Jharkhand High Court
Awadh Kishore Prasad & Another vs The State Of Jharkhand & Others on 14 February, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
W.P. (C) No. 4382 of 2012
Awadh Kishore Prasad & Another .... .... Petitioners
Versus
The State of Jharkhand & Others ... .... Respondents
CORAM : HON'BLE MR. JUSTICE KAILASH PRASAD DEO
(Through :- Video Conferencing)
............
For the Petitioners : Mr. Umesh Prasad Singh, Sr. Advocate.
Mr. Ravi Prakash Mishra, Advocate.
For the Respondent / State : Mr. Aditya Raman, A.C. to
Mr. Manoj Kumar, G.A.-III.
For the Respondent Nos. 2 & 3 : Mr. Arbind Kumar Sinha, Advocate.
For the Respondent No.4 : Mr. Namit Kumar, Advocate.
........
16 / 14.02.2022.
Heard, learned senior counsel, Mr. Umesh Prasad Singh assisted by learned counsel for the petitioners, Mr. Ravi Prakash Mishra, learned counsel for the respondent / State, Mr. Aditya Raman, A.C. to Mr. Manoj Kumar, G.A.-III, learned counsel for the respondent nos. 2 & 3, Mr. Arbind Kumar Sinha and learned counsel for the respondent no. 4, Mr. Namit Kumar.
The writ petitioners namely, (1) Awadh Kishore Prasad, son of Late Ram Prasad Sao and (2) Birendra Kumar, son of Awadh Kishore Prasad have jointly preferred this writ petition.
However, it is submitted by the learned senior counsel appearing for the petitioners, that petitioner no. 1, Awadh Kishore Prasad has lost interest in the writ petition and he is only appearing on behalf of petitioner no. 2, Birendra Kumar, son of Awadh Kishore Prasad as such, learned senior counsel has submitted that writ petition is not being pressed by petitioner no. 1, Awadh Kishore Prasad.
Learned senior counsel, Mr. Umesh Prasad Singh, appearing on behalf of petitioner no. 2 has submitted that the impugned order passed by the Land Reforms Deputy Collector, Chhattarpur, Palamau in terms of order dated 29.09.2008, passed in L.C. Case No. 05/2006 has been affirmed by Additional Collector, Palamau, in Land Ceiling Appeal No. XV/22/2008-09, and the same has also been affirmed by the Member, Board of Revenue, 2 Jharkhand, in terms of order dated 10.09.2011, passed in Revision Case No. 26/2010, which have been assailed in this writ petition by the petitioner no. 2, Birendra Kumar, on the ground that Awadh Kishore Prasad has purchased the land by virtue of sale deed dated 31.07.2006 and subsequently, he sold the land to his son Birendra Kumar on 11.10.2006. A pre-emption application was filed on 31.10.2006, which has been brought on record as Annexure-1 to the writ petition, whereby two persons namely, (1) Yadu Nandan Mistry, son of Faudar Mistry and (2) Bigan Mistry, son of Ramdhyan Mistry, have claimed pre-emptory rights over the land, though the application was not filed in compliance of Section 16 (2) (iii) of the Bihar Land Reforms (Fixation of Ceiling and Acquisition of Surplus Land) Act, 1961, which reads that no land shall be transferred, exchanged, leased, mortgaged, bequeathed or gifted without a document registered in accordance with the provisions of the India Registration Act, 1908 (XVI of 1908) and that too it was not within a period of three months from the date of registration as initially sale deed which was executed in favour of the petitioner no. 1 Awadh Kishore Prasad was on 31.07.2006, whereas such application was filed on 31.10.2006. Apart from that, they have not challenged the sale deed executed by father Awadh Kishore Prasad (petitioner no. 1) in favour of his son Birendra Kumar (petitioner no. 2) on 11.10.2006 by not depositing 10% of the sale deed amount as required under Form-13.
