IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1586 of 2009 1. Daya Nand Das @ Gobardhan Das, Son of Late Badar Das. 2. Panchu Das. 3. Ramdeo Das. All sons of Kula Das. All resident of Village Kamalpur, Jagirtola Kaitya, Police Station Barhara kothi, District Purnea. -----------Writ Petitioners/Appellants Versus 1. The State of Bihar. 2. The Additional Member, Board of Revenue, Bihar, Patna. 3. Collector, Land Ceiling, Purnea. 4. Smt. Ahilya Devi, W/o Umakant Paswan. Resident of Village Kamalpur, Police Station Barhara Kothi, District Purnea. 5. Akhtar Hussain, Son of Ahmad Hussain. 6. Most. Johra Khatoon, W/o Ahmad Hussain. Resident of Village Kamalpur, Police Station Barhara Kothi, District Purnea. ----------- Respondents/Respondents For the Appellants :- Mr. Radha Mohan Pandey For the Respondents :- Mr. Lalit Kishore A.A.G-III --------- 3 29.01.2010 I.A. No. 8311 of 2009 Heard learned counsel for the appellants and counsel for the respondent nos. 1, 2 & 3. For the reasons mentioned as also the averments made in I.A. No. 8311 of 2009 condonation of delay of 306 days in filing of the appeal is allowed. I.A. No. 8311 of 2009 is accordingly disposed of. 2 L.P.A. No. 1586 of 2009 Having condoned the delay, this Court with the consent of counsel for the parties is also inclined to dispose of the appeal on merits at the stage of admission itself. By the impugned order the learned single Judge has dismissed the writ application filed by the appellants- writ petitioners. In the writ application C.W.J.C. No. 831 of 1990, the appellants-writ petitioners had assailed the order of the D.C.L.R., Sadar, Purnea in Ceiling Case No. 35 of 1983-84 affirming appellate order dated 16.10.1985 passed in Ceiling Appeal Case No. 1 of 1985-86 and the revisional order dated 2.1.1990 passed by the Additional Member Board of Revenue, Bihar in Revision Case No. 504 of 1985 wherein all the three authorities under Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (hereafter to be referred to as “the Act”) have recorded a concurrent finding of fact that the application for preemption filed by the respondent no.4, namely, Smt. Ahilya Devi, the preemptor was fit to be allowed on the ground that she was adjoining raiyat of the land purchased by her. The Learned Counsel for the appellant writ 3 petitioner however repeating almost the same submission, already taken note of and rejected by the learned single Judge in the impugned order has sought to impress upon us that Ahilya Devi the pre-emptor was the daughter-in-law of one Sarju Hazra the recorded khatiani tenant and therefore, she could not claim right of preemption, inasmuch as, such right of preemption could at best be enforced only by Sarju Hazra or his son, the husband of Ahilya Devi. In this context, learned counsel has placed reliance on the judgment of a Division Bench of this Court in the case of Upendra Mishra & Anr. Vs. Smt. Inchan Mishrain & Anr. reported in 1986(34)BLJR 666. Before this Court would examine the aforesaid submissions of the learned counsel for the appellants-writ petitioners, it must record here that the appellants-writ petitioners have kept changing their case at each and every stage by advancing not only a new plea on fact but also taking a diametrically conflicting stand as has been also noticed by the learned Single Judge in the impugned order. Thus it is found that initially the appellants while contesting the plea of pre-emptor Respondent no. 4 before the D.C.L.R., had asserted that Ahilya Devi (respondent 4 no.4) was not the daughter-in-law of Sarju Hazra and as such, she could not claim preemption for the land recorded in the name of Sarju Hazra. The D.C.L.R. therefore had taken full pains to enquire into this factual aspect and had recorded a finding on the documentary evidence including voter list that the name of the husband of Ahilya Devi, the preemptor respondent no.4 was Umakant Paswan and Sarju Hazra was the father of Umakant Paswan and thus there was no merit in such claim of the appellant writ petitioners that respondent no.4 was not the daughter-in-law of Sarju Paswan. The D.C.L.R., infact had also proceeded to look into the sale deed in question dated 12.5.83 by which the appellant-writ petitioners had purchased the land in question wherein in the eastern boundary of the purchased land, the name of Late Sarju Hazra was mentioned and therefore, on that basis, it was concluded that the respondent no.4 was the adjoining raiyat. When such findings of fact however was assailed before the Additional Collector the appellate authority by the appellants-writ petitioners, an altogether different plea was taken by them now by choosing to resile from the averments made in their own sale deed dated 11.2.1984 as 5 with regard to the name of Sarju Hazra being in the eastern portion of the land in question by taking plea that the same was wrongly recorded by their vendor. The Additional Collector however had also considered this changed stand of the appellant-writ petitioners and had held that the name of Sarju Hazra was rightly recorded in the eastern portion of the purchased land of the appellants-writ petitioners and the evidence adduced to this effect by the appellants based on a sale deed executed on 19.11.1984 and registered after their sale deed in question dated 11.2.1984 not have proven that on the date of purchase of the appellant Sarju Hazra was not recorded as a boundary raiyat in the eastern portion of the land in question. The Additional Collector infact had also held that the pre-emptor Respondent no. 4 even otherwise was a boundary raiyat of the land in question in her own rights by virtue of a sale deed dated 15.5.1980 in her name and as such her claim for pre-emptor in her application dated 22.2.1984 could not be defeated on the basis of sale deeds dated 19.11.1984. It is interesting to note that when the appellants had filed their revision application before the Board of Revenue while the appellant did not dispute the fact with regard to the pre- 6 emptor Respondent no. 4 being the daughter in law of Sarju Hazra the khatiani raiyat and his name rightly being shown in the eastern boundary of their sale deed dated 11.2.1984 but then it was contended that the land in question in eastern portion on that day was held by one Md. Isha who had sold the same by a sale deed dated 19.11.1984 and as such the Respondent no. 4 was not the boundary raiyat on 22.2.1984 the date on which she had filed her application for pre-emption. Such questions of fact was again considered by the learned Additional Member Board of Revenue in paragraph nos. 5, 6 & 7 of his revisional order and while rejecting them in course of affirming the finding of Respondent no. 4 to be the boundary raiyat, it has been held that:- “7. This matter has been gone into by the learned Additional Collector, Purnea. It has been contended on behalf of O. P. No. 1 that she had purchased 1.35 acre and 1.10 acre of land of Khesra No. 799 of Khata No. 89 by registered deeds no. 3442 dated 15.5.80 and 3441 dated 15.5.80 and the six sale deeds dated 19.11.84 in favour of Ram Kishun Das and others were executed much later. In fact these sale deeds were executed much later. In fact these sale deeds were executed much after the pre-emption application was filed and therefore the right of pre-emption was applicable of O. P. no. 1 on the date on which she had filed her application before the L.R.D.C. Sadar Purnea. It has also been contended that 7 the said transfers by the six sale deeds have been obviously made with a view to defeating the provisions of the Act and therefore they have to be ignored while deciding the claim of pre-emption under Section 16(3) of the Act. It may be pointed out that in the eastern boundary of the vended plot the name of Sarju Hajara is mentioned in the impugned sale deeds dated 11.2.84. Shri Sarju Hajara is father-in- law of O. P. No. 1 Smt. Ahilya Devi. Thus the sale deeds in question indicate that the land of Shri Sarju Hajara (in fact the land standing in the name of O. P. No. 1) is on the eastern boundary of the vended plot. The L.R.D.C. and the Additional Collector both have come to the conclusion that there was no evidence on record to dispute. The above entry in the sale deeds and that the claim of O.P. No. 1 that she is a boundary raiyat of the vended plot is established by the documents to which petitioners themselves are parties. Moreover, this principle of law has been well established by various pronouncements of the Honourable Patna High Court and the Honourable Supreme Court that an applicant under Section 16(3) should have a valid claim not only on the date of registration of the sale deed but also on the date of filing of application under Section 16(3). If due to subsequent event the applicant ceases to be an adjoining raiyat of the disputed plot on the date he files the application, it can be said that the claim of pre- emption has been legally and justifiably defeated. But this is not so if any such claim is said to have been defeated after the application is filed and is pending consideration. In the present case O.P. No. 1 was undisputedly adjoining raiyat of the disputed land by virtue of her being a raiyat in respect of a portion of plot no. 799 which she had purchased vide sale deeds dated 15.5.80 and this fact was duly recorded in the two sale deeds dated 11.2.84. Where Sarjug Hajara has been shown to be a boundary raiyat of 8 the vended plot (in fact it is O.P. No. 1 who is on the boundary of Sarjug Hasara). The Learned Additional Collector has rightly ignored the plan of change of situation brought about by the six sale deeds dated 19.4.84. O. P. No. 1’s claim of pre-emption can not be defeated by sale deeds dated 19.11.84 (the date of application as 22/2/84). I agree with the findings of the learned Additional Collector that the sale deeds dated 19.4.84 will not defeat the claim of pre-emption as O.P. No. 1.” Such concurrent findings of fact either with regard to the preemptor-respondent no.4 being the daughter-in-law of Sarju Hazra, the recorded tenant in the Khatiyan and also shown even in the sale deed of the appellants-writ petitioners on the eastern boundary of the land in question had however been given a new twist by the learned counsel for the