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2010 DIGILAW 544 (PAT)

Mohammad Ishaque v. State Of Bihar

2010-03-31

SAMARENDRA PRATAP SINGH

body2010
JUDGEMENT 1. Heard learned counsel for the parties. 2. The petitioner prays for quashing order dated 31.1.2004, passed by the Addl. Member, Board of Revenue in Board Case No. 42 of 2001, by which he has set aside the order dated 29.12.2000, passed by the Collector, Begusarai in Ceiling case No. 1/94 and remanded the matter for fresh consideration. 3. The petitioner filed a pre-emption application under Section 16(3) of the Bihar Land Ceiling (Fixation of Ceiling Area) Act, before the DCLR, Begusarai on 13.10.1982 against the vendor Siyaram Chowdhary, father of respondent nos. 2 & 2a, and vendee Md. Kalimuddin, father of respondent nos. 4 to 6, with respect to 14 kathas, 17 dhurs, 5 dhurkis of land situated in Mouza, Ninga appertaining to Khata No.49 and Khesra No. 217. 4. Md. Kalimuddin, the vendor of Siyaram Chowdhary purchased plot no.217, by registered sale deed dated 1.6.1968 from one Most. Bibi Nabisa Khatoon. The area of land purchased was 1 Bigha, 9 Khatas, 14.5 dhurs. It was mentioned in the sale deed dated 1.6.1968 that the transferee, namely, Sk. Md. Abdul Sattar and Sk. Kalimuddin will come in possession only after redeeming the said mortgage deed dated 1.5.1963. As such, the aforesaid two transferees did not come in actual possession. The petitioner paid the entire Sudbharna amount to Md. Nasibuddin and came in exclusive possession over the entire area measuring 1 bigha, 9 kathas, 14.5 dhoors as mortgagee. 5. Md. Kalimuddin transferred a total area of 14 kathas, 171/2 dhoors in favour of late Siyaram Chowdhary, father of respondent nos. 2 and 2a, by means of registered sale deed dated 10.5.1982 who was neither co-sharer nor he had any land in the boundary of land purchased. Thus, the petitioner filed a pre-emption application under Section 16(3) on 13.10.1982 within prescribed period in Form LC 13 after observing all formalities. In the aforesaid proceeding, late Siyaram Chowdhary filed a show cause stating that he had sold one katha of land to Ganesh Choudhary in the north side but the details of Ganesh Choudhary nor the date of execution of the sale deed was given. 6. The petitioner on 2.6.1985 filed a petition before DCLR for impleading Ganesh Choudhary a party respondent. Late Siyaram Choudhary, the vendee filed objection to the said petition which was rejected. 6. The petitioner on 2.6.1985 filed a petition before DCLR for impleading Ganesh Choudhary a party respondent. Late Siyaram Choudhary, the vendee filed objection to the said petition which was rejected. An appeal and revision preferred by Siyaram Choudhary was dismissed by the appellate court as well as by Board of Revenue. 7. Ganesh Choudhary (respondent no. 3) filed a show cause in original proceeding before the DCLR on 23.5.1985. On 9.1.1986 he filed another petition raising various points regarding maintainability of application under Section 16(3) of the Act. The DCLR vide his order dated 17.1.1987 rejected all the objections raised in the show cause dated 23.5.1985 and petition dated 9.1.1986 by Ganesh Choudhary. 8. The petitioner states that he is a co-sharer and boundary raiyat of the land in question and the documents executed in the name of Ganesh Choudhary by Siyaram Choudhary was a sham and forged transaction to defeat the purpose of the Act. However, the DCLR vide order dated 26.11.1998 illegally dismissed his pre-emption application. 9. Petitioner filed appeal before the learned Collector, Begusarai vide Ceiling Case No.1 of 1999 which was allowed by order dated 29.12.2000. Respondents filed a revision application before Board of Revenue being Boards Case No. 42 of 2001. The learned Addl. Member, Board of Revenue vide order dated 31.1.2004 remanded the matter to the appellate authority to consider the points raised by him and also to have a spot inspection done in presence of the parties. 10. The petitioner submits that order passed by the Addl. Member, Board of Revenue is bad in law and fit to be set aside. Furthermore, learned Addl. Member, Board of Revenue failed to take into notice that the sale deed was sham and farzi transaction and respondent no. 3 never came in possession of the same. Furthermore, Registry Office at Teghra has the jurisdiction to register the land in question, but Siyaram Choudhary executed registration at Bakhri Registry Office. 