Patna High Court
Smt.Shanti Devi vs The State Of Bihar & Ors on 15 November, 2010
Author: Birendra Prasad Verma
Bench: S.K.Katriar, Birendra Prasad Verma
LETTERS PATENT APPEAL No.263 OF 2005
********
Against the judgment and order dated 09.02.2005
passed in C.W.J.C.No. 9827 of 2000 by a learned
Single Judge
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Smt. Shanti Devi Wife of Nand Kishore Singh, resident of
Village- Banwar Bangara, P.O. Daudpur, P.S. Daudpur,
District-Saran - Appellant.
Versus
1. The State of Bihar.
2. The Additional Member, Board of Revenue, Bihar,
Patna.
3. The Additional Collector, Saran, Chapra
4. The Deputy Collector Land Reforms, Saran, Chapra
5. Baij Nath Singh @ Baidyanath Singh son of late
Gajadhar Singh,
6. Tarkeshwar Nath Singh son of late Ram Narayan
Singh.
Both residents of village- Banwar Bangara, P.O.-
Daudpur, P.S.- Daudpur, District -Saran.
7. Smt. Muneshwari Devi wife of Prabhu Nath Singh,
resident of village- Lakat Chapra, P.O. Jojian, P.S.
Rasulpur, District- Saran -----Respondents.
*********
For the Appellant: M/S M.N.Parbat with Praveen
Prabhkar, Advocates.
For Respondent Nos. 5 & 6: M/S Dhruv Prasad with
Mukesh Prasad No.2 and Revati Kant
Raman, Advocates.
For the State : Mr. Krishna Chandra, A.C. to S.C.-24.
********
PRESENT
THE HON'BLE MR. JUSTICE S.K.KATRIAR
THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA
B.P.Verma,J: This appeal under Clause 10 of the Letters Patent of
the High Court of Judicature at Patna arises 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
referred to as the "Land Ceiling Act"). The appellant herein is
aggrieved by the order dated 09.02.2005, passed in C.W.J.C.No.
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9827 of 2000, by a learned Single Judge, whereby while allowing
the aforesaid writ petition filed on behalf of respondent nos. 5 and
6 herein, their claim of pre-emption with respect to vended lands
has been allowed, after setting aside the order dated 03.08.2006
(Annexure-6), passed by the learned Additional Member, Board of
Revenue, Bihar, Patna.
2. The relevant facts essential for disposal of the present
appeal are portrayed in short hereinafter. Lands of Plot No. 39 and
40, appertaining to Khata No. 192, area 1 katha 10 dhurs, situate
at village- Banwar Bangara, P.O. Daudpur, P.S. Daudpur, District-
Saran (Bihar), are the subject matter of dispute in the present
proceeding and shall be referred to as the "lands in dispute"
hereinafter. The appellant herein is the purchaser of the lands in
dispute. Respondent nos. 5 & 6 are the pre-emptors/heirs of
original pre-emptor, and respondent no. 7 is the vendor, whereas
respondent nos. 1 to 4 are the official respondents.
3. Respondent no.7, Smt. Muneshwari Devi, claiming to
be the owner of the lands in dispute, sold the same to the
appellant herein by executing a sale deed dated 07.06.1994, for
consideration amount of Rs. 10,000/-. The aforesaid sale deed
dated 07.06.1994, was duly registered on 29.10.1994.
Respondent no. 5, Baij Nath Singh @ Baidyanath Singh, and one
Ram Narayan Singh, father of respondent no.6, Tarkeshwar Nath
Singh, jointly filed an application under section 16(3) of the Land
Ceiling Act on 13.12.1994, in the court of the learned Deputy
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Collector, Land Reforms, Sadar, Chapra, claiming their right of
pre-emption over the lands in dispute on the ground of being co-
sharers of the vendor- respondent no.7, as also being the
boundary raiyats of the vended plots. On the basis of aforesaid
application, Land Ceiling Case No. 28 of 1994-95, was registered
and after hearing the parties including the appellant herein, claim
of pre-emption was allowed by order dated 24.10.1996 (Annexure-
3), by the learned D.C.L.R., Sadar, Chapra, after recording a
finding of fact that the pre-emptors are the co-sharers of the
vendor of the appellant and they are also the boundary raiyats of
the vended plots. The appellant herein was directed to reconvey
the lands in dispute in favour of the pre-emptors by executing sale
deeds in their favour within a period of one month from that date.
