Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 1151 (PAT)

Naresh Rai v. State Of Bihar

2006-11-30

RAMESH KUMAR DATTA

body2006
Judgment Ramesh Kumar Datta, J. 1. Heard Mr. Sidheshwari Prasad Singh, learned senior counsel for the petitioner, Mr. Basant Kumar Choudhary, learned senior counsel appearing for respondent No. 5 and learned standing Counsel-I (Celling ), for the State in both the cases. 2. Since both the writ petitions arise from common order they have been taken up together and are being disposed of by this common order. 3. The petitioner who is common in both the cases seeks quashing, of the common order dated 16.11.2004 passed by the Additional Member, Board of Revenue in Board Revision Case Nos. 146/2004 and 147/2004 which had been filed by respondent No. 5, Rajesh Kumar in the first case and respondent No. 5, Mukesh Kumar Rai in the other case, the respective purchasers under the two separate sale deeds with respect to the lands for which the petitioner had filed two separate pre-emption applications on the basis of which Ceiling Case Nos. 9/2002-03 and 10/2002-03 were respectively registered. Both the cases of pre-emption u/s. 16(3) of the Ceiling Act were disposed of by two separate orders both dated 8.2.2003 and after discussing the entire evidence and documents. On record, the Deputy Collector, Land Reforms, Sadar, Bhagalpur had allowed both the pre-emption applications. The applications had been allowed taking into account the fact that in both the sale deeds the petitioner had been shown us a boundary raiyat with respect to various plots of land in view of the fact that those lands and been purchased by him in the name of his wife who had died prior to the filing of the pre-emption applications. 4. Against the same the respondent No. 5 in each of the cases filed land Ceiling Appeal Nos. 147/2002-03 and 148/2002-03 respectively which, after hearing the parties, by separate orders both dated 28.5.2004, were dismissed. Against the same the respondent, No. 5 Rajesh Kumar Rai and Mukesh Kumar Rai both of them filed separate revision before the Board of Revenue which were numbered as Case Nos. 146 and 147 of 2004 and by a common order dated 16.11.2004, the Additional Member, Board of Revenue has allowed both the applications. 5. The revision applications have been allowed for two reasons only. The first reason given is that in the eastern and southern boundary of plot Nos. 146 and 147 of 2004 and by a common order dated 16.11.2004, the Additional Member, Board of Revenue has allowed both the applications. 5. The revision applications have been allowed for two reasons only. The first reason given is that in the eastern and southern boundary of plot Nos. 109 and 111 respectively the petitioner Naresh Rai has been shown as a boundary raiyat whereas, according to the Board of Revenue, from a perusal of the Khatian, it was evident that to the south of plot No. 111 the name of Ramanand Choudhary has been entered, which, according to the Additional member, Board of Revenue, showed that the petitioners claim of being boundary raiyat of plot No. 111 is not proved. So far as the further claim of the petitioner on the basis of being a boundary raiyat being the owner of plot No. 140/1143 is concerned, it was held that the same is recorded in the name of his wife and son and for the said reason he was not entitled to the benefit of pre-emption on the basis of his wife and son being the boundary raiyat The Additional Member, Board of Revenue, has also relied on the decision of the Supreme Court reported in AIR 1958 SC 38 Vishan Singh V/s. Khajan Singh in which it has been stated that right of pre-emption is a weak right. 6. Learned counsel for the petitioner submitted that both the findings of the Additional Member, Board of Revenue are contrary to the faction the record as well as the settled law on this point. It is pointed out that although name of Ramanand Choudhary was shown in the southern boundary of plot No. 111 but registered sale deeds dated 2.12.1986 had been filed by the petitioner before the original Court from which it is clear that plot to the south of plot No. 111 had been purchased from Ramanand Choudhary by the petitioner in the name of his wife and son. Thus, the finding that the petitioner who is not boundary raiyat to the south of plot No. 111 is contrary to the evidence on the record and thus perverse. 7. Thus, the finding that the petitioner who is not boundary raiyat to the south of plot No. 111 is contrary to the evidence on the record and thus perverse. 7. With respect to (the finding of the Additional Member, Board of revenue that since the lands on the boundary having been purchased in the name of the wife and son of the petitioner, the, petitioner cannot claim any right of pre-emption on the basis of those lands, it is submitted by the learned counsel that the same is contrary to the provisions of Hindu Succession Act under which on the death of the wife the husband along with the son are the heirs of the deceased woman. For the said reasons on the date of application for pre-emption, the petitioner was a boundary raiyat and his claim could not have been rejected on the basis of a wrong approach to law by the Additional Member Board of Revenue. 