Patna High Court
Nand Kishore Pandey And Ors. vs P.P. Agarwal And Ors. on 23 December, 1970
Equivalent citations: AIR1972PAT389, AIR 1972 PATNA 389, 1972 BLJR 212 ILR (1971) 50 PAT 538, ILR (1971) 50 PAT 538
JUDGMENT Kanhaiyaji, J.
1. This is an application under Articles 226 and 227 of the Constitution to quash the order of the Board of Revenue dated the 16th October, 1968, passed in Case No. 208 of 1968 (Annexure '6') setting aside the order of the Additional Collector, Palamau, dated the 1st July, 1968 (Annexure '4') and restoring the order of the Sub-Divisional Officer, Daltongani, dated the 4th April, 1967 (Annexure '3') in an application under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962), hereinafter referred to as "the Act'.
2. Haricharan Pandey and Rajendra Pandey, respondents 4 and 5, by a registered sale deed dated the 2nd September, 1966, transferred 0.03 acres of plot No. 631 and 0.05 acres of Plot No. 632, both plots of Khata No. 59 of village Narsinghpur Pathra, Police Station Chainpur, District Palamau, for Rs. 2,000/- to the petitioners. Jai Shri Pandey, respondent No. 3, filed an application under Section 16 (3) of the Act against the petitioners and respondents 4 and 5 for the transfer of the lands to him on the terms and conditions contained in the sale deed. Jai Shri Pandey, respondent No. 3, claimed that 0.05 acres of plot No. 616 and northern portion of plot No. 616 measuring 0.15 acres belonged to him by virtue of a decision of Partition Suit No. 66 of 1949, and Plot No. 630 was acquired by him by a sale deed dated the 22nd November, 1964. These plots are adjoining the lands involved.
3. The claim of the petitioners, on the other hand, was that they were co-sharers in khata No. 59 and claimed plot No. 614 adjacent to the land involved in the case. The Subdivisional Officer found that the northern portions of plots 616 and 630 were contiguous south and west respectively of lands involved and that only a very small portion of plot No. 614 touched the southern portion of the said lands. He further held that the provisions of Section 36 (3) of the Act were applicable not to the khatas but to the plots. In this view of his findings, he allowed the claim of Jai Shri Pandey, respondent No. 3.
4. On appeal, the Additional Collector of Palamau differed with the view taken by the Subdivisional Officer. He held that the petitioners were the co-sharers of the transferors in the khata, and plot No. 614 was on southern portion of one of the plots covered by the impugned sale deed. In this view of the matter, the Additional Collector allowed the appeal and set aside the order of the Sub-Divisional Officer.
5. Jai Shri Pandey, respondent No. 3, filed an application under Section 32 of the Act in the Board of Revenue, Bihar, against the decision of the Additional Collector. The case made out by Jai Shri Pandey, respondent No. 3, before the Board was that plots 614 and 736 do not stand in the names of the petitioners inasmuch as plot No. 614 was purchased jointly by Gulab Pandey and Bigan Pandey alias Gupteshwar Pandey, father of the petitioners, from one Kesho Barhi by a registered deed dated the 17th January, 1949 and that plot No. 736 was also purchased by them on the 27th March, 1950. It was contended on behalf of the petitioners that as the plots stood in the name of their father jointly with Gulab Pandey, they had also acquired interest in the property. The Board held that the adjacent plots did not stand in the names of the petitioners and there was nothing to show that Bigan Pandey had directly or indirectly transferred the interest or recognised the interest of the petitioners in the two adjacent plots, and, as such, the claim of the petitioners of being adjoining raiyats-- co-sharers was rejected. The Board however, found respondent No. 3 an adjoining rai-yat/co-sharer, as he held portions of plots 613 and 616 adjoining which had been acquired by virtue of a decree in a partition suit.
6. Being aggrieved by this decision, the petitioners have filed the present application challenging the order passed by the Additional Member, Board of Revenue, Bihar, respondent No. 1.
7. One of the contentions raised on behalf of the petitioners was that the provisions of Section 16 (3) of the Act were not constitutional, as they offended the rights contained in Articles 19 (1) and 31 of the Constitution. This argument is not tenable, because the Act was one of the statutes included in the 9th Schedule of the Constitution (see item No. 26). Hence, by virtue of Article 31B of the Constitution, full validity has been given to this Act and its provisions against any challenge on the grounds of inconsistency or abridgement of any rights conferred by any provisions of Part III of the Constitution.
