Patna High Court
Rudal Singh And Ors. vs Additional Member, Board Of Revenue And ... on 26 February, 1998
Equivalent citations: 1999(1)BLJR115
JUDGMENT S.N. Jha, J.
1. This writ petition arises out of a proceeding under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. The preemptors are the petitioners. They seek quashing of the order of the DCLR, Buxar, as well as the appellate order of the Additional Collector, Buxar and the revisional order of the Additional Member, Board of Revenue. In other words, they have lost before all the authorities below. Their claim has been rejected with a concurrent finding that they are not adjacent raiyats of all. the plots of land transferred to the transferee Sri Krishna Singh, respondent No. 4 herein.
2. The subject matter of the proceeding are lands of plot Nos. 395, 469, 483. 515, 554, 577, 581 of Khata No. 227 and plot No. 134 of Khata No. 85, situate in Village Mahila in the district of Buxar. According to the petitioners, they had purchased portions of the same very plots on 21.11.78 and 1.6.81. Thus being cosharers of the land transferred as on the date of transfer viz. 25.11.81, they have got preferential rights to seek re-conveyance of the lands under Section 16(3) of the Act.
3. In course of hearing of the case, no doubt, a half-hearted argument way made that the petitioners are adjacent raiyats of all the plots transferred, counsel really highlighted the petitioners' claim as co-sharers of the lands' by virtue of the aforesaid purchases dated 21.11.78 and 1.6.81. I am afraid, the submission is in the teeth of express provisions of Section 16(3).
4. Section 16(3) provides that when 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 re-conveyance of the land on the same terms and conditions if he makes an application within three months from the date of registration of the document of transfer. It is apparent from bare reading of the Section that in order to succeed in an application under Section 16(3), the pre-emptor has to show not only that the transferee is neither a co-sharer nor raiyat of adjoining land, but also that he is either co-sharer of the transferor or adjacent raiyat. It is significant that in the case of pre-emptor, the words used are "co-sharer of the transferor". In other words, what is to be shown and seen is whether the pre-emptor is co-sharer of the transferor and not whether he is co-sharer of the land transferred. It is to be kept in mind that the law of pre-emption has been derived from Mahommedan Law. Thus while consolidation of plots is one of the objects of the provisions of Section 16(3) because it confers preferential right on persons who have land adjacent to the transferred land, it also confers similar right on a co-sharer of the transferor. Thus where a transfer is made to a stranger, the co-sharer of the transferor has a right to seek pre-emption. It is not in dispute that the petitioners are not the co-sharers of the transferor.
5. As indicated above, attempt was also made by the counsel for the petitioners to show that they hold land adjacent to all the plots. In this connection a vague submission was also made that the lands in question form one compact block. However, no averment to that effect is made. In view of the 'numbers' of the plots in question I am inclined to think that they do not form compact block. That being the position, in view of the categorical finding recorded by the DCLR affirmed by the appellate and revisional authorities that the petitioners do not hold land adjacent to plot Nos. 469 and 483, it is not possible to accept their claim of preemption. It is well settled by a catena of decisions of this Court that the pre-emptor must be adjacent raiyat of all the plots (if the claim is founded on adjacency), for there can not be partial pre-emption.
6. The right of pre-emption, as is well known is a weak right. Although, the statute has recognized that right, unless the pre-emptor makes out a fool-proof case, he can not succeed. In the present case, the petitioners have lost before all the authorities.
7. In the above view of the matter, I do not find any merit in the claim of the petitioners. The writ petition is concluded by findings of fact and the same is, accordingly dismissed.