8. Learned counsel for the respondent No. 5 in both the cases was not able to persuade the Court otherwise with regard to either the factual position or the legal position in this regard. It was however submitted by the learned counsel that no finding of adjacency could be recorded on the, basis of the petitioner being co-sharer of plot No. 140/1143 which were shown in the Khatian as government of lands which was in illegal occupation of the vendors of the petitioner and no finding on this issue has been recorded by any of the courts below and for the said reasons the orders of the original and Appellate Courts should not be allowed to stand even if the order of the Board of Revenue is set aside. Learned counsel however makes oral statement that respondent No. 5 had raised and pressed that point at least before the Board of Revenue both in the petition and in the oral argument but the same has not been considered and discussed by the Additional member, Board of Revenue in his order dated 16.11.2004. So far as the said submission is concerned, this Court does not find any affidavit to that regard on the record that the said point has been pressed either before the Appellate Court or the Additional Member, Board of Revenue and in the absence of the same, the said issue cannot be permitted to be raised at this belated stage. So far as the said submission is concerned, this Court does not find any affidavit to that regard on the record that the said point has been pressed either before the Appellate Court or the Additional Member, Board of Revenue and in the absence of the same, the said issue cannot be permitted to be raised at this belated stage. 9. So far as the submission of the learned counsel for the respondent No. 5 that pre-emption is a weak right and the same stands defeated on the basis of several plots of land being purchased by one sale deed, is concerned, learned counsel for the petitioner relies upon a decision of the learned Single Bench of this Court in the case of Mohammad Safique Ahmad V/s. The State of Bihar and Ors. 1995(1) PLJR 851. In the said case two separate sale deeds had been executed and registered on the same date with respect to two adjacent plots of land and on the basis of the same it was claimed that the right of pre-emption got defeated. This Court held that the purchaser would hardly claim pre-emption by the device of having two sale deeds executed on the same date. In the present matter, there are not even two separate sale deeds but separate plots of land have been purchased under one sale deed each by the two private respondents, three plots of land under one sale deed and five plots of land under the other sale deed. Thus, the case of the respondents does not even stand on the similar footing and no such benefit can be claimed, by them. 10. Learned counsel for the respondents also raised the plea on the basis of a decision of this Court in the case of Urmila Devi V/s. State of Bihar and ors. 1998(1) PLJR 758 in which it has been laid down that the onus is upon the pre-emptor to show that he was using the adjacent land for agriculture purposes and on his failure to prove the same the right of pre-emption cannot be claimed. 1998(1) PLJR 758 in which it has been laid down that the onus is upon the pre-emptor to show that he was using the adjacent land for agriculture purposes and on his failure to prove the same the right of pre-emption cannot be claimed. So far as the said proposition is concerned, I do not find that the said point has been raised at any stage before any of the authorities that the petitioner was not utilizing his adjacent lands for agriculture purposes and thus, there was no occasion for the issue to be considered by the authorities. In view of the fact that all the other documents, records and pleadings were there before the Courts, it was rightly held by the courts below that the petitioner was adjoining raiyat of the lands. 11. So far as the question of pre-emption being a weak right is concerned, the said proposition only applies to the extent that a purchaser can make use of any device legally permissible by which he can defeat the right of pre-emption. This however, does not mean that if a pre-emptor is able to show that the purchaser is not either co-sharer or adjoining raiyat, while he is either co-sharer or adjoining raiyat, then his claim for pre-emption shall not be allowed by the Court. In this regard learned counsel for the petitioner has rightly relied upon a decision of the Supreme Court in the case of Sheoji Mahto and Ors. V/s. The Additional Member, Board of Revenue and Ors. 1997(1) PLJR 46 (SC), in para-3 of which the said proposition has been clearly laid down. 12. In view of the aforesaid facts and circumstances and the provisions of law as discussed above, the order dated 16.11.2004 of the Additional Member Board of Revenue passed in Revision Case Nos. 146 and 147 of 2004 is quashed. The writ petitions are accordingly allowed. However, in the facts and circumstances of the case there shall be no order as to costs.