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2007 DIGILAW 1854 (PAT)

Jagdish Mahto v. State Of Bihar

2007-12-05

AJAY KUMAR TRIPATHI

body2007
Judgment Ajay Kr.Tripathi, J. 1. Heard learned counsel for petitioners and the learned counsel for the State. There is no representation on behalf of the private respondent, despite name of learned counsel appearing in the daily cause list. 2. Petitioners have sought quashing of Annexures-8 and 9 which are orders passed by the appellate authority as well as by the Member, Board of Revenue. The proceeding was initiated under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. He has sought for a further direction from the Court not to disturb the possession of petitioners or the order contained in Annexure-6 by virtue of which right of pre-emption in favour of petitioners were allowed and compulsory registration of the land in question was made and possession given. 3. The short submission of the petitioners are that they are in peaceful physical possession of the land in question since 23.3.1980 by virtue of registered deed of transfer on the basis of the order of the Deputy Collector. Land Reforms, Barh. 4. The disputed land appertains to plot no. 1030 measuring total area of 19 decimals and is a piece of agricultural land. Petitioners have got half share i.e. 9.5 decimals towards west and towards east the other 9.5 decimals fell in the share of the father of respondent no. 12. They were in cultivating possession of the respective share. Their contention is that the purchasers of the land in question, namely, respondent nos. 4 to 11 are neither the adjoining raiyat nor the co-sharers. The dispute started on the basis of the registered sale deed no. 8847 dated 12.8.1966. The deed was executed in favour of one Sheonandan Prasad and respondent nos. 9 to 11. Sheonandan Prasad passed away on 7.3.1986. When they learned about the alienation of the land they filed a Ceiling Case No. 24 of 1966-67 claiming their right of pre-emption. They deposited the consideration money alongwith 10% extra as per the law. 5. There were many rounds of litigation in this regard but they are not relevant except that the matter was remanded back to the file of D.C.L.R. He was directed to hold special enquiry in the matter and give a finding with regard to the nature of the land as well as whether these petitioners are adjoining raiyats or co-sharers. 6. There were many rounds of litigation in this regard but they are not relevant except that the matter was remanded back to the file of D.C.L.R. He was directed to hold special enquiry in the matter and give a finding with regard to the nature of the land as well as whether these petitioners are adjoining raiyats or co-sharers. 6. Learned counsel for petitioner has brought on record Annexure-6 which is an order passed by D.C.L.R. Barh. There is categorically finding in favour of petitioners and right of pre-emption was allowed and order was passed for compulsory registration of the land. Evidence of possession of land is contained in Annexures-7 and 7/1. Perusal of the same would show that the petitioners have got Dakhaldahani from 30.6.1980. 7. Aggrieved against this order an appeal was filed before the Additional Collector by the respondents. The matter was heard and the appeal was allowed on spacious reason that since there was a boundary wall around the plot in question therefore the same cannot be called agricultural land as defined under section 2(F). He goes on to record that there is a dairy farm running on the same. 8. Learned counsel for petitioners submits that this finding given by the appellate authority is not based on any cogent evidence. In fact, the D.C.L.R. had dispelled the same claim with regard to nature of land on evidence and for reasons stated therein. Another significant part learned counsel for petitioners has pointed out is the description of the land given in the sale deed. It does not describe the same to be homestead land or non-agricultural land. In fact, the description is otherwise. Petitioners were thereafter compelled to move the Board of Revenue by invoking the provisions of Section 32 of the Ceiling Act. The revisional court disallowed the revision application and upheld the order passed by the Additional Collector. 9. Learned counsel for petitioners states that the revisional court has committed an error because it make out a third case without looking into the material whether the land in question was agricultural land or whether the petitioners are adjoining raiyat as well as co-sharers. The revisional authority put a question mark on the so-called partition which was effected between the parties. The factum of partition was not in dispute by any of the parties in the earlier dispute. The revisional authority put a question mark on the so-called partition which was effected between the parties. The factum of partition was not in dispute by any of the parties in the earlier dispute. In fact perusal of the earlier orders would demonstrate that the nature of the land was not the issue and there are many decisions rendered in favour of petitioners in this regard but for a strange reason the revisional court by putting a question mark on the partition rejected the claim of petitioners by holding that they are not adjoining raiyat and co-sharers and the land is non-agriculture in nature. 10. No doubt a revisional court has power to look into the illegality or validity of any decision rendered by the subordinate courts but then it also must keep in mind that the revisional court ought to first confine itself on the merit of the lower court decision and the claim of parties based on the pleadings and evidence which is available on record. It is not open to the revisional court to make out a third case and also delve in certain areas which was not an issue at all in the matter. The revisional court should have confined itself to the issue whether the land in question was an agricultural land and whether the petitioners were adjoining raiyat or co-sharers. It was nobodys case that there was no partition between the parties either before the initial court as well as the appellate court. 11. Learned counsel for the petitioner relies on a decision rendered in the case of Mussamat Dukho Devi & Others vs. Uchit Lal Mandal & Others reported in 1968 PLJR 1. The Division Bench of this Court had held that "the Act does not contain any provision authorizing the revenue officer to determine the degree of adjacency for the purpose of recognizing the right of pre-emption". Once it is found that a portion of the transferee raiyats land touches a comer of the purchased land, no right of pre-emption can be claimed against him because he becomes a raiyat of the adjoining "land" for the purpose of Clause (1) sub-sec. (3) of Sec. 16 of the Act." 12. Once it is found that a portion of the transferee raiyats land touches a comer of the purchased land, no right of pre-emption can be claimed against him because he becomes a raiyat of the adjoining "land" for the purpose of Clause (1) sub-sec. (3) of Sec. 16 of the Act." 12. In any view of the matter even otherwise this Court is satisfied that the appellate authority as well as the member Board of Revenue were not correct in holding that the land was a non-agricultural land based on their whims without any cogent reason and merely recording that since a boundary wall was built upon the land in question it is non-agriculture land. Further the reason given by the revisional court expressing doubts about the partition between the parties is not a valid reason. The revisional court has tried to make out a third case which is not permissible in the given facts and circumstances of the case. This Court is satisfied that the order contained in Annexure-6 is in order and the impugned orders contained in Annexures-8 and 9 deserve to be inferred with. They are hereby quashed. 13. This writ application is allowed.