IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4562 of 2005 RAM NANDAN SINGH SON OF LATE DHANUKDHARI SINGH, R/O- VILLAGE KHALIL CHAK, P.S.- BARBIGHA, DISTRICT-SHEIKHPURA Versus 1. THE STATE OF BIHAR THROUGH COLLECTOR, SHEIKHPURA 2. THE ADDITIONAL COLLECTOR, SHEIKHPURA 3. THE DEPUTY COLLECTOR, LAND REFORMS, SHEIKHPURA. 4. THE ADDITIONAL MEMBER, BOARD OF REVENUE, BIHAR, PATNA. 5. SRI SRIKANT SINGH 6. SRI RAMA KANT SINGH BOTH SONS OF SRI YAMUNA SINGH, R/O- VILLAGE MALIKPUR, P.S.- RAJGIR, DISTRICT- NALANDA AT PRESENT RESIDENT OF VILLAGE ONAMA, P.S.- BARBIGHA NOW DISTRICT SHEIKHPURA. 7. SRI ARBIND SINGH, SON OF RAM CHANDRA SINGH, R/O- VILLAGE ONAMA, P.S.- BARBIGHA, NOW DISTRICT- SHEIKHPURA For the petitioner : Mr. Rajendra Prasad Singh, Advocate For the State : Mr. Shashank Shekhar Jha, A.C. to G.P. 22 For the Respondents 5 and 6: Mr. Devendra Pd. Singh, Advocate - ---------- 3 11.03.2011 An interlocutory application being I.A. No. 641/2009 has been filed on behalf of the petitioner stating therein that during the pendency of this application, the sole writ petitioner died leaving behind his heirs and legal representatives as set out in paragraph 1 of the application for which Vakalatnama has already been filed. 2. After hearing both the parties, the said application is allowed. Name of sole petitioner is deleted from the records and in his place, names of his heirs and legal representatives as set out in paragraph No. 1 of interlocutory application are substituted. 3. Petitioners are aggrieved by order dated 10.11.1995 (Annexure-6) passed by respondent D.C.L.R. in 2 a proceeding under Section 16(3) of the Bihar Land Ceiling Act, 1961, (for short “ the Act”). They are also aggrieved by the resolution of the Board dated 9.2.2005 (Annexure-8) whereby the revision application preferred by the preemptor(s) (respondent Nos. 5 and 6) was allowed and the order of respondent D.C.L.R. dated 10.11.1995 (Annexure-6) was restored. 4. Background facts leading to the present writ petition may be recapitulated. Two pieces of land appertaining to Khata No. 353 Plot No. 3516 measuring an area of 31 3/4 decimals and Khata No. 445 Plot No. 3830 measuring an area of 17 1/4 decimals (total 49 decimals ) situated in mauza Onama in the district of Sheikhpura were sold by a registered sale deed which was executed on 31.5.1993 and registered on 26.11.1993. Respondent Nos. 5 and 6 claiming themselves to be adjoining raiyat(s) of both the vended plots filed an application on 21.2.1994 in the Court of respondent D.C.L.R. which gave rise to Land Ceiling Case No. 2/1993- 94. On notice, the original writ petitioner appeared and contested the same. The said application was allowed by a proceeding dated 10.11.1995 (Annexure-6). Aggrieved over the aforesaid order, the original writ petitioner preferred appeal before the respondent Collector vide L.C. Appeal No. 12/1996-97. Respondent appellate authority by order dated 3 27.9.2001 allowed the said appeal and set aside the order of respondent D.C.L.R. dated 10.11.1995 (Annexure-6). Dissatisfied at the said order, the respondent Nos. 5 and 6 (Preemptors) preferred revision application before the respondent Additional Member, Board of Revenue vide Case No. 191/2001. After hearing the parties, the said revision application was allowed leading to filing of the present writ petition. 5. Heard learned counsel for the petitioners, respondent Nos. 5 and 6 and the State. 6. Learned counsel for the petitioners submits that the claim of preemption is a weak right as has been held by the Supreme Court in the case reported in A.I.R. 1958 S.C. 838 (Bishan Singh versus Khajan Singh). It is submitted that the claim of preemption was fit to be rejected on the sole ground that the preemptors (respondent Nos. 5 and 6) are not shown as boundary/adjoining raiyats in respect of the two vended plots as would appear from the sale deed (Annexure-1) which is the subject matter of preemption. It is submitted that the original writ petitioner (purchaser) led a claim that he is also adjoining raiyats of the vended plots executed in their favour by Shailendra Singh by virtue of sale deed dated 28.4.1993 in respect of plot Nos. 3853 and 6337 which lay in mauza Onama and Samas respectively. It is also contended that by reason of 4 deed of gift executed by Firangi Singh on 29.10.1969, the purchaser also acquired title in respect of plot No. 6335 which also lay adjoining to one of the vended plots. It is thus submitted that the order impugned is fit to be rejected and the claim raised by the preemptors (respondent Nos. 5 and 6) is fit to be rejected. Learned counsel further submits that even if it is found that by reason of Annexure-2, the petitioners became adjoining raiyat of at least one vended plot, the claim of preemption is bound to fail in view of law laid down in 1995 (1) P.L.J.R. 764 (paragraph Nos. 3 and 4) 7. A counter affidavit on behalf of the respondent Nos. 5 and 6 is filed which is on record. 