Ram Kishun Sao v. State Of Bihar — 1999 DIGILAW 238 (PAT)

Judgment P.K.Deb, J. 1. In the present writ application, the petitioner prays for the issuance of a writ of certiorari for quashing the order contained in Resolution dated 21.4.1993 passed by Respondent No. 3 in Case No. 378 of 1990 (Annexure-6), whereby the respondent No. 2 has allowed the revision after setting aside the order dated 2.4.1990 passed by the respondent No. 3 in Land Ceiling Appeal No. XV/8/89-90. 2. The admitted position remains that the petitioner purchased the land in question out of khata No. 8 of village Matpuri, P.O. Tarhasi, P.S. Manatu, District-Palamau by virtue of a registered deed of sale No. 1883 dated 15.2.1988 for a consideration from respondent No 8 who acquired the said land in an amicable family partition. According to the petitioner, he had purchased the aforesaid land for construction of his dwelling house and he took over the possession of land immediately after the execution of the sale-deed and started construction and collected materials for the said purpose. The respondent Nos. 5 to 7 filed an application for pre-emption under Sec. 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land Act, 1961 (hereinafter shall be called as the Ceiling Act) on 6.12.1988 claiming themselves to be co-sharers and adjoining raiyat of respondent No. 8. The petitioner filed rejoinder to the petition filed by the respondent Nos. 5 to 7 after taking some adjournment and it was contended that the land in question did not remain an agricultural land and the same became Homestead land and as such Sec. 16(3) of the Ceiling Act was not applicable. Further contention of the petitioner in the rejoinder was that the petition was barred by limitation as the land was purchased long back on 15.2.1988 when the petition under Section 16(3) of the Ceiling Act was filed only in the month of December 1988. It was also contended that the petitioner also subsequently purchased vide registered deed of sale dated 27.1.1989, a portion of the adjacent land out of khata in question and as such he became an adjacent raiyat and no pre-emption can be available against him. The respondent No. 4 i.e. the Deputy Collector, Land Reforms, Sadar at Daltonganj, after hearing the parties rejected the petition of pre-emption vide order dated 29.6.1989 which is contained in Annexure-5 to this application. Then, the respondent Nos. The respondent No. 4 i.e. the Deputy Collector, Land Reforms, Sadar at Daltonganj, after hearing the parties rejected the petition of pre-emption vide order dated 29.6.1989 which is contained in Annexure-5 to this application. Then, the respondent Nos. 5 to 7 preferred an appeal before the respondent No. 3 against the order as contained in Annexure-5 which was registered as Land Ceiling Appeal No. XV/8/89-90. The respondent No. 3 vide its order dated 2.4.1990 dismissed the appeal confirming the order passed by the respondent No. 4. The respondent Nos. 5 to 7 then preferred a Revision before the Member Board of Revenue i.e. respondent No. 2 against the order passed by the respondent Nos. 3 and 4 and the same Revision was numbered as Case No. 378/90. According to the Petitioner, the said Revision was time-barred and no notice was given to the petitioner before admitting the same. After hearing the parties, the Member Board of Revenue vide its Resolution dated 21.4.1993 set aside the orders passed by the authorities below accepting the claim of pre-emption of respondent Nos. 5 to 7, which has been impugned in the present writ application. 3. On being noticed the respondent Nos. 5 to 7 appeared and filed counter-affidavit supporting the order passed by the Member Board of Revenue. Both parties have cited various judgments of this Court and that of the Supreme Court in support of their respective contentions. 4. Mr. Srivastava, appearing on behalf of the petitioner has taken following points in attacking the impugned Resolution of the Board of revenue, namely; (i) No notice was given by the Revisional Court in admitting the revision when the same was time barred and that there was no order regarding condonation of the limitation; (ii) That the Board of Revenue under the Revisional jurisdiction had no authority to interfere with the concurrent findings of two fact-finding Courts and as such the Member concerned had exceeded his jurisdiction; and (iii) There was no finding regarding the category of the land as to whether it was Homestead land or the agricultural land. 5. Mr. Allam, appearing on behalf of the contesting respondents, on the first point submitted that the Revision was never barred by limitation, as the order-sheet of the Revisional Court had not been submitted to show that the same was barred by limitation. 5. Mr. Allam, appearing on behalf of the contesting respondents, on the first point submitted that the Revision was never barred by limitation, as the order-sheet of the Revisional Court had not been submitted to show that the same was barred by limitation. According to him, the Revision was preferred within the period and when no documents are there to substantiate that the Revision was barred by limitations there is no scope of entering into that arena under the writ jurisdiction of this Court. I find much force in the submission of Mr. Allam on this score. 