Abdullah Mian v. Jodha Raut — 1976 DIGILAW 159 (PAT)

JUDGMENT Hari Lal Agrawal, J. Both these writ applications have been filed by the same petitioner and arise out of a common order dated 10th April, 1973 (Annexure 4) passed by the Member, Board of Revenue, Bihar, Patna (Respondent No.5) disposing of two proceedings initiated by respondent No. 1 under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act, 12 of 1962)-to be referred hereinafter only as the Act' --setting aside the previous orders of the authorities subordinate to him and remanding the two cases to the Land Reforms Deputy Collector, Motihari, for a fresh decision by treating the petitioner as a party to the proceedings. All the parties are common in both the cases, and so are the facts and, accordingly, they are being disposed of by this Judgment. 2. The short facts relevant for appreciation of the question before us are these: Respondent No. 1 Jodha Raut filed two applications under section 16 (3) of the Act, on 8. 3. 1968 before the Land Reforms Deputy Collector, Motihari, claiming a right of pre-emption in respect of the lands transferred by Bindeshwari Prasad (respondent No.3) and Balram Prasad (respondent NO.4-since dead) to Lallan Prasad (respondent No.2) under two sale deeds dated 27. 9. 1967: one in respect of 6 kathas 7 dhurs of survey plot No. 1164. under Khata No. 281 for Rs. 1270/-and another in respect of 7 Kathas 15 dhurs of survey plot No. 1135, under Khata No. 112; of village Pataura Tota Lalla for Rs. 1500/-on the ground that he was a raiyat adjoining both the plots in question and, therefore, entitled for the transfer of the same in accordance with the above provision of law. Both the sale deeds were registered on 18.12.1967, but even before that, Lallan Prasad transferred the plots to the petitioner for a total consideration of Rs. 8,000/-by a sale deed executed on 21. 11. 1967 and registered on 16. 1. 1968. Johda Raut was aware of this fact and in his applications for pre-emption, he had mentioned about the transfer of the lands in question by Lallan Prasad to the petitioner, but still the petitioner was not made a party by him. 8,000/-by a sale deed executed on 21. 11. 1967 and registered on 16. 1. 1968. Johda Raut was aware of this fact and in his applications for pre-emption, he had mentioned about the transfer of the lands in question by Lallan Prasad to the petitioner, but still the petitioner was not made a party by him. Lallan Prasad in his show cause had also stated that he had already parted with the land in question, bad no longer any concern with the same and the petitioner was a necessary party to the applications. It may, however, be mentioned that Jodha Raut had alleged in his applications that the transfer in favour of the petitioner was mala fide. 3. The Land Reforms Deputy Collector dismissed both the applications by order dated 29.7.1969 (Annexure 1) on the ground that in the absence of the subsequent transferee, namely, the petitioner, the applications were not maintainable, and on that account, the deposit made by Jodha Raut, as required by the proviso to section 16 (3) of the Act, also fell short. On appeal by Jodha Raut against the orders of the Land Reforms Deputy Collector, the appellate authority taking a view that it was not necessary to add the subsequent transferee as a party, allowed the appeals by order dated 23.6.1970 and held that Jodha Raut was entitled to pre emption. The appellate order has been made Annexure 2. Lallan Prasad then filed two revisions before the Commissioner, Tirhut Division, as directed by the Board of Revenue. The Commissioner, in his turn, transferred the cases to the Collector of Champaran, who by his order dated 1.5.1972 (Annexure 3,) relying upon a Bench decision of this Court, restored the order of the Land Reforms Deputy Collector. Then Jodha Raut, the pre-emptor, came to the Board of Revenue, and before the Member, Board of Revenue, on his own accord, added the petitioner as opposite party No.4 for the first time. In view of a Bench decision of this Court in Ram Ohandra Yadav V. Anutha Yadav and others 19741 B.L.J.R. 994 also referred to by the Collector, Motihari, the Member, Board of Revenue took the view that in absence of the subsequent purchaser, namely the petitioner, the applications for pre-emption were not maintainable. In view of a Bench decision of this Court in Ram Ohandra Yadav V. Anutha Yadav and others 19741 B.L.J.R. 994 also referred to by the Collector, Motihari, the Member, Board of Revenue took the view that in absence of the subsequent purchaser, namely the petitioner, the applications for pre-emption were not maintainable. But instead of dismissing the applications for this reason, he remanded them to the Land Reforms Deputy Collector to issue notice to the petitioner and then to decide the matter afresh. It is this order that is under challenge in these applications. 4. Mr. Thakur Prasad appearing for the petitioner in this Court challenged the impugned order of the Board of Revenue remanding the proceedings to the Court of the first instance for fresh hearing after notice to the petitioner on the ground that his addition in the proceedings was barred by limitation under Article 137 of the Limitation Act, 1963, the residuary Article under the Third Division of the Limitation Act, which prescribes a period of three years for making such applications for which no period of limitation is provided elsewhere. He contended that inasmuch as the transfer in favour of the petitioner was already complete on 16.1.1968, his addition for the first time in the revisional applications before the Board of Revenue, which were filed in the year 1972, was apparently barred by limitation. Mr. J. C. Sinha appearing for respondent No. 1, however, refuted the above argument on two grounds; firstly that the question of limitation was not passed before the Board of Revenue and, secondly, that Article 137 of the Limitation Act, (corresponding to Article 181 of the old Limitation Act) had no application to Revenue Courts because it was neither a Court governed by the Code of Civil Procedure nor by the Code of Criminal Procedure. 