Patna High Court
Punyadeo Sharma And Ors. vs The Additional Member, Board Of Revenue ... on 27 July, 2004
Equivalent citations: AIR2005PAT1, 2004(2)BLJR1600, AIR 2005 PATNA 1, 2004 BLJR 2 1600, (2004) 3 BLJ 623, (2004) 3 PAT LJR 838
Author: S.K. Katriar
Bench: Sudhir Kumar Katriar
JUDGMENT S.K. Katriar, J.
1. The purchasers are the petitioners with respect to proceedings under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Areas and Acquisition of Surplus Land) Act (hereinafter referred to as the Act). The writ petitions are directed against a common order dated 3.2.2000 (Annexure 3), passed by the learned Additional Member, Board of Revenue, whereby he has allowed the four revision applications preferred by the pre-emptors, has set aside the order of the learned appellate authority, and has restored that of the learned first authority. In other words, the learned first authority had allowed the applications for pre-emption.
2. It is with respect to the purchase of a portion of plot No. 721 by four different documents by three full brothers in the manner indicated hereinafter, and the claim of pre-emption has been raised by the same person whose heirs are respondent Nos. 4 to 6 herein. The sketch map provided by the learned counsel for the petitioners as part of note of submissions, and not denied by the pre-emptors, is reproduced hereinbelow :
3. It relates to one block of land bearing plot No. 721. The three brothers (Punyadeo Sharma, Prithvilal Sharma, and Master Sharma) who are petitioners in CWJC. No. 5018 of 2000, jointly purchased the portion towards the north of plot No. 721 (marked A) by a registered deed of absolute sale executed on 9.2.90, and was registered on 7.1.92. The pre-emptors filed an application under Section 16(3) of the Act, on 31.3.92, claiming pre-emption with respect to the same on the strength of being an adjoining raiyat, which was registered as pre-emption Case No. 315/91-92, and was allowed by a common order Dt. 29.9.92 (Annexure 1), (alongwith the three analogous pre-emption applications discussed hereinbelow), passed by the learned Deputy Collector Land Reforms, Siwan. The three brothers (the purchasers) preferred Appeal No. 317/92-93 which was allowed by common order Dt. 5.7.98 (Annexure 2), passed by the learned Collector of the district of Siwan, and the order of the DCLR was set aside. This gave rise to Board Revision No. 161/98 at the instance, of the. pre-emptors which has been allowed by the impugned order, the order of the appellate authority has been set aside, and that of the learned first authority has been restored.
3.1) The slice of the plot marked B in the aforesaid Sketch Map was purchased by Prithwilal Sharma by a registered deed of absolute sale from the same vendor which was executed on 13.12.90, and was registered on 8.9.93. The same set of pre-emptors filed pre-emption application which was registered as Pre-emption Case No. 11/93-94, giving rise to Appeal Case No. 277/94-95, and Board Revision Case No. 157/98, which was disposed of by the aforesaid orders with the same results throughout, giving rise to CWJC No. 10328 of 2000.
3.2) The slice of land marked C was alienated by the same vendor in favour of Master Shama on the same date, i.e., 13.12.90, and was registered on 8.9.93, giving rise to Pre-emption Application No. 13/93-94, which was filed on 24,9.93, giving rise to Appeal No. 279/94-95 and Board Revision No. 158/98 disposed of by common orders with the same results throughout. The same has given rise to CWJC No. 10225 of 2000.
3.3) The slice of land marked D was alienated by the same vendor in favour of the said Punyadeo Sharma by deed of absolute sale of the same date, i.e. 13.12.90, registered on 18.9.93, giving rise to Pre-emption Application No. 12/93-94, Appeal No. 278/9495, and Board Revision Case No. 159/98, disposed of by the common orders with the same results throughout. The same has given rise to CWJC No. 10328 of 2000.
4, The four writ petitioners are directed against common orders, with common facts and law, and have rightly been disposed of by common orders by the authorities below and are accordingly being disposed of by a common judgment. The basic facts required for adjudication of the four writ petitions are admitted at the hands of all the parties. There is no denying the fact that the three petitioners are full brothers, being sons of Asharfi Sharma. The dates of purchase, and the manner of purchase are all admitted. It is equally an admitted fact that the pre-emptor is adjoining raiyat with respect to the four slice of lands. The learned first authority found that the pre-emptor is adjoining raiyat, the purchasers are not adjoining raiyats, and the four pre-emption applications were allowed. The learned appellate authority held that the pre-emptor is adjoining raiyat of the four sub-plots, but will not be allowed to succeed for the reason that the purchasers have become adjoining raiyats of each other on account of the four purchases made by the four documents of sale. He, therefore, set aside the order of the first authority and rejected the four pre-emption applications. The revisional authority has set aside the order of the appellate authority, has restored that of the first authority, and has allowed the four applications on substantially same or similar grounds as stated in the order of the first authority.
