IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5601 of 2005 TEJ NARAIN SINGH, SON OF LATE MALIK SINGH, AT SALKHUA P.S. AMNAUR, DISTRICT SARAN, CHAPRA …PETITIONER Versus 1. THE STATE OF BIHAR, THROUGH ITS CHIEF SECRETARY, OLD SECRETARIAT, BIHAR, PATNA 2. THE BOARD OF REVENUE, BIHAR PATNA, THORUGH ITS MEMBER ADDITIONAL MEMBER, OLD SECRETARIAT, PATNA 3. THE ADDITIONAL COLLECTOR, SARAN CHAPRA 4. THE DEPUTY COLLECTOR OF LAND REVENUE, MARHORA, SARAN, CHAPRA 5. URMILA DEVI WIFE OF CHANDRA BHUSHAN SINGH AT DHORLAHI KAITHAL P.S. AMNAUR, DISTRICT SARAN, CHAPRA. 6. BHAGWAN SINGH, SON OF LATE MALIK SINGH, AT SALKHUA P.S. AMNAUR DISTRICT SARAN,CHAPRA …RESPONDENTS For the petitioner :Mr. Raghu Bansh Pd. Singh Sr. Advocate & :Mr. Sushil Kumar For the State :Mr. Rakesh Kumar Ranjan, AC to SC 11 For Respondent no. 5 :Mr. Ashutosh Jha & :Mr.Basant Kumar Singh ----------- 04. 15.03.2011 The petitioner is the pre-emptor. He is aggrieved by the Resolution of the Board of Revenue dated 17.02.2005 (Annexure-4), whereby the revision application preferred by the petitioner was rejected. The revisional court by rejecting the revision application being Revision Case No. 141/2001 affirmed the order passed by respondent-appellate court/authority dated 17.07.2001 (Annexure-3), whereby the appeal preferred by respondent no.5 was allowed and the order of the respondent D.C.L.R. dated 07.07.1999 (Annexure-1) 2 allowing the claim of pre-emption raised by the writ petitioner was set aside. Background facts leading to the present writ proceeding in a nutshell is/are as follows: Grand father of the petitioner Nihora Singh was recorded tenant in respect of different tracts of lands including the land(s) appertaining to Khata No.115, R.S. Plot No.347, measuring a total area of 9 kathas & 19 dhurs. He died leaving behind one son named Malik Singh who also died leaving behind four sons, namely, Daroga Singh, Tej Narain Singh (writ petitioner), Ramjee Singh and Bhagwan Singh(vendor). Aforesaid Bhagwan Singh sold two kathas nine dhurs and 14 dhurkis of land appertaining to Rs. Khata No.115, R.S. Plot No.347 in favour of respondent no.5 (purchaser) by a sale deed which was registered on 05.03.1997. The writ petitioner being the full brother of Bhagwan Singh (vendor) filed a proceeding under section 16(3) of the Bihar land Reforms (Fixation of Ceiling Area and Acquisition of Surplus land) Act, 1961 for short ‘the Act’ giving rise to L.C. Case No. 8/98-99. The respondent-D.C.L.R. by a proceeding dated 07.07.1999 (Annexure-1) allowed the claim of pre-emption. Aggrieved by the aforesaid order, respondent no.5 (purchaser) preferred appeal being L.C. Appeal No.8/99. The appellate court after hearing the parties and getting a report submitted by the survey knowing pleader commissioner allowed the appeal by order dated 17.07.2001((Annexure-3). Aggrieved over the 3 said order, the writ petitioner preferred revision before the Board of Revenue, vide Revision Case No. 141/2001. Respondent-Additional Member, Board of Revenue by Resolution dated 17.02.2005 rejected the revision application preferred by the petitioner leading to filing of the present writ application. Heard learned counsel for the petitioner, State and learned counsel for respondent no.5. No counter affidavit has been filed either on behalf of respondent no.5 or on behalf of the State. Learned counsel appearing in support of the application, submits that the land in question is agricultural land as in revisional survey records the same has been recorded as Dhanhar. Even if it is presumed that the purchaser (respondent no.5) has purchased a very small tract of land and made construction thereon, the same would not defeat the right of pre-emption as homestead of a landholder within the meaning of the Act would be covered by the provisions contained in section 16(3) of the Act. He relies on a judgment of this Court in the case of Jugeshwar Singh & Anr. Vs. Jainandan Pd. Singh & Ors. since reported in 1970 BLJR 1010. It is next contended that the writ petitioner being the full brother of the vendor and part of the entire land appertaining to R.S. Plot No.347 being vended under the sale deed in question, he would be deemed to be co-sharer of the vended land. Learned counsel appearing on behalf of respondent 4 no.5, on the other hand, submits that the writ petitioner has not been shown as boundary raiyat in respect of the vended land/plot in the sale deed. He produced a