Patna High Court
Ram Briksh Yadav And Anr. Etc. vs State Of Bihar And Ors. on 25 February, 1993
Equivalent citations: AIR1994PAT156, AIR 1994 PATNA 156, (1994) 1 BLJ 625 1993 BBCJ 338, 1993 BBCJ 338
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. These two writ applications involving common question of fact and law are taken up for hearing together and are being disposed of by this common judgment.
2. These applications are directed against an order dt.8-8-1985 passed by Respondent No. 4, order dt. 9-8-1991 passed by Respondent No. 3 and the resolution dt. 27-7-1992 passed by Respondent No. 2 as contained in Annexures 1, 2 and 4 respectively whereby and whereunder an application for pre-emption filed by Respondent No. 5, Sita Ram Yadav was allowed.
3. The fact of the matter lies in a very narrow compass.
4. Respondents Nos. 9 and 10 purchased the land in question from Respondents Nos. 6 to 8 by reason of a registered deed of sale dt. 16-10-1973. Registration of the said document was completed in terms of Section 61 of the Registration Act on 22-11-1973. On 9-1-1974 Respondents Nos. 9 and 10 executed adeed of sale in favour of petitioners by virtue of two registered deed of sale for a consideration of Rs. 5,000/-. The said deeds of sale were presented for registration on 15-1-1974. On 15-1-1974 an application for pre-emption was filed by Respondent No. 5 in terms of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred as 'the said Act' for the sake of bravity), in respect of first deed of saledt. 16-10-1973. On 11-2-1974 the registration of the aforementioned two documents were completed. In the aforementioned proceeding under Section 16(3) of the said Act, Respondents Nos. 6 to 8 filed their show cause on 25-2-1974 wherein it was stated that they had sold the lands in favour of the petitioners. The said application for preemption was allowed by an order dt. 19-11-1974 by the Land Reforms Deputy Collector. An appeal was preferred as against the said order being Appeal No. 63 of 1974-75. One of the points taken before the Appellate Authority was that the subsequent purchaser, namely the petitioners of C.W.J.C. No. 8095 of 1992 had not been impleaded as a party therein.
5. The Appellate Authority thereafter set aside the aforementioned order dt. 19-11-1974 and remanded the matter back to the Land Reforms Deputy Collector with a direction that the subsequent transferee should also be impleaded as party. The Land Reforms Deputy Collector by an order dt. 8-8-1985 allowed the said pre-emption application holding, inter alia, therein that the deeds of sale executed by Respondents Nos. 9 and 10 in favour of the petitioners was a sham and farzi transaction and has been made to defeat the provisions of the Act.
6. Admittedly the petitioners did not prefer any appeal or revision as against the said order. However, Respondents Nos. 8 to 10 filed an appeal which was dismissed on 7-10-1985. Thereafter, the first purchaser filed a revision application impleading the writ petitioners as a party and the Member, Board of Revenue remanded the matter back to the Collector. The Collector again decided the application on merits and allowed the preemption application against which two revision applications were filed, one by the subsequent purchasers and another by the first purchasers. Both revision applications have also been dismissed. These two writ applications are directed against the aforementioned orders, C.W.J.C. No. 8095 of 1992 by the subsequent purchasers and C.W.J.C. 8736 of 1992 by the first purchasers.
7. Mr. Tara Kant Jha, learned counsel appearing on behalf of the petitioners has raised a short question in support of these applications. Learned counsel submitted that in view of the fact that Respondents Nos. 9 and 10 executed the said deeds in favour of the petitioners on 9-1-1974 although the said deeds were presented for registration on 15-1-1974, by reason of the provisions contained in Section 47 of the Registration Act, the title would pass on to the petitioners with effect from 9-1-1974 and thus the application for preemption under Section 16(3) of the said Act filed by Respondent No. 5 in respect of the deed of sale dt. 16-10-1973 was not maintainable. It has further been submitted that although at a subsequent stage, the petitioners were impleaded as party, no pre-emption has been claimed in respect of the deed of sale dt. 9-1-1974 nor the consideration amount has also the other amount as contemplated under the provisions of Section 16(3) of the Act as also Rule 19 of the Rules having not been complied in relation to the second sale deed the impugned orders cannot be sustained.
8. Learned counsel in support of his contentions relied upon the decision in the case of Smt. Sudlama Devi v. Rajendra Singh, AIR 1973 Pat 199, Sarjug Prasad Singh v. Saryu Singh, 1986 BBCJ 581, Jamuna Prasad v. Bhuneshwar Thakur, 1987 PLJR 251 : AIR 1988 Pat 113.
