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2003 DIGILAW 603 (PAT)

Ashok Kumar Singh v. State Of Bihar

2003-06-09

AFTAB ALAM

body2003
Judgment Aftab Alam, J. 1. The pre-emptor is the petitioner in this writ petition arising from a pre-emption-proceeding u/s. 16 (3) of the Bihar Land Ceiling Act. The petitioners claim of pre-emption was upheld and allowed by the Deputy Collector Land Reforms, Teghra by his order, dated 17-9-1997 (Annexure 2) passed, in Case No. 3 of 1995-96. The vendees appeal against that order was dismissed by the Collector, Begusarai by order, dated 26-12-2000 (Annexure 3) passed in Ceiling Appeal No. 20 of 1997. Her revision before the Board of Revenue was, however, allowed by order, dated 11-12-2002 passed in Case No. 44 of 2001 and it is against this order that the pre-emptor writ petitioner has come to this Court. 2. The Board of Revenue found that there were procedural defects in filing the pre-emption application in the statutory form and further held that the petitioner was not the sole proprietor but only a co-sharer of the piece of land adjoining the disputed plot and hence, it was not open to him to raise the claim of pre-emption by himself and in the absence of the other co-sharers of the adjacent plot. It was mainly on these two grounds that the Board of Revenue held that the claim of pre-emption raised by the petitioner was liable to be rejected. 3. Mr. S.S. Asghar Husain, learned Senior Advocate appearing for the petitioner submitted that the defects/omission in filling-up the statutory form for making the pre-emption application were too trivial to render the claim liable to rejection. 4. Mr. D.K. Sinha, Counsel for the vendee (respondent No. 5) accepted the submission made by Mr. Hussain and stated that he would not rely upon the defects/omissions in the claim application submitted by the petitioner, as pointed out in the order of the Board of Revenue. 5. Mr. Sinha, however, submitted that the piece of land lying adjacent to the transferred land (forming the subject matter of dispute) was recorded not in the name of the pre-emptor but in the joint names of his deceased father and uncle, it was admittedly a part of undivided family property and the petitioner was not its sole owner but only a co-sharer. 6. Mr. 6. Mr. Sinha further explained that the petitioner was not a co-sharer of the transferred land but he was a co-sharer of the piece of land lying adjacent to the transferred land and his claim of pre-emption was, therefore, not in the capacity of co-sharer but as adjoining raiyat. He then produced before me the pre-emption application filed by the petitioner to show that even though only a co-sharer the claim of pre-emption was made by him personally and on his own behalf, the other co-sharers of the adjoining plot did not join in the filing of the pre-emption application and there was not even an averment in the pre-emption application that though being made by one of them, the claim of pre-emption was on behalf of all the co-sharers. 7. Mr. S.S. Asghar Husain submitted that for raising a claim of pre-emption the raiyat of the adjoining piece of land may not necessarily be its sole owner and the claim could also be raised by a co-sharer of the adjoining piece of land. 8. In this case, it is not needed to go into that question because the petitioners claim of pre-emption is bound to fail for another reason. 9. In this case the vendor, respondent No. 6 executed the sale-deed in favour of the vendee, respondent No. 5 on 22-11-1993 in respect of a piece of land, 1 bigha in area, forming part of plot Nos. 1165 and 1166 (survey plot Nos. 224 and 225) under Khata No. 252 situate in village Rudauli, PS Bachwara, in the district of Khagaria. The regularisation of the sale deed was completed on 4-9-1995. The pre-emption application was filed by the petitioner on 7-9-1995. On notice being issued the vendee appeared and in the show cause filed by her, it was stated that long before the filing of the pre-emption application, she had executed a sale deed in respect of 2 kathas 10 dhurs out of the land purchased by her in favour of one Tilak Sao on 21-2-1995. It was further stated that the sale-deed had been duly presented for registration and its copy was also brought on record. However, the Dy. It was further stated that the sale-deed had been duly presented for registration and its copy was also brought on record. However, the Dy. Collector Land Reforms did not take any cognizance of the subsequent sale made by the vendee on the ground that since the registration of the document was not completed, there was no valid transfer of the land in the eyes of law. He, therefore, proceeded with the case disregarding the sale made by the vendee and allowed the petitioners claim of pre-emption by his order, dated 17-9-1997. But shortly thereafter, the registration of the sale deed executed by respondent No. 5 in favour of Tilak Sao was completed on 23-10-1997/ 24-10-1997 and though this aspect of the matter was also pleaded in the appeal before the Collector, he too paid no heed to it, 10. Now, what is the legal position emerging from the admitted facts as noted above? It is well settled that once the registration of the sale deed is completed, the sale dates back to the date of execution of the deed. In this case the sale deed by respondent No. 5 was executed in favour of Tilak Sao on 21-2-1995. Therefore, once the registration of the sale deed was completed in October, 1997, the sale of 2 kathas 10 dhurs of land, out of the total land purchased by respondent No. 5 would date back to 21-2-1995. This being the position the orders passed by the Deputy Collector Land Reforms and the Collector are not capable of being legally carried out. Those orders direct respondent No, 5 to retransfer the entire area of 1 bigha purchased by her in favour of the pre-emptor but she had already sold 2 kathas 10 dhurs out of that area in favour of Tilak Sao and, therefore, it is impossible for her to retransfer the disputed land in favour of the pre-emptor writ petitioner. 11. A question may arise here what the Dy. Collector Land Reforms should have done in view of the fact that the sale deed executed by respondent No. 5 that was presented before him had not yet been registered. To my mind the proper course would have been to stay the proceedings and to wait for the registration of the second sale deed to be completed and then to add the second transfer, Tilak Sao as a party to the pre-emption proceedings. To my mind the proper course would have been to stay the proceedings and to wait for the registration of the second sale deed to be completed and then to add the second transfer, Tilak Sao as a party to the pre-emption proceedings. In presence of Tilak Sao, the question could be raised and effectively adjudicated on as to whether the sale made by respondent No. 5 in his favour was bona fide or a sham transaction in order to defeat the claim or pre-emption. Even in case the Dy. Collector Land Reforms omitted to do so, the registration of the second sale deed was completed before the matter went before the appellate authority or in any event during the pendency of the appeal and, therefore, the Collector should have remanded the matter to the Dy. Collector Land Reforms with the direction to have Tilak Sao impleaded as a party to the case and to proceed afresh in his presence. 12. Thus, the claim of pre-emption is bound to fail because no heed was paid to the second sale deed made by respondent No. 5 and in view of the second sale deed being there, no direction to respondent No. 5 to transfer the entire land purchased by her can be legally executed. 13. For the reasons discussed above, this writ petition is bound to fail and it is hereby dismissed but with no order as to costs.