IN THE HIGH COURT OF JHARKHAND AT RANCHI

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1 1 IN THE HIGH COURT OF JHARKHAND AT RANCHI C.W. J.C. No. 72 of 1999 (R) with C.W. J.C. No. 74 of 1999 (R) Urmila Devi Petitioner [CWJC No. 72/99 (R)] 1. Pushpa Devi 2. Urmila Devi... Petitioners [CWJC No. 74/99 (R)] Versus 1. State of Bihar 2. Additional Member, Board of Revenue, Bihar 3. Additional Collector, Land Ceiling, Palamau at Daltonganj 4. Deputy Collector, Land Reforms, Sadar Daltonganj 5. Rajendra Mishra 6. Hari Kishore Tiwary... Respondents [In both cases] For the Petitioners For the State For the Respondent No. 5 For the Respondent No. 6 : M/s Rajiv Ranjan Tiwari, Amit Kumar Tiwari and Prasant Kumar Singh, Advocates : G. P. II : Mr. Pratyush Kumar, Advocate : Mr. C. S. Pandey, Advocate CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR 14/ Aggrieved by order dated in Case No. 321 and 322 of 1995 passed by the Additional Member, Board of Revenue whereby, order dated passed by the Additional Collector, Palamau in L.C. Appeal No. 01 and 02 of and order dated in L.C. Case No of passed by the Land Reforms Deputy Collector, Daltonganj have been affirmed, the petitioners have approached this Court by filing the present writ petitions.

2 2 2. The brief facts of the case are that, the respondent no. 6 executed two sale deeds being sale deed no dated , registered on in favour of the petitioner Urmila Devi [C.W. J.C. No. 72 of 1999 (R)] and sale deed no dated , registered on in favour of the petitioners Pushpa Devi and Urmila Devi [C.W. J.C. No. 74 of 1999 (R)]. The respondent no. 5 filed an application dated under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 claiming right of pre emption and the same was registered as L.C. Case No of Vide order dated the L.C. Case No of was allowed in favour of the respondent no. 5 and the appeal preferred by the petitioners against the said order has been dismissed vide order dated Contending that it would be evident from the document that the claim of the respondent no. 5 as a co sharer and as an adjoining raiyat is not established and the pre emptorrespondent no.5 made partial claim of pre emption which is not maintainable in law and he has, in fact, disputed title of the vendor of the petitioners in a proceeding under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 which is also not permissible, the order dated was challenged however, Case No. 321 and 322 of 1995 were also dismissed erroneously.

3 3 3. A counter affidavit has been filed on behalf of the respondent no. 5 stating that his claim is based on two sale deeds being sale deed no. 940 dated , registered on and sale deed no dated , registered on The respondent no. 5 claimed that he is a co sharer and an adjoining raiyat of most of the plots comprised in both the sale deeds. The petitioners are not co sharer/adjoining raiyat. The village map and a rough sketch have been produced to indicate that the respondent no. 5 is an adjoining raiyat of all the vended plots. The pre emptor respondent no. 5 has not claimed himself an adjacent raiyat with respect to the land which has been vended in favour of the petitioner Urmila Devi by the respondent no. 6 through sale deed for plot no. 470 and plot no The gift deed allegedly executed on has purposely been executed to defeat the right of pre emption to the pre emptor respondent no Heard the learned counsel for the parties. 5. Relying on a decision in Smt. Priyambada Devi and Another Vs. The Additional Member, Board of Revenue, Bihar, Patna & Others, reported in 1985 P.L.J.R. 662, the learned counsel for the petitioners has submitted that the finding with respect to the gift deed being a farzi transaction is not sustainable in law. The preemptor moved an application dated in which there was no allegation of the gift deed being a sham and forged document however, the learned Additional Collector as well as the learned

4 4 Deputy Collector have recorded a finding that gift deed is a sham and farzi document and the said finding has been erroneously affirmed by the Revisional Authority. The learned counsel for the petitioners has further contended that the right of pre emption can be claimed for the entire property comprised in the sale deed and not with respect to a part of property in the sale deed. From the application dated it would appear that the pre emptor has claimed right of pre emption only with respect to a part of property and thus, the application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 was not maintainable and the Deputy Collector erroneously entertained the application of the pre emptor respondent no. 5 and the order passed by the Deputy Collector has been wrongly affirmed in appeal as well as in revision. Since this is a question of law arising from the facts of the case, which has been erroneously decided by the authorities, this Court has jurisdiction to entertain the present writ petitions and interfere with the erroneous finding on the question of law. He relies on decision in Ram Chandra Srivastava and Others, Vs. Parsidh Narain Singh and Others reported in AIR 1971 PATNA 302 and Smt. Sudama Devi and others v. Rajendra Singh and others reported in AIR 1973 PATNA 199 to contend that an application for pre emption cannot be entertained and allowed, only with respect to a part of property.

5 5 6. Per contra, the learned counsel appearing for the respondent no. 5 has contended that the right conferred under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 is a statutory right and if the conditions prescribed under the said provision are fulfilled, the pre emtptor is entitled for an order of pre emtption. In the present case it is not in dispute that the application was filed by the respondent no. 5 within the prescribed statutory time period and all other conditions have been fulfilled by the respondent no. 5 and therefore, in view of decision of the Hon'ble Supreme Court in Sheoji Mahto and Others Vs. The Additional Member, Board of Revenue & Others reported in 1997 BBCJ 93 (SC), the Deputy Collector has rightly allowed the application dated claiming a right of pre emption under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, He has also relied on decision in Shyam Sunder & Anr. Vs. Ram Kumar and Anr., reported in (2001) 8 SCC 24. It is further submitted that the vendor of the petitioners had no title with respect to a part of the land and since in a pre emtption proceeding, the respondent no. 5 could not have asked the Court to decide the title of the vendor of the petitioners, the claim for pre emption was rightly made only with respect to land comprised in both the sale deeds to which the respondent no. 6 has acquired right, title and interest. It is further submitted that the provision