Learned senior counsel, Mr. Umesh Prasad Singh, appearing on behalf of petitioner no. 2 has further submitted that once the partition has been done in the family, then all sons are co-tenants, they cannot claim to be a co-sharers of the property.
Learned senior counsel, Mr. Umesh Prasad Singh, appearing on behalf of petitioner no. 2 has further submitted, that it is misconceived proceeding, which has been initiated without impleading the son to be a party and without challenging the sale deed executed on 11.10.2006 by Awadh Kishore Prasad in favour of Birendra Kumar, as such, the said proceeding is bad in law.
Learned senior counsel, Mr. Umesh Prasad Singh, appearing on behalf of petitioner no. 2 has further submitted, that Section 21 of the 3 Limitation Act, which reads that where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party.
Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.
In this regard, learned senior counsel for the petitioner no. 2 has placed reliance upon the judgment passed by the Apex Court in the case of Ramprasad Dagaduram Vs. Vijay Kumar Motilal Jirakhanwala & Others reported in AIR 1967 SC 278.
Learned senior counsel, Mr. Umesh Prasad Singh, appearing on behalf of petitioner no. 2 has further submitted, that by way of supplementary affidavit, it has been brought on record that respondent nos. 2 & 3 have claimed themselves to be co-sharers or co-tenants or adjoining raiyats of Plot No. 32, though they have themselves executed seven sale deeds in favour of other persons, as such, for the event, which has been taken place subsequently, this Court may take note under Article 226 of the Constitution of India and to buttress his argument, learned senior counsel, has placed reliance upon the judgment passed by the Apex Court in the case Pasupulethi Venkateshwawlu Vs. Motor & General Traders reported in (1975) 1 SCC 770 and in the case of Ram Chandra Prasad Singh Vs. Sharad Yadav passed in Civil Appeal No. 2004/2020 reported in 2020 SCC Online SC 821.
Learned senior counsel, Mr. Umesh Prasad Singh, appearing on behalf of petitioner no. 2 has further submitted that though the entire litigation is continuing on the basis a pre-emptive right, which is itself a weak piece of right, as it has been held by the Apex Court in the case of Bishan Singh & Others Vs. Khazan Singh & Another reported in AIR 1958 SC 838.
Learned senior counsel, Mr. Umesh Prasad Singh, appearing on behalf of petitioner no. 2 has thus submitted that 15 years have already been elapsed, as such, this Court may set aside the impugned orders as the parties 4 have already purchased this land of 25 decimals for construction of house.
Learned counsel for the respondent / State, Mr. Aditya Raman, A.C. to Mr. Manoj Kumar, G.A.-III is present.
Learned counsel for the respondent nos. 2 & 3, Mr. Arbind Kumar Sinha has submitted that pre-emption application has been rightly filed within a period of three months, as it has been held by the Division Bench of the High Court of Judicature at Patna in the case of Most. Lal Muni Devi & Others Vs. The State of Bihar & Ors. reported in (1999) 2 PLJR 356.
Learned counsel for the respondent nos. 2 & 3, Mr. Arbind Kumar Sinha has further submitted, that so far the transaction, which was made by Awadh Kishore Prasad in favour of Birendra Prasad is concerned, it has come to the knowledge of the pre-emptor only after filing of rejoinder by the Awadh Kishore Prasad as opposite party no. 1 in L.C. Case No. 5/2006-07, which shall be apparent from Annexure-3 at page-34, para-2, which reads as follows:-
"2. That from perusal of the rejoinder of the opposite party no. 1 filed on 02/08/2008 in above said case, the pre-emptor has got knowledge that the opposite party no. 1 namely, Awadh Kishore Prasad executed a baseless sham and Farji sale deed in favour of the Birendra Kumar concerning the land in question for gaining of wrong advantage for defeating the claim of the pre-emptor within the period of the three month for filing case of the pre-emption."
