Patna High Court
Sushil Kumar Chaudhary And Anr. Etc. vs State Of Bihar And Ors. on 22 April, 1997
Equivalent citations: 1997(2)BLJR1641
Author: Aftab Alam
Bench: Aftab Alam
JUDGMENT Aftab Alam, J.
1. These two writ petitions arise from a pre-emption proceeding unde? Section 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. These two cases has been heard together and are being disposed of by this common order.
2. Sushil Kumar Choudhary and Sunil Kumar Choudhary the two brothers (petitioners in CWJC No. 3340/95) purchased from a certain Bhairab Prasad Kumar (Respondent No. 6 in both the cases) 69-1/2 decimals of land (fully described in paragraph 4 of CWJC No. 3340/95) under a sale deed executed on 13-6-1988. By another sale deed executed on the same date their father Bhupal Choudhary (petitioner in CWJC No. 3341/95) purchased from the same Bhairab Prasad Kumar 33-1/2 decimals of land (fully described in paragraph 4 of CWJC No. 3341/95). The registration of the two sale deeds was completed on 8-12-1988. On 2-2-.1989 a certain Rajni Kumar (Respondent No. 5 in both the writ petitions) filed two applications under Section 16 (3) of the Act exercising the right of pre-emption in respect of the two sales claiming to be both a co- sharer and adjacent raiyat of the vended pieces of land. Prior to the filing of the pre-emption applications, the purchasers, the petitioners in the two writ petitions had executed on 20-1-1989 a deed of gift in. respect of the vended pieces of land in favour of one Rohit Kumar Choudhary (Respondent No. 7 in both the writ petitions), the maternal grant son of Bhupal Choudhary and the nephew of Sushil Kumar Choudhary and Sunil Kumar Choudhary. On notices being issued the purchasers appeared in the pre-emption proceeding and filed their show cause on 23-6-1989 resisting the claim of pre-emption on one of the grounds that the disputed lands were already transferred in favour of Respondent No. 7 and the claim of pre-emption was not maintainable because the donee was not made a party in the pre-emption applications. The registration of the deed of gift was finally completed on 16-10-1989 and a copy of it was produced before the Court of the first instance on 25-12-1989.
3. It is an admitted position that though the fact of the disputed lanus being transferred in favour of Respondent No. .7 came to light from the show cause filed by the petitioner on 23-6-1989, no steps were taken by the pre- emptor to get the donee impleaded as an Opposite party in his applications for pre-emption and the donee was not brought on the record before the Court of the first instance.
4. However, the L.R.D.C., Uda Kishunganj by his order dated 28-3-1990 allowed the claim of pre-emption raised by respondent No. 5. Against this order the petitioners preferred appeals before the Collector, Muzaffarpur who by his order dated 19-3-1990 allowed the appeals and rejected the claims of pre-emption. At the appellate stage too the donee was not impleaded as a party. Against the Appellate order the pre-emptor filed revisions before the Board of Revenue. In the revisions filed before the Board of Revenue the donee was for the first time impleaded as a party. The Board of Revenue by order dated 30-11-1994 allowed the revisions filed by the pre-emptors, set aside the appellate order and upheld the claims of pre-emption. Both the L.R.D.C. and the Additional Member, Board of Revenue did not go into the question whether the pre-emption applications were at all maintainable without bringing on record the donee in whose favour the disputed lands were transferred before the filing of the pre-emption applications. They, however, found that the deed of gift was farzi and fraudulent and was intended to frustrate the claims of pre-emption. According to the Addl. Member, Board of Revenue the two pieces of lands were gifted by the petitioners (the father and the two sons) by a single gift deed to Respondent No. 7 who was a resident of Bhagalpur district. The donee did not prefer any appeal against the order passed by the L.R.D.C and no evidence was produced by him to show that following the gift his name was mutated in the revenue records. It was on the basis of these circumstances that the Addl. Member, Board of Revenue held and found that the gift was farzi and fraudulent. I am unable to upheld the finding on the basis of the reasons assigned by the Addl. Member, Board of Revenue. 1 further fail to see how a finding regarding the deed being farzi and fraudulent could be arrived at in the absence of the donee being impleaded before the Court of the first instance where he could lead evidence to show that the gift was bona fide and he had acquired title and possession over the disputed lands on the basis of the gift.
5. Moreover, the most crucial question to which neither the L.R.D.C nor the Addl. Member, Board of Revenue addressed themselves was whether the pre-emption applications were at all maintainable in the absence of the donee being impleaded as a party before the Court of the first instance.
6. Mrs. Sheema Ali Khan, learned Counsel appearing on behalf of Respondent No. 5 in both the cases submitted that in view of the fact that the registration of the gift deed was completed after the filing of the pre-emption applications it was not necessary to implead the donee as an Opposite party notwithstanding the fact that the deed of gift was executed before the institution of the proceedings. In support of her submission she relied upon certain passages from a Division Bench decision of this Court in Ramchandra Yadav v. Anutha Yadav and Ors. 1997 BLJR 994. She also relied upon a decision of the Supreme Court in Hiralal Agrawal v. Rampadarath Singh and Ors. .
7. In my considered view the decision relied upon by Mrs. Khan do not held the pre-emptor at all; on the contrary the decisions are directly against her submission. In Ramchandra Yadav''s case N.N. Untwalia, J, (as his Lordship then was) noted that in the context of a claim of pre-emption there may be three possible ways in which a second transfer of the disputed lands could be made. The case in hands falls in the third category where the deed for the second transfer in executed before the filing of the pre-emption applications but the registration of the deed is completed after the institution of the proceedings. In such a situation it was held [see paragraph 5 of the judgment that it was obligatory for the pre-emptor to implead the second transferee as a party in his applications under Section 16 (3) and to seek such relief as may be available to him in presence of the second transferee.
8. I am also unable to read paragraph 11 of the Supreme Court's decision in Hiralal Agrawal's case in the manner suggested by Mrs. Khan and in my considered view that Supreme Court decision does not help the pre-emptor in this case in any manner.
9. On the other hand, there are other Division Bench decisions of this Court besides the decision in Ramchandra Yadav's case which clearly lays down that in a case of subsequent transfer where the deed of transfer was executed before the filing of the pre-emption applications the claims of pre-emption would not be maintainable unless the second transferee was also brought on the record as an Opposite party. See Smt. Sudatna Devi v. Rajendra Singh and Raju Kumar Prasad and Ors. v. The Addl. Member, Board of Revenue and Ors. 1985 PLJR 215].
10. I have, therefore, no hesitation in holding that the claim of pre emption raised by Respondent No. 5 was not maintainable because the second transferee Respondent No. 7 was not impleaded as an Opposite party before the Court of the first instance even though the fact of the second transfer had came to light from the show cause filed by the petitioners. I accordingly find that the orders passed by the L.R.D.C. and the Addl. Member, Board of Revenue are not substainable in law. Those orders are accordingly set aside and the claims of pre-emption raised by Respondent No. 5 are held liable to be rejected.
11. In the result, the two writ petitions are allowed. In the facts and circumstances of the case, however, there will be no order as to costs.