Patna High Court
Phulena Prasad vs Jagdish Choudhary And Ors. on 26 February, 1969
Equivalent citations: 1969(17)BLJR569
JUDGMENT K.B.N. Singh, J.
1. In this application under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for quashing the order of the Additional Member, Board of Revenue, Bihar, dated the 17th May, 1967 (Annexure 'C') as also the order of the Commissioner of Tirhut Division, Muzaffarpur, dated the 15th May, 1966 (Annexure 'B'), dismissing the petitioner's application under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act), and for issue of a writ of mandamus directing opposite party Nos. 1 and 2 to execute a sale deed in respect of the land in question in favour of the petitioner.
2. By a registered sale deed dated the 21st August 1963, Surendra Prasad (opposite second party) transferred 10 dhurs of land of survey plot No. 470 of village Raipur, Police station Pupri, District Muzaffarpur, for a sum of rupees three hundred to Jagdish Choudhury and Vijay Kumar Choudhury (opposite first party), who according to the petitioner, are neither co-sharers nor Raiyats holding lands adjoining the transferred land. The petitioner, who is a co-sharer Raiyat of survey plot No. 470 filed an application on the 13th November, 1963, under Section 16(3) of the Act before the Collector of Muzaffarpur, praying that the transferees be directed to re-transfer that land to the petitioner. Along with his application, he deposited rupees three hundred, the consideration amount of the sale deed as also Rs. 30/- being ten per cent of the consideration amount, as prescribed, with a certified copy of the sale deed. It was also averred in the application filed by the petitioner that the transferees were neither co-sharers nor Raiyats holding land adjoining the transferred land.
3. The transferees, opposite first party, filed objection and denied that the petitioner was a co-sharer of plot No. 470 and urged that as the plot in question was a homestead land, the provisions of the Act had no application. They further claimed that they have land in plot No. 469, which is on the northern boundary of plot No. 470, and they also hold land in plot Nos. 108 and 109 which are to the immediate west of the land sold to them. The opposite party also contended that they have taken settlement of plot No. 1002, in respect of which rent has been fixed in their favour on the 14th. October, 1963, by the State of Bihar. This plot No. 1002 is a plot number of the recent survey. It may be stated here that admittedly old survey plot No. 470 has been split up into four new survey plot Nos. 998, 999, 1000 and 1001, out of which, plot Nos. 998, 999 and 1000 have been recorded as Makan whereas plot No. 1001 has been recorded as Bhith. It is not disputed that a portion of recent survey plot No. 1001 has been transferred by the impugned sale deed to the opposite first party. The Collector allowed the application of the petitioner and found that the transferees, opposite first party, were neither co-sharers of the land sold nor they had been able to prove that they are Raiyats of land in the Vicinity of the land sold. He also found that the petitioner is a co-sharer of survey plot No. 470, inasmuch as the southern portion of the land belongs to him. It may be stated that this southern portion of plot No. 470 has been renumbered in the recent survey as plot No. 998, 999 and 1000. He also found that the disputed land is an agricultural land and, therefore, the provisions of the Act applied. On these findings, he allowed the application of the petitioner and directed the opposite first party to reconvey the land to the petitioner within thirty days by his order dated the 10th February, 1966 (Annexure 'A').
4. On appeal by the opposite first party, the Commissioner allowed the appeal and dismissed the application of the petitioner under Section 16(3) of the Act, by his order dated the 15th May, 1966 (Annexure 'B'). Against the order of the Commissioner, the petitioner filed an application before the Board of Revenue, Bihar, which was heard by the Additional Member, who dismissed the revision application by his older dated the 17th May, 1967 (Annexure 'C'). Thereafter, the petitioner has filed the present writ application.
6. Mr. Baidyanath Prasad (No. 1), learned Counsel for the petitioner, has urged that the Commissioner and the Board were in error in holding that the transferees were Raiyats of adjoining land, having taken settlement of plot No. 1002, and, therefore, the petitioner had no right to file an application under Section 16(3) of the Act. He further urged that the settlement of plot No. 1002 on the 14th October, 1968, i.e. about two months after the sale in question, could not defeat the petitioner's right of preemption under Section 16(3) of the Act. I think, there is substance in the submission of learned Counsel for the petitioner.
7. On a reference to the order of the learned Commissioner (Annexure 'B') it will appear that he was of the view that although the transferees were found to be in possession of plot No. 1002 and rent was fixed in their favour on the 14th October, 1963, they could not be deemed to be trespassers two months earlier than this date, and plot No. 1002 being adjacent west of plot No. 1001, he allowed the appeal. The petitioner's revision application against the order of the learned Commissioner was dismissed by the Board of Revenue.