Learned counsel for the respondent nos. 2 & 3, Mr. Arbind Kumar Sinha has further submitted, that under the aforesaid circumstances, the issue of limitation, which has been raised by learned senior counsel for the petitioner no. 2, is not sustainable in this matter, as the same has already been considered by the Land Reforms Deputy Collector, Chhattarpur, Palamau, which has been affirmed by Additional Collector, Palamau and the Member, Board of Revenue, Jharkhand.
Learned counsel for the respondent nos. 2 & 3, Mr. Arbind Kumar Sinha has further submitted that the land in question is ancestral property. Plot No. 32 is pertaining to area 2.86 acres, plot no. 33 is pertaining to area 2 5 decimals and plot no. 34 is pertaining to area 64.25 decimals, altogether 3.52 acres. The respondent nos. 2 & 3 got 88 decimals of the land, each, out of these three plots and the respondent nos. 2 & 3 are still holding 75 decimals of land.
Learned counsel for the respondent nos. 2 & 3, Mr. Arbind Kumar Sinha has further submitted that these two respondents have not sold any piece of land, but father of respondent no. 3 namely, Ramdhyan Mistry has sold part of the land of Plot No. 32, area - 7 ½ decimals vide Sale Deed dated 22.05.2007.
Learned counsel for the respondent nos. 2 & 3, Mr. Arbind Kumar Sinha has thus submitted that even after sale made by father of the respondent no. 3, the right, which has been accrued in favour of respondent no. 2 by filing a pre-emption application is not going to vanish.
Learned counsel for the respondent nos. 2 & 3, Mr. Arbind Kumar Sinha has submitted, that admittedly the land in question is agricultural land as per inquiry conducted by the Additional Collector, Palamau in another Land Ceiling Appeal No. XV/2011-12 dated 22.04.2021 arising out of another case, in which respondent nos. 2 & 3 are party in another pre- emption case.
Learned counsel for the respondent nos. 2 & 3, Mr. Arbind Kumar Sinha has further submitted, that so far the judgment relied upon by learned senior counsel for the petitioner no. 2 on the ground of subsequent development in the case of Pasupuleti Venkateshwawlu (Supra) and Ram Chanda Prasad (Supra) are concerned, the same are not with regard to pre- emption, rather those are with regard to eviction and election petition, as such, the said judgments are not applicable in the present case and this Court cannot look into the subsequent development in view of the aforesaid judgment.
Learned counsel for the respondent nos. 2 & 3, Mr. Arbind Kumar Sinha has further submitted, that this Court under Article 226 of the Constitution of India may only look into the fact, whether the orders passed by the Land Reforms Deputy Collector, Chhattarpur, Palamau, Additional Collector, Palamau and the Member, Board of Revenue, Jharkhand suffer 6 from any perversity or require any interference by this Court.
Learned counsel for the respondent nos. 2 & 3, Mr. Arbind Kumar Sinha has relied upon the same judgment, which has been relied by learned senior counsel for the petitioner no. 2, passed by the Apex Court in the case of Bishan Singh & Others Vs. Khazan Singh & Another reported in AIR 1958 SC 838. Para-11, 13, 15, 19, 20 & 23 of the aforesaid judgment may profitably be quoted hereunder:-
11. The plaintiff is bound to show not only that his right is as good as that of the vendee but that it is superior to that of the vendee.
Decided cases have recognized that this superior right must subsist at the time the pre-emptor exercises his right and that that right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee. Courts have not looked upon this right with great favour, presumably, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendeeire, therefore, permitted to avoid accrual of the right of pre-emption by all lawful means. The vendee may defeat the right by selling the property to a rival pre- emptor with preferential or equal right. To summarize: (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre- emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of re-purchase, i. e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.