5. While assailing the validity of the impugned orders, learned counsel for the purchasers (petitioners) submits that in view of the provisions of Sections 47 and 75 (3) of the Registration Act, 1908, the three later documents have become operative not only from the date of presentation for registration but from the date of its execution on 13.12.90, which would mean that the petitioners had become adjoining raiyats on 13.12.90 which is prior to the date of the four pre-emption applications. He relies on a number of reported judgments which I shall discuss at the appropriate stage. He next submits that the three purchasers are full brothers and, therefore, would be deemed in law to be co-sharers. He next submits that the entire plot No. 721 now parcelled out in four sub-plots belong to the same family which they hold in the capacity of members of the joint family or co-sharers. He lastly submits that it is settled law that pre-emption is a weak right and the purchaser is entitled to defeat the claim of pre-emption by any lawful means.
6. Learned counsel for the pre-emptors has supported the impugned judgment. He submits that it would appear on a perusal of the provisions of Section 16(2)(iii) and Section 16(3) of the Act, that the entire emphasis is on the date of registration. Counsel next submits that there is no whisper in any one of the pleadings of the purchasers throughout that the purchasers are joint. In his submission, they may be joint purchasers, though admittedly full brothers, but surely are not joint. He relies on a number of reported judgments.
7. I have pursued the materials on record and considered the elaborate submissions of learned counsel for the parties. I must first of all consider the issue relating to the effect of execution and registration of the documents in so far as pre- emption applications are concerned. Sections 47 and 75 of the Registration Act, are set out hereinbelow for the facility of quick reference :
"47. Time from which registered document operates--A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.
"75. Order by Registrar to register and procedure thereon---(i) If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered.
(2) If the document is duly presented for registration within thirty days after the making of such order, the registering officer shall obey the same and thereupon shall, so far as may be practicable, follow the procedure prescribed in Sections 58, 59 and 60.
(3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration.
(4) The Registrar may, for the purpose of any enquiry under Section 74, summon and enforce the attendance of witness, and compel them to give evidence, as if he were a Civil Court and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure, 1908 (5 of 1908)."
The combined, effect of the provisions of Section 47 and 75(3) had fallen for the consideration of a Division Bench of this Court reported in 1987 PLJR 251 (Jamuna Prasad v. Bhuneshwar Thakur), wherein it has been laid down that a document requiring compulsory registration in terms of Section 17 of the Act, having been registered, becomes operative not only from the date of presentation for registration but from the date of its execution. Paragraph 10 of the judgment is set out hereinbelow for the facility of quick reference :
"10. The next question for consideration is as to whether the Act, prescribes different dates since when documents executed shall commence to operate i.e. in case of normal registration, with effect from the date of the execution of the document and in case of compulsory registration with effect from the date of its presentation. In my opinion, reading the different provisions of the Act, there does not appear to be any reason to hold that a document executed through normal procedure is to be operative with effect from the date of its execution; whereas a document executed through the procedure or compulsory registration is to operate only with effect from the date it is presented for registration. If the contention raised on behalf of the appellant is accepted, it will lead to an absurd result inasmuch as the person who had to pursue the procedure for compulsory registration, in view of the denial of execution by the executant; ultimately for no fault of his, may lead to a situation where he finds that the whole exercise has ended in futility, as his vendor had executed another sale deed before the earlier sale deed had been presented for registration. The framers of the Act, while enacting Sub-section (3) of Section 75 of the Act, only wanted to bridge the gap between the date of the presentation for registration and the date of the compulsory registration by the statutory fiction. Therefore, in my view, Section 47 of the Act shall be applicable even in respect of such registered documents. In other words, Sections 47 and. 75 (3) of the Act have to be read together harmoniously, the result whereof will be that after a document is registered compulsorily by virtue of Sub-section (3) of Sections 75 and 47, it shall become operative not only from the date of its execution. A learned Judge of Mysore High Court in the case of Azeezualla Sheriff v. Bhabhutimul, (AIR 1973 Mysore 276) has also taken the view that once a document is compulsorily registered, it shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made. With due respect for the learned Judge who decided the case of Bibi Zamirunissa v. Sk. Quadoos, (supra), I am unable to agree with the view expressed in that judgment."
