Research › Search › Judgment

Patna High Court · body

2007 DIGILAW 1439 (PAT)

Rajdeo Mahto v. State Of Bihar

2007-08-31

ANWAR AHMAD, BARIN GHOSH

body2007
Judgment 1. Barin Ghosh & Anwar Ahmad, JJ. By an indenture of sale registered on 5th May, 1992, respondent no. 7 sold a piece of land, situate adjacent to the land of the appellant, to the respondent no. 6. 2. Sub-section (3) of Section 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 recognizes right of pre-emption of a boundary raiyat. The appellant, being boundary raiyat of the land so sold by the respodnent no. 7 to respondent no. 6, filed an application for pre-emption in terms of his right recognized under sub-section (3) of Section 16 of the said Act. Sub-rule (3) of Rule 19 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963 obliged the applicant to send a copy of the application for pre-emption simultaneously to the transferror as well as the transferee by registered post with acknowledgment due. Accordingly, while the pre-emption application was filed on 20th April, 1992, on the same date registered notice with acknowledgment due of the said application was sent to the respondents no. 6 and 7 by the appellant. 3. In terms of our earlier order the records of the Deputy Commissioner, Land Reforms, have been produced which show that on 25th April, 1992 the notice of preemption application as was sent by the appellant, was duly served upon the respondent no. 6 by registered post. The said record further show that on 8th May, 1992 the Deputy Collector, Land Reforms, directed issue of notice of the said preemption application upon the respondents no. 6 and 7 and on 28th May, 1992 the notice emanating from the Office of the Deputy Collector, Land Reforms, was served upon the respondent no. 6. 4. Later on, the respondent no. 6 appeared before the Deputy Collector, Land Reforms, and held out that he has already sold to the respondent no. 5 the subject land as was purchased by him from the respondent no. 7 under the indenture of sale registered on 5th February, 1992, by a sale deed dated 16th March, 1992 registered on 5th June, 1992. 5. 6 appeared before the Deputy Collector, Land Reforms, and held out that he has already sold to the respondent no. 5 the subject land as was purchased by him from the respondent no. 7 under the indenture of sale registered on 5th February, 1992, by a sale deed dated 16th March, 1992 registered on 5th June, 1992. 5. The Deputy Collector, Land Reforms, upon consideration of the respective claims and contentions of the parties and the materials as were brought on the record before him by them, by his order dated 11th November, 1992 allowed the pre-emption application of the appellant and held that the sale deed purporting to be dated 16th March, 1992 is a sham document. 6. The respondent no. 5, who was subsequently made a party before the Deputy Collector, Land Reforms, preferred an appeal against the said order of Deputy Collector, Land Reforms, dated 11th November, 1992 which was dismissed by the appellate authority on 4th October, 1992. At the instance of the respondent no. 5 the matter then reached the revisional authority who, upon consideration of the materials on record, held that though the sale deed executed on 16th March, 1993 it must be deemed that the sale has taken place on 16th March, 1993, i.e. much prior to the date of making of the preemption application by the appellant, and inasmuch as there is no pre-emption application by the appellant in respect of the said sale deed dated 16th March, 1992 registered on 5th June, 1992, the preemption application of the appellant in respect of the sale deed registered on 5th May, 1992 was not maintainable. The revisional authority, therefore, set aside the order of the Deputy Collector, Land Reforms, as well as the order of the appellate authority and dismissed the preemption applicatiion of the appellant. The appellant then preferred a writ petition challenging the order of the revisional authority. For the self same reason, for which the revisional authority allowed the revisional application, a learned Single Judge of this Court, who dealt with the writ petition, dismissed the writ petition. 7. There is no dispute that though sale is completed upon registration of the conveyance but the same is effected on the date of execution of the sale deed. For the self same reason, for which the revisional authority allowed the revisional application, a learned Single Judge of this Court, who dealt with the writ petition, dismissed the writ petition. 7. There is no dispute that though sale is completed upon registration of the conveyance but the same is effected on the date of execution of the sale deed. Accordingly, there cannot be any dispute, as has been held by the revisional authority as well as the learned Single Judge that despite the sale deed executed by the respondent no. 6 in favour of respondent no. 4 was registered on 5th June, 1992, the same having been apparently executed on 16th March, 1992, in law it must be deemed that the sale took place on 16th March, 1992. 8. The question, however, was, in the facts and circumstances of this case, whether, in fact, the sale deed inter se the respondents no. 6 and 5 was executed on 16th March, 1992. The fact remains that prior to the registration of said sale deed on 5th June, 1992, the respondent no. 6 had notice of the pre-emption application filed by the appellant in respect of the transaction, in terms whereof the respodnent no. 6 acquired the subject land. In such situation, it was required for the respondents no. 5 and 6 to independently show and demonstrate that, in fact, on 16th March, 1992 the sale deed inter se the respodnents no. 5 and 6 was executed and that the date "16th March, 1992" was not inserted in the sale deed immediately prior to registration thereof on 5th June, 1992, inasmuch as the respondent no. 6 had knowledge of pendency of the preemption application of the appellant at the time of registration of the same. From the records produced by the authorities under the Act, it does not appear that either the respondent no. 6 or the respondent no. 5 made any effort to independently establish that, in fact, on 16th March, 1992 the sale deed by the respondent no. 6 in favour of respondent no. 5 was executed. From the records produced by the authorities under the Act, it does not appear that either the respondent no. 6 or the respondent no. 5 made any effort to independently establish that, in fact, on 16th March, 1992 the sale deed by the respondent no. 6 in favour of respondent no. 5 was executed. In such view of the matter, the Deputy Collector, Land Reforms, held that the said sale deed registered on 5th June, 1992 is a sham document and such view was confirmed by the appellate authority, the revisional authority as well as the learned Single Judge, without considering the fact that there is nothing to establish that, in fact, on 16th March, 1992 the said deed was executed, held that the sale by the respondent no. 6 in favour of respondent no. 5 was concluded on 16th March, 1992. 9. In the event the law proceeds with its eyes closed that would enable dishonest people to whittle down a benefit of preemption granted to a boundary raiyat by simply changing the date of a subsequent sale. In the circumstances, when it was within the knowledge of respondent no. 6, before registration of the sale deed executed by him in favour of respondent no. 5, that a pre-emption application is pending, while contesting the pre-emption application it was obligatory on the part of respondent no. 6 to establish that, in fact, the sale by him took place on the date mentioned in the instrument. That having not been done the Deputy Collector, Land Reforms, as well as the appellate authority were well within their competence to ignore the said sale deed as a document produced to whittle down the application for pre-emption and there was no just reason, at least the orders of the revisional authority as well as of the learned Single Judge, does not show any reason to interfere with the same. 10. We would, therefore, allow the appeal, set aside the judgment and order under appeal and at the same time allow the writ petition and quash the order of the revisional authority. There shall be no order as to costs. 11. The records as produced by the learned counsel for the State be returned.