IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6951 of 2005 SUBEDAR PANDIT, SON OF SINGHESHAN PANDIT, RESIDENT OF VILLAGE AND P.O. KAREHI, P.S. BANIARPUR, DISTRICT SARAN. …PETITIONER Versus 1. THE STATE OF BIHAR 2. THE ADDITIONAL COLLECTOR, BOARD OF REVENUE, BIHAR PATNA 3. THE ADDITIONAL COLLECTOR, SARAN AT CHAPRA 4. THE DEPUTY COLLECTOR LAND REFORMS, SARAN AT CHAPRA 5. RAM LAGAN PANDIT SON OF RAM CHANDRA PANDIT RESIDENT OF VILLAGE AND P.O. KAREHI P.S. BANIAPUR, DISTRICT SARAN 6. MALUDAN KHATOON, WIFE OF LATE MAJID MIAN 7. MD. HASIM ,SON OF LATE MAJID MIAN 8. MD. IDRISH SON OF LATE MAJID MIAN, ALL RESIDENTS OF VILLAGE AND P.O. KARCHI P.S. BANIAPUR, DISTICT SARAN …RESPONDENTS For the petitioner :Mr. Bhubneshwar Prasad & :Mr. Pawan Kumar For the respondents :M/S Nagenera Rai, Navin Nikunj Kamal Kumar, S.C.11 ----------- 06. 16.03.2011 Heard learned counsel for the petitioner and respondents no. 5. The petitioner is pre-emptor. He is aggrieved by the Resolution of the Respondent- Board of Revenue dated 30.12.2004 ((Annexure-4), whereby the revision preferred by the purchaser (respondent no.5) has been considered and allowed. Background facts leading to the present case may be set out with relevant brevity. A small tract of land measuring 12 dhurs appertaining to khata no.394, plot no.2133 in village Karahi in the district of Saran was vended by respondent nos. 6 to 8 in favour of respondent no.5. The sale deed was executed and registered on 22.12.2001. The writ petitioner instituted a proceeding under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and 2 Acquisition of Surplus Land) Act,1961(hereinafter referred to as the ‘Act’), claiming his right of pre-emption which gave rise to L.C. Case No. 52/01-02. On a consideration of materials available on record and after hearing the parties, the said claim was rejected by the Respondent-D.C.L.R. by order dated 22.07.2002 (Annexure-2). Aggrieved by aforesaid order, writ petitioner filed appeal being L.C. Appeal No. 51/02. Respondent- Addl. Collector by order dated 08.01.2003(Annexure-3) allowed the appeal and upheld the claim of pre-emption raised by the writ petitioner on the ground that although from the sale deed in question both the pre-emptor as well as the purchaser were adjoining raiyat(s) of the vended plot, but the pre- emptor was adjoining raiyat in respect of the same plot which was vended, whereas the purchaser was adjoining raiyat but in different plot. Aggrieved by aforesaid order, respondent no.5(purchaser) preferred revision before Respondent-Board of Revenue, vide Case No. 22/03. The said revision was admitted and notices were issued whereafter the pre-emptor appeared and filed his show cause. Subsequently, it appears that the writ petitioner did not appear in the said proceeding. Respondent-Addl. Member, Board of Revenue, vide Resolution dated 30.12.2004 (Annexure-4), allowed the revision application and set aside the appellate order (Annexure-3). The revisional court has observed as under: ^^ vihyh; vkns’k dk voyksdu fd;k A vihyh; vf/kdkjh us vius vkns’k esa Lohdkj fd;k gS fd vihykFkhZ ,oa mRrjoknh nksuksa fooknxzLr Hkwfe ds ik’oZoRrhZ jS;r gSa ijUrq vihykFkhZ iz’uxr Hkwfe ds IykWV ds va’k dks /kkj.k dj ik’oZoRrhZ jS;r gSa tcfd mRrjoknh ¼dzsrk½ fooknxzLr IykWV ds ckgj nf{k.k pkSgn~nh esa edku /kkj.k djrs gSa A blfy, vihykFkhZ dk nkok loksZifj gS A ysfdu ,0 vkbZ0 vkj0 1958 i`"B 838 ¼fo’ku flag cuke [ktku flag½ esa ekuuh; mPpre U;k;ky; n~okjk fn, x, 3 fu;eu ¼Ruling½ ds vuqlkj vxzdz;kf/kdkj dk nkok ,d detksj vf/kdkj gS A tgka dzsrk ,oa vxzdz;kf/kdkj ds nkosnkj nksuksa fooknxzLr Hkwfe ds ik’oZoRrhZ jS;r gksa ogka dzsrk dk nkok loksZifj gS A bl okn esa dzsrk ¼jke yxu iafMr½ fooknxzLr Hkwfe ds Lo;a ik’oZoRrhZ jS;r gSa A vr,o ,slh fLFkfr esa vxzdz;kf/kdkj dk nkok Lohdk;Z ugha gS A vr% vihyh; vkns’k fnukad 8&1&2003 dks fujLr djrs gq, iqujh{k.k okn Lohd`r fd;k tkrk gS A ** Learned counsel for the petitioner has supported the findings recorded by learned lower appellate court (Annexure-3). It is submitted that the petitioner being the pre-emptor and having adjoining land in plots, the same will have superior claim than that of the purchaser. It is next contended that revisional order is ex parte and, as such, requires to be interfered with. Learned counsel for respondent no.5, on the other hand, submits that going by the findings recorded by revisional court (Annexure-3), it would appear that the purchaser was himself adjoining raiyat. It is contended that provision contained u/s 16(3) of the Act does not differentiate between the degree of adjacency. Claim of pre- emption has rightly been rejected by learned D.C.L.R. and upheld by the revisional court considering the fact that respondent no.5 was the purchaser as well as adjoining raiyat. It is submitted that the law is well-settled that claim of pre-emption is a weak right. He refers to judgment of the Hon’ble Apex Court reported in AIR 1958 SC 838 (Bhishan Singh & Ors. Vs. Khazan Singh & Anr.).] I have considered the submissions advanced on behalf of the parties and perused the materials on record. It appears from bare perusal of the appellate order that there is finding recorded therein that both the pre-emptor as well as 4 respondent no.5 are adjoining raiyat(s) of the vended plot(s). Right of pre-emption has been found to be weak right by different pronouncements of the Courts including the Supreme Court. Learned counsel for respondent no.5 has rightly placed reliance on the judgment in the case of Bhishan Singh & Ors. (Supra). The submission of the petitioner that pre-emptor will have superior claim being adjoining raiyat in the same (vended) plot, in my view, does not take him anywhere in view of the provisions contained in section 16(3) of the Act. It is to be borne in mind that the purchaser has paid consideration money and if it is shown from materials on records that he is also adjoining raiyat of the vended land/plot, then the claim of pre-emption would fail. The submission of the petitioner is, therefore, fit to be rejected. Adverting to the second submission advanced on behalf of the petitioner, this Court finds from perusal of the revisional order (Annexure-4) that after service of notice the petitioner had appeared and filed his show cause inasmuch as written argument was also filed on behalf of the petitioner. Once a party appears in a proceeding and thereafter chooses not to appear therein, the order cannot be said to be ex parte. Said submission of the petitioner is also fit to be rejected. In view of my discussions made above, this Court does not find any merit in this application which is accordingly dismissed. hr ( Kishore K. Mandal )