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2010 DIGILAW 2356 (PAT)

Arbind Choubey v. State of Bihar

2010-10-26

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ORDER The three writ petitioners are the purchasers of a piece of land measuring approximately 3 kathas i.e. 45 decimals, through the sale deeds which were executed on 06.02.1998 and registered on 15.10.1998. A pre-emption application was filed on behalf of respondent no. 5 on 05.01.1999 claiming that, he is the co-sharer and boundary raiyat of the lands in question. The lands stand recorded in the name of Barmati Kuer, the grandmother of the pre-emptor and the sale deeds indicate that the pre-emptor is in the northern boundary of the lands in question. 2. The case of the petitioners is that three sale deeds were executed by Bhikari Choubey, who is the cousin of Zalim Choubey. The respondent no. 5 comes from the line of Zalim Choubey. The name of the grandson of Zalim Choubey is recorded in the revenue records and the respondent no. 5 claims that he is the grandson of the recorded tenant. The facts also reveal that a mutation application was filed on behalf of respondent no. 5 for recording his name, which was rejected. This mutation case was filed impleading other agnates as well as Bhikari Choubey, the vendor in the present case. The pre-emptor is said to have lost the mutation case filed by him. It is the case of the petitioners that his vendor had offered to sell the lands to the pre-emptor, on refusal of the pre-emptor, he has executed the sale deeds. 3. The case of the respondent no. 5, the pre-emptor, is that he is the boundary raiyat and the name of his ancestor is recorded in the revenue records, as such, he claims right to pre-emption by virtue of being co-sharer and boundary raiyat both. The respondent no. 5 further claims that the execution of the three sale deeds by Bhikari Choubey in favour of the three petitioners has been made to defeat the right of preemption. The claim is that in fact the vendor had at no time offered to sell the lands to respondent no. 5, and as such, the findings of the Courts below in his favour are justified. 4. I may note down one fact which is not disputed by either of the parties that the petitioners Arvind Choubey and Rupesh Kumar Choubey are the brothers, whereas the petitioner Prabhawati Devi is the mother of Arvind Choubey and Rupesh Kumar Choubey. 5, and as such, the findings of the Courts below in his favour are justified. 4. I may note down one fact which is not disputed by either of the parties that the petitioners Arvind Choubey and Rupesh Kumar Choubey are the brothers, whereas the petitioner Prabhawati Devi is the mother of Arvind Choubey and Rupesh Kumar Choubey. On perusal of the sale deeds, it cannot be disputed that Barmati Kuer, who is the grandmother of Narendradeo Choubey (the pre-emptor) is shown in the sale deeds on the northern boundary of the vended plots. It would also appear on perusal of the sale deed executed in favour of Arvind Choubey, that Rupesh Kumar Choubey has been shown in the western boundary of the lands purchased, whereas in the sale deed executed in favour of Rupesh Kumar Choubey, Arvind Kumar has been shown in the boundary of the lands purchased. The sale deed executed in favour of Prabhawati Devi further indicates that Arvind Choubey and Rupesh Kumar Choubey have been shown in the boundary of the vended lands. In all the sale deeds, it has been specifically mentioned that the aforesaid three petitioners are in the boundary of the lands in question by virtue of the fact that they are purchasing the lands by execution of the sale deeds in question. 5. Counsel for the petitioners submits that by virtue of the judgment rendered in the case of Ram Roop Yadav Vs. State of Bihar & Others (1987 PLJR 455), the Division Bench has hold that a person purchasing two plots adjacent to each other on the same day has a better title over the other adjoining raiyats of the two plots as the purchasers of the plots became himself the holder of adjoining plots. The facts of the case of Ram Roop Yadav were that two sale deeds were executed by the same respondent in favour of the petitioner. The pre-emptors however, were different. This Court at paragraph 4 of the judgment held that “when two applications for pre-emption was filed by two separate set of pre-emptors in respect of two plots transferred, the petitioner can legitimately resist the claim in both the applications that he himself is the holder of the adjoining plot.” 6. The respondent no. The pre-emptors however, were different. This Court at paragraph 4 of the judgment held that “when two applications for pre-emption was filed by two separate set of pre-emptors in respect of two plots transferred, the petitioner can legitimately resist the claim in both the applications that he himself is the holder of the adjoining plot.” 6. The respondent no. 5, on the other hand, relies on the observations of the Division Bench in the same paragraph wherein it has been stated that "perhaps, the matter would have been different if same person or same set of persons had filed the two applications for pre-emption claiming to be adjoining raiyats pf both the plots purchased by the petitioner". 