8. Learned counsel for the respondent(s), on the other hand, supported the impugned resolution passed by the respondent Additional Member, Board of Revenue. It is contended that the writ petitioner (purchaser) is/are themselves adjoining raiyat(s) has been raised for the first time before this Court. For defeating the right of preemption, respondent Nos. 5 and 6 were not shown in the boundary raiyats of the vended plots although they had acquired right, title and interest in respect of half areas of both the vended plots by reason of deed of gift dated 19.7.1979 (Annexure-A to the counter affidavit) executed by one Sumitra Devi who was the own aunt of the vendor (respondent No. 7). It is contended that from the impugned sale deed (Annexure-1), 5 it would also appear that the writ petitioner (purchaser) are not in boundary raiyat. However, name of vendor of the writ petitioner-purchaser appears as boundary raiyat in respect of plot No. 3830. 9. Learned counsel for the State, on the other hand, submits that in view of the pleadings on record including the order of the appellate Court, it would appear that the writ petitioner is at least in the boundary of one of the vended plots being Plot No. 3830 and as such the respondent Additional Member, Board of Revenue erred in not considering that the right of preemption shall not survive. He relies on a judgment of this Court since reported in 1987 P.L.J.R. 455 (Ramroop Yadav versus The State of Bihar). 10. I have heard the parties and perused the materials on record. The first contention of the petitioner that the claim of being adjoining raiyats in respect of the vended plots was not raised by the writ petitioners (purchaser) earlier, in my view, does not hold good as from bare perusal of the original order passed by respondent D.C.L.R. (Annexure-6), it would appear that such claim was raised on behalf of the writ petitioner (purchaser) based on sale effected in their favour by one Shailendra Prasad Singh (Annexure-2) and the deed of gift executed in their favour on 29.10.1969 (Annexure-3). The said contention of the respondent is, therefore, fit to be rejected. 6 11. The next question is whether the writ petitioner (purchaser) is adjoining raiyat to at least one of the two vended plots. Before proceeding further, this Court may notice the pleadings available on record. Writ petitioner has asserted as under in paragraph 6: “6. That the petitioner was served with the notice to show-cause from the court of D.C.L.R. Sheikhpura and has appeared and claimed that the petitioner purchaser is holding the adjoining plots of lands since before purchase of the disputed both plots besides this the petitioner had also challenged the genuineness of the alleged deed of gift, the basis of the claim of the pre-emptors, Respondent No. 5 and 6. It may be noted that the petitioner holding piece of land area 10 decimal of land of Plot No. 3853 of Mauza Onama which is just adjacent eastern plot of the disputed plot No. 3830 which the petitioner has purchased prior the purchase of the disputed plots by Registered sale-deed dated 28.4.1993 from Shailendra Singh. Similarly the petitioner besides other lands has acquired a piece of land of plot No. 6335 area 10 decimal of land at Mauza Samas which is just adjoining plot of the disputed other plot No. 3516 without divided by any other plot through registered deed of gift dated 29/10/69 executed by Firangi Singh and as such the purchaser is himself the boundary raiyat of both the disputed plots and hence the application for pre- emption filed by the Pre-emptor is not maintainable and fit to be rejected. “ 12. The said paragraph has been replied to by the contesting respondents in paragraph Nos. 12 and 13 which read as under:- “12. That with regard to the statement as made in paragraph no. 6 of the writ petition so far the land of the writ petitioner bearing plot no. 3853 area 10 decimals purchased from one Shailendra Singh through registered sale deed 7 is situated in eastern boundary of plot no. 3830 is totally wrong which is clear from the sale deed in question herein that in eastern boundary of plot no. 3830 the name of the writ petitioner does not exist but the name of Shailendra Singh has been shown. 