6. About the last point regarding agricultural land or Homestead land, it appears that none of the Courts below had decided that matter, although, admittedly Sec. 16(3) of the Ceiling Act has got no application in respect of Homestead land. As per the Revenue records as it transpires the land remained in the category of agricultural land but by the go of day, it might have been transformed into a Homestead land as averments of the sale-deed infer so. But, when there is no decision to that effect, I am not inclined to enter into that controversy, when this petition can be disposed of on other aspect i.e. the vital point as to whether right of pre-emption existed on the date of order being passed for the purpose of pre-emption. 7. Dates are very relevant in the case. The sale-deed which has been questioned by way of pre-emption was executed on 15.2.1988 in favour of the petitioner and the same was registered on 2.11.1988. This finds mention in the order dated 21.4.1993 as contained in Annexure-6. On 6.12.88, the petition under Section 16(3) of the Act was filed by the respondent Nos. 5 to 7 who were admittedly co-sharers and adjoining raiyats of the vendor of the petitioner. The requisites necessary for the purpose of filing of the pre-emption petition had been fulfilled from the side of the respondent Nos. 5 to 7. On 26.12.1988, notice was issued to the petitioner by respondent No. 4 and he appeared on 26.12.1988 and took adjournments on 18.1.1989, 8.2.1989, 21.2.1989 and 15.3.1989 and then filed his reply to the show cause. When such adjournments were being taken, the petitioner had purchased a share and became the raiyat of the adjoining land by a sale-deed dated 27.1.1989, although registration was done on a later date. When such adjournments were being taken, the petitioner had purchased a share and became the raiyat of the adjoining land by a sale-deed dated 27.1.1989, although registration was done on a later date. The Courts below then the Review Board had held that when the petitioner had already become adjoining, raiyat by purchase within three months from the date of registration of his earlier deed which was questioned in the pre-emption petition then his possession remained at par with that of the respondent No. 5 to 7 and as such by purchase the petitioner could be able to defeat the claim of pre-emption as per Sec. 16(3) of the Ceiling Act. 8. The legal question is whether after a pre-emption application has been filed the person against whom, such pre-emption has been claimed could be able to defeat the claim of pre-emption by a subsequent purchase during the pendency of adjudication of the pre-emption application or not, even though such purchase was made within the period of three months applicable under the Statute for filing of pre-emption petition from the date of registration of the prior purchase. In this connection, first of all the provisions of Sec. 16(3) of the Act is to be enumerated for the purpose of considering the legal question as raised. Sec. 16(3) of the Act Reads as follows: Sec. 16(3) (i) When any transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding f land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document of the transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said-deed: Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten percent thereof is deposited in the prescribed manner within the said period. (ii) On such deposit being made the co-sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under Clause (i) is pending for decision: Provided that where the application is rejected, the co-sharer or the raiyat as the case may be, shall be evicted from land and possession thereof shall be restored to the transferor and the transferee shall be entitled to be paid a sum equal to ten percent of the purchase money out of the deposit made under Clause (i). (iii) If the application is allowed, the Collector shall by an order direct the transferee to convey the land in favour of the application by executing and registering a document of transfer within a period to be specified in the order and, if he neglects or refuses to comply with the direction, the procedure prescribed in Order XXI, Rule 34 of the Code of Civil Procedure, 1908 (V of 1908), shall be, so far as may be, followed. 9. From the above provision, it is clear that when such a petition of pre-emption is filed and necessary deposits being made the co-sharer or the raiyat are entitled to be put in possession of the land irrespective of the fact that the application under Clause (i) is pending for decision. Proviso has also been made, in case the petition is rejected, there should be restoration of possession in favour of the original purchaser against whom pre-emption has been claimed. In the present case, Sub-sec. (ii) of Sec. 16(3) has not been implemented nor interim possession had been given pending decision of the pre-emption petition in favour of the respondent Nos. 5 to 7, rather by the Courts below, after adjudication claims of pre-emption had been rejected holding that the petitioner against whom pre-emption petition had been filed had already got the status of adjoining raiyat by a subsequent purchase within three months from the date of registration of the earlier purchase deed on the basis of which pre-emption has been claimed. 