8. The same was followed by a Division Bench of this Court in its judgment reported in 1994(1) Bihar Law Judgments 265 (Rameshwar Yadav v. State of Bihar). In fact, the same had arisen out of pre-emption application. Following the judgment in the case of Jamuna Prasad, (supra), the Division Bench held that once registration is complete, the registered document operates from the date of its execution in view of the provisions of Section 47 of the Act. The same view was taken by a learned Single Judge of this Court in his judgment reported in 1998 (3) PLJR 373 (Pawan Kumar Rai v. State of Bihar), that in view of the provisions of Section 47 of the Act, a registered document takes effect from the date of execution and not from the date of registration.
9. I must now consider the contentions advanced by learned counsel for the pre-emptors on this point, He has relied on the following provisions of law :
"16. Restriction on future acquisition by transfer etc.--(1) No person shall, after commencement of this Act, either by himself or through any other person, acquire or possess by transfer, exchange, lease, mortgage, agreement or settlement any land which together with the land, if any, already held by him exceeds in the aggregate of the ceiling area.
Explanation.--For the purposes of this Section, "transfer" does not include inheritance, bequest of gift.
(2) (i) After the commencement of this Act, no document incorporating any transaction for acquisition or possession of any land by way of transfer, exchange, lease, mortgage, agreement or settlement shall be registered unless a declaration in writing duly verified is made and filed by the transferee before the registering authority under the Indian Registration Act, 1908 (XVI of 1908), as to the total area of land held by himself or through any other person any where in the State.
(ii) No such registering authority shall register any document evidencing any transaction if, from the declaration made under Clause (i), from the declaration made under Clause (i), it appears that the transaction has been effected in contravention of the provision of Sub-section (1).
(iii) No land shall be transferred, exchanged, leased, mortgaged, bequeathed or gifted without a document registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908).
Explanation--Nothing in this sub-section shall be deemed to have any effect on the provisions of the tenancy law of the area relating to transfer, exchange, lease, mortgage, agreement or settlement.
(3)(i) When any transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer or the transfer or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document of the transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed.
................."
Section 16(2)(iii) qualities the provision of registration with respect to surplus land ceiling proceeding. In other words, in so far as the ceiling areas are concerned, no land shall be transferred, exchanged, mortgaged, bequeathed or gifted without a registered document. This has to be read in the context of alienation. Prior to enforcement of the Bihar Land Reforms Act, settlements used to be made orally or by unregistered Hukumnama. Such oral settlement or alienations by unregistered Hukumnama have been completely prohibited after the commencement of the Act, which can now be done only by a registered document. The same does not form part of Section 16(3) of the Act, which is almost complete by itself. The reliance placed on Section 16(2)(iii) is, therefore, not relevant to determine the issue raised by the learned counsel for the petitioners. Learned counsel for the pre-emptors have placed reliance on the judgment of the Supreme Court reported in AIR 1969 SC 244 (Hiralal Agrawal v. P.P. Singh) which considered the combined effect of Section 16(2)(iii) and Section 16(3) of the Act, and Section 47 of the Registration Act, wherein it has been held that the pre-emptor does not get the right to file the pre-emption application unless the document has been registered which is not the issue in hand, We are here grappled with the question whether or not a document of conveyance needing compulsory registration, once registered, takes its effect from the date of execution of the document which has been answered in the line of cases discussed in the preceding paragraph. I am, therefore, of the view that judgment in the case of Hirala Lal Agrawal (supra) on which the pre-emptors have relied on, deals with the aforesaid provision from a completely different angle not relevant in the present context.
10. On an analysis of the submissions and counter submissions made by learned counsel for the parties on the first issue, I am of the view that a document of conveyance which requires compulsory registration, once registered, becomes operative from the date of its execution. The combined effect of the provisions of Section 16(2)(iii) and Section 16 (3)(i) of the Act, and Section 47 of the Registration Act is that the pre-emptor can raise his claim of pre-emption after the date of registration of the document. The net result is that the three brothers had become adjoining raiyats on 13.12.90, the date on which the three sale deeds had been executed. If the, purchasers are themselves adjoining raiyats, the right of preemption must fail.