13. The Act defines the right and provides a procedure for enforcing that right. It does not enlarge the content of that right or introduce any change in the incidents of that right. Section 4 embodies the preexisting law by defining the right as a right of a person to acquire land in preference to other persons in respect of sales of agricultural lands. Section 13 cannot be read, as we are asked to do, 7 as a statutory recognition of a right of preemptors of equal degree to exercise their rights piece- meal confined to their shares in the land. Section 13 confers on a group of persons, in whom the right of preemption vests, to exercise that right either jointly or severally, that is to say, either the group of persons or one of them may enforce the right in respect of the entire sale. Section 17 regulates the distribution of preempted land when the Court finds that several pre-emptors are equally entitled to the right of pre-emption. But this Section applies only where (1) the right is yet to be exercised and (2) the pre-emptors are found by the Court to be equally entitled to exercise the right. The section does not confer the right on or against a person, who has already exercised the right and ceased to be a preemptor by his being legitimately substituted in place of the original vendee. (See Mool Chand v. Ganga Jal (1) at p. 274 and Lokha Singh v. Sermukh Singh (2)). Sections 19 and 20 prescribe the procedure for the exercise of the primary right, while s. 28 confers a power on the Court to join together two or more suits arising out of the same sale, so that suitable directions may be given in the decree in regard to the order in which each claimant is entitled to exercise the right. This section is enacted presumably to avoid conflict of decisions and finally determine the rights of the various claimants. The aforesaid provisions do not materially affect the characteristics of the right of pre-emption as existed before the Act. They provide a convenient and effective procedure for disposing of together different suits, arising out of the same transaction, to avoid conflict of decisions, to fix the order of priority for the exercise of their rights and also to regulate the distribution of the preempted land between rival pre-emptors.
15. Nor can we accept the argument of the learned counsel for the appellants that s. 28 precludes the Court from giving a decree for pre-emption in a case where the two suits were not joined together but one of the suits was decreed separately. Section 28 enacts a convenient procedure, but it cannot affect the substantive rights of the parties. We do not see that, if the plaintiffs were entitled to a right of pre-emption, they would have lost it by the appellants obtaining a decree before the plaintiffs instituted the suit, unless it be held that the decree itself had the effect of substituting them in place of the original vendees. We cannot, therefore, hold that the plaintiffs' suit is in any way barred under the provisions of the Act.
819. Even so, it is contended that the right of the appellants to enforce their right of pre-emption was barred by limitation at the time of the transfer in their favour and therefore the transfer would be hit by the doctrine of lis pendens. This argument ignores the admitted facts of the case. The material facts may be recapitulated: Defendants 3 to 7 sold the land in dispute to defendants 1 and 2 on August 26, 1949, and the sale deed was registered on February 15, 1950. The appellants instituted their suit to pre-empt the said sale on August 26, 1950, and obtained a compromise decree on January 23, 195 1. They deposited the balance of the amount payable on April 23, 1951, and took possession of the land on May 17, 1951. It would be seen from the aforesaid facts that the appellants' right of pre-emption was clearly subsisting at the time when the appellants deposited the amount and took possession of the land, for they not only filed the suit but obtained a decree therein and complied with the terms of the decree within the time prescribed thereunder. The coercive process was still in operation. if so, it follows that the appellants are not hit by the doctrine of lis- pendens and they acquired an indefeasible right to the suit land, at any rate, when they took possession of the land pursuant to the terms of the decree, after depositing in Court the balance of the amount due to the vendors.
20. We shall briefly touch upon another argument of the learned Counsel for the appellants, namely, that the compromise decree obtained by them, whereunder their right of pre-emption was recognized, clothed them with the title to the property so as to deprive the plaintiffs of the equal right of pre-emption. The right of pre- emption can be effectively exercised or enforced only when the pre- emptor has been substituted by the vendee in the original bargain of sale. A conditional decree, such as that with which we are concerned, whereunder a pre-emptor gets possession only if he pays a specified amount within a prescribed time and which also provides for the dismissal of the suit in case the condition is not complied with, cannot obviously bring about the substitution of the decreeholder in place of the vendee before the condition is complied with. Such a substitution takes effect only when the decree-holder complies with the condition and takes possession of the land.
Learned counsel for the respondent no. 4, Mr. Namit Kumar has submitted that respondent no. 4 is a formal party as he is also subsequent 9 purchaser from Awadh Kishore Prasad like Birendra Kumar.
