Jharkhand High Court
Anant Deo Sharma vs The State Of Jharkhand & Ors on 29 June, 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. 5699 of 2006
Anant Deo Sharma, S/o Late Pritam Sharma .... .. ... Petitioner(s)
Versus
The State of Jharkhand & Ors. .. ... ... Respondent(s)
...........
CORAM :HON'BLE MR. JUSTICE KAILASH PRASAD DEO .........
For the Petitioner : Mr. Amar Kr. Sinha, Advocate For the Pvt. Respondent(s) : Mr. Sarju Prasad, Advocate Mr. Atmaram Choudhary, Advocate For the State : Mr. Amrit Raj Kisku, AC to SC-VII ......
18/ 29.06.2022. Heard, learned counsel for the parties.
Mr. Amar Kr. Sinha, learned counsel for the petitioner has submitted, that the petitioner, Anant Deo Sharma, S/o Late Pritam Sharma, has preferred the instant Writ Petition on 09.10.2006, for setting aside the order dated 28.08.2006 (Annexure-7) passed by respondent No.2 [The Member, Board of Revenue, Jharkhand] in District-Giridih, Case No.76 of 2005, whereby the respondent No.2 illegally allowed the Revision petition and set aside the orders dated 02.12.2005 and 25.10.2002 passed by the Respondent Nos.3 [The Additional Collector, Giridih] and respondent no.4 [The Deputy Collector, Land Reforms, Giridih] in Land Ceiling Appeal No.8/2002-03 and Land Ceiling Case No.38/2001-02 respectively, whereby the application filed on behalf of the petitioner under Section 16(3) of the Jharkhand/ Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 for reconveyance of land of Plot No.103 measuring area 0.33 acres appertaining to Khata No.1 of Village- Chandih, Thana No.499, District- Giridih has been allowed.
Mr. Amar Kr. Sinha, learned counsel for the petitioner has further submitted, that the revision application was allowed by setting aside the order of the DCLR, Giridih and the Additional Collector, Giridih, who have passed the orders rightly in favour of the petitioner considering him to be adjoining raiyat under Section 2(k) of the Jharkhand/ Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961.
Mr. Amar Kr. Sinha, learned counsel for the petitioner has further submitted, that the private Respondent No.7 [Smt. Karuna Devi, W/o Sri Jamuna Halwai] has sold her land to Respondent No.5 [Shri Krishna Kumar 2 @ Kumar Krishna] and Respondent No.6 [Shri Pankaj Kumar], both sons of Sri Braj Kishore Sharma having an area of 0.33 acres appertaining to Khata No.1, Plot No.103, Village- Chandih, Thana No.499, District- Giridih, vide Registered Sale Deed dated 12.05.2001 on consideration amount of Rs.40,000/-.
Mr. Amar Kr. Sinha, learned counsel for the petitioner has further submitted, that the transferee(s) are never the co-sharer of the land, as defined under Section 2(k) of the Act, 1961.
Mr. Amar Kr. Sinha, learned counsel for the petitioner has further submitted, that though the pre-emption is a weak piece of right, but to consolidate the agricultural land, such enactment has been done so that the agricultural land may not be fragmented.