10. It is the submission of Mr. 10. It is the submission of Mr. Allam that if a co-sharer or a raiyat has subsequently by purchase has got the status of co-sharer or a raiyat holding land of adjoining transferred land would not defeat the claim of pre-emption under Sec. 16(3) of the Act as on the date of execution and registration of the document of transfer, respondent Nos. 5 to 7 had already accrued the right of pre-emption and his such right remained in vogue also on the date of application, when such application has been made within the period mentioned in the statute itself. Then subsequent purchase giving the status of adjoining raiyat or co-sharer would not defeat the claims of the pre-emptor. The right of respondent No. 5 to 7 can only be defeated if such purchase would have been made before the date of application. In this connection, he has referred to a decision of Full Bench of this Court as reported in AIR 1971 Patna, Page 302 Ram Chandra Srivastava V/s. Parsidh Narain Singh and Ors. Now, the position of law being interpreted by different Benches and also by the Full Bench of this Court remained that although the pre-emptory right is a weak right but it being a statutory right under the Ceiling Act, it can be enforced, if all formalities required under the provisions are being complied with. 11. Thus, if the pre-emptor has got the existent right on the date of registration and also within the period of, as given by the Statute till a petition is filed under Sec. 16(3) of the Ceiling Act then subsequent purchase made by the purchaser from the real owner giving him the status of adjoining raiyat or co-sharer would not defeat the claim of pre-emptor. Then the point poses that if as if happened in the present case, the purchaser had made a second purchase getting the status of adjoining raiyat or co-sharer within the period of three months from the date of registration of earlier purchase and the period being provided for implementing the right of pre-emption but the petition for pre-emption had been filed within the period but before the second purchase is made then what would happen whether this would cause defeat of the pre-emptors right or not. 12. 12. I have searched of myself various judgments passed by this Court on earlier occasions, including that of Full Bench and of the Supreme Court, the list of which would be supplied below, but I could not find any decision to be arrived at up till now in such position as that of the present case. 13. Let me now elaborate the legal position. The right of pre-emptor accrued in the month of November 1988 and he had the option to file petition under Sec. 16(3) of the Ceiling Act till the month of January 1989 but before that period is expired which he has got every right to do, he had filed a petition in the month of December 1988 and after filing of this petition and notices being served the petitioner i.e. the purchaser had made a purchase in the month of January 1989 before the expiry of three months and then took the plea that right of pre-emption of respondent Nos. 5 to 7 has been defeated as he has also come at par and of equal status as that of the respondent Nos. 5 to 7 i.e. pre-emptors by his second purchase. Period of limitation for filing the pre-emption petition was still there when the second purchase was made by the petitioner and at the time of adjudication, definitely the petitioner and respondent Nos. 5 to 7 were standing at par and this has been observed by the Member Revenue Board also. When they were at par then definitely no order for pre-emption could be passed against the petitioner on the date order was made. If on the date of application, if Sub-sec. (ii) of Section 16(3) would have been taken recourse of by the original Court by giving possession to the pre-emptor on deposit of the price money including that of 10 per cent as required under the provisions then perhaps the position would have been otherwise, but in the Resent case, that has not been done. Now, the only question remains whether the right of pre-emption can be defeated, when the petition for pre-emption was already pending by the second purchase of the petitioner as the same is hit by the principle of lis pendens. On this point, I could find out a decision of the Supreme Court as reported in -- Bishan Singh and Ors. V/s. Khazan Singh and Anr. On this point, I could find out a decision of the Supreme Court as reported in -- Bishan Singh and Ors. V/s. Khazan Singh and Anr. That case was on the basis of Punjab Pre-emption Act. The provisions of Sec. 16(3) of the Bihar Ceiling Act was alike that of the Pre-emption provisions under the Punjab Pre-emption Act. In para-11 of that judgment, how the right of pre-emption can be defeated and in which circumstances, the same may happen have been enumerated, when it was summarised as follows: (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase i.e. the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the persons substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right, being substituted in his place. It was also specifically held that Sec. 52 of the Transfer of Property Act would not come into play in a suit for pre-emption i.e. the principle of lis pendens would not be applicable. 