4. The transferee- appellant herein, being aggrieved by the
aforesaid order dated 24.10.1996 (Annexure-3), preferred Land
Ceiling Appeal No. 24 of 1996, which was finally heard by the
learned Additional Collector, Saran at Chapra, and by his order
dated 22.04.1998 (Annexure-4), he dismissed the aforesaid
appeal, and affirmed the order passed by the learned D.C.L.R.
Thereafter the appellant herein filed Ceiling Revision Case No. 106
of 1998 before the Board of Revenue, Bihar, Patna, under the
provisions of Section 32 of the Land Ceiling Act, which was finally
heard by the learned Additional Member, Board of Revenue, Bihar,
Patna, who, by his order dated 03.08.2000 (Annexure-6), allowed
the aforesaid revision application and reversed the orders passed
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by the original authority as also the appellate authority, mainly on
the ground that, in the khatian, plot no. 40 has been recorded as
homestead land and in the boundary of plot no. 39 some houses
have been shown. It would be relevant to mention here that,
during the pendency of Revision Case No. 106 of 1998, Ram
Narayan Singh, one of the original pre-emptors, died and,
therefore, he was substituted by his son, the present respondent
no. 6, Tarkeshwar Nath Singh.
5. Respondent nos. 5 and 6 preferred C.W.J.C. No.9827
of 2000 before this Court with a prayer for setting aside the
revisional order dated 03.08.2000 (Annexure-6), passed by the
learned Additional Member, Board of Revenue, and for restoration
of the original order dated 24.10.1996 (Annexure-3), passed the by
learned Deputy Collector Land Reforms, Saran at Chapra, as also
the appellate order dated 22.04.1998 (Annexure-4), passed by the
learned Additional Collector, Saran at Chapra, allowing their claim
of pre-emption with respect to the vended lands. After hearing the
parties, a learned Single Judge, by the impugned order dated
09.02.2005, has allowed the aforesaid writ petition and has set
aside the order passed by the learned Additional Member, Board of
Revenue, Bihar, Patna. The writ Court has also restored the
original order as also appellate order, after recording a finding of
fact that the writ petitioners, respondent nos. 5 and 6 herein, are
the co-sharers of the vendor and they are also adjoining raiyats of
the vended plots. Hence the present appeal at the instance of the
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purchaser/vendee of the lands in dispute.
6. Mr. Mahesh Narayan Parbat, learned counsel
appearing on behalf of the appellant herein, has assailed the
impugned order on the following grounds:-
(A) The appellant herein is the lady and she has
purchased the lands in dispute for construction
of her house. Hence pre-emption application
should have been rejected.
(B) The lands in dispute have been recorded in the
khatian as the homestead land and have never
been used as agricultural lands. Hence, the pre-
emption application was not maintainable.
(C) The vendor of the appellant herein had acquired
the lands in dispute through a deed of gift
executed by her father on 26.07.1991
(Annexure-2) and the pre-emptors had
challenged the validity of the aforesaid deed of
gift by filing Title Suit No. 122 of 1994 and,
therefore, since the pre-emptors are not
accepting the right and title of the vendor-
respondent no.7, they were not legally entitled to
file the present pre-emption case.
7. Mr. Dhruv Narayan, learned Senior counsel
appearing on behalf of respondent nos. 5 and 6, has supported the
impugned order passed by the learned Writ Court and has further
urged that the points of law raised on behalf of the appellant
herein are not based on the of facts pleaded by the appellant either
before the authorities concerned or before the learned writ Court.
Hence, in his submission, points of law raised on behalf of the
appellant are not applicable and the present appeal is fit to be
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dismissed.
8. We have heard learned counsel for the parties at
length, and have perused the materials available on record. Before
adverting to the points raised by the parties for its decision, it
would be apt to mention the relationship between respondent nos.
5 and 6, i.e., pre-emptors at one hand, and respondent no.7, i.e.,
vendor at the other hand.