Mr. Amar Kr. Sinha, learned counsel for the petitioner has further submitted, that conditions imposed for initiating an application under Section 16(3) of the Act, 1961, is that such application must be filed within three months of execution of alleged sale deed along with required consideration amount must be deposited and the application must be filed before the learned DCLR of the concerned area/ District. All these conditions have been fulfilled and after notice to the respondent No.7 as well as Respondent Nos.5 and 6 and after filing their show cause and being heard, the DCLR, Giridih, in terms of the order dated 25.10.2002 passed in Bhuhadbandi Case No.38/2001-02 decided the same in favour of the petitioner and relevant part of the said order may profitably be quoted hereunder: -
"nksuksa i{kkas dks lquus ds ckn eSa bl fu"d"kZ ij igqaprk gwW fd fcdzsrk d:.kk nsoh ifr tequk gyvkb ds }kjk fcdzh dh xbZ Hkwfe 103 IykWV ds vkosnd ,Mtks;fuax jS;r gSaA lkFk gh lkFk iwoZ esa Hkh vkosnd ds }kjk 102 IykWV esa 24 Mh0 Hkwfe dz; dh xbZ gS tks 103 IykWV ls lVs gq, gSA blls Hkh ,Mtks;fuax jS;r dk lcwr feyrk gSA tgka rd foi{kh us dgk fd 103 IykWV ersa 66 Mh0 e/ks 1 ½ Mh0 Hkwfe czt fd'kksj 'kekZ firk xks foUn 'kekZ ds }kjk Hkh dz; fd;k x;k Fkk ijUrq 1 ½ Mh0 Hkwfe egt 103 IykWV dk ,d lk fgLlk gSA bl izdkj vkosnd dk vf/kd fgLlk esa tehu iM+rk gSA vkosnd ds ,Mtks;fuax IykWV esa T;knk fgLlk iM+rk gSA vr% izFke n`"V;k Right of Pre-emption vkosnd dh vksj tkrk gSA IykWV ua0 103 esa vkosnd ds ekWa pfUnzdk nsoh ds uke ls Hkh 66 Mh0 e/ks 31 ½ Mh0 Hkwfe dz; dh xbZ gSa bl izdkj Right of Pre-emption gksrk gSA nksuksa i{kksa dks lquus ,oa dkxtkrksa ds voyksdu ds vk/kkj ij 16 (3) (1) ds vUrxZr vkosnd fcdzh dh xbZ Hkwfe dk ,Mtks;fuax jS;r gSA vr% buds vkosnu i= dks Lohdr fd;k tkrk gS rFkk foi{kh dqekj d`".k ,oa Jh iadt dqekj firk czt fd'kksj 'kekZ ekStk panMhg dks vkns'k fn;k tkrk gS fd muds }kjk dz; dh xbZ Hkwfe ekStk pkanMhg [kkrk ua0 1 IykWV ua0 103 uke tehu ekStkflagk /kku [ksr jdck 66 Mh0 e/ks 33 Mh0 Hkwfe ,d ekg ds vUnj vkosnd Jh vuUrnso 'kekZ firk i`Foh ukFk 'kekZ ekStk panMhg ds uke ls fucaf/kr dsokyk dj nsa vU;Fkk fu/kkZfjr frfFk ds vkn U;k;ky; }kjk fuca/ku dh dkjokbZ dh tk;xhA "
Mr. Amar Kr. Sinha, learned counsel for the petitioner has further submitted, that Respondent Nos.5 and 6 have preferred an appeal against the 3 said order before the Court of Additional Collector, Giridih which was registered as Pre-emption Appeal No.08 of 2002-03/10 of 2003-04 and the appellate court has dismissed the appeal without interferring with the finding recorded by the learned DCLR, Giridih.
The said order was assailed by the respondent nos.5 and 6 before the Member, Board of Revenue, Jharkhand under revisional jurisdiction which was registered as Revision Case No.76 of 2005 and after due notice, learned Member, Board of Revenue, Jharkhand in terms of the order dated 28.08.2006 has reversed the finding given by the DCLR, Giridih as well as Additional Collector, Giridih on the ground that the order of the learned DCLR, Giridih suffers from a fatal flaw and that vitiates the entire proceeding of this case. The DCLR, Giridih in his order has recorded that the petitioner was raiyat of Plot No.97 under Khata No.25 of the same village, but only a small portion of this plot adjoined the disputed land, whereas a larger area of land of which Respondent-1 as raiyat is adjoining the disputed land. The order of the DCLR thus, accepts that the petitioners are also raiyat of the land adjoining the disputed land though the adjoining land of the petitioners are less than that of the pre-emptor. The DCLR, Giridih has recorded that since greater area of land of Respondent-1 as raiyat is adjoining the disputed land, as such, the right of pre-emption accrues to him.
It has further been recorded that the law is very clear that it is not the decree of adjacency or the area of adjoining land that is to be considered while deciding an application filed under Section 16(3)(1) of the said Act, 1961. There is no question of lesser or greater adjacency. If the vendee is also a raiyat of adjoining land, then pre-emption application must fail. Thus, the DCLR, Giridih, while accepting that the petitioner being also raiyat of the adjoining land, has allowed the pre-emption application only on the ground that he has found the pre-emptor to have a larger area of land adjoining the disputed land, as such, the order is thus, bad in law. The Additional Collector, Giridih, has failed to notice to this effect and has more or less refused to interfere in the order of the DCLR, Giridih.