8. It will be useful to refer to clause; (i) of Sub-section (3) of Section 16 of the Act, which reads thus:
(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 of the transferor or any Raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document of 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:
Provided that no such application shall be entertained by the Collector unless the purchase-money together with a sum equal to ten per cent thereof is deposited in the prescribed manner within the said period.
A reference to the aforesaid provision of the Act it is apparent that the right to file an application for preemption accrues to a co-sharer or a Raiyat of adjoining land, only when the transfer has been made to any person other than a co-sharer or a Raiyat of an adjoining land. It is not the, case of the opposite first party that they are co-sharers of the transferred land. The question arises, whether they are Raiyats holding lands adjoining the transferred land. The term 'Raiyat' has been defined in Section 2(k) of the Act, as follows:
'Raiyat' means primarily a person who has acquired a right to hold land for the purpose of cultivating it by himself, or by members of his family or by hired servants or with aid of partners, and includes also the successors-in-interest or persons who have acquired such a right "and includes, in the district of Santal Parganas, a village Headman in respect of his private land, if any, but does not include in the areas to which the Chotanagpur Tenancy Act, 1908 (Bengal Act VI of 1908), applies, a Mundari, Khunt-kattidar or a Bhuinhar;
Thus, a 'Raiyat' as defined in the Act is a person who has acquired a right to hold land for the purpose of cultivation by himself or by others on his behalf. A question arises, whether the. opposite first party have acquired the right to hold plot No. 1002 for the purpose of cultivation, on the date of sale, i.e. the 21st August, 1963. The opposite first party were found in possession of plot No. 1002 on the 14th October, 1963, and rent receipts issued in their favour. So from that date they can be taken to have acquired right to hold the land for purpose of cultivation. There is no evidence of any prior settlement, nor there is any finding to that effect. Even if the opposite, first party were in possession of plot No. 1002 on the date of the sale, as presumed by the learned Commissioner, which fact has not been substantiated; by mere possession, they had not acquired any right to hold the land for the purpose of cultivation to be a 'Raiyat' within the meaning of the definition of the word 'Raiyat' under Section 2(k) of the Act. A person can be in possession of any land without having any right to hold that land for the purpose of cultivation, Thus, the opposite first party could, by no means, be paid to be "Raiyats" of plot No. 1002 on the date of the sale, (the 21st August 1963), so as to defeat the right of the petitioner to maintain his application for pre-emption under Section 16(3) of the Act. The learned Commissioner, therefore, was clearly in error in holding the opposite first party, to be. 'Raiyats' of the adjoining land from the mere fact of their being in possession of plot No. 1002 on the date of the transfer, which also, as already observed, is a presumption, without proof. The question whether they will be considered trespassers on an earlier dale or not, in view of the subsequent settlement, is not a relevant consideration, as thought by the learned Commissioner.
9. Learned Additional Member, Board of Revenue, in paragraph 3 of his resolution, seems to have thought that the question for consideration before him was "whether, in view of opposite first party getting status as a tenant of adjoining land after the execution of the registered sale deed on 21st August, 1963, he could come up with a claim under Section 16(3) of the Act" and answered the question in the affirmative, and held as follows:
It has been held above that if a party were to become either a co-sharer or a tenant of an adjoining land during the period of three months after the date of registration of the deed of transfer, the party was entitled to make an application under that section for re-conveyance.
In the circumstances, the petition is dismissed.
Thus, from the aforesaid observations, it is apparent that the learned Additional Member, Board of Revenue, was under some confusion regarding the point at issue, while answering the question. The question that arose for consideration was not whether by subsequent purchase the opposite first party could maintain their application under Section 16(3) of the Act, but the question was, whether the opposite first party were 'Raiyats' of the adjoining land so as to debar a co-sharer or a Raiyat of adjoining land from claiming pre-emption under Section 16(3) of the Act. Subsequent acquisition of adjoining land within the period of limitation by any person will not make him a 'Raiyat' of the adjoining land on the date of the transfer, so as to defeat the rights of pre-emption under Section 16(3) of the Act of those who were co-sharers or adjoining Raiyats of the land in question on the date of sale. The learned Additional Members. Board of Revenue, presumably, thought otherwise in dismissing the application of the petitioner and his order cannot be sustained and has to be quashed. Mr. Ghose, on behalf of the opposite first party, has submitted that the aforesaid observation of the Board is based on certain observations of their Lordships in the case of Rajkishore Singh v. Bhubneshwuri Singh 1968 B.L.J.R. 33. There is no substance in the submission of the learned Counsel, as the aforesaid case does not support the observations of the learned Additional Member, Board of Revenue. In that case it was held that the right of an applicant under Section 16(3) of the Act could not be defeated by a subsequent purchaser who has become a Raiyat of an adjoining land beyond the period of limitation of three months for filing an application under the said Act. That case is no authority for the proposition that if any person becomes a raiyat within the period of limitation, he could maintain an application under Section 16(3) of the Act. On the other hand, their Lordships were careful in observing as follows:
On the facts of this case it is unnecessary to consider whether the right of pre-emption can be defeated if some other person becomes a raiyat of an adjacent land within the period of three months from the date of the transfer but after the date of the filing of application by another claimant of that right. This question is left open for consideration on a further occasion, if necessary.