14 Now considering all those principles as enunciated by the Apex Court in a proceeding of pre-emption, it can be said that the pre-emptory right being a weak right, it can be defeated by all legitimate methods and when principle of lis pendens is not applicable in such proceedings of enforcing a weak right then if the vendee gets the status of equal right as that of the pre-emptor then such right can very well be defeated. In the present case, not only the petitioner has acquired the equal status or at par status with that of the respondent Nos. In the present case, not only the petitioner has acquired the equal status or at par status with that of the respondent Nos. 5 to 7 during the pendency of the proceedings rather he had acquired the same within the period on which the right of pre-emption could have been enforced from the side of the pre-emptors i.e. the three months from the date of registration of the first deed. When the second proviso of Sec. 16(3) of the Ceiling Act had not been enforced in the present case by giving possession to the pre emptors on the date of application or immediately after, and during the course of adjudication already the petitioner had acquired the equal right as that of the pre-emptor then in my view there is no scope to enforce the right of pre-emption. 15. There is another aspect of this matter. If the deed of reconveyance is made in favour of the pre-emptor on the basis of the order being pasted by the Member Board of Revenue as per Sec. 16(3) of the Act then the petitioner being a co-sharer already by the second purchase can also come up for a further pre-emption petition under Sec. 16(3) against that re-purchase as such re-purchase is also a purchase in the sense of Transfer of Property Act, then a very anomalous position would arise. 16. Mr. Allam has again taken the plea that even if the second purchase is said to be within the stipulated period of three months for enforcing the right pre-emption is taken to be a valid one for the purpose of defeating the pre-emptory right in favour of the petitioner then also that deed being not registered in the month of January 1989 and being registered on a later date (no dated has been mentioned by either of the parties) then the sale could not be said to be a completed one and by such execution of sale-deed not being registered cannot be said to be a valid sale in the eye of law. 17. I am not convinced with the submission of Mr. Allam. 17. I am not convinced with the submission of Mr. Allam. A sale of immovable property requires registration under the Registration Act itself and Transfer of Property Act, but registration is a formality which sometimes takes 5-6 months or extend a year even and after registration the same always relates back to the date of execution and not from the date of registration. Sale becomes valid on the date of execution itself and not on the date of registration. Nowhere, it has been said that the second sale in favour of the petitioner by the original owner had not been registered. So, this submission of Mr. Allam has got no force. 18. On consideration of legal aspects of the matter, I come to the finding that the Member Board of Revenue committed error of law, although he held that the date on which he was going to pass the order for pre-emption, both the parties stood at par but still on technical ground that the petitioner had delayed the proceedings by taking adjournments and in the meantime he had purchased a share getting the status of a co-sharer in the suit property and as such he cannot defeat the claim of pre-emption of the respondent Nos. 5 to 7, is improper and unjustified. When the petitioner was taking adjournment then there was every right for the respondent No. 4 i.e. the original Court to enforce the pre-emptory right by interim order as per provisions as contained in Sub-sec. (ii) of Sec. 16(3) of the Ceiling Act, but that was not done and when on the date of application, the persons stood with same status, there was no scope to pass order of pre-emption. 19. Hence, this writ petition is hereby allowed. The Order passed by the Member, Board of Revenue as contained in Annexure-6 is hereby set aside, while the orders passed by the respondent Nos. 3 and 4, as contained in Annexures-5 and 5/A are hereby confirmed. 20. The rulings which were considered by this Court in coming to the above decision are quoted below: (1) -- (2) 1985 PLJR page 554 Yugal Kishore Singh and Anr. V/s. State of Bihar and Ors. (Full Bench) (3) 1985 PLJR, page 662 Smt. Priyambada Devi and Anr. V/s. The Additional Member Board of Revenue Bihar Patna and Ors. (4) 1985 PLJR page 215 Raju Kumar Prasad and Anr. V/s. State of Bihar and Ors. (Full Bench) (3) 1985 PLJR, page 662 Smt. Priyambada Devi and Anr. V/s. The Additional Member Board of Revenue Bihar Patna and Ors. (4) 1985 PLJR page 215 Raju Kumar Prasad and Anr. V/s. Additional Member Board of Revenue Bihar Patna and Ors. (5) -- (Single Bench) Saryug Prasad Singh V/s. Saryu Singh. (6) -- (Full Bench) Sheo Kumar V/s. Smt. Sudarna Devi. (7) 1970 PLJR page 579 : -- (Full Bench) Ram Chandra Srivastava and Ors. V/s. Prasidh Narain Singh and Ors. (8) 1973 PLJR page 534 (Division Bench) Smt. Sudama Devi and Ors. V/s. Parmeshwar Narain Singh and Anr. (9) 1993 BBCJ, 338 (Division Bench) Ram Briksh Yadav and Anr. V/s. Rameshwar Yadav and Anr. (10) 1968 BLJR 33 (Division Bench) Raj Kishore Singh V/s. Bhuneshwan Singh and Ors.