Mr. Amar Kr. Sinha, learned counsel for the petitioner has further submitted, that the Member, Board of Revenue, Jharkhand, has completely erred on facts as it is not a case that the purchasers or transferee i.e. respondent Nos.5 and 6 are ever adjoining raiyats as defined under Section 2(k) and section 16(3) of the Act, 1961.
4Mr. Amar Kr. Sinha, learned counsel for the petitioner has further submitted, that no piece of land is touching the boundary of the suit land which has been purchased by them and thus, the order of the DCLR, Giridih, is in accordance with the provisions of Section 16(3)(1) of the Act, 1961.
Mr. Amar Kr. Sinha, learned counsel for the petitioner has further submitted, that the Respondent Nos.5 & 6 have never claimed any land adjoining to the suit land, rather they are claiming a portion of the land which they have purchased on 05.09.2001, whereas the present sale deed, under question is with respect to dated 12.05.2001 vide Sale Deed No.2252 executed by Respondent No.7 [Smt. Karuna Devi] in favour of Respondent No.5 [Shri Krishna Kumar @ Kumar Krishna] and Respondent No.6 [Shri Pankaj Kumar], both sons of Sri Braj Kishore Sharma, as such, the Member, Board of Revenue has slight confusion in the mind and thus, committed a serious error of record while setting aside the findings recorded by the DCLR, Giridih as well as Additional Collector, Giridih.
Mr. Amar Kr. Sinha, learned counsel for the petitioner has further submitted, that nowhere the respondent nos.5 and 6 have produced any chit of document to establish before the Court of DCLR or before the Additional Collector that they were adjoining raiyats, rather in the Writ Court, they have placed their case on the basis of Hukumnama granted to them of dated 15 Magh 1333 fasli which is equivalent to 1925.
Mr. Amar Kr. Sinha, learned counsel for the petitioner has further submitted, that this document has been produced for the first time in the Writ Court to establish that they are the adjoining raiyats though this document has no legal sanctity as no corresponding rent receipt nor the same has been mentioned in Form- M submitted by the ex-landlord at the time of vesting of estate, as such, this Court may not allow respondent nos.5 and 6 to adduce further evidence to establish their rights. The document which has never been produced before the Court of DCLR, Giridih or before the Court of Additional Collector, Giridih, the same cannot be looked into in a writ jurisdiction with respect to pre-emption. Thus, learned counsel for the petitioner has submitted, that finding recorded by the Member, Board of Revenue is bad in law.
Mr. Amar Kr. Sinha, learned counsel for the petitioner in support of his submission has placed the judgment passed by the Apex Court in the case of Sheoji Mahto and Ors. vs. Additional Member, Board of Revenue and Ors., reported in 1997 (1) SCC 733 at para 3, which may profitably be quoted 5 hereunder :-
"3.A reading of Section 16(3) (i) clearly indicates that when 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, 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. It is not in dispute that the Tribunal below held the appellants to be raiyats holding land adjoining to the land sold to the respondents by registered sale deed. An application was also filed within three months from the date of registration of the document. Under these circumstances, the two conditions having been satisfied by operation of Section 16(3)(i), the appellants are entitled to pre- emption of the said land. The High Court, therefore, was clearly in error in refusing to entertain the writ petition dismissed in limine. The Collector was also wrong in allowing the appeal. "
Mr. Amar Kr. Sinha, learned counsel for the petitioner, in support of his submission, has further placed reliance upon the judgment passed by the Apex Court in the case of Suresh Prasad Singh vs. Dulhin Phulkumari Devi and Ors., reported in 2010 (6) SCC 441 at paras 19, 20 & 21, which may profitably be quoted hereunder :-
"19. The appellant being a co-sharer of the transferor in the land transferred to Respondent 1 had a statutory right of pre-emption under Section 16(3) of the Act. As the language of Section 16(3)(i) shows, any co-sharer "shall be entitled" within three months of the date of registration of the document of the 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 transfer deed. It is not disputed that the appellant in fact made such an application within three months of the date of registration of the sale deed executed by the transferors in favour of Respondent 1 and also deposited the purchase money together with a sum equal to 10% thereof in the prescribed manner within the period of three months as provided in the proviso of Section 16(3)(i). The Deputy Collector, therefore, had no discretion but to allow the application considering the mandatory nature of the right of pre- emption conferred by Section 16(3) of the Act.
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. ... 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 6 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.
