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2007 DIGILAW 1114 (PAT)

Kitti Mahto @ Narayan Mahto v. Deep Chand Mahto

2007-07-11

BARIN GHOSH, REKHA KUMARI

body2007
Judgment Barin Ghosh and Rekha Kumari JJ. 1. Learned counsel for the respondent writ petitioner has informed this Court that he has received no instruction from his client and accordingly is unable to argue the appeal before us. 2. We, therefore, heard learned counsel for the appellant and perused the record. 3. By a sale deed registered on 5.1.1982, Dhuplal Mahto, a full brother of the appellant, sold 2 pieces of land comprising of respectively 0.5 acres and 0.4 acres situate respectively on Plots No. 142 & 197 of Khata No. 5 in Village Taranari. On 18th February, 1992, the appellant applied for pre-emption of the said lands in accordance with Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, which grants a right of preemption to a co-sharer and also to an adjacent raiyat. It is settled in law that if the purchaser too is either a co-sharer or an adjacent raiyat then the right of, preemption of other co-sharers and adjacent raiyats is defeated. 4. The sale deed through which the transaction was effected did not mention that share of the vendor in such lands is being conveyed. In other words, the vendor did not hold out in the sale deed that he is a co-sharer of the lands, which are being sold thereby. It was clearly held out in the sale deed by the vendor that he, being the sole owner of the lands in question, is selling the same to the writ petitioner-respondent. 5. The first authority, namely, Deputy Collector Land Reforms, who dealt with the application of the appellant for preemption felt that since the vendor and the vendee are cousin brothers, they are co-sharers. 6. In the appeal preferred by the appellant against the order of the Deputy Collector Land Reforms, the appellate authority, namely, the Additional Collector, found as a fact that the father of the appellant and the father of the writ petitioner partitioned their joint properties and accordingly claim of the writ petitioner that he was a co-sharer of the lands in question is not sustainable. 7. In the sale deed, the boundaries of the lands in question were described as follows: Plot No. 142 North:Jhari Mahto and Dhuplal Mahto. South:Kiti Mahto and his well. East:Kiti Mahto and Chhathu Mahto. West:Rasta Plot No. 197 North:Kokil Mahto. South: Gurucharan Mahto. East:Bharath Mahto. 7. In the sale deed, the boundaries of the lands in question were described as follows: Plot No. 142 North:Jhari Mahto and Dhuplal Mahto. South:Kiti Mahto and his well. East:Kiti Mahto and Chhathu Mahto. West:Rasta Plot No. 197 North:Kokil Mahto. South: Gurucharan Mahto. East:Bharath Mahto. West:Kiti Mahto. 8. It was not disputed before the Additional Collector in appeal that while describing the boundaries of the piece of land situate on Plot No. 142 instead of Kiti Mahto by mistake the name of Jhari Mahto had been inserted in the said sale deed. However, in as much as it was shown that on the east of the piece of land situate on Plot No. 142, both Kiti Mahto and Chhathu Mahto were present, as such Chhathu Mahto, namely, the father of the writ petitioner-respondent is a boundary raiyat of the said piece of land and as the writ petitioner is a co-sharer of that land with his father, it was contended that he is entitle to be preferred over the pre-emptor appellant. This contention was rejected by the appellate authority on the ground that the presence of the appellant on the boundaries of the said piece of land is more significant than the presence of the writ petitioner-respondent and that the vendor was the full brother of the appellant. This finding could not be upset by the writ petitioner-respondent before the Board of Revenue in revision. 9. Insofar as the piece of land situate on Plot No. 197 is concerned, the writ petitioner-respondent contended that by way of an amicable partition, one decimal of land situate on the said plot came to his father and accordingly he is also a co-sharer of a land adjacent to the said piece of land conveyed by the said sale deed. The amicable partition, as was projected, could not be substantiated. The Additional Collector while considering the appeal found that the total land situate in Plot No. 197 is .08 acres, of which 04 acres belonged to the appellant which he received on partition with his brother, namely, the vendor, and by the sale deed in question, the writ petitioner-respondent sought to purchase the remaining .04 acres from the brother of the appellant. The Additional Collector held that if, in fact, one decimal of land on the said plot came to the family of the writ petitioner-respondent then question of the writ petitioner-respondent purchasing 04 acres of land on the said plot from the vendor would not have arisen. The appellate authority, therefore, held that the writ petitioner-respondent was neither a co-sharer nor a boundary raiyat of the piece of land situate on Plot No. 197 conveyed by and under the said sale deed. This finding was not interfered with in the revision. 10. While dealing with the writ petition, the Writ Court having noted that the writ petitioner-respondent was a boundary raiyat upheld the same and allowed the writ petition by quashing the orders of the appellate authority and the revisional authority. Before the Writ Court, no counter affidavit was filed by the appellant. 11. Before us it was contended that, in fact, the father of the writ petitioner-respondent was not a boundary raiyat of the piece of land situate on Plot No. 142 and accordingly not only the description of the boundary pertaining to the piece of land situate on Plot No. 142 was erroneously given in the sale deed, the lower authorities did not try to ascertain whether, in fact, on the eastern boundary, the father of the appellant was present or not. We called upon the appellant to show any assertion made at any stage by him that on the eastern boundary the father of the writ petitioner-respondent was not present. The learned counsel appearing on behalf of the appellant could not show anything to substantiate the same. 12. In consequence thereof, the logical conclusion would be that while in respect of the piece of land situate on Plot No. 197, the appellant is an admitted boundary raiyat, the respondent-writ petitioner is neither a boundary raiyat, nor a co-sharer and accordingly the claim of preemption of the appellant in respect of the said piece of land should succeed. At the same time we are unable to hold in the facts and circumstances of the case that the writ petitioner-respondent was not a boundary raiyat of the piece of land situate on Plot No. 142, and accordingly purchase of the said piece of land by the writ petitioner-respondent cannot be interfered with at the instance of another boundary raiyat, as that of the appellant. 13. 13. In those circumstances the appeal is partly allowed and accordingly the order under appeal as well as the orders passed in the revision, appeal as well as by the first authority, namely, Deputy Collector Land Reforms are set aside. The application for pre-emption in respect of the piece of land situate on Plot No. 197 succeeds and accordingly the Deputy Collector Land Reforms is directed to bring the said application to its logical conclusion in accordance with law in respect of the said piece of land and the application for pre-emption in respect of the piece of land situate on Plot No. 142 is directed to be dismissed. There shall be no order as to costs.