IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.481 of 2009 1. Ram Niwas Singh S/o Late Ramji Singh 2. Manoj Kumar Singh @ Ghutar Singh S/o Late Ram Jatan Singh All R/o Village Kashba Abaipur, P.S. Surajgarha, Distt. Lakhisarai ...... Petitioners ..... Appellants VERSUS 1. The State of Bihar, through the Commissioner-cum- Secretary, Land Reforms & Survey, Patna 2. The Member, Board of Revenue, Bihar, Patna 3. The Collector, Lakhisarai 4. The Deputy Collector Land Reforms, Lakhisarai 5. Polo Mandal 6. Arjun Mandal Sons of Kishun Mandal Both R/o Village Kahba Abhaipur, P.S. Piri Bazar Purana Surajgarha, P.O. Abhaipur, District.Lakhisarai ..... Respondents .... Respondents ------- For the Appellants : M/s Rewati Kant Raman and Mukesh Kumar 2, Advocates For the State : Ms Kumari Amrita, SC 1(C) For Respondents 5&6 : Mr Shambhu SN Singh, Advocate ------ P R E S E N T THE HON’BLE THE ACTING CHIEF JUSTICE THE HON’BLE MR JUSTICE SHYAM KISHORE SHARMA ------- Shiva Kirti Singh, ACJ. This Letters Patent Appeal arises out of a dispute relating to claim for pre-emption made by respondents no.5 and 6 (hereinafter referred to as ‘the pre- emptors’) under section 16 (3) of the Bihar Land Reforms 2 Khata no.199, Khesra no.1561 (new) situated in Mauza Kasba, Pargana Abaipur, P.S. Surajgarha district Munger, now Lakhisarai, purchased by the appellants through a sale deed dated 25.11.1988. It was registered subsequently under sections 60 and 61 of the Indian Registration Act on 13.5.1989. Thereafter, the pre-emptors filed Ceiling Case No.2/89-90 on 12.9.1989. According to averments in paragraph 6 of the memorandum of appeal, the application was filed beyond the permissible period of three months of the registration of the document. A counter affidavit filed on behalf of the pre-emptors does not dispute this statement and a general defence has been taken that issues of facts need not be gone into. 2. The defence of the appellants in the ceiling case was an assertion that they had actually purchased the land for residential purpose and had constructed a house even before the filing of the case. For verification of the factual position they made a prayer before the DCLR, Lakhisarai who held that appellants had constructed some structure over the disputed land and on that account the pre-emption application was dismissed. The pre-emptors preferred an appeal before 3 the Additional Collector, Munger but the same was also dismissed. A revision application filed by them was partly allowed by the Board of Revenue on 4.9.1993 and the matter was remanded to the DCLR, Lakhisarai for getting local inspection made through an advocate commissioner and for passing fresh order thereafter. The DCLR found the report of the advocate commissioner to be in favour of the appellants because it supported their defence of having constructed a dwelling unit on the vended land. Accordingly, the ceiling case was again dismissed by DCLR on 24.8.1996. The appeal preferred by the pre-emptors was dismissed on 11.4.2000. They preferred Ceiling Revision No.102/2000 before the Board of Revenue, Bihar, Patna which was decided by an Additional Member who allowed the revision application and held that the pre-emptors were entitled for pre-emption and to get the land registered in their name as well as delivery of possession. 3. The appellants challenged the order of the Additional Member, Board of Revenue dated 10.3.2006 through writ petition bearing CWJC No.13959/2007 which was dismissed by the order under appeal passed by the 4 learned single Judge on 27.2.2009. 4. A perusal of the order under appeal discloses that the writ petition was dismissed only on the basis of a finding by the Board of Revenue that the land in question was agriculture in nature. The Writ Court held that since it was an issue of fact the revisional authority was competent to come to such finding under Section 32 of the Act. Since there was no dispute that the appellants were neither co- sharer nor adjoining raiyats whereas the pre-emptors had that status, the pre-emption application was held to have been rightly allowed. 5. On behalf of the appellants reliance was placed before the learned Writ Court as well as before us upon a judgment of a learned single Judge in the case of Triveni Singh v. the State of Bihar and others, reported in 2007(4) PLJR 109. In that case it was held that the revisional court in exercise of power under Section 32 of the Act should not reverse the finding of fact recorded by appellate court without assigning clear and cogent reasons. It was clarified that finding of fact by the court of appeal can only be disturbed and interfered with by revisional court if there is 5 inherent lacuna in the procedure or palpable wrong on the face of the record or there is manifest injustice resulting therefrom or it is perverse as no prudent man would reach to such a conclusion. The learned Writ Court though noted the aforesaid citation in paragraph 4 of the order but in the following two paragraphs leading to final conclusion it did not revert to the proposition of law settled in that judgment. 