Patna High Court
Saryug Prasad Singh And Etc. vs Saryu Singh And Ors. on 23 February, 1985
Equivalent citations: AIR1986PAT7, AIR 1986 PATNA 7, 1986 BBCJ 581, (1986) BLJ 89, 1985 BRLJ 174
ORDER Satya Brata Sanyal, J.
1. Both these writ petitions are at the instance of the purchasers arising out of a proceeding under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, hereinafter to be referred to as "the Act". C.W.J.C. No. 1879 of 1979 has been preferred by the second purchaser of the land in question whereas C.W.J.C. No. 1885 of 1979 has been preferred by the first purchasers. In both these writ petitions what is sought to be quashed is an order passed by the Additional Member, Board of Revenue, on 19-5-1979 allowing preemption of the land in question.
2. The short facts are as follows. On 1-6-1974 one Rajamangal Sao sold for a sum of Rs. 3000/- plot Nos. 2277, 2289 and 2292 to one Radhey Shyam Singh, who is respondent No. 12, along with his two brothers, respondents 13 and 4, in C.W.J.C. No. 1879 of 1979, who are petitioners in C. W.J.C. No. 1885 of 1979. On the same date Rajmangal Sao sold four other plots bearing nos. 2285, 2299, 2302 and 2308 to the same persons for a sum of Rs. 3000/-. On 12-8-1974 Radhey Shyam Singh and his two brothers Awadhesh Kumar Sharma and Nand Kishore Sharma (petitioners in C.W.J.C. No. 1885 of 1979) sold away all the plots acquired by them on 1-6-1974 to Saryug Prasad Singh (petitioner in C.W.J.C. No. 1879 of 1979) for a sum of Rs. 10,000/-. The registration of the first two sale deeds was completed, as envisaged under section 60 of the Indian Registration Act, on 9-11-1974. It may be stated here that the second sale deed dated 12-8-1974 was presented for registration on the very same date under the Indian Registration Act but it is said registration completed after the filing of the application for pre-emption.
On 24-11-1974 an application for preemption under Section 16(3) of the Act was filed against the first purchaser Radhey Shyam Singh and two others impleading the second purchaser as party to the proceeding. The amount of compensation deposited was on the basis of the valuation of 1-6-74, namely, Rs. 6000/-, with an additional sum of Rs. 600/-The second consideration amount and compensation thereof was not deposited. As a matter of fact, pre-emption was really claimed against the first purchasers.
3. The learned Land Reforms Deputy Collector allowed the application for preemption but the order was set aside on appeal by the Additional Collector. As against the decision of the Additional Collector the pre-emptor took a revision before the Additional Member, Board of Revenue, who restored the order of the Land Reforms Deputy Collector by reversing the judgment of the Additional Collector. The learned Additional Member, Board of Revenue, held that the appeal by the second purchaser was not maintainable. He further held that the second sale deed dated 12-8-1974 having not attained finality in terms of Sections 60 and 61 of the Indian Registration Act following the decision of Hiralal Agarwal v. Rampadarath Singh, AIR 1969 SC 244 observed that the transfer to the second purchaser was not complete when the application for pre-emption was made. Therefore, the title remained with the first purchasers and it was quite justified to allow pre-emption against Radhey Shyam Singh and others. It was further held that the pre-emptors are members of joint family and they are adjacent to all the plots transferred.
4. Mr. Sudhir Chandra Ghose, learned Senior Counsel appearing in these cases, contended that the first purchasers having already washed off their hands by their transfer dated 12-8-74 prior to the application for preemption and the pre-emptors having not deposited the consideration amount of the second transfer and compensation thereof, the petition for pre-emption was not maintainable. He further submitted that the pre-emption is a very weak right and a purchaser can always forestall an application for pre-emption, if that can be done in law. In the instant case it has so happened. His next submission is that in an application for preemption it is only the second transferee, namely, the petitioner in C.W.J.C. No. 1879 of 1979, who had acquired valid title by virtue of Section 47 of the Indian Registration Act as a result of his purchase earlier than the application for pre-emption, was the only competent person to transfer the property to the pre-emptors and restore possession to them but for obtaining the said relief the compensation thereof, that is, Rs. 11,000/-, ought to have been deposited in the Treasury. He also contended that the Additional Member, Board of Revenue, was absolutely wrong to observe that the second purchaser had no right to prefer an appeal even though he was a party to the proceeding and he was going to be ultimately affected by the order passed Nobody appeared for the pre-emptors. Mr. Shivanandan Roy submitted that he has no instruction in the cases. The cases, therefore, have to be heard ex parte.