5. The first contention of Mr. J. C. Sinha does not merit much consideration as Mr. Thakur Prasad, who also appeared before the Board of Revenue, asserted that the question of limitation was pressed before the Board of Revenue, but the same has not been noticed in the impugned order. 5. The first contention of Mr. J. C. Sinha does not merit much consideration as Mr. Thakur Prasad, who also appeared before the Board of Revenue, asserted that the question of limitation was pressed before the Board of Revenue, but the same has not been noticed in the impugned order. Be that as it may, it is well settled that there is no estoppel against a statute and under section 3 of the Limitation Act, a duty is cast upon the Court itself to dismiss any proceeding instituted after the prescribed period of limitation, although limitation has not been set up as a defence. The second argument of Mr. J. C. Sinha however, seems to be substantial, supported by high authorities, and requires a detailed discussion. 6. In the case of Wazir Chand Mahajan and another Vs. The Union of India AIR 1967 SC 990 which was a case under the old Limitation Act, a question arose as to whether an application filed under section 20 of the Arbitration Act, was governed by Article 181. It was held there that although the terms of Article 181 were general and apparently not restricted to applications under the Civil Procedure Code, the expression "under the Code of Civil Procedure" occurring in the preceding Article must be deemed to be necessarily implicit in this Article as well. The Supreme Court again in the case of Town Municipal Council Vs. The Supreme Court again in the case of Town Municipal Council Vs. Presiding Officer Labour Court AIR 1959 SC 1335 was considering Article 137 of the new Limitation Act, in relation to an application made under section 33C (2) of the Industrial Disputes Act, and it was very clearly observed that although the new Article was placed into a separate Part, namely, Part II of the Third Division to the Schedule, in view Of a long catena of decisions to the effect that the parallel Article 181 of the old Act, should be confined in its application only to such applications which were under the Civil Procedure Code, there was no reason to hold that amendment of Articles 158 and 178 of that Act, had the effect of altering that long acquired meaning of Article 181 and it was declared that "that view expressed by the Court must be held to be applicable even when considering the scope and applicability of Article 137 in the new Limitation Act, of 1963', and on this view it Was held that no period of limitation was prescribed for application under section 33C (2) of the Industrial Disputes Act. This view was again affirmed by that Court in Nityanand M. Joshi and another Vs. Tile Life Insurance Corporation of India and others AIR 1970 SC 209 although it was observed in this case that the observation made in the case of Town Municipal Council that inspite of the changes made in the Limitation Act, 1963, no drastic change was intended in the scope of Article 137; might require serious consideration. The Supreme Court, however, did not proceed to consider that matter. Encouraged by the above observations of the Supreme Court, Mr. Thakur Prasad leaned heavily upon a Bench decision of this Court in Babu Lakshmi Narain Singh and others Vs. Satya Narain Singh and others 1973 BBCJ 136 where, in an application for certificate to the Supreme Court, on the death of one of the applicants, an application for substitution was made after three years. It was held that the residuary Article 137 applied and the application for substitution was bared. From the facts stated in this case, it is evident that the application for certificate to appeal to the Supreme Court arose out of an appellate decree of the High Court passed in an appeal arising out of a decree in a suit. It was held that the residuary Article 137 applied and the application for substitution was bared. From the facts stated in this case, it is evident that the application for certificate to appeal to the Supreme Court arose out of an appellate decree of the High Court passed in an appeal arising out of a decree in a suit. That application was an application under Order 45, rule 2 of the Code of Civil Procedure and, therefore, the facts of the case directly attracted the application of Article 137. However, an observation has been made in this case that Article 137 has now been put in Part II of the Third Division of the Schedule appended to the Limitation Act, and " the main reason given in all those decisions for taking the view that the residuary article applies to an application only under the Code has vanished." All the three authorities of the Supreme Court which were cited by Mr. J.C. Sinha before us, as already noticed above, were not noticed in the above case where a view different from the view expressed in the above decisions by the Supreme Court has been taken. It is not necessary for me to dilate any further on this question as the matter can be rested by holding the observations in the nature of merely obiter dicta in as much as the application for consideration in that case was covered under the provisions of the Code of Civil Procedure. 7. Realising this difficulty of application of Article 137 of the Limitation Act, Mr.Thakur Prasad then adopted a different argument, and, in my opinion, more substantial. 7. Realising this difficulty of application of Article 137 of the Limitation Act, Mr.Thakur Prasad then adopted a different argument, and, in my opinion, more substantial. He contended that in view of the Bench decision of this Court in Ramehandra Yadav's easel, also referred to by the Board of Revenue in the impugned order, that "if a purchaser of the land would have transferred it to another person before the filing of the application under section 16 (3) of the Act, and if the sale was complete in ail senses, not only by execution of the sale deed but by completion of the registration, before filing of the application, surely the application filed against the original purchaser, ignoring the subsequent purchaser, will be of no effect, and no order to re-convey the property to the pre-emptor can be made in such a case", the application of Jodha Raut for pre-emption against the first transferee, namely, Lallan Prasad was incompetent, and if at all, the same could he only against the petitioner; and inasmuch as an application under section 16 (3) of the Act, could be made only within a period of three months of the date of registration of the document of transfer, the Collector having no power to extend the said period, the order of remand passed by the Board of Revenue directing the Land Reforms Deputy Collector to re-consider the matter, after notice to the petitioner, was illegal as the petitioner had acquired a right to hold the property, unimpaired by the risk of being pre-empted by a co-sharer or raiyat of adjoining land, after the period of limitation of three months had expired long before. 