9. According to the admitted genealogy given by the
parties, one Gati Rai had two sons, namely, Nawrang Singh and
Briksha Singh. Rannu Singh son of aforesaid Nawrang Singh had
three sons, namely, Bindhyachal Singh, Gajadhar Singh and Ram
Narayan Singh. Respondent no.7, Muneshwari Devi (vendor) is the
daughter of aforesaid Bindhyachal Singh. Respondent no. 5, Baij
Nath Singh @ Baidyanath Singh is the son of aforesaid Gajadhar
Singh and respondent no. 6, Tarkeshwar Nath Singh is the son of
aforesaid Ram Narayan Singh. Therefore, admittedly respondent
nos.5 and 6 as also respondent no. 7 are the cousins and they all
are the descendants of their common ancestor, Rannu Singh, who
is admittedly one of the recorded raiyats in the revenue khatian.
From the pleadings of the parties, it is apparent that the aforesaid
Bindhyachal Singh, having no male issue, executed a deed of gift
dated 26.07.1991 (Annexure-2), in favour of his daughter,
Muneshwari Devi ( respondent no. 7), to the extent of 1/3rd share of
his joint family property including the lands in dispute . From
perusal of aforesaid registered deed of gift, it is apparent that in
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the east of the lands in dispute, Gajadhar Singh, father of
respondent no. 5, and in west of lands in dispute Ram Narayan
Singh, father of respondent no. 6, have been shown as the
boundary raiyats, and the relationship between the aforesaid
Bindhyachal Singh and father of respondent nos. 5 and 6 have
also been admitted.
10. In order to consider the claims of the parties, it is
relevant to quote section 16(3) of the Land Ceiling Act, which reads
as follows:-
"16 (3) (i) When any transfer of land is made
after the commencement of the 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 percent thereof is deposited in the
prescribed manner within the said period.
(ii) On such deposit being made the co-sharer
or the raiyat shall be entitled to be put in
possession of the land irrespective of the fact
that the application under clause (i) is pending
for decision:
Provided that where the application
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is rejected, the co-sharer or the raiyat, as the
case may be, shall be evicted from the land
and possession there of shall be restored to
the transferee and the transferee shall be
entitled to be paid a sum equal to ten percent
of the purchase money out of the deposit made
under clause(i).
(iii) If the application is allowed, the
Collector shall by an order direct the
transferee to convey the land in favour of the
applicant by executing and registering a
document of transfer within a period to be
specified in the order and, if he neglects or
refuses to comply with the direction, the
procedure prescribed in Order 21, rule 34 of
the Code of Civil Procedure, 1908 (V of 1908),
shall be, so far as may be, followed."
Section 2(ee) of the Land Ceiling Act defines "family" and Section
2(f) defines "land", which are quoted hereinbelow:-
"2[(ee) - "family" means and includes a person,
his or her spouse and minor children;
Explanation I.- In this clause the
word person includes any company, institution,
trust association or body of individuals whether
incorporated or not;]
[ Explanation II.- The personal law
shall not be relevant or be taken into,
consideration in determining the composition of
the family for the purposes of the Act;]
"2 (f) - "land" means land which is used or
capable of being used for agriculture or
horticulture and includes land which is an
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orchard, Kharhur or pasturage or 4[forest land or
5[also the land] perennially submerged under
water] or the homestead of land-holder;
Explanation I.- "Homestead" means
a dwelling house for the purpose of living or for
the purpose of letting out on rent together with
any courtyard, compound, attached garden,
orchard and out building and includes any out
building for the purpose connected with
agriculture or horticulture and any tank, liberty
and place of worship appertaining to such
dwelling houses.
1[Explanation II.- Land perennially
submerged under water shall not include
submerged in the bed of a river.]
