IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1036 of 2007 IN (CIVIL WRIT JURISDICTION CASE 14709/2005) =========================================================== Basudeo Singh, son of Jai Govind Singh, resident of village Bardiha, P.O.Bhalunidham,, P.S.Dinara, District Rohtas. .... .... Appellant Versus 1. The State of Bihar 2. The Additional Member, Board of Revenue, Bihar, Patna. 3. The Additional Collector, Rohtas 4. The Deputy Collector Land Reforms, Bikramganj,P.S.Bikramganj, 5. District Rohtas 6. Sri Sheo Shankar Singh, 7. Sri Ramayan Singh, Both sons of Late Ishwar Dayal Singh, resident of village Khanita,P.S.Dinara, District Rohtas. .... .... Respondents-Respondents 8. Munilal Singh, son of late Kanhaiya Singh, resident of village Bardiha, P.S.Dinara, District Rohtas …. …… Petitioner- Respondent. =========================================================== Appearance: For the Appellant : Mr. VIVEKANAND SINGH-1 For the Respondents: Mr. Surendra Kumar Mishra =========================================================== CORAM: HONOURABLE JUSTICE SMT. T. MEENA KUMARI and HONOURABLE MR. JUSTICE VIKASH JAIN ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE VIKASH JAIN) The present L.P.A. arises out of a common order dated 31.10.2007 passed in CWJC Nos.14709 of 2005 by which the writ petition was disposed of along with CWJC No.14755 of 2005 wherein the petitioner and the respondent were the same and a similar question had been raised. These writ petitions had been filed at the instance of the purchaser who is Respondent no.7 in the Patna High Court LPA No.1036 of 2007 dt.12.12.-2011 2 instant L.P.A. The appellant is the pre-emptor who was impleaded as Respondent no.5 in the writ petition. 2. The brief facts leading upto the present appeal may be narrated hereinafter. 3. The land in question relates to R.S.Khata no.130, Plot No.538 measuring an area of 22 decimals situated at village Khantia, P.S.Dinara, District Rohtas which was purchased by Respondent no.7 vide registered sale deed no.7776 dated 10.11.2000 for a consideration of Rs.30,000/-. 4. It transpires that on the very same day the Respondent no.7 purchased another contiguous piece of land measuring 26 decimals by a separate registered sale deed no.7786, being the subject matter of CWJC No.14755 of 2005. 5. The appellant, being the adjacent raiyat and co-sharer had filed a Pre-emption case being Ceiling Case No.14 and 15 of 2001 for re-conveyance of the land which had been transferred to Respondent no.7 through the two aforesaid registered sale deeds. The appellant’s claim for pre-emption was allowed by order dated 6.6.2001, against which Ceiling Appeal Nos. 2 and 3 of 2001-02 filed by Respondent no.7 were also dismissed. Thereafter, Ceiling Revision Case No.241 and 242 of 2001 was preferred by Respondent no.7, but however, also without success. Respondent no.7 then Patna High Court LPA No.1036 of 2007 dt.12.12.-2011 3 moved this Court in its writ jurisdiction and his writ petition was allowed in terms of the impugned order dated 31.10.2007 by which the order of the Revenue Court was set aside. 6. On a perusal of the impugned order it transpires that the learned Single Judge has taken note of the contention of Respondent no.7 that having simultaneously purchased two contiguous plots of land on the same day through two separate registered sale deeds, he himself became the adjacent raiyat of both the plots in relation to each other. Inasmuch as the pre-emption application was filed by the appellant subsequently, it was contended by the writ petitioner that he had a better right and the pre-emption was unsustainable in law. The decision reported in 2004 (2) PLJR 335 (Nathuni Mahto Vrs. The State of Bihar and others), which in turn follows 1987 PLJR 455 (Ram Roop Yadav Vrs. The State of Bihar and others) relied upon by the Respondent no.7 on this point was also taken note of. 7. Learned counsel appearing on behalf of Respondent no.7 appears and has been heard. He submits that on a bare perusal of the provisions of Section 16(3) of the Ceiling Act it will be evident that the right of pre-emption can be exercised only in two situations. He submits that in view of purchase of two plots of land by Respondent no.7 on the same day he became an adjoining raiyat on Patna High Court LPA No.1036 of 2007 dt.12.12.-2011 4 the date of purchase itself. thus, acquiring an equal right as the appellant pre-emptor whose claim was not sustainable in law. As such, he submits that there is no error in the order passed by the learned Single Judge. 8. While other submissions and contentions were raised and controverted by the parties, the learned single Judge has allowed the writ petition in view of the fact that Respondent no.7, having purchased two plots of land under two separate sale deeds, became an adjacent raiyat himself and in such a case the pre-emption could not have been allowed in the Appellant’s favour. It has further weighed with the learned Single Judge that even though the right of pre-emption has been made a statutory one under Section 16(3) of the Ceiling Act, yet it is a very weak right. 