8. 1 he right of pre-emption, in the event of a sale, to purchase the property upon certain terms, has been brought in under the provisions of the Act, with an object to prevent introduction of strangers as co-sharers or adjoining raiyats to avoid fragmentation of agricultural holdings of the pre- emptive co-sharers or raiyats under the provisions of section 16 (3) of the Act, and a pre-emptive co-sharer or a raiyat on the boundary may exercise this right whenever any transfer of land is made. After the period of three months for exercising such a right has elapsed, the right of pre-emption comes to an end by efflux of time and the transferee becomes free from the danger of being pre-emted. After the period of three months for exercising such a right has elapsed, the right of pre-emption comes to an end by efflux of time and the transferee becomes free from the danger of being pre-emted. Each transfer attracting the conditions embodied in section 16 (3) will provide an opportunity to the pre-emptive co-sharer or a raiyat on the boundaries. The transfer in favour of the petitioner, as already stated earlier, was well known to Jodha Raut, so much so that he had stated this fact in the very applications themselves. In my Judgment, therefore, his remedy did not lie against Lallan Prasad the original transferee, but lay against the petitioner as on the grant of the application, the collector has to make an order directing the transferee to recover the land in favour of the applicant by executing and registering a document of transfer within a period to be specified in the order and if the transferee neglects or refuses or comply with the direction, to follow the procedure prescribed under order 21, rule 34 of the Code of Civil Procedure. 9. In order to ward off this inescapable conclusion flowing from the provisions and the scheme of the Act, learned counsel for Jodha Raut (respondent No.1) sought to take aid from Ramchandra Yadav's case 1971 BLJR 994. This Court in Ramchandra Yadav's case, where the subsequent transferee was impleaded for the first time as a respondent in the writ application remanded back the case to the first authority for a retrial after giving an opportunity to the applicant of that case of impleading the subsequent transfere (Chhathi Yadav) as an opposite party in his application filed under section 16 (3) and stating such further facts in a supplementary petition as he might be advised to do, however, after giving notice to Chhathi Yadav. It was observed by this Court in that case for granting this indulgence that "the position of law being uncertain, we do not feel persuaded to deny an opportunity to the petitioner to substantiate his allegation in regard to the sale deed executed by Anuthi in favour of Chathi. 10. I, however, find myself unable to follow the same principle and procedure in the present case, at the cost of the petitioner. 10. I, however, find myself unable to follow the same principle and procedure in the present case, at the cost of the petitioner. Firstly because, in that case the question of limitation was not raised and the attention of this Court was perhaps not invited to this aspect of the matter that the subsequent transferee had acquired a status in the meantime which, in my opinion, is a fundamental question staring in the face of the pre-emptor. The other important point of distinction that appears to me for not following the same procedure in the present case is that in that case the pleas of the pre-emptor against the subsequent transferee inter alia were that the transfer was made by an ante dated sale deed and that the sale deed was farzi. In either of the two circumstances the question of limitation lost much of its weight in as much as if the subsequent sale deed was antedated, it was hit by the doctrine of lis pendens and the transfer in favour of Chhathi Yadav became precarious. If he was a mere farzidar of the first transferee, then that question also could not be decided in his absence, and once that was decided against him, he would be bound by the order of preemption passed against the real owner alone. 11. I have taken care to scrutinise the applications filed by Jodha Raut under section 16 (3) of the Act, which was read out to us and do not find any such statement made therein. The allegations are only of the nature that Lallan Prasad had executed the sale deed in favour of the petitioner to defeat his claim of pre-emption, perhaps under an erroneous impression that the pre-emptive co-sharer lost his right of pre-emption, if the transferee had already parted with the property in question. From the facts enumerated earlier, it is also apparent that the transfer in favour of the petitioner was also complete before the applications under section 16 (3) were made and, therefore, the same cannot be hit by the principles of lis pendens either. 12. For the reasons discussed above, I hold that the learned Member, Board of Revenue, has committed an apparent error of law. 12. For the reasons discussed above, I hold that the learned Member, Board of Revenue, has committed an apparent error of law. I would, accordingly, allow these applications and in exercise of the powers of this Court under Article 227 of the Constitution of India, set aside the impugned order dated 10th April, 1973, contained in Annexure 4. Let an appropriate writ issue accordingly. In the circumstances, however, I shall direct the parties to bear their own costs. Application allowed.