Research › Search › Judgment

Patna High Court · body

2006 DIGILAW 372 (PAT)

Satya Bhama Chaudharain v. State Of Bihar

2006-04-26

NARAYAN ROY

body2006
Judgment Narayan Roy, J. 1. Heard councel for the parties. 2. This writ application arises out of the order passed by the authorities in exercise of their power under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred to as "Act"). 3. The petitioner is the vendee in respect of the land in question, for which preemption has been sought for by respondent no. 5 on the ground of his being adjoining raiyat. 4. According to the case of the petitioner, he purchased the land in question from one Bishwanath Jha by virtue of registered sale deed executed on 27.12.1979. The land in question was Siswani and he came in possession thereof. 5. According to the case of respondent no. 5, a pre-emption application was filed under section 16(3) of the Act on 27.3.1980 claiming the right of pre-emption on the basis of being an adjoining raiyat of the land in question. He also claims to be the co-sharer of the land in question. 6. The courts below allowed the preemption application of respondent no. 5 holding him as an adjoining raiyat. 7. It is submitted by counsel for the petitioner that the courts below allowed the pre-emption application in a most mechanical manner without recording any finding on the nature of the land and with regard to claim of the parties. It is also submitted that since respondent no. 5 claims to be co-sharer of the land in question, there could have been a finding of the courts below and per se, it would appear from the materials on record that by no stretch of imagination respondent no. 5 can be said to be co-sharer of Bishwanath Jha. It is further argued by Mr. Choudhary, counsel for the petitioner, that since right of preemption is a very weak right, no relief could have been granted to respondent no. 5, as he has not been able to prove his case beyond all reasonable doubts. It is also contended that since the land in question was a Siswani land, which came under the definition of forest land in 1980, when the pre-emption application was filed, the provision was not attracted to the forest land, as forest land was inserted under the provisions of section 16(3) of the Act by virtue of 1982 Amendment. 8. Counsel for respondent no. 8. Counsel for respondent no. 5, on the contrary, submitted that from recital of the sale deed, it would appear that the land in question was an agricultural land and scattered Shisham trees were there and it thus was within the purview of Section 16(3) of the Act. It is also submitted that though right of pre-emption is a very weak right nonetheless it is a statutory right and respondent no. 5 proved his case of right of pre-emption. 9. I have perused the order impugned and it appears that none of the courts below has given categorical findings on the question raised by the parties. 10. From annexure 5, the pre-emption application filed by respondent no. 5, it appears that he described himself as a co- sharer of the land in question, and, thus, onus was on him to prove the case, but neither respondent no. 5 discharged the onus to prove his case of co-sharer nor the courts below gave any finding on the question as to whether the pre-emptor was a co-sharer of the land in question. 11. In a proceeding under section 16(3) of the Act onus heavily lies on the pre-emptor to prove his case beyond all reasonable doubts. 12. The courts below, as it appears, summarily disposed of the proceeding without recording categorical findings. Merely because respondent no. 5 was the adjoining raiyat, the pre-emption application could not have been allowed and the courts were required to enter into detailed facts appreciating the claims of the parties as somewhere it is stated that the land in question was Sherat Siswani and somewhere it is stated that it was a Kastkayami land and scattered Shisham trees were there. 13. The orders passed by the courts below, however, do not appear to be in consonance with the claim of the parties. 14. In this view of the matter, orders impugned are not sustainable in law. 15. This application is, accordingly, allowed, orders impugned are set aside and the matter is remitted to the initial court to decide the same afresh in accordance with law after due notice to the parties. No order as to costs.