11. There is one more aspect of the matter. In the first document, the three brothers are joint purchasers by means of the document executed on 9.2.90 and registered on 7.1.92. Therefore, I would hold that the purchasers are co-sharers surely with respect to the first document which also becomes a factor in defeating the claim of pre-emption. A Full Bench of this Court in its judgment reported in 1970 BLJR 1101 (paragraph 10) (Ram Chandra Srivastava v. Prasidh Narayan Singh), has held that in order that the claim of pre-emption can be upheld, it must be held that the transferee is neither a co-sharer in respect of the transferred land or a raiyat of any adjoining land.
12. A case similar to the present one fell for the consideration of a Division Bench of this Court in the case of Ram Roop Yadav v. State of Bihar, reported in 1987 PLJR 455, except one difference of facts. Paragraph-4 of the judgment is particularly relevant in the present context and is set out hereinbelow for the facility of quick reference :
"4, In the instant case, the two sale deeds having been executed in respect of Plot Nos. 18 and 22 in favour of the petitioner, after the registration of two deeds the petitioner became holder of two adjoining plots. In this background, when two application for pre-emption were filed by two separate sets of pre-emptors in respect of two plots transferred, the petitioner can legitimately resist the claim in both the adjoining plot. In other words, the petitioner in application for pre-emption in respect of plot No. 18 filed by respondent Nos. 5 to 7 of CWJC No. 1939 of 1980 can take a defence that he is the holder of adjoining Plot No. 22, as such application for pre- emption should not be allowed. Same plea is available to him in the other application for pre-emption in respect of plot No. 22 filed by respondent Nos. 5 and 6 of CWJC No. 1940 of 1980, that he himself is the holder of adjoining Plot No. 18. 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 of both the plots purchased by the petitioner."
I must detain myself to examine one aspect which might seemingly place the present case in a different factual situation, namely, pre-emptors were different persons in the Ram Roop Yadav's case, whereas the pre-emptor is one and the same person in the present batch of cases. The question, therefore, is will this difference in the factual position make a difference in the applicability of the provisions of law laid down in Ram Roop Yadav's case. I am relieved of the burden of examining this question in detail for the reason that just the same issue fell for the consideration of a Division Bench of the Court in Nathuni Mahto v. State of Bihar, reported in 2004 (2) PLJR 334. That was also a case where the petitioners purchased two portions of the same plot by separate registered sale deeds and claimed to be adjoining raiyats on that basis. The same person had filed two different applications claiming pre-emption with respect to two parcels of the land. Relying on Ram Roop Yadav's case (supra), the Division Bench held that the petitioners had become adjoining raiyats of the two parcels of land by the two different sale deeds and shall defeat the claim of pre-emption made by a common pre-emptor. In a similar factual position as the present case, a learned Single Judge of this Court had also upheld the claim of the purchasers that they had become adjoining raiyats which remained unmutilated by the factual position that the pre-emptor was one and the same person. In a similar situation, I have taken the same view in my judgment dt. 15.7.04, disposing of CWJC No. 4594 of 2000 and CWJC No. 4599 of 2000 (Adjul Jalil v. State of Bihar and Ors.).
13. Learned counsel for the pre-emptors have submitted that the purchasers did purchase different portions of the same plot of land by four sale deeds with the purpose of defeating the claim of pre-emption. The contention is stated only to be rejected. Law is well settled by a long line of cases of high authority that preemption is a weak right and the purchaser is entitled to defeat the claim of preemption by any legitimate means. There cannot be any manner of doubt that splitting a plot of land and purchasing the same by different sale deeds is a legitimate means of acquiring/purchasing land and no provision of law prohibits this action.
14. Law is well settled by a long line of cases of high authority that preemption is a weak right and can be defeated by any legitimate means. It appears that the first reported judgment on this point is the Full Bench judgment of the Allahabad High Court in Gobind Dayal v. Inayetullah, and the first judgment of the Supreme Court on this point appears to be the oft-quoted judgment of the Supreme Court in the case of Bishan Singh v. Khazan Singh, (1959 SCR 878 at P. 884 = AIR 1958 SC 838 at P. 841). Paragraphs 8 to 11 of the judgment in Bishan Singh v. Khazan Singh are set out hereinafter for the facility of quick reference :
"(8) Mahmood J, in his classic judgment in Gobind Dayal v. Inayatullah, ILR 7 All 775 at p. 809 (FB) (B), explained the scope of the secondary right in the following terms : ' "It (right of pre-emption) is simply a right of substitution, entitling the pre-emptor, by means of a legal incident to which sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale, under which he arising from the sale, under which he derived his title. It is, in effect, as if in a sale deed the vendee's name were rubbed out and pre-empotor's name inserted in its place."