In reply, learned senior counsel for the petitioner no. 2 has submitted, that there is suppression of material fact by the respondents, as such, the impugned order may be set aside.
Heard, learned senior counsel for the petitioner no. 2, learned counsel for the respondents and perused the materials brought on record. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act has been amended by State of Bihar in the year 2019, but no such amendment has been made in the State of Jharkhand, though the Apex Court has considered the same in the case of Bihar after amendment, in the case of Punyadeo Sharma & Others etc. Vs. Kamla Devi & Ors. etc. passed in SLP (Civil) Nos. 15694-15701/2017, but this is not applicable in the present case.
It would be appropriate to reproduce Section 16 of the Act, which reads as under:
"16. Restriction on future acquisition by transfer, etc.-- (1) No person shall, after the commencement of this Act, either by himself or through any other person, acquire or possess by transfer, exchange, lease, mortgage, agreement or settlement any land which together with the land, if any, already held by him exceeds in the aggregate the ceiling area.
Explanation. --For the purposes of this section 'transfer' does not include inheritance, bequest or gift.
(2)(i) After the commencement of this Act, no document incorporating any transaction for acquisition or possession of any land by way of transfer, exchange, lease, mortgage, agreement or settlement shall be registered, unless a declaration in writing duly verified is made and filed by the transferee before the registering authority under the Registration Act, 1908 (16 of 1908), as to the total area of land held by him by himself or through any other person anywhere in the State.
(ii) No such registering authority shall register any document evidencing any transaction if, from the declaration made under clause (i), it appears that the transaction has been effected in contravention of the provision of sub-section (1).
(iii) No land shall be transferred, exchanged, leased, mortgaged, bequeathed or gifted without a document registered in accordance with the provisions of the Registration Act, 1908 (16 of 1908).10
Explanation.--Nothing in this sub-section shall be deemed to have any effect on the provisions of the tenancy law of the area relating to transfer, exchange, lease, mortgage, agreement or settlement. (3)(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.
(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 is rejected, the co-sharer or the raiyat, as the case may be, shall be evicted from the land and possession thereof shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten per cent 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 (5 of 1908), shall be, so far as may be, followed."
(Emphasis supplied) Section 16 is included in Chapter-V of the Act. Sub-section (1) of Section 16 says that no person shall, after the commencement of this Act, either by himself or through any other person, acquire or possess by transfer, exchange, lease, mortgage, agreement or settlement any land which together with the land, if any, already held by him exceeds in aggregate the ceiling area. Sub-section (2)(i) of Section 16 says that no document incorporating any transaction for acquisition or possession of any land by way of transfer, exchange, lease, mortgage, agreement or settlement shall be registered, unless a declaration in writing duly verified is made and filed by the 11 transferee before the registering authority under the Registration Act, 1908 as to the total area of land held by him by himself or through any other person anywhere in the State. Sub-section (2)(i) of Section 16, therefore, prohibits registration of any land unless a declaration in the above manner is filed before the registering authority. Sub-section (2)(ii) of Section 16 puts an embargo on the registering authority from registering any document, if it appears that the transaction has been made in contravention of sub-section (1) of Section 16. Sub-section (2)(iii) of Section 16 clearly provides that no land shall be transferred without the document registered in accordance with the provisions of the Registration Act, 1908. From a plain reading of Section 16(3) of the Act, it is clear that an application for pre-emption can be allowed if 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 and any such co- sharer or raiyat of adjoining land, as the case may be, shall be entitled to ask for pre-emption within three months from the date of registration of the document of transfer, by making an application.