8. Mr. Jaleshwar Prasad then raised two contentions in support of the petition, namely, (1) that the petitioners' father had acquired plot No. 614 which is on the south of plot No. 632 and interest in Khata No. 59 by acquiring plot No. 736 on behalf of the joint family and, as such, the petitioners being members of the joint family, it must be presumed that they held interest in those two plots and were thereby adjoining raiyats and co-sharers of the disputed plots, and (2) that petitioners 2 and 3 were minors but they were described as majors in the petition filed by Jai Shri Pandey, respondent No. 3, and, therefore, the orders passed by the Revenue authorities were invalid,
9. Clause (i) of Sub-section (3) of Section 16 of the Act runs as follows:--
"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 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:
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."
It is clear from this that after the commencement of the Act when a transfer is made to any other 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 can make an application before the Collector fulfilling certain conditions for a direction to the transferee to convey the lands in favour of the applicant.
10. It is now a well-settled law that a Hindu, even if he be joint, may possess a separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth. Generally speaking, the normal state of every Hindu family is joint, but there is no presumption that a joint family possesses joint property. To render the property joint, the claimant must prove that the family was possessed of some property, with the income of which the property could have been acquired or from which the presumption could be drawn that all the property was purchased with the joint family funds: (See Articles 222 and 233 of Mulla's Principles of Hindu Law, Thirteenth edition). The contention of Mr. Jaleshwar Prasad that the petitioners should, in law, be deemed to have interest in the plots purchased by their father as member of the joint family is against the principles of law. Bigan Pandey, the father of the petitioners, has sworn the affidavit in support of the petition filed in this Court, but he himself did not file the case for pre-emption. There is nothing to show that he had directly or indirectly transferred the interest or recognised the interest of the petitioners up to the stage the matter was heard by the Board of Revenue. It has been rightly contended by Mr. Kailash Roy, appearing on behalf of Jai Shri Pandey, respondent No. 3, that such questions requiring investigation of facts should not be allowed to be raised for the first time by this Court in its writ jurisdiction.
11. The claim of the petitioners cannot be accepted on the ground that they held plot No. 736 of Khata No. 59. I have already shown that this plot also does not stand in their name. Even if they had interest in the khata by holding plot No. 736, the argument would have been untenable, because Section 16 (3) of the Act, in my opinion, applies not to the khatas but to the plots. Many persons can have lands in the same khata and thereby all of them cannot claim to be co-sharers having contiguous lands. The view taken by the Additional Collector that the clause "adjoining land" goes with the words "a raiyat" and not with a co-sharer is not correct. The words "a co-sharer or a raiyat of adjoining land" are clear to indicate that both of them refer to lands and not to khatas. It will be noticed that Section 16 (3) of the Act refers to land transferred without any mention to khata. The clause contemplates co-sharer of the land and not of the khata. This is apparent on a plain reading of the section. Therefore, assuming that the petitioners were co-sharers in the khata, it must be held that yet they had no right to resist the claim of Jai Shri, Pandey, respondent No. 3.
12. The point raised that petitioners 2 and 3 were minors but they were described as majors, and, therefore, the orders passed by the revenue authorities were invalid has been taken for the first time in this Court. Mr. Kailash Roy drew our attention to paragraph 3 of the counter-affidavit, wherein it is stated that petitioners 2 and 3 appeared before the Sub-divisional Officer, Daltonganj, as majors executing power in favour of their lawyer in their own pen. They preferred an appeal before the Additional Collector as majors, and they also appeared before the Additional Member, Board of Revenue, as such and did not raise the question of minority. This contention raised on behalf of the petitioners has been fully controverted on behalf of respondent No. 3. In my opinion, determination of such controversial facts is outside the scope of writ jurisdiction.
13. For the foregoing reasons, as I have shown above, there is no merit in any of the contentions raised on behalf of the petitioners. As a result, the application fails and is dismissed; but, in the circumstances of the case, there will be no order for costs.
S.N.P. Singh, J.
14. I agree.