13. That with regard to the statement so far plot no. 6335 is concerned situated at adjoining plot of disputed plot no. 3516 is concerned it is hereby clarified that the land of plot no. 6335 is of another Mauza namely Mauza Shamas whereas the disputed plot No. 3516 is situated at Mauza Onama. Besides that the petitioner himself has not mentioned in boundary of plot no. 3516 as Niz. As such the said stand is totally wrong and baseless which has been raised in this Hon'ble Court for the first time only to keep in dark to this Hon'ble Court with a view to mislead the Hon'ble Court.” 13. Respondent Additional Member, Board of Revenue, in the impugned resolution, after hearing the parties has found that the claim of the original writ petitioner that he is adjoining raiyat in respect of at least one vended plot was negated on the ground that the same was not of the same mauza. Learned counsel for the petitioners has drawn attention of the Court to the Clause (ii) of the finding portion of the resolution. This Court finds from perusal of the order of the D.C.L.R. that the claim of being adjoining raiyat of the vended plots or at least one of them was not considered on the ground that the said plot claimed by the purchaser by reason of Annexure-2 (a sale deed effected prior to registration of the subject sale deed) lie in different mauza and as such the purchaser cannot be said to be adjoining raiyat of the vended plots. 14. From the pleadings which have been noted 8 hereinabove, this Court finds that the claim of respondent Preemptor was from the very beginning that the original writ petitioner (purchaser) did hold land appertaining to Plot Nos. 3853 and 6337 but the plot which is claimed to be adjoining to vended plot No. 3830 lie in mauza Samas whereas the two plots vended under the impugned sale deed (Annexure- 1) were located in mauza Onama. The respondent D.C.L.R. as well as the respondent Additional Member, Board of Revenue, in my view, have proceeded on erroneous premise. It is settled law beyond cavil that preemption is a weak right. It can be defeated by any bona fide means. The law is further settled that the preemptor has to succeed as a whole as there cannot be apportionment of the consideration money. Reference in this regard may be made to the judgment of this Court since reported in 1995(1) P.L.J.R. 764 (paragraphs 3 and 4) as also 1987 P.L.J.R. 455 (Ram Roop Yadav versus The State of Bihar). 15. I have quoted the pleadings of the parties in the pre-paragraphs in order to show that the claim of the purchaser (original writ petitioner) has been resisted in this Court on the ground that Plot No. 6337 measuring an area of 10 decimals located in Samas was although purchased by the original writ petitioner(purchaser) prior to execution and registration of the impugned sale deed but the said plot lay in different mauza. In my view, the respondent Additional 9 Member, Board of Revenue as well as the respondent D.C.L.R. have not properly considered the said aspect of the matter. Section 16(3) of the Act has been engrafted in the Act for the purpose of consolidation of the lands. A right has been conferred on the preemptor to claim the vended lands, if he or she is the raiyat of the adjoining lands and/or a co- sharer of the vendor. The claim of preemption cannot be allowed if it is found that although the purchaser is adjoining raiyat in respect of one of the vended plots but the said land which is claimed by the purchaser lie in different mauza. Change of mauza, in my view, will not have any effect so far as rights of the parties in preemption proceeding is concerned. As seen above, the respondents have resisted the present writ petition on the ground that one of the plots claimed by the writ petitioner did not belong to the mauza Onama, although it is admitted that the said plot lie adjacent/adjoining to at least one of the vended plots. In view of my findings above, the said stand or finding are not sustainable in law. This Court is conscious of the fact that the preemptors (respondent Nos. 5 and 6) have not been shown as adjoining raiyat in the impugned sale deed (Annexure-1), therefore, a heavy onus lay on the preemptors to prove their title in respect of the adjoining lands. Such claim has been raised based on a deed of gift which has been resisted by the writ petitioner on the ground that 10 proceeding(s) have been filed against the order of mutation passed in favour of the respondents which, however, failed. This much is, however, evident that the names of respondents do not figure in the impugned sale deed as boundary raiyats. 16. Taking into consideration all these facts and in view of my discussions above, this Court allows the present writ petition. Impugned resolution of the Additional Member, Board of Revenue dated 9.2.2005 (Annexure-8) is quashed and set aside. The claim of preemption raised by respondent nos. 5 and 6 fails. pkj (Kishore K. Mandal, J)