It may be pointed out that the aforesaid decision instead of supporting the contention of Mr. Ghose or the view taken by the learned Additional Members, Board of Revenue, supports the view that I have taken, as will be apparent from the following observations of Narasimham, C. J.:
I may, however, indicate that in view of the clear provisions of Clause (ii) of Sub-section (3) of Section 16, which require the Court to give possession immediately to the person claiming the right of pre-emption without waiting for the disposal of his claim, and the further provision which requires payment of ten per cent of solatium to the transferee in the event of the eventual rejection of the claim, the intention of the Legislature seems to be that, on the very date of the transfer, the co-sharer of the land transferred or the raiyat of the adjacent land gets the right to claim pre-emption. That right cannot be defeated by any sub-sequent event.
10. Mr. Ghose has urged that the opposite first party are Raiyats of survey plot No. 469, and this plot has been re-numbered as plot No. 1003 which is adjacent north of the recent survey plot No. 1001, to which the disputed land appertains. , In the first instance, this point does not seem to have been specifically raised before the Commissioner or before the Board. Be that as it may, from the sale deed in favour of the opposite first party it is apparent that the portion of recent survey plot 110. 1001, out of which a portion only has been sold, is not contiguous to opposite first party's plot No. 1003, but is intervened by a portion sold to Ramchandra Choudhary, a recent purchaser. The recital of the boundary given of the land sold to opposite first party makes it clear, which may be mentioned below:
Original Survey No. 470, Present survey No. 1001.
N. Ramchandra Choudhary S. Phulena Prasad.
North to south 5 lagga.
E. Own (nij).
East to west 2 lagga.
W. Path (Rasta).
Original boundary of the entire plot:
N. Dhanushdhari Lal.
E. Mu. Party.
S. Own Bakasht (Nij Bakasht).
W. Path (Rasta).
From east-west of Rasta and the recent purchaser Ramchandra Choudhary's south.
11. It was also faintly urged by learned Counsel for the opposite first party that the Act is unconstitutional. This submission of the learned Counsel is also without any substance. Similar questions were raised in the aforesaid case and were rejected by their Lordships and the Act was held to be intra vires.
12. Mr. Ghose, appearing for the opposite first party, also urged that the land was a homestead one and Section 16(3) of the Act has no application and has relied on the fact that in the recent survey, plot Nos. 998, 999 and 1000 have been recorded as Makan, It may, however, be pointed out that plot No. 1001, to which the disputed land appertains, has not been recorded as Makan, but has been recorded as Bhith land. To the same effect is the description of the land in the sale deed in favour of the opposite first party. Thus, it is apparent that the disputed land is not a homestead. Besides that, the word 'land' has been defined under Section 2(f) of the Act to include 'homestead of a landholder', and "land-holder" has been defined to mean "a person who holds land as a Raiyat or as an under-Raiyat and includes a mortgagee of land with possession." In the instant case, it is not the case of the opposite first party that their vendor, opposite second party, is not a "Raiyat" of the land sold. That being the position, the provisions of Section 16(3) of the Act are attracted even if the disputed land was homestead one. I am conscious of the decision of this Court in the case of Mohammad Yasin v. Abdul Rauf and Ors. 1967 B.L.J.R. 49, where, on the findings arrived at by the learned Commissioner and the Board of Revenue, it was held that the Act was not applicable "to urban sites which are used for purely non-agricultural purposes.' That case related to a small parcel of land 10 dhurs in area, used purely for building site, in a town and on the findings, not used for agricultural or horticultural purposes, which is not the position in the present case. Thus, there is no substance in the submission of Mr. Ghose that the application of Section 16(3) of the Act is not attracted to the land in the instant case.
13. For the reasons stated above, the older of the learned Commissioner (Annexure 'B') and the order of the learned Additional Member, Board of Revenue, Bihar (Annexure 'C') are quashed. The result will be that the order of the Collector, allowing the application of the petitioner under Section 16(3) of the Act will be restored and the opposite first party (opposite party Nos. 1 and 2) are directed to execute a sale deed in respect of the land in question in favour of the petitioner within thirty days from today, as ordered by the learned Collector, failing which the learned Collector will proceed according to law for the execution of the necessary document. The writ application is accordingly allowed, but, in the circumstances, of the case, there will be no order as to costs.
B.N. Jha, J.
14. I agree.