11. Learned counsel for the appellant submitted that
the appellant being a lady and she having purchased the lands in
dispute for her homestead purposes, the pre-emption application
filed on behalf of respondent nos. 5 and 6 was not maintainable
and ought to have been rejected. He further submitted that out of
the two vended plots, plot No. 40 having been recorded as
homestead land, therefore, on that ground also the claim of pre-
emption made by respondent nos. 5 and 6 was not maintainable
with respect to aforesaid homestead lands. From a plain reading of
section 2(f) of the Land Ceiling Act, it is apparent that the land is
not confined to agricultural or horticultural land. Even homestead
of the land-holder qualifies as the land and the claim of pre-
emption with respect to such land cannot be legally rejected. A
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similar issue came up for consideration before a Full Bench of this
Court in the case of Syed Fakir Mohammad Vs. Sheikh
Salahuddin and others, 1975 PLJR-1, wherein it was held that
homestead of the land-holder is the land under the meaning of
section 2(f) of the Land Ceiling Act and the pre-emption
application against such land is maintainable. Again similar issue
came up for consideration before a Division Bench of this Court in
the case of Hiralal Chauhan vs. the State of Bihar & Ors, 2004
(2) PLJR-339, wherein it was clearly held that the homestead of a
landholder is under the purview of section 16(3) of the land Ceiling
Act. The land as defined under section 2(f) of the Land Ceiling Act
is not confined to agricultural or horticultural land alone, rather
the homestead of the landholder is under the sweep of the land. It
would be apt to quote relevant portion of paragraph-8 of the said
Division Bench judgment:
"the case of the petitioner is that he purchased
the land for constructing a house and, therefore,
being homestead it falls outside the purview of
section 16(3). Section 2 (f) of the Act defines „land‟
to mean "land which is used or capable of being
used for agriculture or horticulture and includes
land which is an orchard, kharhur or pasturage
or forest or even land perennially submerged
under water or the homestead of a land holder".
On a plain reading, it would appear, the
definition of land is not confined to agricultural or
horticultural land alone, orchard or forest land or
land perennially submerged in water and
homestead of land holder also come under its
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purview. The plea that the land was purchased
by the petitioner for constructing house is neither
here nor there as the purpose of purchase is not
relevant for determining the character of the land
or maintainability of application under section
16(3) of the Act. As a matter of fact, as seen
above, as per definition of the term, even
homestead of a landholder qualifies as land and,
therefore, even if it were true that the land in
question was a homestead land, the only relevant
question would be as to whether the person to
whom it belonged was landholder or not."
12. However, the matter would have been different if the
appellant would have pleaded as a matter of fact that she is the
landless lady and she or other member of her family including her
husband had no other land, except the lands in dispute purchased
by her. Learned counsel for the respondents has rightly pointed
out that no such pleading has been made either before the original
authority or even before this Court and in absence of such
pleading, the appellant cannot be permitted to take stand that she
has no other land, except the lands in dispute. In the same vein it
was urged that in fact the husband of the appellant is having other
homestead and agricultural lands. Learned counsel for the
respondents also contended that the appellant along with her
husband and other family members are living together at some
other lands. Lands held by the appellant herein or her spouse
shall be taken to be the lands of the family as defined under
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section 2(ee) of the Land Ceiling Act.
13. It is true that homestead of a landless purchaser is
not the land within the meaning of section 2(f) of the Land Ceiling
Act. If a landless purchaser is not given protection of law, then in
that case he/she cannot acquire any land even for homestead
purposes, since the claim of pre-emption made by a co-sharer or
boundary raiyat cannot be resisted by such landless purchaser.
That would certainly put a landless purchaser to an unjust and
inequitable position. Legislature has consciously not included the
homestead of landless purchaser within the sweep of section 2(f) of
the Land Ceiling Act. However, the appellant herein is not the
landless purchaser. No such plea was raised earlier before the
authorities under the Land Ceiling Act or before the Writ Court.
Therefore, the questions of facts, which have not been pleaded
before the authorities under the Land Ceiling Act or before the writ
Court, cannot be permitted to be raised for the first time in the
present appeal. Reference in this regard may be made to the
observations in Para-5 of a Full Bench Judgment of this Court in
the case of Ram Jiwan Singh vs. State of Bihar, 1969 PLJR 517
(FB).
