IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11371 of 2001 Sheo Kumar Pandey, son of Late Radha Pandey, resident of Village- Dhawdar, P.S.- Sasaram, District- Rohtas. ... ... Petitioner. V E R S U S 1. The State of Bihar. 2. The Additional Member Board of Revenue, Bihar, Patna. 3. The District Magistrate, Rohtas at Sasaram. 4. The Deputy Collector, Land Reforms, Sasaram. .... Respondent Ist Set. 5. Smt. Phoolmati Devi, W/o Harihar Singh. 6. Kedar Singh, son of Harihar Singh. 7. Suresh Singh, son of Harihar Singh. 8. Mahendra Singh, son of Harihar Singh All residents of village-Dhawdar, P.O. & P.S.- Sasaram, District- Rohtas. ..... Respondents IInd Set. 9. Brij Bhushan Pandey, son of Late Krishna Pandey. 10. Binay Kumar Pandey, son of Late Krishna Pandey. 11. Binod Pandey, son of late Anirudh Pandey. 12. Saroj Pandey, son of late Anirudh Pandey. All residents of village-Dhawdar, P.O. & P.S. Sasaram, District- Rohtas. ..... Respondents IIIrd Set. ****** 05- 30.9.2008 Heard Mr. Vindhya Keshri Kumar for the petitioner, learned junior counsel to Mr. Om Prakash Upadhya, Standing Counsel No.2 (Ceiling) for respondent nos.1 to 4, and Mr. Akhauri Bipin 2 Bihari Srivastava for respondent nos.5 to 8. None appears on behalf of respondent nos.9 to 12 in spite of valid service of notice. 2. It arises out of an application 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’), with respect to 61/2 decimals of land of Plot no.528, Khata no.284, situated at village Dhawdar, District Rohtas. This writ petition is directed against the order dated 20.10.2000 (Annexure-7), passed by the learned Additional Member, Board of Revenue, in Revision Case No.120 of 1997 (Smt. Phoolmati Devi and others Vs. Sheo Kumar Pandey and others), whereby the revision application at the instance of the purchasers has been allowed, and the petitioner’s application under section 16 (3) of the Act has been rejected. We shall go by the description of the parties occurring in the present writ petition. 3. A brief summary of facts may be indicated for effective disposal of the writ petition. A brief genealogy of the parties is indicated hereinbelow: 3 Durga Pandey / ---------------------------------------- / / / Radha Pandey Ganesh Pandey Mahesh Pandey 11.25 Dec. / -------------------------------------- / / / Krishna Pandey Anirudh Pandey Sheo Kr. Pandey / ! petitioner ------------------- ! (pre-emptor) / / ! Brij Bhushan Binoy Pandey! Pandey R.10 ! R.9 (vendor) (Vendor) ! ------------------------- / / Vinod Pandey Saroj Panday R.11 R.12 (Vendor) (Vendor) 3.1) Respondent nos.9 to 12 herein alienated 61/2 decimals of land of R.S. Plot no.528, appertaining to Khata No.284, in favour of respondent nos.5 to 8, who are admittedly outsiders. The deed was executed on 30.11.1992, and was registered on 8.2.1994. A photo copy of the registered deed of absolute sale is marked Annexure-2 to the writ petition. The present petitioner filed an application under section 16(3) of the Act before the L.R.D.C., Sasaram, on 2.4.1994 (Annexure-1), which was registered as Ceiling Case No.31 of 1994 (Sheo Kumar Pandey Vs. Brij Bhushan Pandey and others), wherein it was stated that the present petitioner is a co-sharer 4 of respondent nos.9 to 12 herein (the vendors) and, therefore, claimed right of pre-emption over the lands in question. The learned L.R.D.C. rejected the application of the present petitioner under section-16(3) of the Act on contest by his order dated 15.5.1995 (Annexure-5). He held that respondent nos.9 to 12 (the vendors), and the present petitioner, are co-sharers. However, he rejected the claim for pre-emption on the ground that the land has been so alienated for the purpose of construction of a house and the pre-emption application, therefore, does not relate to agricultural lands. 4. Aggrieved by the order of the learned L.R.D.C., the present petitioner (the pre-emptor) filed an appeal bearing Land Ceiling Case No.2/95 (Sheo Kumar Pandey Vs. Smt. Fulmati Devi), which has been allowed by order dated 8.4.1997 (Annexure-6), passed by the learned Collector of the district of Rohtas (Sasaram), whereby the order dated 15.5.1995 (Annexure-5) was set aside, and the pre-emption application has been allowed. The learned appellate authority held that the petitioner is a co-sharer and the lands are really agricultural in nature. 