7. Counsel for the respondent no. 5 further relies on the judgment rendered in the case of Udai Narain Singh & Others Vs. The State of Bihar & Others ( 2008 (2) PLJR 409 ) and submits that the observations of the earlier Division Bench have been explained in the case of Udai Narain Singh in paragraph 18 of the judgment, wherein the Court has held that if two small pieces of lands of the same plot are sold by two separate sale deeds on the same day, in effect amounts to fragmentation and obviously defeats the intention of the legislature and is clearly "an attempt" to defeat the right of the adjoining raiyat or co-sharer to set" up his claim of pre-emption. The reason for coming to this conclusion is that the Court has held that two sale deeds cannot be held to be bonafide act in absence of any plausible reason and as such the same has to be held to be mala fide act on the part of the purchaser to defeat the provisions of the Act by setting up a false claim of becoming adjoining raiyat on each and other plot by two sale deeds". 8. Counsel for the petitioners submits that the judgment in the case of Udai Narain Singh would not be applicable in this case. It is not disputed that three petitioners are related to each other, it is also not in dispute that the lands in question are agricultural lands and by each of the sale deeds, the petitioners have purchased about 45 decimals of lands. It is not disputed that three petitioners are related to each other, it is also not in dispute that the lands in question are agricultural lands and by each of the sale deeds, the petitioners have purchased about 45 decimals of lands. The purchase by one family of distinct pieces of lands for the purpose of agriculture cannot be said to be an act which is an attempt to defeat the provisions of Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962. It is well recognized that the purchaser may use any legitimate means to defeat the provisions of Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962. The fact that each member of the family has a distinct share in a plot of land, cannot be treated to be an attempt to fragment the land which is the purpose of enacting the provisions of Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962. 9. I therefore, find that each of the petitioners by virtue of the sale deeds executed in their favour come within the boundary of each other and thus the case decided in Ram Roop Yadav would be applicable in their case. If in fact, if there was only one purchaser who had got executed three sale deeds in his favour, it would certainly amount to a mala fide act to defeat the provisions of the pre-emption, as held in the case of Uday Narain Singh. 10. The second point raised on behalf of the petitioners is that the vendor had sworn an affidavit stating therein that he had made an offer to sell the lands to respondent no. 5. 11. Counsel for the respondent no. 5 submits that the affidavit is vague as it does not specifically mention the area of the land which he had offered for sale. 12. On perusal of the affidavit, it appears that it has been stated that he had "negotiated to sell the disputed land to Narendradeo Choubey and his other' family members and as they refused to purchase the disputed lands, he sold the dispute land to the petitioners". Counsel for the respondent no. 12. On perusal of the affidavit, it appears that it has been stated that he had "negotiated to sell the disputed land to Narendradeo Choubey and his other' family members and as they refused to purchase the disputed lands, he sold the dispute land to the petitioners". Counsel for the respondent no. 5, on the other hand, submits that on cross-examination, the date or time of the offer to sell has not been mentioned in the said affidavit. It is said that the affidavit is vague and should not be relied upon for the purposes of proving that in fact there was an offer to sell the lands to the respondent no. 5. It has been argued on the basis of a judgment in the case of Ran Chhapit Yadav Vs. The Additional Member, Board of Revenue and Others (BBCJ 1996 SC 1) that filing of an affidavit by the vendor who has specialized knowledge of the fact that he has made an offer should be treated to be a valid statement specially if he is not called upon to depose in the case. In the present case, the executor has deposed to the fact that he had made such an offer for sale of the disputed lands to respondent no. 5 and other family members. The fact that he has not mentioned the date and time of the offer cannot be a reason for discarding his evidence in totality. It has been held that once such an offer has been made, the pre-emptor is said to have waived his right of pre-emption under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962. 13. Considering the facts aforesaid, I quash the orders passed by the Land Reforms Deputy Collector, Sasaram the Collector, Sasaram and the Additional Member, Board of Revenue. 14. I may also point out that the three orders mentioned aforesaid do not take into consideration any other fact except the fact that the petitioners are the boundary raiyat and therefore, have allowed the application for pre-emption. In the result, all these three writ applications are allowed and the orders impugned are quashed.