9. It is the case of the appellant that the learned single Judge has committed an error of law in allowing the writ petition of Respondent no.7. He primarily submits that whatever may have been the legal position with regard to the strength of pre-emption as a right the same has been definitively pronounced upon by the Supreme Court in (2001) 8 SCC 24 (Shyam Sundar Vrs. Ram Kumar) in the following terms :- “……The right of pre-emption of a co-sharer is an incident of property attached to the land itself. It is some sort of encumbrance carrying with the land which can be enforced by or against the co-owner of the land. The main Patna High Court LPA No.1036 of 2007 dt.12.12.-2011 5 object behind the right of pre-emption, either based on custom or statutory law, is to prevent intrusion of a stranger into the family holding or property. A co-sharer under the law o pre-emption has right to substitute himself in place of a stranger in respect of a portion of the property purchased by him, meaning thereby that where a co-sharer transfers his share in holding, the other co- sharer has right to veto such transfer and thereby prevent the stranger from acquiring the holding in an area where the law of pre-emption prevails. Such a right at present may be characterised as archaic, feudal and outmoded but this was law for nearly two centuries, either based on custom or statutory law. It is in this background the right of pre-emption under statutory law has been held to be mandatory and not mere discretionary.” 10. The aforesaid view has since been reiterated by the Supreme Court in its recent decision reported in (2010) 6 SCC 441 (Suresh Prasad Singh Vrs. Dulhin Phulkumari Devi and others). In this view of the matter there can be no gainsaying that the right of pre-emption indeed reference to be statutorily enforced if the conditions precedent are fulfilled. 11. It therefore, requires to be seen whether or not Respondent no.7’s to claim to his entitlement as a purchaser on the strength of his having simultaneously purchased the two plots of land adjacent to each other in order to legally stake his claim on the basis of adjacency is not maintainable. 12. This aspect of the matter will also have to be decided in terms of the observations of the Supreme Court in Suresh Prasad Patna High Court LPA No.1036 of 2007 dt.12.12.-2011 6 Singh’s case (supra), para 21 whereof may be reproduced herein for the sake of convenience and ready reference : “Respondent 1, however, claims to be a boundary raiyat saying that she had purchased under an earlier sale deed dated 11.1.1980 a plot of land adjoining to the land in respect of which the appellant has applied for pre-emption under Section 16(3) of the Act. The learned counsel for Respondent 1 has relied on the decision of the Patna High Court in Ram Pravesh Singh V. Board of Revenue for the proposition that the claim of pre-emption was not maintainable against a person who holds an adjacent plot of land. This view of the Patna High Court is based upon its earlier judgment in Ramachabila Singh V., Ramsagar Singh that if the transferee happens to be an adjacent raiyat in respect of some other plots, a co-sharer cannot claim any right of pre-emption under Section 16(3) of the Act. As a matter of fact, section 16(3) confers the right of pre-emption not only on the co-sharer but also on the raiyat holding land adjoining to the land transferred. We are, however, of the considered opinion that a complete stranger who was not originally a raiyat holding land adjoining to the land transferred cannot be allowed to defeat the right of pre-emption of a co-sharer by first purchasing an adjoining plot of land and thereafter claiming to be a raiyat holding land adjoining to the land transferred. The decisions of the Patna High Court are cases of original boundary raiyats resisting the claim of pre-emption by a co-sharer of the transferred land. The object of Section16 (3) of the Act is to recognize the right of pre-emption of the co-sharer of the transferor or any raiyat holding land adjoining to the land transferred and this object would be frustrated if strangers are allowed to first buy one plot of land and then resist the claim of right of pre-emption of a co-sharer or a boundary raiyat on the basis of such first purchase of a plot of land.” 13. In view of the clear pronouncement as aforesaid, we have no hesitation in holding that Respondent no.7 must be held to have been a complete stranger until the time he purchased his two Patna High Court LPA No.1036 of 2007 dt.12.12.-2011 7 plots simultaneously and such transaction cannot infringe upon or defeat the appellant’s right of pre-emption. 14. In view of the above, the order of the learned single Judge is set aside and the LPA stands allowed. (T.Meena Kumari,J.) (Vikash Jain, J.) I agree (T.Meena Kumari, J.) Patna High Court Dated 12th December, 2011 A.F.R. chandran