IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13537 of 2005 HARE RAM ROY @ HARE RAM RAI SON OF LATE BAHADUR RAI, RESIDENT OF VILLAGE, SARANGPUR, P.S. SARANGPUR(OLD P.S.-HALAI, TAJPUR) DISTRICT SAMASTIPUR. …PETITIONER Versus 1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, OLD SECRETARIATE, BUILDING, PATNA 2. THE ADDL. MEMBER, BOARD OF REVENUE, BIHAR, OLD SECRETARIATE, BUILDING PATNA 3. THE ADDITIONAL COLLECTOR, SAMASTIPUR 4. THE D.C.L.R. SAMASTIPUR 5. KULESHWAR RAI, SON OF LATE RAM BILAS RAI, RESIDENT OF VILLAGE- SARANGPUR, P.S. SERANGPUR/OLD P.S. HALAI TAJPUR), DISTRICT SAMASTIPUR. 6. RAM KAILASH RAI, SON OF LATE SINGHESHWAR RAI, RESIDENT OF VILLAGE AND P.O. SERANGPUR, P.S. SERANGPUR(OLD P.S. HALAI TAJPUR) DISTRICT SAMASTIPUR. …RESPONDENTS For the petitioner :Mr. Amit Kr. Anand For the State :Mr.Shashank Shekhar Jha, A.C. to G.P.22 & :Mr. Sanjay Kumar Singh A.C. to G.P.22 ------ 03. 22.04.2011 Petitioner is the pre-emptor. He is raising a grievance with respect to Resolution dated 31.05.2005 (Annexure-4), passed by Respondent-Addl. Member Board of Revenue, whereby his revision application being Case No. 277 of 2002 has been considered and rejected. Background facts leading the present application, in a nutshell, are as follows:- A sale deed was executed on 20.08.2001 in respect of four kathas of land by respondent no.5 in favour of respondent no.6. The sale deed was registered on 7.11.2001. The petitioner finding the name of his father as adjoining raiyat in respect of the vended plot(s) filed an application on 19.11.2001 under section 2 16(3) of the Bihar Land Reforms(Fixation of Ceiling Area and Acquisition of Surplus Land)Act,1961(for short ‘the Act’) giving rise to L.C. Case No. 50/01. Parties appeared and filed their respective claims. The respondent-Deputy Collector, Land Reform by a proceeding dated 16.03.2002 (Annexure-2) allowed the claim of pre-emption. Aggrieved by the aforesaid order, the vendor(respondent no.5) preferred appeal vide Land Ceiling Appeal No.120/02/03. On a consideration of materials placed before it, it was found and held that there was no transfer/sale of land in the eye of law and, as such, the right of pre-emption shall not survive. Having held so, respondent-Addl. Collector allowed the appeal by a proceeding dated 12.10.2002 (Annexure-3). Aggrieved over the said appellate order, the petitioner preferred revision vide Case No. 277 of 2002 which was considered and rejected by Resolution dated 31.05.2005 (Annexure-4) leading to filing of the present writ application. Heard learned counsel for the petitioner and A.C. to G.P.22 for the State. While assailing the order, it is submitted on behalf of the petitioner that admittedly the father of the petitioner is shown as boundary raiyat/adjoining raiyat in respect of vended land(s). He refers to subject sale deed (Annexure-1). It is next contended that the Authority under the Act decided the validity of transfer. Once it is registered, the land(s) will be deemed to have been conveyed. It is submitted that both the appellate court as well as the revisional court erred in disallowing the claim of pre-emption. 3 Learned counsel appearing on behalf of the State placed before this Court the finding recorded by learned lower appellate court as well as the revisional court. It appears from the appellate court order that the authority considered different documents and aspects of the matter including the documents/affidavit filed in this proceeding on behalf of the vendor and vendee in order to show that there was no sale taking place in the eye of law. The appellate court has also noticed that instead of purchaser the vendor has filed the appeal. This is what the appellate court found in the order (Annexure-3):- ÞmHk; i{k }kjk izLrqr rdksa ,oa vfhkys[k esa miyC/k lk{;ksa dk voyksdu ,oa vuq”khyu fd;k x;k A ;g vihy vkosnu iz”uxr Hkwfe ds fcØsrk }kjk nk;j fd;k x;k gSA iz”uxr Hkwfer ds Øsrk bl vihy okn esa foi{kh la[;k 2 gSA os lwpuk fn;s tkus ds ckn Hkh os mifLFkr ugha gq;sA izk;% ,slk ns[kk x;k gSfd fuEu U;k;ky; }kjk fdlh vkosnd dks ik”oZorhZ jS;r ?kksf’kr fd;s tkus ds ckn Øsrk }kjk gh vihy okn nk;j fd;k tkrk gS ijUrq bl okn esa ,slh ckr ugha gSA bl okn esa vihydRrkZ iz”uxr Hkwfe ds fcØsrk gSA iz”uxr Hkwfe ds Øsrk tks foi{kh la[;k 