From the perusal of the record, it appears that the pre-emption application was filed by Yadu Nandan Mistry (herein respondent no.-1) and Bigan Mistry(herein respondent no.-2), before the court of Land Reforms Deputy Collector, Chhattarpur, Palamau under Section 16 (3) of Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, against Awadh Kishore Prasad (herein petitioner no.-1) and Ramchandra Vishwakarma, claiming that the applicants (Original Pre-emptors) (herein respondents) are raiyats of the adjoining land as well as co-sharers of raiyat Ramchandra Vishwakarma, who transferred 0.25¾ acres of land to the writ petitioner no. 1 i.e. Awadh Kishore Prasad by executing Registered Deed No. 7172 dated 31.07.2006 and thus they have deposited a sum of Rs. 50,000/- vide District Treasury Challan No. 13 dated 30.10.2006, which is equivalent to the amount of purchase money of the said registered deed and also deposited 10% of the amount for the said registered deed i.e. Rs. 5,000/-, vide District Treasury Challan No. 12 dated 30.10.2006.
It is also evident from the perusal of the impugned order i.e. order passed by Board of revenue dated 10.09.2011 in Revision case no. 26/2010, 12 the order dated 08.05.2010 passed by the court of Additional collector, Palamu and the order dated 29.09.2008 passed by learned Court of L.R.D.C that the registered sale deed executed on 31.07.2006 and the pre-emption petition which is filed on dated 30.10.2006 .The courts below has considered that the pre-emption application has been filed well within the statutory period of 3 months, relying upon the judgment passed by the Hon'ble Patna High Court in the case of Most. Lal Muni Devi Vs. State of Bihar reported in (1999) 2 PLJR 356 wherein the Division bench of the Hon'ble High court has held that the period of limitation required in the law is three months not 90 days.
From bare perusal of clause (i) of sub-section (3) of Section 16 of the Act, it is clear that after 19-4-1962, if any land is transferred to any person other than a co-sharer or a raiyat of adjoining land, the provision confers a right in favour of a co-sharer of the transferor or a raiyat of the adjoining land to have that land transferred in his favour under two conditions: the first condition is that he shall make an application for the said relief in the prescribed manner before the Collector within three months of the date of registration of the document of transfer; the second condition is that he shall deposit the purchase money together with a sum equal to ten per cent thereof, in the prescribed manner, within the said period of three months. Clauses (ii) and (iii) prescribe the procedure to be followed in compliance with requirements of clause (i).
The Hon'ble Supreme Court in the case of Bibi Salma Khatoon Vs State of Bihar reported in (2001) 7 SCC 197 has held that month reckoned according to British calendar i.e., Gregorian calendar and explained the computation of month in aid of Sec 16(3) of Bihar Land Reforms (Fixation of ceiling Area and Acquisition of surplus Land) Act,1961 and further, held that the limitation Act also apply to application under section 16(3) of the Act. Relevant para 8 of the judgment is profitably quoted herein: -
8. Here we are concerned with compliance with requirement of making application within the prescribed period of three months. The question arises, what is meant by the word "month". Sub-section (34) of Section 4 of the Bihar and Orissa General Clauses Act, 1917 defines the word "month" to mean a month reckoned according to the British calendar.13
This means Gregorian calendar -- January, February ... etc. Mr Jha has drawn our attention to Section 11 of the said Act of 1917 to point out that when the word "from" is used the first in the series of days or any other period of time has to be excluded and when the word "to" is used the last in a series of days or any other period of time has to be included but in this case the word "of" is used so that section will not apply. A perusal of Section 11 shows that it is an aid for drafting a provision rather than for interpreting the provision of the Act. Be that as it may, since the Act does not expressly exclude Sections 4 to 14 of the Limitation Act, they apply to application under Section 16(3) of the Act. Therefore, the date from which the limitation commences has to be excluded in computing the period of limitation of three months. In Halsbury's Laws of England, 4th Edn., para 211 [Ed.: See in the first issue of 4th Edition in Vol. 45, para 1111] method of computation of month is given as follows:
"211. Calendar month running from arbitrary date.--When the period prescribed is a calendar month running from any arbitrary date the period expires upon the day in the succeeding month corresponding to the date upon which the period starts, save that, if the period starts at the end of a calendar month which contains more days than the next succeeding month, the period expires at the end of that succeeding month.
