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2004 DIGILAW 25 (PAT)

Nathuni Mahto v. State Of Bihar

2004-01-07

NAGENDRA RAI, R.S.GARG

body2004
Judgment 1. Heard the counsel for the parties. 2. The purchaser in a pre-emption application filed under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961, hereinafter to be referred to as the Act, is the appellant challenging the order passed by the learned Single Judge dismissing his writ application whereby he has challenged the order passed from the level of the original authority upto the revision authority upholding the claim of pre-emption of respondent no. 6. 3. The admitted fact is that the petitioner purchased two portions of plot, i.e., plot no. 266, appertaining to khata no. 344, one measuring 1 katha and 9 dhurs and the other one measuring katha and 10 dhurs by two separate registered sale deeds dated 3.4.1993. 4. Respondent no. 6 filed a pre-emption application with regard to two sale deeds claiming to be an adjoining raiyat of the said land. The same was allowed by the L.R.D.C. on 19.3.1999 (Annexure-4) and that order was upheld in appeal and in revision. 5. The case of the appellant is that he has purchased the land by two registered sale deeds and as such by filing the preemption application with regard to the land covered by one sale deed he has already become adjoining raiyat by virtue of purchase by other sale deed vice versa, and as such the pre-emptor cannot claim land on the ground of being adjoining raiyat as the appellant is already adjoining raiyat. In support of his case, the appellant has relied upon a Division Bench judgment of this Court in the case of Ram Roop Yadav vs. State of Bihar reported in 1987 PLJR, page 455 wherein under similar circumstances this Court has held that right of pre-emption will fail. 6. On the other hand, the case of the pre-emptor respondent is that as he has claimed pre-emption with regard to both the sale deeds, the appellant will not be treated to be an adjoining raiyat. The aforesaid judgment was cited before the learned Single Judge, but he distinguished the same on the ground that the said judgment was rendered in a different context. 7. We are unable to agree with the view taken by the learned Single Judge. The aforesaid judgment was cited before the learned Single Judge, but he distinguished the same on the ground that the said judgment was rendered in a different context. 7. We are unable to agree with the view taken by the learned Single Judge. The Division Bench judgment fully covers the present case as there were two sale deeds in favour of the vendee and preemption was claimed with regard to both of them and then it was held that on the date the right of pre-emption was claimed the transferee has already become an adjoining raiyat by other sale deed. In this connection, it is useful to quote para 6 of the judgment of the aforesaid case which runs as follow: "In view of the series of judgments of this Court, it is almost settled that before an application under section 16(3) of the Act is filed, the purchaser by purchasing an adjoining plot can himself become the holder of an adjoining plot in order to defeat the pre-emption application which is filed later. Of course different considerations will arise where purchaser tries to become a holder of an adjoining plot by making purchase of the adjoining land after filing of the application under section 16(3) of the Act. In the instant case the petitioner has not purchased the adjoining plot on different dates but on the same day and the registration in respect of the two deeds had also been completed much before filing of the two applications under section 16(3) of the Act. As such there should not be any difficulty in holding that when the pre-emption applications were filed by two different sets of pre-emptors for recovenyance of the two plots in two cases, on that day, the petitioner himself had become the holder of adjoining plots in both the cases and he could have resisted the claim for reconveyance of either of the plots. In my view, the Land Reforms Deputy Collector rightly dismissed the application. The Additional Collector and the Member, Board of Revenue, have wrongly placed reliance on the Full Bench case of Sheo Kumar Dubey vs. Sudama Devi (AIR 1962 Patna 124). In the aforesaid case, it had been observed "it is thus evident that the entire land is clogged with an encumbrances in the shape of the right of pre-emption. The Additional Collector and the Member, Board of Revenue, have wrongly placed reliance on the Full Bench case of Sheo Kumar Dubey vs. Sudama Devi (AIR 1962 Patna 124). In the aforesaid case, it had been observed "it is thus evident that the entire land is clogged with an encumbrances in the shape of the right of pre-emption. It is not a personal right; the vendor possesses the property not absolutely, but subject to the right of pre-emption." In the case of R.C. Srivastava ... vs. ... P. N. Singh (supra) the Full Bench explained the view expressed in the case of Sheo Kumar Dubey... vs. Sudama Devi (supra) and observed as follows :- "In Sheo Kumar Dubeys case, Kanhiya Singh, J, had no occasion to consider the question as to how the right of pre-emption accrues or the question as to how such a right can be or is lost. His Lordship was merely describing the legal incidents of a perfected right of pre-emption. He was not dealing with a situation arising out of some events which may have the effect of nullifying that right before any step is taken to enforce it." The learned Additional Collector should have followed the views expressed in the later Full Bench judgment in connection with an application under section 16 (3) of the Act, instead of a view expressed in the earlier full bench case in connection with customary right of pre-emption." 8 In view of the law laid down by the Division Bench with which we fully agree, the appellant has made out a case for interference with the order passed by the authorities under the Act and accordingly, the order allowing the pre-emption application, passed by the D.C.L.R. upholding in appeal and in revision and the orders passed by the authorities allowing the claim of pre-emption are quashed and the pre-emption application is dismissed. The orders passed by the learned Single Judge is set aside with the aforesaid direction. 9. In the result, this appeal is allowed.