IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7290 of 2005 DINANATH SHARMA S/O LATE NAGINA SHARMA R/O VILL RAJAPUR P.S. UCHAKGAON DIST. GOPALGANJ. --- PETITIONER Versus 1. THE STATE OF BIHAR THROUGH ADDL. MEMBER BOARD OF REVENUE, BIHAR, PATNA. 2. THE COLLECTOR GOPALGANJ 3. THE DEPUTY COLLECTOR LAND REFORMS, GOPALGANJ 4. LALTAN SHARMA S/O NAGINE SHARMA R/O VILLAGE RAJAPUR, P.S. UCHAKGAON, DIST. GOPALGANJ 5. JHALKU SAH SON OF RAM LAL SAH R/O VILL. RAJAPUR, P.S. UCHKAGAON, P.S. SATHI, DIST. GOPALGANJ. --- RESPONDENTS. For the petitioner : Mr. Dhananjay Kumar, Advocate. For the Respondent No.5 : Mr. Keshav Shrivastava, Sr. Advocate. For the State : Mr. Rajeev Kumar, Advocate. ----------- 04 04.04.2011 Petitioner is the pre-emptor. He is aggrieved by the Resolution dated 26.05.2005, passed by respondent, Addl. Member Board of Revenue, Bihar, Patna in Revision Case No. 269 of 2002 (Jhalku Sah vs. Deena Nath Sharma & Ors.), whereby the revision application preferred by the purchaser (respondent no.5) has been allowed and the claim raised by the writ petitioner 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‟) has been negated. Back ground facts leading to the present writ application may briefly be stated as under: It is the admitted position that the petitioner and the vendor (respondent no.4) are full brothers being sons of Late Nagina Sharma. It is also admitted that the land in question together with remaining part thereof appertaining to khata no. 39, plot no.869 2 located in village Uchakagon in the district of Gopalganj was acquired by the father of the petitioner. Aforesaid Nagina Sharma is no more. On 09.05.2001 respondent no.4 sold 19 dhurs of land appertaining to the said khata and plot number in favour of respondent no.5. Claiming himself to be co-sharer of the land, a proceeding under section 16(3) of the Act was instituted by him vide L.C. Case No.2/2001-02. Said claim raised by the writ petitioner was resisted. Respondent-DCLR by a proceeding dated 20.07.2001(Annexure-1) allowed the claim of the writ petitioner. Aggrieved by the aforesaid order, respondent no.5 preferred appeal vide L.C. Appeal No. 19/2001. It appears that respondent-appellate authority called for a verification/inspection report from the S.D.O. in respect of nature/status of the vended land/plot which was submitted on 05.07.2002 (Annexure-2). On a consideration of materials available on record, respondent no.2, vide order dated 09.10.2002 dismissed the appeal preferred by respondent no.5. In other words, the order passed by respondent-DCLR (Annexure-1) was affirmed. Aggrieved over the said order, respondent no.5 preferred revision before the Board of Revenue which was considered and allowed by impugned Resolution dated 26.05.2005 (Annexure-4) leading to filing of present writ application The issue springs up for consideration is whether claim in terms of section 16 (3) of the Act can be entertained and allowed in respect of subject land measuring 19 dhurs of land. Both the parties have advanced their submissions on the said issue. It is the stand of the petitioner that he is the co-sharer of the vended land. Even the 3 small area vended under the impugned sale can be treated as the land of the land holder and, as such, a claim raised by the co-sharer in respect thereof cannot be defeated. Arguing further it is submitted with reference to judgment rendered in the case Jugeshwar Singh and another versus Jainandan Prasad Singh and others (1970 BLJR 1010), that even if it is found that residential premises have been constructed in or around the vended land, the same will not change the nature of the land and it will still be land covered by section 2 (g) of the Act. In Jugeshwar Singh (Supra) distinction between rural area and urban area has been drawn and considered. It is pointed out from the order of the respondent D.C.L.R that the pre-emptor/writ petitioner has been accepted as co-sharer of the land vended under the impugned sale deed and, therefore, he is entitled to claim the right of pre-emption. Learned counsel appearing on behalf of the respondents, on the other hand, submits that in the sale deed, writ petitioner has not been reflected as the boundary raiyat and/or co-sharer of the vended land. It is recited therein that small tract of land purchased by the respondent no. 5 was fit for residential purposes. It is contended that considering the submissions of the parties, a report from the Sub- Divisional Officer was called for by the appellate court. Report dated 5.7.2002 (Annexure2) was accordingly submitted to the court. Perusal of the said report, would show that writ petitioner himself had a residential house on the remaining part of the vended land in his possession. Learned counsel for the respondents further argued that it has not been shown by the petitioner that he was a raiyat of 4 the adjoining land held by him. It is, thus, submitted that pre- emptor/petitioner can not be treated as raiyat/landholder within the meaning of the Act and as such his claim raised in the application under Section 16(3) of the Act would fail. It is also submitted that pre-emption being a weak right a heavy onus lies on the pre-emptor to demonstrate with