14. In view of admitted relationship amongst respondent nos.
5 to 7, and in view of admission made in the deed of gift
(Annexure-2), executed by Bindhyachal Singh, uncle of
respondent nos. 5 and 6, in favour of his daughter, namely,
respondent no. 7, it is apparent that respondent nos. 5 and 6 are
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co-sharers of respondent no. 7. The facts that respondent nos. 5
and 6 are having their lands in adjacency of the vended plots, have
not been disputed even by the appellant herein. The appellant has
nowhere made any claim that she or her husband or any of her
family members was having any land in adjacency of the vended
plots. Apparently the appellant happens to be stranger to the
family of respondent nos. 5 to 7, and even if the right of pre-
emption is a weak right, then in that case also in view of mandate
of section 16(3) of the Land Ceiling Act, the claim of pre-emption
made on behalf of respondent nos. 5 and 6 has to be allowed. The
scheme and scope of right of pre-emption under the Punjab Pre-
emption Act (1 of 1993) came up for consideration before a
constitution Bench of the Supreme Court in the case of Shyam
Sunder vs. Ram Kumar, A.I.R. 2001 SC- 2472, wherein at
paragraph-18 it was held as follows:
"In modern time, the right of pre-emption
based on statutes is very much a maligned law.
During hearing of these appeals such rights
have been characterized as feudal, archaic and
outmoded and so on. But is origin which was
based on custom and subsequently codified
was out necessity of the then village community
and society for its preservation, integrity and
maintenance of peace and security. In changed
circumstances, right or pre-emption may be
called outmoded, but so long it is statutorily
recognized, it has to be given the same
treatment as any other law deserves. The right
of pre-emption of a co-sharer is an incident of
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property attached to the land itself. It is some
sort of encumbrance carrying with the land
which can be enforced by or against the co-
owner of the land. The main object behind the
right of pre-emption either based on custom or
statutory law is to be prevent intrusion of
stranger into the family holding or property. A
co-sharer under law of pre-emption has right to
substitute himself in place of stranger in respect
of portion of the property purchased by him
meaning thereby where a co-sharer transfers
his share in holding, the other co-sharer has
right to veto such transfer and thereby prevent
the stranger from acquiring the holding in an
area where law of pre-emption prevails. Such a
right at present may be characterized as
archaic, feudal and outmoded but this was law
for nearly two centuries either based on custom
or statutory law. It is in this background the
right of pre-emption under statutory law has
been held to be mandatory and not mere
discretionary. The Court has no option but to
grant decree of pre-emption where there is a
sale of a property by another co-sharer."
[ Emphasis added ]
15. The Apex Court, while dealing with a case under the
provisions of Land Ceiling Act, has recently held in the case of
Suresh Prasad Singh vs. Dulhin Phulkumari Devi, 2010 (2)
PLJR 167 (SC), that any co-sharer of the transferor has
statutory right of pre-emption under section 16(3) of the Land
Ceiling Act and he can claim reconveyance of the said land on
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the same terms on which it was transferred to a stranger to the
family. The authority under the Land Ceiling Act has no
discretion but to allow his application considering the
mandatory nature of the right of pre-emption conferred by
section 16(3) of the Act.
16. From the materials available on record, it is apparent that
the original authority as also the appellate authority, after
taking into consideration the facts pleaded by the parties, had
allowed the claim of pre-emption made by respondent nos. 5
and 6. The revisional authority had rejected the claim of pre-
emption only on the ground that one of the two vended plots
has been recorded in the khatian as homestead lands.
However, learned revisional authority has completely ignored
the mandate of section 2 (f) of the Land Ceiling Act, which
contemplates that homestead of the landholder is the land
within the purview of section 2(f) of the Land Ceiling Act.
Learned revisional authority has also not taken into
consideration the ratio laid down by a Division Bench of this
Court in the case of Hiralal Chouhan vs. State of Bihar
(supra), and by a Full Bench in the case of Syed Fakir
Mohammad Vs. Sheikh Salahuddin and others (supra), and
has apparently come to a wrong conclusion by reversing the
orders of the learned D.C.L.R. and learned Additional Collector.
The order of the revisional authority, being patently illegal, has
rightly been set aside by the learned writ Court.
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17. We find no infirmity in the order passed by the learned
Writ Court. We entirely agree with the conclusions arrived at by
the learned Writ Court. Hence this appeal fails and is
accordingly dismissed. In the facts and circumstances of the
case, there shall be no order as to costs.
( Birendra Prasad Verma, J.)
I agree.
S. K. Katriar,J.
( S. K. Katriar, J.)
Patna High Court, Patna.
Dated the 15th November,2010
BTiwary( AFR)