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2011 DIGILAW 1022 (PAT)

ASHOK MANDAL v. STATE OF BIHAR

2011-05-11

KISHORE K.MANDAL

body2011
ORDER : Petitioners-purchasers, in both the cases, are husband and wife. The preemptors in both these cases are the same. The issues involved (in both the cases) are the same. With the consent of the parties, both the applications are being disposed of by the ORDER :. 2. Relevant facts shall be drawn from C.W.J.C. No. 785 of 2006. On 22.8.1997, 4 kathas 19 dhurs, 19 dhurki and 15 furki of land appertaining to Khata No. 108, Khesra No. 884 and 885, Touji No. No. 525 in Village Madhavpur in the district of Khagaria was vended by respondent No. 7 in favour of the writ petitioner. On the same day, same area appertaining to Khata No. 108, Khesra No. 884 and 885 of the same description was/were vended in favour of the writ petitioner (purchaser). Two cases being L.C. Case No. 4 of 1997 and 5 of 1997 were lodged under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (for short “the Act”) by respondent Nos. 5 and 6. By a common ORDER :dated 9.6.1998 (Annexure-3), the same were dismissed. Aggrieved by the aforesaid common ORDER :, the preemptors (respondent Nos. 5 and 6) filed appeals being Appeal No. 02/1998-99 and 03/1998-99. Both the appeals were heard analogous and by common ORDER :dated 9.8.2000 (Annexure-4), the appellate authority rejected both the appeals concluding therein that both the preemptors failed to demonstrate that each of them were adjoining raiyat(s) and/or co-sharer of the vendors of the lands in question. Dissatisfied with the aforesaid ORDER :, two revision applications were filed before the Board of Revenue vide Case No. 205 of 2006 and 206 of 2000. The respondent Board of Revenue by a common resolution dated 29.11.2005 allowed the revision application(s) preferred by the preemptors (respondent Nos. 5 and 6) passaging filing of the present writ petitions. 3. Heard learned counsel for the petitioner, vendor (respondent No. 7) and the State. Preemptors (respondent Nos. 5 and 6) have not appeared in the present batch of petitions to oppose/resist the claim of purchasers/writ petitioners. 4. 5 and 6) passaging filing of the present writ petitions. 3. Heard learned counsel for the petitioner, vendor (respondent No. 7) and the State. Preemptors (respondent Nos. 5 and 6) have not appeared in the present batch of petitions to oppose/resist the claim of purchasers/writ petitioners. 4. Learned counsel for the petitioner submits that if more than one person, may be wife and husband, combined together to claim preferential right of preemption as engrafted under Section 16(3) of the Act then the mandate of law is that each of them has to demonstrate with reference to materials on record that both of them hold lands which lie adjacent/adjoining to the vended plots. They can also demonstrate that each of them is co-sharer of the vendors. It is submitted that having regard to the materials on record by the parties, both the Courts below found that the two preemptors failed to demonstrate that each of them is/are adjoining raiyat in his/her own right of the vended plots. Considering the ratio laid down in 1989 (2) P.L.J.R. 269, their claim was rejected. Referring to the L.C. form-13 filed on behalf of the preemptors (Annexure-2) it is submitted that the case put forth therein is/was lands set out in Schedule-II was adjoining South to the vended plots which stood recorded in the name of wife only. It is contended that the Revisional Court erred in making out a third case for the preemptors. Right of preemption and/or preferential treatment to the preemptor, in essence, is a weak right and, therefore, the preemptor(s) has to make out a full proof case in ORDER :to succeed in getting the vended land reconvened to him/them. 5. Learned counsel appearing on behalf of the vendor has accepted vending of the lands in favour of the writ petitioner. Learned counsel appearing on behalf of the State supported the ORDER :(Annexure-5) passed by the respondent Board of Revenue. 6. It is seen from the materials on record that respondent Nos. 5 and 6 claimed their right of preemption and accordingly, a joint application was filed on their behalf. It is further seen from L.C. Form-13 (Annexure-2) that such claim was based on the ground that land lying adjoining South to the vended plot stood recorded in the name of respondent No. 6. The husband (respondent No. 5) also joined hands in claiming right of preemption. It is further seen from L.C. Form-13 (Annexure-2) that such claim was based on the ground that land lying adjoining South to the vended plot stood recorded in the name of respondent No. 6. The husband (respondent No. 5) also joined hands in claiming right of preemption. Respondent D.C.L.R. in his ORDER :dated 9.6.1998 (Annexure-3) as well as respondent Collector in his ORDER :dated 9.8.2000 (Annexure-4) found that the land lying adjoining South to the vended plot stood recorded only in the name of wife (respondent No. 6). The husband (respondent No. 5) was not able to demonstrate that he too is a recorded raiyat in respect of any tract of land adjoining to the vended plots/lands. Considering the ratio laid down in the case of 1989 (2) P.L.J.R. 269, their joint claim was negated. Respondent Revisional Court found that there were some documents on record to show that lands lying adjoining West to the vended plots (forming a block) jointly belong to the husband (respondent No. 5) with his full brother namely Ram Swarup Choudhary, who was shown as boundary raiyat in respect of the vended plot on the western side. It has thus been found that the husband (respondent no. 5) can be said to be co-sharer of lands adjoining west to the vended plots forming a block. Respondent Additional Member, Board of Revenue erred in taking into consideration that no such claim was raised by the preemptors. Secondly, even if it is accepted that the husband (respondent No. 5) held lands jointly with his brother namely Ram Swarup Choudhary, the same would not be sufficient to allow the claim of preemption. The requirement of law is that the preemptor has to demonstrate that he/she is co-sharer of the vendor or the vended land and/or holds lands adjoining to the vended plots. Co-sharer of a land which is said to be adjoining to the vended land will have no claim based on co-sharership. It can further be viewed from yet another angle. If the husband (respondent No. 5) is co-sharer on the western side of the vended plots forming a block then he alone cannot claim preemption on that ground. Admittedly, his brother has not filed application seeking claim of preemption. 7. It can further be viewed from yet another angle. If the husband (respondent No. 5) is co-sharer on the western side of the vended plots forming a block then he alone cannot claim preemption on that ground. Admittedly, his brother has not filed application seeking claim of preemption. 7. Thus, In my view, the Revisional Court manifestly erred in law in interfering with the concurrent findings recorded by the two Courts below that both the preemptors failed to demonstrate that each of them is/are raiyat in respect of the land lying adjoining to the vended plots/lands. The reasoning of the Additional Member, Board of Revenue that the husband can also maintain claim of preemption on the ground that he is a co-sharer of plot of land adjoining west to the vended land/plot, in my view, would not sustain the claim of preemption. 8. For all these reasons, the applications are allowed. Resolution dated 29.11.2005 (Annexure-5) passed by respondent Additional Member, Board of Revenue is quashed and set aside. 9. There shall be no ORDER :as to costs.