Patna High Court
Moghal Singh And Ors. vs Member, Board Of Revenue And Ors. on 2 September, 1980
Equivalent citations: AIR1981PAT302, AIR 1981 PATNA 302, (1981) BLJ 91
JUDGMENT B.P. Jha, J.
1. In an application under Articles 226 and 227 of the Constitution of India, these petitioners pray for quashing Annexures 2 and 3. These annexures contain the orders passed by the appellate authority and the revisional authority under the provisions of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. Annexure 1 contains the order passed by the authority under the Act.
2. Respondent Nos. 4 and 5 filed an application under Section 16 (3) of the Act for pre-emption over 90 decimals of land purchased by the petitioners on 5-4-1974. Ramdhani Sao (respondent No. 6) sold 90 decimals of plot No. 25 of village Jharna, Police Station, Lestiganj, district Palamau, to the petitioners on 5-4-1974 through a registered sale deed. In the said sale deed the boundary given is as follows:
North -- Ramdhani Sao South -- Moghal Singh and others (Petitioners) East -- Boundary of village Turkadih West -- Mogal Singh and others (Petitioners).
3. It is on the basis of the aforesaid sale deed that the learned counsel for the petitioners contends that the pre-emptors have no right to preempt the petitioners from the land in question in view of the boundary given in the sale deed dated 5-4-1974. According to him, before 5-4-1974, these petitioners were adjoining raiyats holding land adjoining to the land transferred. If this argument is correct, then certainly an application for pre-emption filed by respondents Nos. 4 and 5 is not maintainable. However, I am not deciding the point in favour of the petitioners at present. According to the case of the petitioners, the petitioners were already on the West boundary of plot No. 25 by virtue of a purchase of plot No. 24 in the names of their wives by registered sale deed dated 4-7-1972. They also claim to be purchasers of plot No. 26 by a registered sale deed dated 8-6-1965.
4. On the other hand, the pre-emptors claim that wrong boundaries have been given in the sale deed dated 5-4-1974 in favour of the petitioners. In other words, learned counsel for respondent No. 5 means to say that the pre-emptors are adjoining raiyats of the land purchased by the petitioners on 5-4-1974. In this connection he has referred to the registered sale deed dated 6-5-1967, which was executed by Ramdhani Sao (respondent No. 6) in favour of respondent Nos. 4 and 5. This sale deed also related to plot No. 25.
5. In view of the disputed questions of fact, I direct the Additional S. D. O., Daltonganj (respondent No. 3) to hold an inquiry on the spot in order to ascertain as to whether (i) the pre-emptors are the adjoining raiyats of plot No. 25 or not; and, (ii) whether the petitioners were adjoining raiyats before the purchase made by them on 5-4-1974. If the answer of the second question is in the affirmative, then the application for pre-emption will not be maintainable in view of the provisions of Section 16 (3) of the Act. If the answer of the 2nd question is either in the negative or in the affirmative, he is directed to hold an inquiry at the spot in order to ascertain as to whether the purchase of land of plot No. 25 adjoins the land purchased by respondent Nos. 4 and 5, or not. If the answer of the second question is in the negative and the answer of the first question is in the affirmative, the application for pre-emption filed by respondent Nos. 4 and 5 shall not go be allowed. The parties shall also be entitled to lead oral evidence on the limited question. The authority holding the inquiry shall not, into the question of title between the parties. The most crucial point will be as to whether the petitioners had already purchased land adjoining plot No. 25 or not. The whole decision will depend on this question.
6. In the result, the application is allowed. Annexures 1, 2 and 3 are hereby quashed and the case is remanded to the Additional S. D. O., Daltonganj, for inquiry and decision in accordance with law keeping in view of the observations made above. The parties shall bear their own costs.
Chaudhary Sia Saran Sinha, J.
7. I agree with my learned brother that after quashing Annexures '1', '2', & '3', the matter should go back on remand to the Additional Sub-Divisional Officer, Daltonganj, for fresh decision in accordance with law after making a spot inquiry as regards the requirements of Sub-section (3) (i) of Section 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.
8. The learned single Judge while referring the matter to a Division Bench observed as follows:
"I am extremely doubtful if the authorities in a proceeding under Section 16 (iii) of the Act can hold that the subject matter of the sale is not what is mentioned in the deed but something else."
9. The authorities deciding the preemption matter being creatures of statute have to function within the 4 corners of that statute. Obviously, therefore, unless the statute specifically bestows such power on them, they cannot assume the powers of a civil court and hold that the subject matter of the sale deed is not what is mentioned in the deed but something else. The Revenue Authority has merely to investigate if there has been a transfer of a land, after the commencement of the Act, to any person other than the co-sharer or a raiyat of adjoining land for which purpose he can in appropriate circumstances hold a spot enquiry also. The authority concerned shall keep these observations also in view while disposing of the matter on remand in accordance with law.