5. I may at once dispose of the last point of Mr. Ghose by referring to the provisions of section 30 of the Act. It envisages that an appeal can be filed from any final order passed by the Collector under the Act. Petitioner Saryug Prasad Singh of C.W.J.C. No. 1879 of 1979 being a party to the proceeding under Section 16(3) of the Act was entitled to lay an appeal before the Additional Collector as well as to move this Court for the relief sought for. The judgment of the Additional Member, Board of Revenue, on this score is vitiated by error of law apparent on the face of it.
6. 1 will now take up the other two points of the learned counsel together. In the case of Sudama Devi v. Rajendra Singh, (AIR 1973 Patna 199) it was observed that the law of preemption engrafted in Section 16(3) of the Act is of weaker nature than even the customary lawof pre-emption. It was further held that no order of pre-emption can be made against the original transferee if he had transferred the land to another person before the filing of the application for pre-emption. It is. therefore, clear that the application for pre-emption as against Radhey Shyam Singh and others could not have been filed as they had already transferred the land in question by execution and presentation of the document for registration on 12-8-74 whereas the application for pre-emption was filed on 24-11-1974, The question, however, would be different had the second transfer been made after the filing of the application for pre-emption. In that event it would have been hit by the doctrine of lis pendens. In paragraphs 12, 13 and 14 Untwalia, J. speaking for the Court, dwelt upon a similar situation where even though the second transferee executed and presented for registration prior to the filing of the preemption petition, what would be its effect in view of the decision of the Supreme Court in Hiralal Agarwal's case, (AIR 1969 SC 2441 (supra). My Lord Untwalia, J. distinguished Hiralal Agarwal's case laying down the point of time when the application under Section 16(3) of the Act could be made and when the right therefor arises. After having so observed, my Lord stated that the doctrine of lis pendens is altogether a different thing by observing :
"If a sale deed is executed before the filing of the suit but is registered later then such a transfer is not pendente lite, the transferee became the owner of the property, in view of the provision of law contained in Section 47 of the Registration Act, prior to the filing of the suit."
7. Applying the principle aforesaid, it is manifest that the transfer to Saryug Prasad Singh, if not farzi and Shyam, is not hit by the doctrine of lis pendens. It is a good transfer. No order, therefore, of pre-emption under Clause (iii) of Section 16(3) can be made against the original purchasers, namely, Radhey Shyam Singh and others as the order would be futile and infructuous, they having lost their title to the property. A claim for pre-emption, therefore, ought to have been made against Saryug Prasad Singh, the subsequent purchaser, at the proper time by depositing the proper sum for obtaining the relief of preemption. The pre-emptors have defaulted on both the counts, namely, the application was premature because the registration of the second purchase was completed much later under Section 60 of the Transfer of Property Act. Kurther the deposit in the challan is of a sum of Rs. 6.000/- and not Rs. 11.000/-.
I, therefore, hold that the order of the Additional Member, Board of Revenue, is patently wrong and has to be quashed and that of the learned Additional Collector has to be restored dismissing the application for pre-emption.
8. In the. result, both the writ petit ions are allowed, the orders contained in Annexures I and 2 passed by the Additional Member, Board of Revenue as well as the orders in Annexures 5 and 6 passed by the Land Reforms Deputy Collector in both the applications are quashed and those of the Additional Collector contained in Annexures 3 and 4 in both the application's are restored. The application for pre-emption has no merit and is accordingly dismissed. There will be no order as to costs.