IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5192 of 2004 MUKESH CHAUDHARY, SON OF SRI RAM SAKAL CHAUDHARY, RESIDENT OF VILLAGE KUTUBPUR DUMARI, P.S. HAZIPUR, SADAR, P.O. MINAPUR RAI, DISTRICT VAISHALI (HAJIPUR) ----- PETITIONER Versus 1. THE STATE OF BIHAR 2. THE BOARD OF REVENUE, BIHAR, PATNA THROUGH ITS ADDITIONAL MEMBER MR. C. ASHOK BARDHAN, I.A.S. OLD SECRETARIAT, PATNA 3. THE COLLECTOR, DISTRICT VAISHALI AT HAJIPUR 4. THE LAND REFORMS DEPUTY COLLECTOR, DISTRICT VAISHALI AT HAJIPUR 5. UPENDRA CHAUDHARY, SON OF SRI RAM SHRESTHA CHAUDHARY, RESIDENT OF VILLAGE KUTUBPUR, DUMARI, P.S. HAJIPUR, SADAR, P.O. MINAPUR RAI, DISTRICT VAISHALI (HAJIPUR) 6. SRI AMRESH KUMAR CHAUDHARY, SON OF LATE MADHU SUDAN CHAUDHARY, RESIDENT OF VILLAGE KUTUBPUR, DUMARI, P.S. HAJIPUR, SADAR, P.O. MINAPUR RAI, DISTRICT VAISHALI (HAJIPUR) ----- RESPONDENTS For the petitioner :- Mr. Laxmi Kant Tiwary, Advocate For respondent no. 5 :- Mr. Shrinandan Pd. Singh, Advocate Mr. Manoj Kumar No. 1 ----------- 3 13.9.2010 All three courts have consistently held that the respondent no. 5 is not only co-sharer but also a boundary raiyat having purchased lands south of plot no. 33, which is in the boundary of the disputed plot i.e. plot no. 32. The case of the petitioner-vendor is that the sale deed executed with respect to plot no. 33 was without permission of the Consolidation Officer under Section 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1979. It has been argued that since the sale deed 2 with respect to plot no. 33 was in contravention of the Consolidation Act, the respondent no. 5 could not claim to be a boundary raiyat and his application under Section 16(3) of the Bihar Land Ceiling Act ought to be rejected. For this purpose counsel for the petitioner relies on a decision reported in 1979 BLJR 132 (Kamal Dhari Rai Vs. State of Bihar). The facts of the aforesaid case are not at all applicable to the facts of the present case. Learned counsel for the petitioner submits that the respondent pre-emptor has based his claim that he is boundary raiyat on the basis of a sale deed of the year 1987. It is argued that the sale deed was executed in contravention of Section 5 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1979. It has been argued that the Chakbandi Officer has vide Annexure-1 reported that permission for sale was required on 19.3.1987 for lands situated in village Rampur, Dumri, P.S. 31, Anchal Hajipur, District Vaishali. This information has been provided to the 3 petitioner by way of information sought under “Right to Information Act”. Contrary to the submissions of the petitioner, it has been recorded by the Member, Board of Revenue that notification produced under Sections 9 and 10 of the Consolidation Act does not disclose the date on which the notification was issued, as such it cannot be conclusively said that the sale deed is not valid. Moreover, it does not lie in mouth of the third party to challenge the sale deed. Infact the sale deed can only be cancelled by the Collector of the District under the provisions of the Consolidation Act. As such the plea raised on behalf of the purchaser that the pre- emptor is not a boundary raiyat is not maintainable. The next part of the submission on behalf of the counsel for the petitioner is based on a genealogical table which is annexure-6 to the writ application. The genealogical table indicates that the vendor respondent no. 6 is the son of Madhusudan Choudhary and the pre-emptor is the brother of Madhusudan Choudhary which clearly shows 4 that he is a co-sharer of the lands in question. As far as the petitioner is concerned, he comes from the branch of Durga Choudhary and his son. There is no material to indicate that Durga Choudhary the ancestor of the petitioner and Janki Choudhary, brother of Durga Choudhary ancestors of the vendor are joint. Therefore, this Court cannot accept the contention raised on behalf of the petitioner that he is a co-sharer of Madhusudan Choudhary and Upendra Choudhary. In the facts aforesaid, the pre- emptor would succeed if on no other ground than on the ground that he is in the boundary of purchaser’s land which is the subject matter of the sale deed, for which the application under Section 16(3) of the Bihar Land Ceiling Act has been filed. Considering the aforesaid fact, I do not find any illegality in the order impugned. This application is, thus, dismissed. Sanjay ( Sheema Ali Khan, J.)