If a period of one calendar month includes the last day of February there must be 29 or 28 days, according as the year is or is not a leap year."
Thus computed, the application filed by the appellant on 30-4- 1988 is within limitation -- a period of three months of the date of the registered sale deed dated 30-1-1988. In this view of the matter, we are unable to sustain the order under challenge. We set aside the impugned order, restore the second appeal and remit the case to the High Court for disposal in accordance with law.
Thus, in view of the judgement passed by the apex court in the case of Bibi Salma Khatoon (supra) and the Division bench in Most. Lal Muni Devi(supra), coupled with the provision under section 16(3) of Bihar Land Reforms (Fixation of ceiling Area and Acquisition of Surplus Land) Act,1961, this court is of opinion that the limitation period under the Act is three months and not 90 days, which has been rightly considered by the courts below.
14Admittedly, the land in question is agricultural land, though in the sale deed, it has been mentioned to be for construction of house. It has been brought on record by way of reply to the supplementary affidavit filed on 28.10.2021, that Additional Collector, Palamau in Land Ceiling Appeal No. XV/2011-12 in terms of order dated 22.04.2021, has submitted a report stating therein that the land in question is agricultural land and in the said pre-emption case, respondent nos. 2 & 3 are also parties. The report has been brought on record as Annexure-1 to the reply to the supplementary affidavit, as such, there is no dispute that the land is agricultural in nature.
So far, the sale deed, which has been executed shows, that agriculture land has been transferred to the Awadh Kishore Prasad on 31.07.2006 and said Awadh Kishore Prasad has again transferred the land to his son Birendra Kumar on 11.10.2006. It is pertinent to mention here that Awadh Kishore Prasad has not shown any interest in assailing the impugned order passed by three courts. The learned senior counsel for the petitioner no. 2 has submitted that from aforesaid fact it appears that Awadh Kishore Prasad has lost his interest and he is not pressing the writ petition.
So far, the contention raised by the petitioner no.-2 by way of supplementary affidavit that the respondents nos. 2 and 3 are claiming themselves to be co-sharers or co-tenants or adjoining raiyats and subsequent event where the respondents nos. 2 and 3 has executed seven sale deeds in favour of other persons with regard to the portion of the land in question, which has been categorically answered by the respondent nos. 2 and 3 in their reply to the supplementary affidavit filed on 28.10.2021, stating that the land in question is their ancestral property and the respondents are co-sharer of 88 decimals of land and also holding about 75 decimals of land and paying rent to the state.
The question with regard to the respondent nos. 2 and 3 being co- tenants or co-sharer or adjoining raiyats has already been raised before the courts below but the petitioners have failed to adduce any evidence to negate the stand of respondents nos. 2 and 3 being co-sharer or adjoining raiyats of the said land/plot. Thus, considering the material brought by the respondents nos. 2 and 3 before the court of LRDC, court of Additional collector and the 15 Member, Board of Revenue and in the absence of any evidence against the such contention, the court below has rightly held that the respondents are co- sharer and adjoining raiyats of the said land.
However, the aforesaid contention is again raised by the petitioner no.-2 in the instant writ petition but this court under Article 226 cannot determine such disputed question of facts already affirmed by concurrent finding of three courts. The Hon'ble Apex court in the case of Kamini Kumar Das Choudhury v. State of W.B. reported in (1972) 2 SCC 420 has held that the question of disputed facts cannot be decided under the writ jurisdiction. Para 6 of the judgement is profitably quoted herein -
6. .... We, therefore, think that, quite apart from the ground of delay in filing the writ petition, the assertions and counter-assertions made on merits were of such a nature that, in accordance with the rules laid down by this Court in Union of India v. T.R. Verma [AIR 1957 SC 882 : 1958 SCR 499 : (1958) 1 Mad LJ SC : 1958 SCJ 142] the writ petition could have been dismissed on the ground that it is not the practice of Courts to decide such disputed questions of fact in proceedings under Article 226 of the Constitution. Other proceedings are more appropriate for a just and proper decision of such questions.