reference to evidence/materials on record that the land which he sought to pre-empt was homestead land of the landholder as laid down under Section 2(f) and (g) of the Act. The writ petitioner has miserably failed to discharge the aforesaid onus. Relying on a judgment of a Division Bench of this Court rendered in the case of (Md. Yusuf vs. The Member, Board of Revenue & ors) reported in 1973 PLJR 44 ( para 5 and 6 ), it is submitted that definition of land set out in Clause (f) of Section 2 although includes the homestead but not all kinds of homestead. The homestead of a landholder can be the subject matter of proceeding under Section 16(3) of the Act but homestead of a person who is not demonstrated to be landholder/raiyat within the meaning of the Act no such claim can be allowed. He has also placed reliance on a Division Bench judgment of this Court since reported in 2010(2) PLJR 17 ( paras 7 and 8)( Vidya Prasad Singh vs. The State of Bihar & Ors.) to submit if a small tract of land is purchased for construction of residential house which is reflected from the sale deed then claim of preemption would fail. A learned Single Judge of this Court in the case of Gauri Shankar Prasad Singh vs. The State of Bihar & ors.) since reported in 2011(1) PLRR 799 has taken similar view. At this stage learned counsel for the respondent, adverting to the sale deed 5 (Annexure R/1), pointed out that it has been recited therein in clear terms that small tract of land vended under the sale deed was residential plot/land. The vendor and the vendee have not been described as cultivators of land. Heard the parties and perused the materials on record. Purpose of engrafting Section 16(3) of the Act is discouragement of fragmentation of land for the purpose of cultivation. In other words consolidation of land which are cultivable and/or capable of being used for the purpose of agriculture is the purpose of this provision. Raiyat has been defined which means a person holding land for the purpose of cultivation. True it is that homestead of a landholder/raiyat is included in the definition of land but it has to be demonstrated with reference to materials on record that it was being used or capable of being used for carrying out agricultural operations. From the report (Annexure-2), it appears that a public road is adjacent to the vended land/plot. It further appears therefrom that the writ petitioner/pre-emptor who claims to be co-sharer of the land has his own residential premises on remaining part of the vended land. There is no material on record to indicate that either the pre-emptor or the purchaser (respondent no.5) does possess land in the vicinity or mouza for agriculture and that they are engaged in cultivation. Their professions in the sale deed have not been described as cultivators. Although part of the land in possession of the petitioner was found grown with chilly but that itself would not be sufficient to conclude that the pre-emptor or the purchaser (respondent no.5) are the raiyats and/ or landholders within the 6 meaning of the Act. The pre emptor has therefore, not been able to show with reference to material on record that the vendor or the vendee (respondent no.5) are raiyat(s)/land holder(s) within the meaning of the Act. In Vidya Prasad Singh (Supra) this Court in para 7 observed as under:- “7. In our view, the real issue is not whether there is actually a house over the land but the intention of the purchaser as available from the sale deed. The sale deed show that the land though recorded as agricultural land in the survey records, has been described in the sale deed as a land meant for construction of house. The wordings are in local language and the meaning has been given correctly by the appellate authority which has also recorded its finding after local inspection that the land is suitable for constructing homestead. While allowing the writ petition by judgment and order dated 15.5.2007, the writ court was impressed by such intention expressed at the time of purchase itself in the sale deed and thereafter reliance was placed upon the judgment of this Court in the case of Urmila Devi vs. The State of Bihar & Ors., 1998(1) PLJR 758 for holding that when the land in question is not agricultural land and is held for residential purposes, as stated in the registered sale deed, the provisions of Section 16(3) of the Ceiling Act relating to pre-emption will not be applicable.” It further requires to be kept in focus that only 19 dhurs (less than a katha) has been vended in favour of the purchaser (respondent no.5). Having regard to all these materials/facts reflecting from the record, this Court is of the view that the petitioner has not been able to show that small tract of land vended under the subject sale 7 deed is the land covered under the provision of the Act. Respondent revisional Court has taken a similar view after appreciating the materials on record in the impugned order dated 26.05.2005 (Annexure-4). This Court is not inclined to take a view different from the one taken by respondent revisional authority/Court. For the reasons discussed above, the application fails and is hereby dismissed. Sym/hr/Devedra ( Kishore K. Mandal, J.)