photo copy of the sale deed in question. From perusal whereof, it appears that the status of the writ petitioner does not appear as adjoining raiyat on any side of the vended land. It is further submitted that law is settled that right of pre-emption is a very weak right and can be defeated on any bona fide ground. The Court will always lean in favour of the purchaser who has paid consideration money and acquired the land. He relies on a judgment of the Supreme court reported in AIR 1958 (SC) page 838(Bishan Singh & Ors. Vs. Khazan Singh & Anr.) Learned counsel drawing attention of the Court to the finding recorded by appellate court (Annexure-3), submits that the positive case of the vendor and vendee is that there has been partition amongst the four sons of Malik Singh inasmuch as all the sons of Malik Singh had sold specific plot(s) of the land in favour of different persons. Bhagwan Singh(respondent no.6) sold the land in favour of the petitioner which has become subject matter of the pre-emption proceeding. It is submitted that considering the materials placed before the authority it was found and held that there was separation between the four sons of Malik Singh and as such the writ petitioner cannot be said to be co-sharer of the land or of the vendor. Learned counsel further added that each son of Malik Singh got two kathas and odd in R.S. Khata No.115 and R.S.Plot No.347. Bhagwan Singh(respondent no.6) 5 got his share on extreme southern part of the aforesaid plot, whereas the pre-emptor(writ petitioner) got on the extreme north. This is the reason for not disclosing the name of pre- emptor (writ petitioner) on the adjoining north of the vended land/plot. It is submitted that the name of another son of Malik Singh, i.e. Ramjee Singh has been reflected in the impugned sale deed which would show that the pre-emptor is not even the adjoining raiyat of the land in question. It is next contended that the land in question has changed its colour and use over several decades as the revisional survey records were prepared long ago. The survey knowing pleader commissioner has found that the land has assumed commercial value as several shops/business premises have grown up on the adjoining lands. On this score also, the claim of pre-emption is fit to be defeated. Learned counsel appearing on behalf of the State simply supported the impugned order. I have considered the submissions advanced on behalf of the parties and perused the materials on record. The original court (respondent no.4) allowed the claim of the petitioner on the ground that the land was agricultural one and that the petitioner was a co-sharer of the land. The appellate court on the request of the parties appointed survey knowing pleader commissioner and a report from the said commissioner was obtained (Annexure-2). Different documents were produced on behalf of respondent 6 no.5 to show that there was separation between the sons of Malik Singh inasmuch as all the four sons were dealing in land/property separately. Several sale deeds were produced to show that sons of Malik Singh were selling property/land. Learned appellate court having noticed different documents produced before it found that there was separation between the four sons of Malik Singh and all the sons got specific property/land including the land appertaining to R.S. Khata No.115 and Plot No.347. This finding was recorded only for the purpose of disposal of appeal and adjudication on the claim of the parties. It has also been found by the appellate court that the land had changed its nature and had now become commercially viable. The purchaser had partially constructed a house on the land in question and that several shops, business premises had grown up on the adjacent land(s) in question. Said finding of the appellate court was re-appraised and approved by the Board of Revenue wherein it has been found that the pre-emptor in view of particular facts of the case cannot be said to be co-sharer and/or adjoining raiyat of vended plot and that subject land has changed its nature and has become commercially viable. This Court, in view of the discussions made above, and findings recorded by the appellate court as well as the revisional authority as contained in annexures-3 and 4 is not satisfied that a case for invocation of extra- ordinary writ jurisdiction is made out. 7 The application, therefore, fails and is dismissed. No costs. hr ( Kishore K. Mandal )