9. Sri Umesh Prasad Singh, learned counsel appearing on behalf of Respondent No. 5 (Pre-emptor), on the other hand submitted that as the second purchasers did not prefer any appeal or revision against the order dt. 19-11-1974, wherein it has been held that the subsequent deeds of sale were sham and farzi transactions, the said findings would operate as res judicata. Learned counsel submitted that the principles of res judicata would apply even at two different stages of the same proceeding. It was further submitted that in any event as the subsequent transferees had also been impleaded as parties at subsequent stage, no prejudice has been caused to them and as such the application for preemption has rightly been allowed.
10. Learned counsel in support of these contentions relied upon Division Bench decision of this Court in Ganesh Prasad v. State of Bihar, AIR 1985 Pat 309 and Fauzdari Choudhary v. Additional Member, Board of Revenue, 1992 BBCJ 679.
11. It has further been submitted that in any event as a finding of fact has been arrived at to the effect that the subsequent sates are sham and farzi transactions, the said finding of fact cannot be disturbed by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. It has been submitted that the original vendors are still fighting out the case and they claim to be in possession of the lands in question as would be evident from the extracts of memo of appeal which have been quoted in paragraph 12 of the counter-affidavit and on this ground too this Court should not exercise its discretion under Article 226 of the Constitution of India.
12. Mr. Tara Kant Jha, learned counsel appearing on behalf of the petitioners in reply submitted that in view of Rule 49 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rufes Or. XLI of the Civil P. C. is applicable and in that view of the matter the appellate and revision Court could have exercised its power under Order XLI, Rule 33 thereof. It has further been submitted that even a subsequent transfer in favour of son has been recognised by the Courts of law and in support of this submission learned counsel has relied upon a decision in Kuteshwar Choubey v. State of Bihar, 1979 Bihar Law Judgmental.
13. It has further been submitted that the findings of benami transaction arrived at by the concerned Respondents must be held to be bad in law inasmuch as the benami transactions are governed by the provisions of the Benami Transaction (Prohibition) Act, 1988. Learned counsel in support of this contention has relied upon a decision in the case of Bechan Chamar v. State of Bihar, 1991 (1) Bihar Law Judgement 708.
14. An application for pre-emption in terms of Section 16(3) of the said Act should be filed by a person claiming himself to be adjacent raiyat or co-sharer of the vendor upon complying with the conditions precedent therefor. Such an application has to be filed within three months from the date of registration of the deed in relation whereof the right of pre-emption is claimed. However, if prior to filing of the application for preemption the transferee transfers his right, title and interest in favour of third party, the preemption in respect of the second sale has also to be claimed unless the said subsequent transaction is held to be a sham and farzi one or hit by the doctrine of lis pendens.
15. This aspect of the matter has been considered by a Division Bench of this Court in Smt. Sudama Devi v. Rajendra Singh, AIR 1973 Pat 199. The Division Bench held that in terms of Section 47 of the Registration Act the subsequent transferee acquires title of the property from the date of execution of the document. The said subsequent transfer, however, would be subject to the doctrine of lis pendens.
16. The Bench, however, held as follows :
"I held following Hiralal AgarwaPs case that the latter was the date which was the starting point of the period of three months for the filing of the application under Section 16(3). But to apply the doctrine of lis pendens is a different thing. Here, cases have consistently taken the view, to which reference has been made earlier by me, that 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. No case taking a contrary view for the application of the doctrine of lis pendents was brought to our notice by learned counsel for respondents 1 to 7."
17. This aspect of the matter was again considered in Sarjug Prasad Singh v. Saryu Singh, 1986 BBCJ 581 : (AIR 1986 Pat 7), as also Parmeshwar Singh v. Sukhdeo Mahto, 1985 BBCJ 346.
18. In Jamuna Prasad v. Bhuneshwar Thakur, 1987 PLJR 251 : (AIR 1988 Pat 113), the Division Bench following the decision of the Supreme Court in the case of Ram Saran v. Domini Kuer, AIR 1961 SC 1747, held that once a registration is complete, in view of Section 47 of the Act, the registered document operates from the date of its execution.
19. It is, therefore, clear that in this c'ase, subsequent sale would not be hit by doctrine of lis pendens as Respondents Nos. 9 and 10 lad executed the two deeds of sale in favour of the petitioners on 9-1-1974 i.e. prior to the date of filing of the pre-emption application which took place on 15-1-1974. It may be reiterated that on 15-1-1974 itself the aforementioned deeds have been presented for registration. The petitioners of C. W.J.C. 8095 of 1992 were subsequently added as party in terms of the appellate order passed in Appeal No. 63 of 1974-75. The effect of such addition of party has now to be considered.