21. Respondent 1, however, claims to be a boundary raiyat saying that she had purchased under an earlier sale deed dated 11-1-1980 a plot of land adjoining to the land in respect of which the appellant has applied for pre- emption under Section 16(3) of the Act. The learned counsel for Respondent 1 has relied on the decision of the Patna High Court in Ram Pravesh Singh v. Board of Revenue [(1995) 1 PLJR 764 (Pat)] for the proposition that the claim of pre-emption was not maintainable against a person who holds an adjacent plot of land. This view of the Patna High Court is based upon its earlier judgment in Ramachabila Singh v. Ramsagar Singh [1969 BLJR 203 :
1968 PLJR 279 (Pat)] that if the transferee happens to be an adjacent raiyat in respect of some other plots, a co-sharer cannot claim any right of pre- emption under Section 16(3) of the Act. As a matter of fact, Section 16(3) confers the right of pre-emption not only on the co-sharer but also on the raiyat holding land adjoining to the land transferred. We are, however, of the considered opinion that a complete stranger who was not originally a raiyat holding land adjoining to the land transferred cannot be allowed to defeat the right of pre-emption of a co-sharer by first purchasing an adjoining plot of land and thereafter claiming to be a raiyat holding land adjoining to the land transferred. The decisions of the Patna High Court are cases of original boundary raiyats resisting the claim of pre-emption by a co-sharer of the transferred land. The object of Section 16(3) of the Act is to recognise the right of pre-emption of the co-sharer of the transferor or any raiyat holding land adjoining to the land transferred and this object would be frustrated if strangers are allowed to first buy one plot of land and then resist the claim of right of pre-emption of a co-sharer or a boundary raiyat on the basis of such first purchase of a plot of land."
Mr. Amar Kr. Sinha, learned counsel for the petitioner has thus, submitted that the Apex Court, while discussing the issue of pre-emption in Para-21 of the judgment of Suresh Prasad Singh (supra) has considered this aspect of the matter, while holding that as a matter of fact Section 16(3) of the Act, 1961 confers the right of pre-emption not only on the co-sharer but also on the raiyat holding land adjoining to the land transferred. We are, however, of the considered opinion that a complete stranger, who was not originally a raiyat holding the land adjoining to the land transferred cannot be allowed to defeat the right of pre-emption of a co-sharer by first purchasing an adjoining plot of land and thereafter claiming to be a raiyat holding land adjoining to the land transferred. As such, the object of Section 16(3) of the 7 Act is to recognise the right of pre-emption of the co-sharer of the transferor or any raiyat holding land adjoining to the land transferred and this object would be frustrated if strangers are allowed to first buy one plot of land and then resist the claim of right of pre-emption of a co-sharer or a boundary raiyat on the basis of such first purchase of the plot of land.
Mr. Amar Kr. Sinha, learned counsel for the petitioner has thus submitted, that admittedly prior to execution of impugned Sale deed No.2252 dated 12.05.2001, the respondent(s) has no land adjoining to the land in question rather they purchased the land only on 05.09.2001 and thus, in view of the judgment passed by the Apex Court in the case of Suresh Prasad Singh (supra), respondent nos.5 and 6 have no right and thus, the order passed by the DCLR, Giridih and the Additional Collector, Giridih are in accordance with land and the same may be affirmed by this Hon'ble Court by setting aside the order dated 28.08.2006 passed by Member, Board of Revenue in Revision Case No.76 of 2005.
Mr. Sarju Prasad, learned counsel for the private respondents assisted by Mr. Atmaram Choudhary, learned counsel has vehemently, opposed the prayer and submitted, that learned DCLR has also accepted the respondent Nos.5 and 6 to be adjoining raiyat but having lessor land, as such, this fact cannot be agitated by the petitioner before this Court as the petitioner has never preferred any appeal against the said part of finding recorded by learned DCLR, Giridih or by learned Additional Collector, Giridih.
Mr. Sarju Prasad, learned counsel for the private respondents has further submitted, that plot, in question i.e. Plot No.103 is adjoining to part of Plot No.97 which was in possession of respondent nos.5 and 6, as such, this question, which is being harped here by the petitioner with regard to adjoining raiyat as defined under Section 2(k) of the Act, 1961 is in favour of respondent nos.5 and 6.
Mr. Sarju Prasad, learned counsel for the private respondents has further submitted, that apart from this, the property which has vested in a widow, becomes a Stri Dhan and no co-sharer has any right over the same.
