Patna High Court
Hiralal Chauhan vs State Of Bihar And Ors. on 16 October, 2003
Equivalent citations: AIR2004PAT122, AIR 2004 PATNA 122, (2004) 2 BLJ 133 (2004) 2 PAT LJR 339, (2004) 2 PAT LJR 339
Author: Braj Nandan Prasad Singh
Bench: Braj Nandan Prasad Singh
ORDER
1. This writ petition arises from a proceeding under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in short 'the Act'). The purchaser of the disputed land is the petitioner. Me succeeded before the Deputy Collector, Land Reforms, who rejected the claim of pre-emption put forward on behalf of respondent No. 5 Chitari Jamadar, but lost before the appellate and the revisional authorities, namely, the Collector and the Additional Member, Board of Revenue. The aforesaid orders are contained, respectively, in Annexures 2, 3 and 4 to the writ petition.
2. The dispute relates to 0.07 acre land of plot No. 94 situate at village Jalalgarh in the district of Purnea. On 23-9-86 the petitioner purchased the said land from respondent Nos. 6 and 7 Molai Chauhan and Munri Devi, under a registered sale deed. Respondent No. 5 Chitari Jamadar (hereinafter referred to as pre-emptor) filed application under Section 16(3) of the Act being Case No. 18 of 1987-88, seeking reconveyance of the land on the same terms and conditions as provided in the section. On 6-4-90 the DCLR, Sadar Purnea exercising powers of the Collector under the Act dismissed the application as mentioned above. He held that the petitioner was a co-sharer and that local inspection had revealed that he had purchased the land for constructing house. The pre-emptor preferred appeal before the Collector vide Ceiling Appeal No. 9/ 90. By order dated 16-10-90 the Collector allowed the appeal and set aside the order of the DCLR. It was the turn of petitioner to challenge the order by way of revision before the Board of Revenue where it was registered as Revision No. 618 of 1990. On 18-5-92 the Additional Member, Board of Revenue dismissed the revision and thus affirmed the order of the Collector. The petitioner has come to this Court for quashing the said orders of the Collector and the Additional Member, Board of Revenue.
3. Two questions appear td have arisen for consideration before the authorities below, namely, whether the disputed land is 'land' within the meaning of Section 2(f) of the Act and secondly, whether the petitioner is co-sharer. It may be mentioned here that the disputed land belonged to one Puran Nonia who had two sons namely, Molai Chouhan and Anirudh Chouhan, and a daughter Budhia Devi. The son of Budhia Devi is the purchaser i.e. petitioner in this case. The vendors are Molai Chouhan and Munri Devi widow of Anirudh Choudhan, since dead. The pre-emptor, it may also be stated, is son of sister of Puran Nohia.
4. The case of the petitioner is that on the death of Puran Nonia, his mother Budhia Devi inherited his estate along with Molai Chouhan and Anirudh Chouhan and, therefore, he is a co-sharer. The appellate and the revisional authorities have held that during lifetime of Budhia Devi the petitioner cannot claim any interest in the property inherited by her from her father and, therefore, he is not a co-sharer. In the facts and circumstances, we do not find any error in the finding. It may be relevant to mention here that the date of death of Puran Nonia has not been brought on record as to whether he died prior to coming into force of the Hindu Succession Act on 17-6-1956 or afterwards. In case he died prior to coming into force of the Act, his daughter could not have inherited any share in the property left behind by him. Even assuming that Puran Nonia died on or after 17-6-56 when the Hindu Succession Act came into force, a question would still arise as to whether during lifetime of Budhia the petitioner can be held to be a co-sharer. Except that the petitioner is son of Budhia Devi, no attempt has been made on behalf of the petitioner to substantiate his status as a co-sharer. It is to be mentioned here that the term 'co-sharer' within the meaning of Section 16(3) of the Act refers to the particular land and therefore, it is essential for the person claiming to be a 'co-sharer' to prove that he has interest in the particular land. Had this been a case of co-parcenery property the petitioner could claim interest in the land by birth. But it is not so. The petitioner cannot claim any interest in the land by birth. The land admittedly belonged to his maternal grand-father, Puran Nonia. Budhia acquired share in the land from her father on his death assuming that he died after 17-6-56. In the case of Nand Kishore Pandey v. P. P. Agarwal, AIR 1972 Patna 389, claim for preemption was put forward on the ground that he was in possession of the adjoining land as joint family property. The property in question had been purchased by his father. Negativing the claim of the pre-emptor the Court held that he was required to prove that it was a joint family property -- that the family possessed joint property from income of which the property had been purchased by the father. The mere fact that the father had purchased land as member of the joint family was not enough to hold it was a joint family property. The following observations at page 391 of the report may usefully be quoted.
"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 upto the stage the matter was heard by the Board of Revenue."
5. If this is the status of a son vis-a-vis the land purchased by his father, the petitioner herein cannot claim the status of co-sharer simply because his mother Budhia Devi came to acquire share in the land on the death of her father Puran Nonia. Unlike the case of Nand Kishore Pandey (supra) where the claim was rejected for want of evidence, in the present case the petitioner cannot prove his co-sharership by any amount, of evidence. He cannot claim any interest in the land during lifetime of his mother unless the mother transfers her interest in his favour, as indicated in the aforequoted observations of this Court.
6. Reference to definition of 'raiyat' in Section 2(k) of the Act will further bring home the point. The term 'raiyat' therein has been defined to mean "primarily a person who has acquired to right to hold land for the purpose of cultivating it by himself or by members of his family or by hired, servants or with aid of partners, and includes also the successors-in-interest or persons who have acquired such a right..........."The petitioner cannot claim to have acquired any right to hold any portion of the disputed land for the purpose of cultivating by himself or by the member of his family and so on. In the case of Nand Kishore Pandey (supra) it was clarified by this Court that the words 'a co-sharer or a raiyat of adjoining land' clearly indicate that both of them refer to land. If the petitioner thus did not acquire any interest in the property, he cannot claim status of co-sharer or adjoining raiyat. Had the disputed land been purchased by Budhia Devi the position would have been entirely different. Further, had there been a transfer of interest by Budhia Devi in favour of the petitioner again, the position might have been different.
7. It is not in dispute that the pre-emptor holds land on the boundary of the disputed land being of owner of plot No. 94. Section 16(3) of the Act provides that if any transfer of land is made 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 to make an application for transfer of the land to him on the terms and conditions contained in the transfer deed. The pre-emptor was thus fully entitled to apply for re-conveyance of the land in his favour. Of course, had the purchaser i.e. petitioner been a co-sharer or adjoining raiyat himself, certainly, the claim would not have been maintainable as the right to claim reconveyance, can arise only in the event of transfer in favour of a person who is neither a co-sharer nor adjoining raiyat. This point accordingly is decided in favour of the pre-emptor and against the petitioner.
8. Coming to the other point, 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(1) 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 land 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 landholder also come under its 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. No case to the contrary has been pleaded on behalf of the petitioner. The vendors appear to be agriculturists by profession. Indeed, their profession has been described as agriculture in the sale deed, the recitals whereof are binding on the parties to the deed. The sale deed further contains recitals suggesting that the land was agricultural land. There is positive finding about existence of bamboo clumps on the disputed land.
9. In the above premises, I find no error in the impugned orders so as to warrant interference by this Court. The writ petition is accordingly dismissed but without any order as to costs.