11. On the other hand, counsel for the respondents stated that order of Addl. Member, Board of Revenue is just and proper. The petitioner ought to have filed an application in Form L.C. 13 after depositing the necessary amount, against the sale deed executed in favour of Ganesh Choudhary, as well by late Siyaram Choudhary, father of respondent nos. 2 and 2a. Member, Board of Revenue is just and proper. The petitioner ought to have filed an application in Form L.C. 13 after depositing the necessary amount, against the sale deed executed in favour of Ganesh Choudhary, as well by late Siyaram Choudhary, father of respondent nos. 2 and 2a. Only filing of pre-emption application against Siyaram Choudhary is not enough, as the latter had sold a part of the purchased land in favour of Ganesh Choudhary, even before filing of preemption application by petitioner. Learned counsel for respondents stated that preemption is a weak right and it can be defeated on any valid count. 12. The Addl. Member, Board of Revenue stated that despite notice the petitioner did not appear before the Board. He found that the petitioner did not file any application in Form L.C. 13 against sale deed executed in favour of Ganesh Choudhary by late Siyaram Choudhary. He further observed that the petitioner did not challenge sale deed executed in favour of Ganesh Choudhary as forged and collusive. Furthermore, no concrete material was produced before the DCLR by the petitioner to show that Ganesh Choudhary never came in actual possession and the sale deed was collusive. 13. The Addl. Member, Board of Revenue remanded the matter to the Collector for deciding the issue again in view of points raised by the petitioner vendee meeting various points after making spot inspection. 14. Almost similar issue came for consideration before a Division Bench of this Court in case of Smt. Priyambada Devi and Another V/s. The Addl. Member, Board of Revenue, Bihar, Patna and Others, reported in 1985 PLJR 662(DB). This Court held that in case of second transfer (not alleged by the pre-emptor as sham and farzi) of the land by the first purchaser, the pre-emptor is required to file his pre-emption application within the period of limitation adding the second transferee in the proceeding and fulfilling all the conditions laid down in the Act. The period of limitation for this purpose is counted from the date of registration of the second transfer deed. However, if the pre-emptor alleges that the subsequent sale deed is sham and forged, then he has to prove and substantiate his claims. 15. The learned Addl. The period of limitation for this purpose is counted from the date of registration of the second transfer deed. However, if the pre-emptor alleges that the subsequent sale deed is sham and forged, then he has to prove and substantiate his claims. 15. The learned Addl. Member, Board of Revenue while remanding the matter to the appellate court observed that the petitioner has not made a claim before the DCLR, Begusarai that the sale deed is sham and farzi. He further observed that the appellate court while setting aside order of the DCLR, Begusarai had not met the findings recorded by latter. The first observation of the Addl. Member, Board of Revenue that the petitioner has not raised the plea that the subsequent sale deed executed by vendee Siyaram Chaudhary in favour of Ganesh Chaudhary is not sham and forged, is not correct. It will appear from the internal page 11 of the order of the DCLR that the petitioner stated that sale deed is sham and forged. The main issue would be whether the petitioner had produced sufficient materials before the DCLR to substantiate his claim that the subsequent sale deed executed by the vendee Siyaram Chaudhary in favour of Ganesh Chaudhary is sham and farzi. The DCLR held that the petitioner ought to have challenged the subsequent sale deed executed in favour of Ganesh Chaudhary by the purchaser after depositing the appropriate amount and requisite in Form LC 13. The DCLR also found that the petitioner was neither a co-sharer nor a boundary raiyat and in case, at the best the land would be one belonging to the joint family. Furthermore, the DCLR observed that nature of land is banswari. 16. This Court finds that the learned Addl. Member, Board of Revenue is right in observing that the appellate court of Collector, Begusarai while setting aside order of the DCLR has not met findings recorded by him. 17. In the circumstances, I set aside order of all the three courts and remand the matter to the DCLR, Begusarai for considering the matter afresh in accordance with law and also in light of ratio laid down by the Division Bench of this Court in case of Smt. Priyambada Devi and Another V/s. The Addl. 17. In the circumstances, I set aside order of all the three courts and remand the matter to the DCLR, Begusarai for considering the matter afresh in accordance with law and also in light of ratio laid down by the Division Bench of this Court in case of Smt. Priyambada Devi and Another V/s. The Addl. Member, Board of Revenue, Bihar, Patna and Others, reported in 1985 PLJR 662(DB) after making spot inspection of the disputed land in presence of both parties. 18. The instant writ petition is disposed of with the aforesaid observations and directions.