Mr. Sarju Prasad, learned counsel in support of his submission has placed reliance upon Section 14 of the Hindu Succession Act, which reads as follows :-
"14.Property of a female Hindu to be her absolute property.-(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as 8 a limited owner.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
Mr. Sarju Prasad, learned counsel in support of his submission has further placed the judgment passed by the Apex Court in the case of Marabasappa (D) by Lrs. & Ors. vs. Ningappa (D) by Lrs. & Ors., reported in 2011 9 SCC 451, whereby it has been held that any property of a female Hindu is her absolute property and she has full ownership- She may dispose of same as per her wishes and same shall not be treated as a part of joint Hindu family property- Stridhana belonging to a woman is a property of which she is absolute owner and which she may dispose of at her pleasure. There is no presumption, that of a joint family property and as such, for consideration of the same, there must be some strong evidence in favour of same.
Mr. Sarju Prasad, learned counsel has further submitted that earlier the property, in question was purchased by respondent No.7, namely, Smt. Karuna Devi, W/o Sri Jamuna Halwai as well as by one Natho Halwai, S/o Late Jhagru Halwai in equal share vide Registered sale deed of dated 23.06.1984 from the erstwhile owner, Ramdeo Rai, which was admittedly a dhan khet and Natho Halwai subsequently sold his share of 0.31½ acres (out of 0.33 acres) vide a Registered Sale Deed dated 11.07.1986 to the mother of petitioner, namely, Smt. Chandrika Devi, W/o Sri Prithvi Sharma and Smt. Sita Devi, W/o Sri Lal Bihari Sharma in equal share for valuable consideration. The same will not create any right of pre-emption in favour of the petitioner, as such, the order, passed by the Member, Board of Revenue is, in accordance with law, which does not require any interference by this Hon'ble Court.
Mr. Sarju Prasad, learned counsel has further submitted that Hukumnama has also been brought on record, as such, this Court may consider the same.
After hearing learned counsel for the parties and having gone through the materials available on record as well as the judgments referred as above,it would be appropriate to re produce the section 2(k) and section 16(3) of the Act,1961, which reads as under: -
Section- 2(k) "raiyat" means primarily a person who has acquired a 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-9
interest or persons who have acquired such a right and includes, in the district of Santhal Parganas' a village head man in respect of his private land, if any, but does not include in the areas to which the Chotanagpur Tenancy Act, 1908 (Ben. Act VI of 1908, applies a Mundari, Khuntkattidar or a Bhuinhar;
Section-1616. 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 purpose 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 Indian Registration Act, 1908 (XVI of 1908), as to the total area of land held by himself or through any other person any where 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 Indian Registration Act, 1908 (XVI of 1908).
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) As per the said definition "raiyat" means primarily a person who has 10 acquired a right to hold the land for the purpose of cultivating it by himself, or by members of the family or by hired servant and includes also the successor in interest or persons who have acquired such right.
Section 16 is included in Chapter V of the Act,1961. 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 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.
It appears to this court that vide Sale Deed No.2252 dated 12.05.2001, Respondent No.7, namely, Smt. Karuna Devi, W/o Sri Jamuna Halwai has transferred a portion of land of Plot No.103, area 0.33 acres in favour of Respondent No.5 [Shri Krishna Kumar @ Kumar Krishna] and Respondent No.6 [Shri Pankaj Kumar], both sons of Sri Braj Kishore Sharma and within three months, the pre-emptor/ petitioner, Anant Deo Sharma, S/o Late Pritam Sharma and Chandrika Devi filed an application under Section 16(3) of the 11 Act, 1961 along with required conditions of deposit of money, impleading all these persons as Opp. Party(s) in the proceeding before the DCLR, Giridih and after due notice, DCLR, Giridih has passed an order in favour of the petitioner though he has considered the other aspect of the matters with regard to raiyati right of both the parties which was never the subject matter before the DCLR,Giridih.
However, this order was not assailed by the petitioner and against the order of the DCLR, Respondent No.5 [Shri Krishna Kumar @ Kumar Krishna] and Respondent No.6 [Shri Pankaj Kumar], [both sons of Sri Braj Kishore Sharma] preferred an appeal before the Additional Collector, Giridih. The Additional Collector, Giridih, after considering the merits of the case, did not intervene into the finding recorded by the DCLR and thus, rejected the appeal.