Also, the Apex Court in the case of Karam Singh v. Collector, Kurukshetra reported in 1993 Supp (2) SCC 759 has held that disputed questions of fact cannot be decided under Art 226.Relevant para of judgement is quoted hereunder -
........ It was held that it was not open to the Court in its extraordinary jurisdiction under Article 226 of the Constitution to go into the disputed questions of fact and it was hence that the writ petition was dismissed.
In the view of the above judgements passed by the Apex court, this court under writ jurisdiction cannot enter into such disputed question of facts raised by the petitioners, if any. Accordingly, the aforesaid issued is hereby negated.
However, the judgements relied by the Petitioner no.-2 with regard to the development of the subsequent events is not applicable in the present case under aforesaid proposition of law.
16Since the courts below have considered that claim of pre-emption has been made out under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act and admittedly respondent nos. 2 & 3 are adjoining raiyats. Even if it is presumed that there was a partition amongst the family of the respondents and the respondents' persons cannot stand as co-sharers, then also, the respondents are adjoining raiyats and the petitioner no.-2 Birendra Kumar has no other land to claim himself to be an adjoining raiyat and entire transaction, which has been made by Awadh Kishore Prasad subsequent to his purchase is only for the purpose to defy the justice by transferring the land in favour of his son Birendra Kumar or others.
So far submission made by the petitioner with regard to the right of pre-emption being a weak piece of right and since,15 years have already elapsed though entire litigation is continuing on the pre-emptive right, is concerned.
The Hon'ble apex court in the case of Suresh Prasad Singh v. Dulhin Phulkumari Devi reported in (2010) 6 SCC 441 has held that the once the claim for pre-emption is recognised by the statute, it has to be treated as mandatory and not discretionary and even there has been long lapse of years, it could not be rejected if lodged in accordance and manner prescribed by the statute. Relevant para of aforesaid judgement is quoted here under :-
20. The learned Single Judge deciding the writ petition and the Division Bench of the High Court deciding the LPA appear to have taken a view that the right of pre-emption is a weak right, presumably because the Division Bench of the Patna High Court in Sudama Devi v. Rajendra Singh [AIR 1973 Pat 199] and the learned Single Judge in Ram Pravesh Singh v. Board of Revenue [(1995) 1 PLJR 764 (Pat)] have taken this view. Whatever may have been the views of the Patna High Court and this Court in the earlier decisions cited by the learned counsel for Respondent 1, a five-Judge Bench of this Court in Shyam Sunder v. Ram Kumar [(2001) 8 SCC 24] has now held that where a right of pre-emption is recognised by statute, it has to be treated as mandatory and not discretionary. The relevant passage from the judgment in Shyam Sunder v. Ram Kumar [(2001) 8 SCC 24] is quoted hereinbelow:
(SCC pp. 37-38, para 17) 17 "17. ... The right of pre-emption of a co-sharer is an incident of 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 prevent intrusion of a stranger into the family holding or property. A co-sharer under the law of pre-emption has right to substitute himself in place of a stranger in respect of a portion of the property purchased by him, meaning thereby that 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 the law of pre-emption prevails. Such a right at present may be characterised 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."
Thus, even if there has been a long lapse of 19 years, the High Court could not have rejected the claim of the appellant for pre-emption when the claim was recognised by the statute, had been lodged in accordance with the statute and within the time prescribed by the statute and in the manner provided by the statute.
In the view of above proposition by the Apex court, this court is of opinion that the right of pre-emption is recognized by the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act in the State of Jharkhand. The pre-emption claim has been filed within the time and manner prescribed by the Act and cannot be rejected on mere 15 years has been elapsed or pre-emption being a weak right. Accordingly, the issue raised hereby negated.
Accordingly, this Court in not inclined to interfere with the impugned orders and the writ petition is hereby dismissed.
(Kailash Prasad Deo, J.) Sunil/-