(9) The doctrine adumbrated by the learned Judge, namely, the secondary right of pre-emption is simply a right of substitution in place of the original vendee, has been accepted and followed by subsequent decisions.
(10) The general law of pre-emption does not recognize any right to claim a share in the property sole when there are rival claimants. It is well-established that the right of pre-emption is a right to acquire the whole of the property sole in preference to other persons ; See Moolchandv. Ganga Jal, ILR 11 Lah 258 at p. 273; (AIR 1930 Lah 356 at p. 357) (FB) (C).
(11) The plaintiff is bound to show not only that his right is as good as that of the vendee but that it is superior to that of the vendee. Decided cases have recognized that this superior right must subsist at the time the pre-emptor exercises his right and that right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee. Courts have not looked upon this right with great favour, presumably for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendee are therefore, permitted to avoid accrual of the right of pre-emption by all lawful means. The vendee may defeat the right by selling the property to a rival pre-emptor with preferential or equal right. To summarise (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) it is a right of substitution but not of re-purchase, i.e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee, (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must . have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place."
15. The Supreme Court has observed as follows in paragraphs 12 and 13 of its judgment reported in AIR 1960 SC 1368 (Radhakishan v. Shridhar):
"(12) It was next contended that the appellant was guilty of fraud in that in order to defeat the right of the pre-emptors a deed of sale was not executed although as a matter of fact price had been paid, possession had passed and for all intents and purposes the appellant had become the owner of the property and that conduct such as this would defeat the very law of pre-emption. The right to pre-empt the sale is not exercisable till a pre-emptible transfer has been effected and the right of pre-emption is not one which is looked upon with great favour by the Courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by all legitimate means. In the Punjab, where the right of pre-emption is also statutory, the Courts have not looked with disfavour at the attempts of the vendor and the vendee to avoid accrual of right of pre-emption by any lawful means and this view has been accepted by this Court in Bishan Singh v. Khazan Singh, 1959 . SCR 878 at p. 884 : (AIR 1958 SC 838 at 841), where Subba Rao, J. observed :
"This right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place."
13. In the present case the transaction of sale had not been completed until February 1, 1944 when the sale deed was executed. Anything done previous to it could not ordinarily be said to be a fraud to deprive a pre-emptor, from the exercise of this right of pre-emption. There are no equities in favour of a pre-emptor, 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."
16. The Classic observations of Mahmood, J. of the Allahabad High Court in (1885) ILR 7 All 775 (Gobind Dayal v. Inayatullah) and those of the Supreme Court in Bishan Singh v. Khazan Singh. reported in AIR 1958 SC 838, are the leading authorities on the point, particularly the latter because the same deals with statutory provisions relating to pre-emption, and repeatedly quoted with approval by Indian Courts. The Supreme Court in its judgment reported in AIR 1991 SC 1055 (Indira Bai v. Nand Kishore) has observed as follows in paragraph 5 of the report: effect in paragraph 5 :
"5.....In Bishen Singh v. Khazan Singh, AIR 1958 SC 838 this Court while approving the classic judgment of Mahmood J. in Gobind Dayal v. Inayatullah, (1885) ILR 7 All 775 (FB), that the right of pre-emption 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 Radha Kishen v. Shridhar, AIR 1960 SC 1368 this Court again while repelling the 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 not equities in favour of a pre-empoter, 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. Such being the nature of right it is harsh to , claim that its extinction by conduct would amount to statutory illegality or would be opposed to public policy. The distinction between validity and illegality or the transaction being void is clear and well known. The former can be waived by express or implied agreement or conduct. But not the latter. The provision in the Act, requiring a vendor to serve the notice on persons having right of pre-emption is condition of validity of transfer, and therefore a pre-emptor could waive it. Failure to serve notice as required under the Act, does not render the sale made by the vendor in favour of vendee ultra vires. The test to determine the nature of interest, namely, private or public is whether the right which is renuniciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved. If the answer is latter, then it may be difficult to put estoppel as a defence. But if it is right of party alone then it is capable of being abnegated either in writing or by conduct. The Act does not provide that in case no notice is given the transaction shall be void. The objective is to intimate the pre-emptor who may be interested in getting himself substituted. The Act does not debar the pre-emptor from giving up this right. Rather in case of its non-exercise within two months, may be for the financial reasons, the right stands extinguished. It does not pass on to anyone. No social disturbance is caused. It settles in purchaser. Giving up such right, expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy.