Against the said appeal, the respondent nos.5 and 6 moved before the Member, Board of Revenue in Revision Case No.76 of 2005, who set aside the order of DCLR, Giridih and Additional Collector, Giridih on the ground that DCLR, Giridih has committed a flaw by considering the pre- emptor/petitioner, Anand Deo Sharma has a larger area adjoining the disputed land. Thus, the Member, Board of Revenue has set aside the order and thus, the instant Writ Petition was filed before this Court.
This Court has examined the provisions of Section 2(k) and section 16(3) of the Act, 1961 and satisfied with the grounds of the petitioner, that the petitioner has adjoining land of Plot No.103 which is agricultural land, as such, the petitioner comes under the definition of raiyat, under Section 2(k) and adjoining land under section 16(3) of the Act, 1961. Thus, petitioner has pre-emptive rights over the agricultural land because enactment of the Act is only for the purpose to consolidate the agricultural land.
It also appears that Chandrika Devi, who is claiming pre-emptory right, rather the successor of Chandrika Devi having agricultural land adjoining to the disputed plot No.103 is claiming pre-emptory right and that is granted in view of provisions of Section 16(3) of the Act, 1961, as such, this Court concurs with the submission made by learned counsel for the petitioner, particularly the judgment passed by the Apex Court in the case of Suresh Prasad Singh (supra) wherein, it has categorically been mentioned that as a matter of fact Section 16(3) of the Act, 1961 confers right of pre-emption not only to the co-sharer, but also to the raiyat holding the land adjoining to the 12 land transferred. A complete stranger who was not originally a raiyat holding land adjoining to the land transferred cannot be allowed to defeat the right of pre-emption of a co-sharer by first purchasing an adjoining plot of the land and thereafter claiming to be a riayat holding land adjoining to the land transferred. The object of Section 16(3) of the Act, 1961 is to recognize the right of pre-emption of the co-sharer of the transferor or any raiyat holding land adjoining to the land transferred and this object would be frustrated if the strangers are allowed to first buy one plot of land and then resist the claim of the right of pre-emption of a co-sharer or a boundary raiyat on the basis of such first purchase of a plot of land.
Further, the Hukumnama as referred by learned counsel for the pvt. respondents without having any authenticity and validity cannot be accepted by the Writ Court, as such, the prayer of the pvt. respondents to consider the Hukumnama is hereby rejected.
It has also been held by the Apex Court in para-20 of the judgment of Suresh Prasad Singh (supra) that where a right of pre-emption is recognized by the statute, it has to be treated as a mandatory and not discretionary, as such, this court has no doubt in the mind that petitioner being the co-sharer has land adjoining to the plot No.103 and thus, comes under the definition of Section 2(k) and under Section 16(3) of the Act, 1961, has right of pre- emption which was rightly allowed by the DCLR with some defects in the judgment, which is hereby modified.
So far, the contention raised by the counsel for the private respondent that the aforesaid land has been vested in the widow and the same has become the Stridhan and no co-sharer has any right over the same.
Stridhan of a woman is her absolute property and the husband has no interest in the same and the entrustment to him is just like something which the wife keeps in a bank and can withdraw any amount whenever she likes without any hitch or hindrance and the husband cannot use the stridhan for his personal purposes unless he obtains the tacit consent of his wife.
Considering the submissions, it appears to this court that the private respondent never took such plea with regard the stridhan before the courts below i.e., before all the three courts below. The issued raised for the first time before this court under article 226 and even after giving opportunity, the private respondents failed to produce any documents to substantiate their plea with regard to the property being stridhan. In the absence of such 13 documents and pleadings, this court under writ jurisdiction cannot consider such submissions and even cannot adjudicate the same.
Further, the fact of the instant case is different from the case relied by the private respondent in Marabasappa (supra) and which is not applicable in the present case.
Thus, the plea raised by the private respondent with regard to the land being stridhan property is hereby negated.
As discussed above, the order dated 28.08.2006 passed by the Member, Board of Revenue, Jharkhand, in District-Giridih, Case No.76 of 2005 is hereby set aside and the orders dated 02.12.2005 and 25.10.2002 passed by the Respondent Nos.3 [The Additional Collector, Giridih] and respondent no.4 [The Deputy Collector Land Reforms, Giridih] in Land Ceiling Appeal No.8/2002-03 and Land Ceiling Case No.38/2001-02 respectively are hereby affirmed with modification, as stated above.
Accordingly, the instant Writ Petition stands allowed.
(Kailash Prasad Deo, J.) sandeep/