IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13285 of 2005 SMT.PARVATI DEVI WIFE OF SRI UMA SHANKAR GIRI, RESIDENT OF VILLAGE MUBARAKPUR, P.O. MARHAWARRAH, P.S. MARHAWARRAH, DISTRICT SARAN …PETITIONER Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL MEMBER BOARD OF REVENUE, BIHAR PATNA. 3. THE ADDITIONAL COLLECTOR, SARAN CHAPRA 4. THE DEPUTY COLLECTOR, LAND REFORMS, MARHAWARRAH, DISTRICT SARAN …RESPONDENTS 1ST SET 5. LAL BABU GIRI SON OF LATE RAM PRAVESH GIRI RESIDENT OF VILLAGE- RUP RAHIMPUR, P.O.- MARHAWARRAH, P.S. – MARHAWARRAH, DISTRICT, SARAN ..RESPONDENT 2ND SET 6. RABINDRA KUMAR GIRI 7. KANHAIYA KUMAR GIRI 8. ARVIND KUMAR GIRI 9. CHANDAN KUMAR GIRI, RESPONDENTS 6 TO 9 SONS OF SRI UMA SHANKAR GIRI, RESIDENT OF VILLAGE MUBARAKPUR, P.O. MARHAWARRAH P.S. MARHAWARRAH DISTRICT SARAN …RESPONDENT 3RD SET For the petitioner : Mr. Mahesh Narayan Parbat, Advocate. For the respondents : Mr. Arun Kumar Prasad, Advocate For the State : Mr. Kamal Kumar A.C. to S.C.11 ----- 06. 26.04.2011 Heard the parties. Petitioner is aggrieved by the resolution dated 30.08.2005 passed by respondent Additional Member, Board of Revenue whereby revision application was allowed and the appellate order dated 27.05.2002 (Annexure-2) was interfered with and set aside. Background facts in a nutshell are as follows:- On 24.07.1996 respondent no.10 executed a sale deed in favour of respondent nos. 6 to 9 in respect of 01 katha and 14 dhurs of land appertaining to khata no. 27, plot nos. 932 and 933 situated in Village- Mubarakpur, P.S. Marhawarrah, in the District of Saran. The said sale deed was registered on 17.03.1998. The respondent no.5 claiming himself to be the adjoining raiyat of the vended plot(s)/land(s) filed a 2 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‟). The vendee appeared in the said proceeding and filed show cause/reply. On a consideration of the materials on record the claim of pre-emption was allowed by order dated 09.07.1999 (Annexure-1). Aggrieved by the aforesaid order the respondent nos. 6 to 9 ( purchasers) filed an appeal which was allowed by order dated 27.05.2002 (Annexure-2). The order of the respondent D.C.L.R. was set aside. Aggrieved over the said order respondent no.5 preferred revision before the respondent Member Board of Revenue which was considered and by impugned resolution dated 30.08.2005 (Annexure-3) the same has been allowed leading to filing of the present writ case. Learned counsel for the petitioner while assailing the order submits that the vendee having obtained title and possession over the disputed land by reason of the sale deed executed on 24.07.1996 executed a deed of gift in favour of deity under Sebaitship of the petitioner(mother of respondent nos. 6 to 9) on 24.09.1996 which was subsequently registered on 17.03.1998. It would appear from the record that on 17.03.1998 both the sale deeds in favour of respondents 6 to 9 and deed of gift executed by respondents 6 to 9 in favour of writ petitioner being the sebait was/were registered. It is submitted that the deed of gift registered on 17.03.1998 is not the subject matter of the proceeding under section 16(3) of the Act. It is further submitted that the deed of gift having been executed well before institution of the claim under section 16(3) of the Act and there being no challenge to the said deed of gift the claim of pre-emption raised against the sale deed 3 executed in favour of respondents 6 to 9 on 24.07.1996 and registered on 17.03.1998 would fail. Learned counsel appearing on behalf of pre- emptor(respondent no.5), on the other hand, supported the impugned resolution of the respondent-Board of Revenue. Learned counsel highlights the findings recorded by the Board of Revenue that the deed of gift was brought into existence with the sole purpose of defeating the right to claim of the pre-emptor. I have considered the submissions advanced on behalf of the parties and perused the materials on record. Few facts are admitted from submission made on behalf of the parties and materials available on record. The deed of gift executed on 24.09.1996 and registered on 17.03.1998 is not the subject matter of the pre-emption proceeding as no claim was raised thereagainst. Subsequent transferee, the writ petitioner was not impleaded as party respondent in the court below. The said deed of gift was brought into existence well before institution of the proceeding under section 16(3) of the Act. Although no submission has been advanced on behalf of the parties, but this Court deems it apposite to notice the relevant provision of the Act. Section 16(1) together with its explanation reads as under:- “Restriction on future acquisition by transfer, etc.- (1) No person shall, after the commencement of this Act, either by himself or through any other person, acquire or possess by transfer, exchange, lease, mortgage, agreement or settlement any land which together with the land, if any, already held by him exceeds in the aggregate the ceiling area. Explanation- For the person of this Section “Transfer” does not include inheritance, bequest or gift.” 4 Section18 of the Act reads as under:- “Restriction on future acquisition by inheritance, bequest, gift, or on alluvial action-(1) if, after the commencement of this Act, any person, either by himself or through any other person acquires by inheritance, bequest or gift, or by alluvial action, any land which, together with the land, if any, already held by him anywhere in the State, exceeds in the aggregate the ceiling area, then he shall, within ninety days of such acquisition by inheritance, bequest or gift, and within six months thereof by alluvial action, submit to the Collector a return by registered post, with acknowledgment due, giving he particulars specified below and selecting the land he desires to retain- (i) xxx xxx xxx ” A bare perusal of these two sections makes it abundantly clear that no claim can be raised under section 16(3) of the Act in respect of the deed of gift. It further appears that on the date the proceeding was instituted by pre-emptor (respondent no.5) the title in respect of subject land had already passed. It is well settled that annulment of deed of gift/conveyance duly registered does not lie within the domain of revenue authority including the authority under the Act. Learned counsel for the petitioner relying on a Division Bench judgment of this Court rendered in the case of Smt. Sudama Devi vs. Rajendra Singh since reported in 1973 Pat. 199 submits that three stages have been conceived by this Court where the doctrine of lis pendence would operate. Dealing with stage 1 where execution and registration of the deed having been completed prior to institution of the proceeding under section 16(3) of the Act it is held to be sacrosanct and not covered by the said doctrine. The claim of respondent no.5 (pre-emptor) has been allowed 5 by Respondent-Board of Revenue on the sole ground that the deed of gift was brought into existence solely for the purpose of defeating the claim of pre-emption. Law is well settled in this regard. Preferential treatment to one having land adjoining to vended land has been held to be a clog on the right to vend and purchase and thus, in essence, a weak right. Law is further settled that such weak right can be defeated by any lawful method. This Court has no hesitation in holding that by executing deed of gift in favour of the deity of the subject land well before the institution of the proceeding under section 16(3) of the Act would be a bona fide means to defeat the said right. For the reasons mentioned aforesaid, this Court is persuaded to allow the present writ application. Accordingly, the application is allowed. The impugned Resolution dated 30.08.2005 (Annexure-3) passed by respondent no.2 is quashed and set aside. The order dated 27.05.2002 (Annexure-2) is hereby restored. Sym/HR (Kishore K. Mandal, J.)