17. Following the same line of reasoning and relying on the same line of cases, the Supreme Court has laid down to the same effect in its judgment reported in (2004) 4 SCC 252 (Gopal Sarkar v. Karuna Sarkar).
18. A Full Bench of this Court in the case of R.C. Srivastava v. Prasidh Narain, (supra) (para 11) has held that the right of pre-emption being a very weak right, it can be defeated by legitimate methods by anybody allowing the claim be substituted in his case. A Division Bench of this Court has laid down to the same effect in its judgment reported in 1995(2) BLJR 813 (Smr. Dulhin Basmatia v. State of Bihar). The same view was taken by this Court in Ram Poop Yadav's case (supra). Paragraph 5 of the judgment is set out herein below for the facility of quick reference :
"5. On behalf of the pre-emptor-respondents it was urged that the petitioner had purchased two plots by two sale deeds with the purpose of defeating any application for pre-emption. It need not be pointed out that right of pre-emption is a very weak right which can be defeated by the purchaser by any legitimate means. Reference in this connection may be made to the well known case of the Supreme Court in the case of Bishan Singh v. Khazan Singh, (AIR 1953 Supreme Court 838) where it was pointed out-that the person claiming pre-emption has "to show not only that his right is as good as that of the vendee, but that it is superior to that of the vendee... this superior right must subsist at the time the pre-emptor exercises his right." A Full Bench of this Court in the case of R.C. Srivastava v. P.N. Singh, (1970 BLJR 1101) reiterated the same principle in connection with Section 16(3) of the Act, itself, pointing out that the right of pre-emption under Section 16(3) "is a very weak right, that it must subsist at the time when the pre-emptor seeks to exercise it and that it can be defeated if by that time the person against whom it is sought to be exercised has acquired a right or status which is equal to that of the pre-emptor."
19. The same view has been taken by a learned Single Judge of this Court in his judgment reported in 1981 BBCJ 83 (Meer Rafique v. Addl. Member). A Division. Bench of this Court in its judgment in the case of Dhaka Singh v. Baleshwar Prasad Singh, reported in notes on Cases 1987 BLJR 426, has held to the same effect.
20. The summarise the position in law, the courts have not looked upon the right of pre-emption with great favour, inter alia, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendee are, therefore, permitted to avoid the accrual of the right of pre-emption by all lawful means. The pre-emptor has a secondary and a very weak right. Preference being the essence of the right, the purchaser has a superior right to that of the pre-emptor. It being a very weak right, it can be defeated by all legitimate methods such as vendee allowing the claimant for superior or equal rights to be substituted in his place. In order to defeat the claim of pre-emption, the purchaser is equally entitled to split the plot of land into more than one, to be purchased by more than one registered document. Once registration of the document of alienation takes place, the purchaser/transferee can claim to have acquired right, title and interest from the date of execution of the document rather than the date of registration of the same. In case of doubt or difficulty between the rival claims of the purchaser and the pre-emptor, the Court shall lean in favour of the purchaser.
21. In so far as the present case is concerned, I have no manner of doubt on an analysis of the facts and circumstances of these cases and the discussion of the law governing the issues, that the purchasers being full brothers are co-sharers surely with respect to the slice of land purchased by the first document. The first document of sale in favour of the three brothers shall take effect with effect from 9.2.90, even though the same was registered on 7,9.92. The three later documents shall similarly take effect on 13.12.90, even though the same were registered on 8.9.93. The four slices of land constitute one block of land owned by full brothers. Therefore, by virtue of the first document, the three brothers had become adjoining raiyats with respect to the four parcels of the land on 13.12.90, much before the four pre-emption applications were filed. The fact that the four preemption applications have been filed by the same person does not make any difference in so far as the petitioner is concerned in defeating the claim of the pre-emptors. In fact, this question does not arise in the facts and circumstances of the present case because the purchasers had become adjoining raiyats much before the pre-emptor filed the applications. I, therefore, disagree with the view taken by the Board of Revenue.
22. In the result, these writ petitions are allowed. The impugned order dated 3.2.2000 (Annexure 3) is set aside. The four pre-emption applications stand rejected.