5 5. Aggrieved by the order of the learned appellate authority (Annexure-6) respondent nos.5 to 8 herein (the purchasers) preferred revision application in terms of Section 32 of the Act which has been allowed by the impugned order. The learned Revisional authority has held that the petitioner herein is neither co-sharer of the vendors, nor an adjoining raiyat in relation to the land in question. He has, therefore, rejected the pre- emption application. Hence this writ petition at the instance of the pre-emptor. 6. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the learned revisional authority has made out a third case and decided the issue at a tangent. He next submits that he has not at all touched the question whether or not the application under section 16(3) of the Act is maintainable with respect to a land of the present nature. He submits that it is manifest on a plain reading of the registered deed that the land is basically agricultural, and the parties are agriculturists. He, therefore, ought to have held that the application is maintainable and fit to be allowed. He relies on a Division Bench 6 judgment of this Court reported in 2004(2) P.L.J.R. 339 (Hiralal Chauhan Vs. The State of Bihar and others). He lastly submits that in case of doubt or difficulty, the learned revisional authority ought to have ordered for enquiry or local inspection in terms of Section 32 of the Act. Relying on the relevant entry of the Khatiyan, he submits that the land in question was recorded in the joint name of the family. A photo copy of the Khatiyan is marked Annexure-3 to the writ petition. 7. Learned counsel for respondent nos.5 to 8 has supported the impugned order. He submits that the issues are concluded by findings of facts. He next submits that a land of the present nature is really not agricultural and, therefore, application under section 16(3) of the Act is not maintainable. He relies on the judgment of this Court, reported in 1993 B.B.C.J. 587 (Chatur Sah and another Vs. Chandra Bhushan Maharaj and others). He lastly submits that in view of the admitted position that partition by metes and bounds had taken place between the parties quite some time ago, their status as co-sharers has come to an end. 7 8. We have perused the materials on record and considered the submissions of learned counsel for the parties. The learned revisional authority as an issue of fact found that the partition took place between the three sons of Durga Pandey. It appears to me on a perusal of the materials on record that partition at that stage had taken place between the three sons of Durga Pandey by metes and bounds. It thus appears to me that, in view of the partition, the status of the present parties as co-sharers came to an end. The petitioner cannot, therefore, take advantage of the situation that he and the vendors had a common ancestor. They may now be related but are not in law co-sharers within the meaning of section 16(3) of the Act. Furthermore, the learned revisional authority has found as an issue of fact that the petitioner is not an adjoining raiyat with respect to the plot in question. This issue is concluded by findings of facts. 9. The petitioner’s second contention is that the learned revisional authority ought to have ordered for enquiry or local inspection. It appears to me that this is an enabling provision to enable the revisional authority to make local 8 inspection at its own level. It is not a mandatory provision. In a given situation, he may not consider it necessary to do so. In the present case, in view of the materials on record, he may not have felt the necessity of such a local inspection. Learned counsel for the petitioner has so also relied on the Khatiyan which records the land in question as joint. This may reflect the position prior to partition. The learned Revisional authority on a consideration of the materials on record came to the conclusion that the partition had taken place much earlier. The contention is rejected. 11. I do not find any merit in this writ petition. It is accordingly dismissed. (S K Katriar, J.) S.K.Pathak/