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2008 DIGILAW 376 (PAT)

Arjun Singh v. State Of Bihar

2008-02-21

MIHIR KUMAR JHA

body2008
Judgment 1. Heard learned counsel for the petitioners and learned counsel for the State. 2. Both the writ applications involve common fact and common question of law and are being disposed of by the same order. 3. The petitioners-purchasers have assailed the order dated 9.9.2004 passed by the Addl. Member, Board of Revenue in Revision Case Nos. 19/04/20/04 whereby and whereunder the order passed by the DCLR and the Addl. Collector, Aurangabad in their favour have been set aside and in that process application for pre-emption has been allowed. 4. The facts are not in dispute. On the basis of a sale deed as contained in Annexure-2 to both the writ application, on 29.8.2000 after its registration, the respondent no. 5 had filed two applications claiming pre-emption both on account of being co-sharers and also adjoining raiyat. The DCLR by his order dated 25.11.01 had however rejected such application for preemption by holding that respondent no. 5 was not adjoining raiyat of all the plots whereas the purchasers-petitioners themselves were adjoining raiyats of the few plots. The matter thereafter was taken to appeal at the instance of respondent no. 5 and the appellate court, Addl. Collector, Aurangabad too by order dated 6.12.03 had reiterated and confirmed the finding of the DCLR that respondent no. 5 was not adjoining raiyats of all the plots and in fact on this ground the appellate court having relied on the judgment of this court in the case of Smt. Sudama Devi and Others V/s. Rajendra Singh & Ors. reported in AIR 1973 Patna 199 had dismissed the appeal and in process rejected the applications for pre-emption of Respondent No. 5. The respondent no. 5 thereafter had moved in revision before the Board of Revenue and surprisingly the Addl. Member, Board of Revenue, without taking any further evidence on record, had reversed findings of both the DCLR and the Addl. Collector and that too without going into the main question as decided by the first two authorities as to whether respondent no. 5 was adjoining raiyat of all the plots. In fact it was at the stage of Board of Revenue that a third case was developed on behalf of the Respondent No. 5, which of course was not earlier gone into either by the DCLR or the Addl. Collector that respondent no. 5 was adjoining raiyat of all the plots. In fact it was at the stage of Board of Revenue that a third case was developed on behalf of the Respondent No. 5, which of course was not earlier gone into either by the DCLR or the Addl. Collector that respondent no. 5 was in fact co-sharer of all the plots in question which was covered by the sale deed. 5. Mr. Rajendra Narain appearing on behalf of the petitioners while assailing the aforementioned approach of the revisional court had basically stressed on a pure and simple question of law as to what could be the role of the revisional court while reversing the finding recorded by the two authorities i.e. original authority and appellate authority and whether revisional court on its own, could arrive at a new finding which was not even gone into by the first two authorities. He had further elaborated this aspect by submitting that it was very well open for the Addl. Member, Board of Revenue to upset the finding as recorded, by the first two authorities with regard to respondent no. 5 not being adjoining raiyat of all the plots. but that having been not done having not upset the aforesaid findings, there was no scope for revisional court to make out a new case because the moment it was held that respondent no. 5 was not adjoining raiyat of all the plots in question the claim for pre-emption of the Respondent No. 5 had to be rejected. He has also submitted that once the appellate authority had relied on Division Bench judgment on this aspect, there was nothing more left for the revisional court to upset the finding both on fact and in law and taking a third view on a presumption that there was no partition in the family was again an innovation made by the revisional court without there being any evidence on record or even adduced by the parties on this aspect of the matter at the stage of Board of Revenue. 6. Counsel appearing for respondent no. 5 on the other hand has contended that it is true and he was not in a position to dislodge other facts that respondent no. 5 is not adjoining raiyat of all the plots in question but then this finding which has been arrived at by the revisional court namely Addl. 6. Counsel appearing for respondent no. 5 on the other hand has contended that it is true and he was not in a position to dislodge other facts that respondent no. 5 is not adjoining raiyat of all the plots in question but then this finding which has been arrived at by the revisional court namely Addl. Member, Board of Revenue that respondent no. 5 himself was a co- sharer of all plots should not be disturbed by this court as the same has been recorded by final fact finding authority. He further, on a querry of this court as to whether respondent no. 5 had led any evidence to rebut the basic issue of the partition as clearly mentioned in the sale deed, fairly submits that either before the DCLR or the Addl. Collector this issue was not raised by the Respondent No. 5 who did not even question the nature of the sale deed in question as fraudulent and/or sham and/or containing false statement with regard to the previous partition in the family of the vendor. Under the decree of the competent civil court dated 3.2.1989 in Partition Suit No. 1043/83/325/ 84. The Counsel for the respondent no. 5 however had emphatically submitted that such a plea for the first time was taken and developed before the Addl. Member, Board of Revenue in presence of the petitioners and thus when the Addl. Member, Board of Revenue had given a correct finding after looking into the materials on record, this court exercising its power under Article 226 of the Constitution of India should not interfere with the order allowing pre-emption that has been passed in favour of respondent no. 5. 