6. Besides the aforesaid submission on behalf of the appellants, it was further submitted that even if the land was originally recorded as agricultural in nature, since it has been proved through successive inspection reports that appellants have actually purchased the land for construction of homestead and the nature of land has changed the revisional court should not have interfered in the matter in view of law laid down by following two Division Bench judgments of this Court : (i) Deo Narain Mandal v. Ram Chandra Mandal, 2007 (4) PLJR 659 and (ii) Ramayan Sah v. the State of Bihar, 2009(3) PLJR 833. Reliance was also placed upon a judgment of learned single Judge of this Court in the case of Hari Narayan Pandey v. State of Bihar, (1994) 2 BLJR 774. In the case of Deo Narain Mandal (supra) the 6 Division Bench took note of the fact that as per provisions in Section 16(3) of the Act the pre-emptor is required to deposit not only the consideration money but also additional 10 per cent thereof and on fulfilling the required condition in that section, even during the pendency of the pre-emption application the pre-emptor is entitled to be put into possession over the vended land. In case the pre-emption application finally fails, the transferee is entitled to be compensated with the aforesaid 10 per cent of the consideration amount. It was further held that since the pre- emptor in that case did not take steps for being put in possession during the pendency of the case and house had been constructed on the land transferred, it showed that the purchase was for making construction of house and not for agricultural purpose. It had also led to a situation where the purchaser or the transferee could not be compensated for the construction as the compensation provided in the normal circumstances as 10 per cent of the consideration amount alone could be paid to the transferee and that also only if the pre-emption application failed. According to said judgment, the pre-emptor cannot be permitted to make unjust 7 enrichment and cause irreparable loss to the transferee by his own inaction by not taking possession of the land during the pendency of the claim. 7. In the case of Ramayan Sah (supra) the situation was similar to one in this case and the Division Bench held that since the purchaser had raised a house/ shop over the land in question and since the revenue authorities on that basis held that nature of vended land had changed and rejected the application for pre-emption, no interference was required with such order. 8. In the case of Hari Narain Pandey (supra) the learned single Judge held that although the vended lands were recorded as agricultural land but since they were purchased for making constructions and in fact constructions were made immediately after purchase, the pre-emption application deserved to be rejected. In that judgment it was noticed that the purpose of the Act is to prevent fragmentation of land capable of cultivation and therefore, a land which has changed its nature and is not capable of cultivation should not normally be the subject matter of a proceeding under Section 16(3) of the Act. It further noticed 8 the well settled law that right of pre-emption is a very weak right and it can legitimately be defeated and rendered unenforceable by a bonafide transaction. 9. Learned counsel for the pre-emptors, in reply, highlighted the fact that in the deed of conveyance the intention of the purchaser that he wanted to construct homestead was not mentioned and on that basis he attempted to distinguish the Division Bench judgment in the case of Deo Narain Mandal (supra). No doubt, in paragraph 4 of that judgment it was noticed that the conveyance in that case indicated that the transferees were purchased the land in question for the purpose of construction of their house, but the ratio of that judgment is different and to the effect that if the pre-emptor fails to obtain possession during the pendency of the pre-emption application and if in fact, construction takes place on the vended land, it would not be just to allow pre-emption. 10. Considering the entire facts and circumstances noticed above as well as the law flowing from the judgments cited and discussed, we are of the considered view that mentioning of the intention for purchase in the deed of 9 conveyance is only a good piece of evidence on basis whereof intention of the purchaser regarding future use of the vended land may be inferred but such evidence alone cannot be conclusive either way. In the present case, it has come on record through report of the advocate commissioner that house of the pre-emptors is situated close on the one side and the appellants have also constructed structures to indicate that land is being used as a homestead. Considering those aforesaid facts and the law discussed above including the settled law that pre-emption is a weak right which can legitimately be defeated by bonafide transaction, we are of the considered view that the Board of Revenue in exercise of its revisional power under Section 32 of the Act was not justified in reversing the finding of fact with regard to changed nature and use of the land as a homestead. It is a case where the order by the Board of Revenue requires to be set aside. Hence, the judgment and order under appeal is set aside and the impugned order of Board of Revenue dated 10.2.2006 passed by Additional Member, Board of Revenue, Bihar, Patna in Revision Case No.102/2000 is quashed. 11. As a result, the pre-emption claim of the pre- 10 emptors fails. The writ petition and the appeal are allowed but without costs. (Shiva Kirti Singh,ACJ) Shyam Kishore Sharma, J. I agree. (Shyam Kishore Sharma,J.) The 17 th December, 2009. AFR / sk