6 6 under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 is a technical provision and the pre emptor is required to prefer an application within 90 days of the execution of the sale deed. It is apparent from the facts of the case that the execution of gift deed just one month prior to the statutory period of 90 days was a sham transaction. The matter is concluded by concurrent findings of fact and therefore, this Court would not interfere with finding of the fact and the present writ petitions are liable to be dismissed. 7. I have carefully considered the submissions of the learned counsel for the parties and perused the documents on record. 8. Before adverting to the rival contentions raised on behalf of the parties, it would be useful to examine the nature of right of pre emtpion. It has been consistently held by judicial pronouncements that a right of pre emption is a weak right. In Indira Bai Vs. Nand Kishore reported in (1990)4 SCC 668 the Hon'ble Supreme Court has held as under: 5....In Bishan Singh v. Khazan Singh this Court while approving the classic judgment of Mahmood, J. in Gobind Dayal v. Inayatullah, that the right of preemption was simply a right of substitution observed that, courts have not looked upon this right with great favour, presumably, for the reason that it operated as a clog on the right of the owner to alienate his property. In Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi, this Court again while repelling the

7 7 claim that the vendor and vendee by accepting price and transferring possession without registration of sale deed adopted subterfuge to defeat the right of pre emption observed that, there were no equities in favour of a preemptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre emption by all lawful means The record of the case would disclose that in the application dated , the pre emptor has not alleged that the gift deed dated was sham and farzi document. The pre emptor has claimed the right of pre emption stating as under: This claim of pre emption is confined only to the lands which really belong to the transferor the petitioner through this case does not claim the right of pre emption with respect to such plot which has been inserted in the sale deed or some illegal purposes to escape the consequence of claim of pre emption, where with the transferor has no concerned and which has been entered in schedule. 10. It would also appear from the written statement filed on behalf of the petitioners that the claim of the pre emptor being a co sharer or adjoining raiyat has been specifically disputed by the petitioners. From the record of the case it does not appear that in the proceeding in the courts below the pre emptor filed any document establishing himself as a co sharer. It appears that a

8 8 contention was raised with respect to genuineness of the gift deed dated however, from the orders impugned before this Court, I do not find any discussion with respect to the evidence led by the pre emptor to substantiate such a contention. The orders dated , and order dated do not disclose the foundation for recording a finding that the gift deed dated is sham and farzi document. In Smt. Priyambada Devi and Another Vs. The Additional Member, Board of Revenue, Bihar Patna & Others, reported in 1985 PLJR 662, this Court has held that in case where a specific plea is taken with respect to genuineness of the gift deed, a finding can be recorded by the Court that the gift deed was a forged document. However, in the present case no inference can be drawn that the gift deed was executed with a view to frustrate the right of pre emption. As noticed above, in the present case a specific plea was not taken by the pre emptor in application dated and the orders impugned in the present proceeding also do not disclose any cogent reason for arriving at such conclusion. In these facts, I am of the opinion that the courts below have seriously erred in law in recording a finding that the gift deed was a farzi document and therefore, the finding recorded by the courts below is liable to be interfered with. 11. Coming to the contention of the counsel for the petitioners that a claim of pre emption cannot be maintained with respect to only a part of the property in the sale deed, I find that in

9 9 Ram Chandra Srivastava and Others Vs. Parsidh Narain Singh and Others, reported in AIR 1971 PATNA 302, it has been held: Both under the general law of preemption and the provision of Section 16(3), the conveyance has to be made on the same terms and conditions as are contained in the document of transfer. To permit the petitioners to obtain a reconveyance with respect to only.03 acre in plot No. 738 covered by the sale deed of respondent No. 3 would amount to striking a new bargain for the parties by splitting up the terms and conditions contained in the sale deed of respondent No. 3. This is certainly not contemplated by sub section (3) of Section 16 of the Act. It is manifest that in respect of the land covered by the sale deed of respondent No. 3 the petitioners must claim the right of reconveyance with regard to the whole of the property to which it relates or to none at all. 12. The learned counsel for the petitioners has also drawn the attention of the Court to the order dated whereby, the operation of orders dated , and were stayed by this Court. Though, the learned counsel for the respondent no. 5 has submitted that he has instructions to say that the respondent no. 5 is in possession of the property in question, no material has been produced to establish that the respondent no. 5 was delivered possession at any point of time. It is not in dispute that after the execution of sale deeds, the petitioners

10 10 were put in possession. 13. The learned counsel for the respondent no. 5 has submitted that once an application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 is preferred which fulfills all the pre condition, the application must be allowed. This contention is liable to be rejected. In a proceeding under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, it is to be first found that the pre emtpor has established the right of pre emption on the basis of his being co sharer or as an adjoining raiyat. In the present proceeding, the petitioners have specifically denied the claim made by the pre emptor that he is a co sharer. Moreover, the pre emptor respondent no. 5 himself has claimed that he is a co sharer and an adjoining raiyat with respect to most of the plots. It is not the claim of the pre emptor that he is a co sharer or an adjoining raiyat with respect to the entire property in question. Moreover, it is a matter of record that the pre emptor did not produce any document to establish that he is a co sharer and therefore, the finding recorded by the courts below that the respondent no. 5 is a co sharer, is perverse. 14. I find that the learned courts below seriously erred in recording findings which are not based on evidence, either oral or documentary. The courts below have also failed to notice the nature

11 11 of right of pre emption. In the result, orders dated , and are set aside. The writ petitions are allowed. (Shree Chandrashekhar, J.) Satyarthy/N.A.F.R.

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