7. Having given anxious consideration to the aforesaid submissions as also after perusing the materials on record this court is of the opinion that the Revisional Authority under the scheme of Section 32 of the Act while examining correctness of the orders of original and appellate authority has to act within limits and is not at liberty to arrive at any finding by making out a third and new case, which was neither pressed nor gone into by the original and appellate authority has to be same line of limit for the Revisional Authority. It is true that Revisional Court in view of the power vested under Section 32 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter referred to as the Act), has unfettered power to come to a finding of fact while upsetting finding recorded by the subordinate authorities but it cannot be held that such finding can also be arrived when there was no evidence led by the parties on that issue before the original or Appellate Authority. In a given case, revisional court probably can ask for a limited finding by keeping the matter pending and/or alternatively remitting the matter back to the original authority or the Appellate Authority but in no view it can arrive on any finding without there being any evidence for the purpose of setting aside the findings of the first two authorities. The whole idea of three tier administration of justice under the Act is to ensure that the facts are placed before the original authority and they are appreciated at the basic stage before their interpretation either on fact or in law are taken by higher authority i.e. Appellate authority and Revisional Authority. In view of the fact that there was nothing on record brought by the respondent no. 5, as fairly admitted by his counsel before this court, to substantiate that there was no partition in the family, the Addl. Member, Board of Revenue on his own could not have arrived at such finding which had ultimately prevailed on him for allowing the revision application by upsetting the findings of two courts below i.e. the DCLR and Addl. Collector. 8. That apart the right of pre-emption is a weak right and if at all the purchasers could have been unsettled by pre-emptor respondent no. 5 the same was to be based on a case to be established by the pre-emptor to the extent that not only the pre-emptor in order to succeed himself proves that he is either co-sharer or the transferor or adjoining raiyat of all plots he had also to prove the purchaser is neither co-sharer nor adjoining raiyat of the land in question. As a matter of fact, this aspect of the matter has been gone into by the Division Bench of. As a matter of fact, this aspect of the matter has been gone into by the Division Bench of. this court in the case of Ram Chabila Singh and Another V/s. Ramsagar Singh & Others reported in 1968 PLJR 279 wherein it was held that if the pre-emptor happens to be adjoining raiyat in respect of some of the plots, he cannot claim any right of preemption under Section 16(3) of the Act. The whole issue in fact has again been examined by this court in the case of Ram Pravesh Singh V/s. Addl. Member, Board of Revenue & Ors. reported in 1995(1) PLJR 7S4 where law has been laid dawn after taking into account not only the judgment of the Apex Court in the case of Bombay Dyeing & Manufacturing Company Ltd. V/s. The State of Bombay & Others reported in 1958 SC 328 and two Division Bench judgments i.e. 1971 Patna 302 and Ram Chabila Singh (supra) to the extent that nature of the right of pre-emptor under the Act is a weak right and thus the pre-emptor in order to succeed must make out a fool poof case. The transferee in fact needs only a loophole in the case of pre-emptor and thus the purchaser i.e. transferee and pre-emptor do not stand on the same footing. Therefore where as pre-emptor in order to claim pre-emption must establish that he is either co-sharer or adjoining raiyat of all the plots, where the land comprises of more than one plot, the transferee is not required to do so. The transferee on the other hand may successfully resist the claim of the pre-emption if he is able to show that he is an adjoining raiyat in some of the plot, even one of them and he cannot therefore be made to re-convey those plots except where the transfer of other plots can be identified as separate transaction. 9. As noted above learned counsel for respondent no. 5 does not dispute this position that respondent no. 5 is not an adjoining raiyat of all the plots nor he disputes this fact that the petitioners themselves are adjoining raiyat at least of few plots of the plot in question covered by the sale deed in their favour. In that view of the matter, claim of the pre-emptor of respondent no. 5 was rightly rejected by the DCLR and the Addl. In that view of the matter, claim of the pre-emptor of respondent no. 5 was rightly rejected by the DCLR and the Addl. Collector in appeal and there was no occasion for the Addl. Member, Board of Revenue to upset the findings of the two authorities and that too on such materials which did not form part of the records before original authority. 10. As a matter of fact, the Revisional Authority merety on the basis of a genealogical chart produced on behalf of the Respondent No. 5 coujd not have shifted the onus on the petitioners to prove that there was no partition in the family of Respondent No. 5 specially when the contents and the recitals in the sale deed in favour of the petitioner had specifically stated with regard to previous partition in the family of Respondent No. 5. In fact it was for the Respondent No. 5 to discharge the onus that the facts mentioned in sale deed with regard to partition in his family were incorrect and the sale deed was collusive and/or sham and/or fraudulent in nature. That however been done by the Respondent No. 5 the whole approach of Additional Member of Board of Revenue to say the least was not only perverse but wholly illegal and/or without jurisdiction. It was in fact for the Respondent No. 5 to produce evidence including the judgment and decree dated 3.2.1989 in the Partition Suit No. 1043/83/325/84 as mentioned in the sale deed to demolish the case of previous partition but surprisingly the Additional Member, Board of Revenue has non-suited the purchaser-petitioners on the ground that they had failed to prove that there was partition in the family of Respondent No. 5. In that view of the matter both and the impugned order dated 9.9.04 of the Addl. Member, Board of Revenue in both revision cases being wholly illegal cannot be sustained and hereby quashed. 11. In the result, these two writ applications are allowed and the pre-emption applications filed by respondent no. 5 would stand dismissed. There would be however no order as to costs.