2 gS ds vuqifLFkr jgus ls ;g Li’V gS] f dbl Hkwfe esa mudh dksbZ :fp ugha gSA vihydRrkZ }kjk iz”uxr Hkwfe ds Øsrk Jh jke dSyk”k jk; is0 Lo0 fla/ks”oj jk; xzke lkjaxiqj dk “kiFk i= Hkh izLrqr fn;k x;k gS ftlesa Jh jk; us dgk gS fd iz”uxr Hkwfe dks mUgksaus vihydRrkZ ls dsokyk fy[k;k ijUrq tc mUgsa tkudkjh feyk fd iz”uxr Hkwfe fooknh gS ,oa fcØsrk dks iwjh Hkwfe cspus dk dksbZ vf/kdkj ugha gS rks mUgksaus fcØsrk ls u rks dsokyk dk jlhn fy;k vkSj u dh ewY; Hkqxrku fd;k vkSj u gh iz”uxr Hkwfe ij n[ky dCtk fd;k vius “kiFk i= esa os ;g Hkh fy[krs gS fd mDr Hkwfe ls mUgsa dksbZ ljkdkj ugha gSA iz”uxr Hkwfe ds ik”oZoRrhZ jS;r foi{kh la[;k 1 gSA ;g Lohd`r rF; gS ftlls ;g bUdkj ugha fd;k tk ldrk gSA ijUrq bl ekeys esa ;g Li’V gS fd iz”uxr Hkwfe dk dsokyk gh viw.kZ gSA dsokyk fuca/ku dh izfØ;k es dsokyk fuca/ku ds ckn mldk jlhn fcØsrk ls izkIr dj ,oa ml jlhn dks fuca/ku dk;kZy; esa izLrqr djus ij gh Øsrk dks nLrkost izkIr gksrk gSA fcØsrk mDr jlhn Øsrk dks rHkh gLrxr djrk gS tc mls mDr Hkwfe dk ewY; mls izkIr gks tkrk gSA bl ekeys esa Øsrk ds “kiFk i= ls ;g Li’V izekf.kr gS fd mUgksaus u rks fcØsrk dks ewY; Hkqxrku fd;k vksj u gh mls jlhn 4 fn;kA ,slh fLFkfr esa ;g ekuk tk;sxk fd iz”uxr Hkwfe fcØsrk dh gh gSA tgk¡ rd gdh;r okn dk lca/k gS ;g bl U;k;ky; ds vf/kdkj {ks= ds vUrxZr ugha vkrk gSA iz”uxr okn esa Øsrk }kjk Hkwfe dk ewY; fcØsrk dks Hkqxrku ugha djus ,oa muls jlhn izkIr ugha djus rFkk fuca/ku dk;kZy; ls nLrkost izkIr ugha djus ls ;g Li’V gS fd ;g dsokyk gh viw.kZ gSA tc dksbZ dsokyk gh viw.kZ gS rks ml dsokyk ds vk/kkj ij vkosnd dks ik”oZoRrhZ jS;r ?kksf’kr djuk fue;kuqdwy ugha ekuk tk ldrk gSAÞ It appears that the authority evaluated different documents placed on record to come to the conclusion that there was no transfer of land in the eye of law inasmuch as the possession remained with the vendor. From the recitals in the sale deed (Annexure-1,) this much is evident that the vended plot(s)/land(s) was/were purchased by the wife of the vendor who did not sale the lands. The revisional court once again appraised the submissions made on behalf of the parties and concluded as under:- “From these two decisions it is apparent that since there was some dispute in the family of the vendor and a partition suit was filed by one of his sons which has been lastly decreed as stated above and due to these things the purchaser did not pay the full consideration money nor he came in possession of the land in question the sale deed is also with the vendor himself and his consistent stand is that he has no interest in the land so the decision cited by the learned counsel for the Opp.Party no.1(vendor) supports the case of the vendor which can not be refuted by the learned counsel for the petitioner and he only insisted that as per the averment made in the sale deed any subsequent events can not be looked into because this is the result of connivance in between the vendor and purchaser but he did not cite any decision to dispute the case of the vendor supported by these two decisions of the Hon’ble Patna High Court as such I am of the firm view that inspite of the averment in the sale deed when 5 consistent case of the vendor as well as purchaser is that the consideration money did not pass as per the averment made in the sale deed the purchaser could not come in possession of the land in question, own case of the purchaser is that he has no interest in the suit land so all these things go against the case of the pre-emptor and my conclusion is fortified by the facts of the case as well as the case law cited by the vendor Opp. Party no.1, so I am satisfied that pre-emption being a week right which has been legitimately defeated by case of the vendor due to intervening circumstances as stated above the claim of the pre-emptor can not succeed as such this revision application is fit to be dismissed and accordingly after considering all the facts and circumstances of the case this is being dismissed herewith. The findings recorded by two courts below based on appraisal of materials on record do not persuade this Court to invoke its extra-ordinary writ jurisdiction in the matter by setting aside those findings and allowing the claim of pre-emptor. The application lacks merit which is accordingly dismissed. hr ( Kishore K. Mandal )