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2004 DIGILAW 7 (PAT)

Dina Nath Prasad v. State Of Bihar

2004-01-05

NAGENDRA RAI, R.S.GARG

body2004
Judgment 1. This appeal is barred by limitation. 2. After hearing learned counsel for the appellant and taking into consideration the averments made in the limitation petition, the delay in filing this appeal is condoned. 3. The appellant is the pre-emptor and the matter arises out of a sale which took place in the year 1982. This is second round of litigation before this Court. Earlier the matter had come to this Court at the instance of the purchasers and the matter was remanded to the authority concerned and thereafter the revenue authority decided the matter against the pre-emptor appellant and he challenged the order before the learned single Judge, who has dismissed the same by the impugned order. 4. The facts which are not in dispute are that the original respondent no.8, who died during the pendency of the proceeding and was substituted by his heirs, executed three sale deeds for 3 katha 10 dhurs of land in favour of respondent nos. 5 to 7 being portion of plot no. 354 situate at village Sayedpura, District Siwan. The sale deeds were executed on 12.2.1982 and registered on 19.2.1982. Respondent no.8 also executed sale deed for 4 dhurs of land of the same plot in favour of Ram Lakshman Shah on the same day i.e. 12.2.1982 and the same was also registered on 19.2.1982. Three pre-emption applications were filed. When the matter was remanded by this Court, the authority decided in favour of the pre-emptor appellant and the purchasers filed one set of appeal challenging all the three orders and tneir appeal was allowed, against which revision application was filed by the pre-emptor which, as stated above, was dismissed. 5. The revisional authority negatived the claim of the pre-emptor on the ground that in between the land of pre-emptor and purchasers, Ram Lakshman Shah purchased 4 dhurs of land and as such the pre-emptor is not the boundary raiyat. This apart, Ram Lakshman Shah was not made party in the pre-emption application. 6. Learned counsel for the appellant raised two points which were also raised before the learned single Judge. Firstly, he submitted that one appeal against three orders passed in three pre-emption applications was not maintainable and as such the appellate order is vitiated. Secondly, he submitted that the pre-emptor appellant is the boundary raiyat. 7. 6. Learned counsel for the appellant raised two points which were also raised before the learned single Judge. Firstly, he submitted that one appeal against three orders passed in three pre-emption applications was not maintainable and as such the appellate order is vitiated. Secondly, he submitted that the pre-emptor appellant is the boundary raiyat. 7. The question for consideration is as to whether the appellate order is vitiated on account of filing only one set of appeal. There is no dispute about the fact that all the three orders were challenged in one set of appeal being common question involved. In that view of the matter, we fully agree with the view taken by the learned single Judge that mere on technicality appellate order cannot be faulted. Coming to the second point, two courts have found against the pre-emptor and the learned single Judge has also in para 12 of the order has agreed with the aforesaid finding. 8. Learned counsel for the appellant, however, in support of his submissions, relied upon two judgments of this Court in the case of Ramdeo Sharma vs. The State of Bihar, 1996 BBCJ 637 : [ 1996 (2) PLJR 694 ] and Mohammad Shafique Ahmad V/s. State of Bihar, 1995 (1) PLJR 851. 9. In our view, none of the decisions is of any help to the appellant for the reasons stated hereinafter. In Ramdeo Sharmas case (supra) only one pre-emption case was filed with regard to five sale deeds and the learned single Judge held that in absence of any evidence that the family was joint and there was only one transaction though five sale deeds were executed, pre-emption application was not maintainable. This is not the case here. Three pre-emption applications were and only one set of appeal was filed cha lenging all the three orders. The same may be a technical defect but on that ground appellate order cannot be interfered with Filing of pre-emption application stands on" different footing than challenging the preemption orders in appeal. This is not the case here. Three pre-emption applications were and only one set of appeal was filed cha lenging all the three orders. The same may be a technical defect but on that ground appellate order cannot be interfered with Filing of pre-emption application stands on" different footing than challenging the preemption orders in appeal. In the case ot Mohammad Shafique Ahmad (supra), two sale deeds were executed on the same day and pre-emption application was filed against both the sale deeds and in that context learned single Judge held that one of the purchasers cannot defeat the claim of the pre-emptors on the ground of having purchased the part of the land by another sale deed when that sale deed was challenged by filing pre-emption application. 10. Right of pre-emption is a weak right and it can be defeated by lawful means. The matter is pending for more than 21 years. The authorities have negatived the claim of pre-emption which in our view are on valid grounds and as such we do not find any merit in this appeal and accordingly it is dismissed.