20. As noticed hereinbefore Sri Umesh Prasad Singh has relied upon a Division Bench decision in Ganesh Prasad v. State of Bihar, AIR 1985 Pat 309. In that case it was held :
"A pre-emption application is required to be filed against the first sale deed. The only thing which is required is that the vendee of the second sale deed ought to be added as a party in the pre-emption application. It is an admitted position that the petitioners in C.WJ.C. No. 72 of 1979 who are the subsequent purchasers have been added as parties in the pre-emption case. Therefore, in the present case, no prejudice will be caused to the subsequent purchasers. Hence, I hold that in a case of this type, it is not necessary to file a pre-emption application in respect of the subsequent sale deed which was not registered on the date of filing an application for pre-emption. It is also not necessary to file a preemption application against the subsequent sale deed as all the authorities have concurrently held that the subsequent sale deed is a sham transaction."
21. It is, therefore, clear that in that case the Authorities had held that the subsequent sale deed was a sham transaction. Apart from that fact in that case the earlier division Bench decision in Sudama Devi's case has not been taken into consideration at all. It is now well known that when there is a conflict between the two Division Bench decisions, the earlier shall prevail.
22. In Fauzdari Choudhary v. Additional Member, Board of Revenue, reported in 1992 BBCJ 679, again a learned single Judge "of this Court did not consider the earlier Division Bench decisions in Sudama Devi's case (supra). The learned single Judge in that case found himself bound by the decisions of the Division Bench in Ganesh Prasad case (supra) as also the decision of another Division Bench decision in Ram Chandra Yadav v. Anutha Yadav, 1971 BLJR 994. Ram Chandra Yadav's case (supra) had been taken note of in Sudama Devi's case and the same had been distinguished in the following terms :
"If the application is allowed then under Clause (iii) the Collector has to make an order directing 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 order has to be executed in the manner provided in Order 21, Rule 34 of the Civil P.C., which is a procedure for execution of a decree for specific performance of contract to sell. In a suit for specific performance of a contract of sale a decree for specific performance can be passed against the subsequent transferee except when he is a bona fide transferee for value without notice of the original contract (vide Section 27 of the Specific Relief Act, 1877, which corresponds to Section 19 of the Specific Relief (sic) Act, 1963). In Section 16(3), however, there is absolutely no provision made for making an order of preemption against a subsequent transferee on an application filed for pre-emption against the first transferee.
If the subsequent transferee is, in fact and in law, a transferee of the property in respect of which claim for pre-emption has been made then a question of his being a transferee with notice of the pre-emption application is not relevant in view of what I have said in my judgment in Ramchandra Yadav v. Anutha Yadav, 1971 BLJR 994. I have pointed out three situations there. If the transferee of the property transfers it to a second purchaser by a document executed and registered before the filing of the application, the second transferee gets a good title to the property and there is no question of his right being defeated by a subsequent application filed by the pre-emptor, as he.could not be presumed to have any knowledge of the application which may be filed in future. On the other side of the picture, the clear example is where the second sale deed is executed and registered after the filing of the application for pre-emption. In such a case the second transfer would be clearly hit by the doctrine of lis pendens engrafted in Section 52 of the Transfer of Property Act."
23. Sudama Devi's case, therefore, has taken into consideration all aspects of the matter including the provisions of Registration Act. The right of pre-emption is a very weak right which can be defeated by a subsequent transfer unless the same is hit by the doctrine of lis pendens or the second transfer is held to be a sham and farzi one.
24. The question now which arises for consideration in this application is as to whether the second sale was a sham or farzi transaction or not.
25. By an order dt. 8-5-1988 the Land Reforms Deputy Collector held that the transaction is a sham and farzi one and has been made in order to defeat the provisions of the Act.
26. As indicated hereinbefore Mr. Umesh Prasad Singh has relied upon paragraphs Nos. 7 and 11 of the revision application filed by the first purchasers which are as follows :
"That the purchasers from the petitioners are in possession of the lands and the alleged delivery of possession is on paper only.