appellant-writ petitioners before the learned Single Judge as also before us by taking a plea that the respondent no.4 herself could not claim preemption even if she was held to be the daughter-in-law of Sarju Hazra as she was not co-sharer or heir of Sarju Hazra. It is in this regard that the learned counsel has relied on the judgment of Upendra Mishra (supra) wherein it was held that the husband cannot be presumed to be the real owner of the land if such land was recorded in the name of his 9 wife and therefore, the husband could not have claimed preemption if the wife was shown as a boundary raiyat in the sale deed in question. In the opinion of this Court, the ratio laid down in the case of Upendra Mishra (supra), far from supporting the case of the appellants-writ petitioners in fact would go against them. In the case of Upendra Mishra (supra), the plea of the preemptor Upendra Mishra based on her wife being shown to be the boundary raiyat was rejected by this Court by holding that there is no presumption in law that the land standing in the name of wife shall be deemed to be of her husband. The converse, however, argued by the learned counsel for the appellants-writ petitioners that Ahilya Devi-respondent no.4 could not claim right of preemption as the land was recorded in the name of father of her husband is to be only noted for its being rejected, inasmuch as, after the death of Sarju Hazra, the land automatically had devolved on his son, the husband of the Respondent no. 4 and Ahilya Devi Respondent no. 4 being the wife on that basis had definitely a right to claim preemption. It would be however in fact too late in the day to now allow the appellant writ petitioners to fish out yet 10 another new case that Ahilya Devi was separate in mess and business from her husband Umakant Paswan, the son of the khatiyani raiayt Sarju Hazra. Specially when it is also a concluded finding of fact that even Respondent no. 4 had her own adjoining land by virtue of sale deed dated 15.5.1980. As noted above, the appellants-writ petitioners had never taken such a plea before any of the three authorities and therefore at the stage of writ petition and/or appeal, they cannot be allowed to make out an altogether new case. This matter also stands settled in the same judgment of this Court in the case of Upendra Mishra (supra) wherein it was held that the question of benami transaction claimed by the husband for being a real owner in respect of the land held in the name of their wives having been not urged before the revenue authorities could not have been raised and decided in the first instance only at the stage of writ application. In any event the claim of respondent no.4 by virtue of her being wife of the son of the recorded tenant for preemption could be defeated only by the son himself, but as noted above, there is no such case that the son, Umakant Paswan of the recorded tenant 11 Sarju Hazra had separated from his wife Ahilya Devi and as such, if Ahilya Devi had claimed preemption, it will be presumed that she was representing only the interest of Sarju Hajra. It has to be also noted that additionally respondent no.4 had also been successful to prove that she had become boundary raiyat in her own right by purchasing a piece and parcel of land on 15.5.1980 as is clearly recorded in the revisional order of the Additional Member Board of Revenue and learned single Judge. We, therefore, also concur with the following findings of the learned single Judge:- “The submission on behalf of the petitioners is not worthy of consideration for the simple reason that there is no finding by any of the three forums below that the private respondent was claiming right of preemption as part of the HUF. In fact finding is otherwise that she was a raiyat in her own right, based on a purchase, on piece and parcel of land made in her favour. In fact effort has been made by the vested interest to create some more sale deeds to defeat the claim on a subsequent date. The finding has been duly recorded in this regard by the Additional Member, Board of Revenue in paragraph no.7 of the order. If the court holds that the first contention urged at the bar on behalf of the petitioners cannot be entertained having no merit despite the same being couched as a question of law then second contention gets answered by itself because if the private respondent has been held to be a raiyat in her own right and her claim 12 for preemption was allowed on that basis, the subsequent purchase or presumption of right of the present petitioners cannot come in the way of the order passed in appeal or revision.” Thus, when the case of the appellants-writ petitioners has been examined and negatived by not only of the three revenue courts but also by the learned single Judge, there would no reason for us to take a different view specially when we have also not been shown anything that such findings are vitiated in law or suffer from any error of record. That being so, we find no merit in this appeal and the same is accordingly dismissed. There would be, however, no order as to costs. (Dipak Misra, CJ.) (Mihir Kumar Jha, J.) Rishi