C. BIKRAMGANJ, DIST. ROHTAS 5. LAL MOHAR SINGH SON OF LATE MAL SINGH 6. SARJU ALIAS SARYU PRASAD SINGH SON OF LATE SUKHDEO SINGH BOTH RESPONDENT NOS. 5 AND 6 ARE R/O VILL. SOHADA, P.O. & P.S. KACHCHHAWAN, DIST. ROHTAS. --- RESPONDENTS. For the petitioner : Mr. Sudama Singh, Advocate. For the respondents : Mr. Subhash Kumar no.1, Advocate. ----------- 03 11.04.2011 Petitioner is pre-emptor. This application under Article 226 of the Constitution of India is directed against the order/resolution dated 07.02.2005( Annexure-3) passed by respondent Additional Member Board of Revenue in Ceiling Revision no. 260 of 2003 whereby the revision application preferred by the petitioner was dismissed and the order dated 08.11.2003 (Annexure-2) passed by the appellate authority was affirmed. Background facts leading to the present writ petition in a nut shell are as under:- Respondent no.5 executed and registered a sale deed on 28.03.2001 in respect of 0.15 decimals of land appertaining to R.S. khata no. 36 and R.S. plot no. 939 situate in mouza Sohada within Kachchhawan police Station in the District of Rohtas. The aforesaid sale deed was registered on 22.05.2001. The writ petitioner finding 2 himself to be the adjoining raiyat as well as co sharer of the land/vendor filed a proceeding under 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‟) giving rise to L.C. case no. 03 of 2001-2002. The respondent no.6 ( purchaser) appeared in the said proceeding and contested the same, inter alia, on the ground that the land(s) vended under the subject sale deeds has been reconveyed to the vendor ( respondent no.5) under an agreement reached by and between the vendor and the vendee which was reduced in writing in the shape of a yadastnama which was affidavited before a Notary. The claim of the writ petitioner as adjoining raiyat and/or co sharer of the respondent no.5 was also disputed. The respondent no.4 by a proceeding dated 22.10.2001 (Annexure-1) allowed the claim of pre-emption raised on behalf of the writ petitioner. Aggrieved by the said order the respondent no.5 ( original vendor) filed appeal giving rise to appeal no. 08 of 2001-02/ 26 of 2001-02. On a consideration of the materials placed before it the respondent appellate authority by a proceeding dated 08.11.2003 (Annexure-2), allowed the appeal on the grounds, inter alia, that pre-emption is a weak right and that the vended plot/land under the subject sale deed was/were reconveyed to the vendor /appellant and as such there was no transfer of land in the eye of law which would fail the claim of pre-emption made by the writ petitioner under Section 16(3) of the Act. Aggrieved by the aforesaid order the writ petitioner/pre-emptor filed the revision application which was dismissed as indicated hereinabove giving rise 3 to present case. I have heard learned counsel for the petitioner and learned counsel appearing on behalf of the respondent no.5 (original vendor). Learned counsel for the petitioner submits that according to the case of respondents the subject land was reconveyed to the original vendor (respondent no.5) on 30.06.2001, whereas the application was lodged by the petitioner under Section 16(3) of the Act on 16.06.2001. Relying on a judgment of this Court since reported in 1998 (3) PLJR 756 ( Charku Ram vs. The State of Bihar & ors.) it is submitted that the said reconveyance of land shall be hit by the principles of lis pendens and the claim of the writ petitioner cannot be defeated on that ground. It is contended that the statutory period of 90 days expired on or before 27.06.2001 whereas the reconveyance of the land in favour of the original vendor was made on 30.06.2001. It is the stand of the petitioner that any alienation made beyond the said period of 90 days and that too after lodgment of a proceeding under Section 16(3) of the Act would not defeat the statutory right of the pre-emptor to get the land reconveyed in his favour on fulfilling required condition provided in law. Learned counsel appearing on behalf of the respondent no.5 (original vendor), on the other hand, submits that the subject land was alienated in favour of respondent no.6 with a contemplation and/or agreement between them. Both of whom were friends and an agreement was reached between them that if the amount of loan paid by respondent no.6 to original vendor (respondent no.5) is paid back 4 then the land covered by the impugned/subject sale deed shall be reconveyed in his favour. Such agreement was reduced in a shape of „yadastnama‟ on the date of execution/ registration of the present sale deed itself but no such contemplation was indicated in the sale deed which was made impugned by the pre-emptor. It is contended that non disclosure of the aforesaid agreement /condition in the subject sale deed would not render the written agreement reached by and between the original vendor and the vendee (respondent no.5 and 6 respectively) not enforceable in law. It is contended that no issue of the said agreement/yadastnama reached by and between the original vendor and vendee being sham or forged document by the pre-emptor was raised at any stage. Learned counsel has placed reliance on a judgment of the Supreme Court since reported in the case of Sri Babu Ram @ Durga Prasad vs. Sri Indra Pal Singh (dead) by Lrs. since reported in 1998 SAR (Civil) 716. Learned counsel further highlights that under the subject sale deed the subject land was conveyed to the vendor (respondent no.5) for a consideration of Rs. 24,000/- (Twenty four thousand) and by the sale deed executed on 30.06.2001 by respondent no.6 to the original vendee ( respondent no.5) the subject land was reconveyed in his favour for the same consideration amount. It is contended that the lands thus remained with the original vendor and no transfer thereof having taken place the question of allowing claim of pre-emption in favour of writ petitioner does not arise. I have considered the submissions made on behalf of the parties and perused the materials on record. From perusal of annexure- 5 1, It appears that the claim of the pre-emption was allowed on the ground that the pre-emptor was adjoining raiyat in respect of the vended land. The appellate authority based on materials on record including the „yadastnama‟ has taken a view that there was no sale in the eye of law and as such the claim of preemption raised by the petitioner would fail. The appellate Court, has, thus, accepted the contention of the original vendor that by reason of subject sale only the title had transferred without possession which was also subject to an agreement arrived at between the vendor and the vendee. No sooner the amount received by the vendee was paid back to the original vendor the land was reconveyed in favour of the original vendor on the same terms inasmuch as the consideration amount was also reflected to be the same. The revisional Court, after hearing both the parties, agreed with the view taken by the lower appellate Court/authority and assigned valid reasons therefor in the impugned order. The appellate authority while considering the effect of the agreement reached by and between the vendor and the vendee reduced in the shape of „yadastnama‟ has accepted the same to be a valid document on which reliance can be placed although there is no recital to that effect in the subject sale deed. Reliance in this regard has been placed on the ratio laid down by the Hon‟ble Supreme Court in the case of Sri Babu Ram @ Durga Prasad wherein the Hon‟ble Apex Court has observed as under:- “….. It is true that it is customary to include a recital regarding the agreement of reconveyance in the sale-deed itself. But where, as here, there was an agreement preceding the sale deed and that agreement 6 contained such a clause, and a sale-deed was executed consequent thereto, the absence of a reference to the agreement of reconveyance in the sale-deed would not, in our opinion, lead to the inference that the said right was given up by the plaintiff. Unless there is a detailed plea and also evidence that before execution of the sale – deed there was novation and parties expressly agreed to give a go bye to the agreement or reconveyance, no inference could be drawn that the agreement of reconveyance contained in the agreement of sale dated 19-11-63 which preceded the sale- deed was given a go-bye….” The submission of the petitioner that such reconveyance having taken place during the pendency of the proceeding and, therefore, would be hit be principle of lis pendens, in my view, does not apply to the present case for the reasons that there was an agreement reached by and between them prior to the date of lodgment of the proceeding and the same has not been proved to be forged or sham agreement. The result is that the subject land during the pendency of the proceeding came back in the hands of the seller /vendor in terms of an agreement between the parties i.e. the vendor and the vendee. It is well recognized principle of law that claim of pre-emption is a weak right and can be defeated by bonafide /lawful methods. Here is a case where the vendor in terms of an agreement reached by and between him and the vendee got the land reconveyed to him in terms thereof but after lodgment of the proceeding under Section 16(3) of the Act by the pre-emptor. The „yadastnama‟ and/or agreement is not under challenge and the land having been reconveyed to the vendor, in my view, demonstrate that there was no 7 sale of land/transfer of land in the eye of law giving any occasion to the petitioner to raise the claim for pre-emption. The revisional Court has assigned adequate reasons therefor. This Court does not find any reason to differ therewith. The application fails. It is, accordingly, dismissed. Sym ( Kishore K. Mandal, J)