That the deponent states that on 25-3-1974 the petitioners filed application before L.R.D.C. that they have constructed a house over the land purchased and they are still living in the same house. In the petition it was nowhere stated by the petitioners that they have transferred the land in favour of respondents Nos. 9 and 10. From the above quoted statements of the petitioners the conflict are apparent but it is admitted by the petitioners that the sale deed was during the pendency of pre-emption case and, therefore, they are bound under law 'to defend the subsequent purchaser."
27. It is, therefore, clear that it was not the case of the revision petitioners who are petitioners in C.W.J.C. No. 8736 of 1992 that they were themselves in possession of the lands in question but according to them their vendees were in possession. The said statements had been made only for the purpose of contradicting the statements that in fact the pre-emptors were in possession of the lands in question. The Member, Board of Revenue, however, did not consider the materials on records for the purpose of affirming the finding as to whether the transaction in question was sham or fraudulent or not. He merely held :
"The pre-emption application was filed on 15-1-74. The subsequent transactions by the petitioners were executed on 9-1-74 but they were registered on 11-2-74. Obviously, during the pendency of the pre-emption application, the two sale deeds have found to have been executed with a view to defeating the provision of the Act. They have also been found to be sham transactions. Therefore, the decision of the Collector and L.R.D.C. that O.P. No. 1 has valid claim of pre-emption is justified and sustainable in the eyes of law, specially in view of the fact that the subsequent transactions which were registered during the pendency of pre-emption application have been found to be made with a view to defeating the provisions of the Act and have also found to be sham and farzi transactions."
28. It is, therefore, clear that the Member. Board of Revenue has not taken into consideration the materials on records at all. The Additional Member, Board of Revenue has also not assigned any reason in support of his order. He merely affirmed the decisions of the Courts below without discussing and/or analysing the materials on records. Such a finding without considering the materials on records and without assigning any reason cannot be sustained in law.
29. It is true that the petitioners of C.W.J.C. No. 8095 of 1992 did not prefer any appeal against the order dt. 8-8-1985, but. admittedly the petitioners of C.W.J.C. No. 8736 of 1992 had preferred such an appeal. The said appeal having been allowed, the effect of the order dt. 8-8-1985 was wiped off. Further in terms of the Order XL1, Rule 33 of the Civil P.C. which becomes applicable by reason of Rule 49 of the said Rules, the Appellate Authority could pass such orders which would do complete justice to the parties.
Reference in this connection may be made to the case of Jai Prakash Jalan v. Ram-bilash Madan Copal reported in 1991 (2) PLJR 224, Chunni Singh v. Chanda alias Chandu Orann reported in 1993 (1) Bihar LJ 60.
30. In Chunni Singh's case (supra) it has been held as follows :
"In Mt. Parwati Kuer v. Manna Lal Khetan eported in AIR 1956 Pat 414, a Full Bench of this Court has held that if a suit is decreed as against various defendants, an appeal is main-tainable only at the instance of one or more of the defendants and the appellate Court in exercise of its power conferred upon it under Order XLI, Rule 33 of the Code of Civil Procedure would be entitled to grant relief in favour of a party who has not been impleaded in the appeal. This aspect of the matter has also been considered in Sudama Pd. Keshri v. Tapeshwar Sao reported in 1989 PLJR 819. It is true that such course of action has to be taken in exceptional cases, but the said principle has to be kept in mind for the purpose of consideration as to whether in such a case the entire appeal should be directed to be dismissed as having abated in its entirety. It may be found that as an exceptional measure, the Court may be in a position to exercise its discretion under Order XLI, Rule 4 read with Order XLI, Rule 33 of the Code of Civil Procedure to set aside the entire judgment and decree even in relation to those persons who had not preferred an appeal.
In Jai Prakash Jalan v. M. S. Ram Bilash Paswan reported in 1991 (2) PLJR 224, a Division Bench of this Court has held that the scope, object and purport of the provisions of Order XLI, Rule 33 is to do complete justice to the parties and the scope whereof has been expanded by reason of Code of Civil Procedure (Amendment) Act, 1976."
31. In that view of the matter, in my opinion, the principle of res judicata cannot have any application whatsoever in the facts and circumstances of the present case.
32. For the reasons aforementioned, these applications are allowed in part, and the matler is remitted to the Member, Board of Revenue for a fresh decision in accordance with law. Before the Member, Board of Revenue, the petitioners must produce the original deed of sale dt. 9-1-1974. The Member, Board of Revenue shall consider the documents as also the others inter alia for the purpose of coming to the conclusion as to whether the said deeds of sale are sham and farzi transfactions or not.
33. In the facts and circumstances of the case, there would be no order as to costs.
R.M. Prasad, J.
34. I agree