Patna High Court
Fauzdari Chaudhary And Birendra Nath ... vs Additional Member, Board Of Revenue And ... on 9 December, 1991
Equivalent citations: 1993(1)BLJR566
Author: Aftab Alam
Bench: Aftab Alam
JUDGMENT Aftab Alam, J.
1. These two writ applications, based on similar facts and involving the same questions of law, have been heard together and are being disposed of by this common judgment."
2. The applications arise out of pre-emption proceedings in which the claim of pre-emption made on behalf of respondent No. 4 who is common in both the cases has been allowed. The two applications in this Court are at the instance of the second transferees who happen to be different in the two cases The original vendors who are common in both the applications have been "impeded as respondents 6 to 8 in CWJC No. 5998 of 1984 and as 7 to 9 in CWJC No. 6020 of 1984. The first purchasers in the two cases are different and have been impleaded as respondent No. 5 in CWJC No. 5998 of 1984 and as respondents 5 and 6 in CWJC No. 6020 of 1984. The pre-emptor again is common in both cases and has been impleaded as respondent No. 4 in the two applications.
3. The subject matter of dispute are some land, six decimals in area in each of the two cases which have been described in para 4 of both the writ petitions.
4. By registered sale deeds dated 12-6-6-1979 the original vendors sold the two parcels of land one in favour of respondent No. 5 of CWJC No. 5998 of 1984 and the other in favour of respondents 5 and other in favour of res-pondents 5 and 6 of CWJC No. 6020 of 1984, each for a consideration of Rs 5,000/-. The registration of the two sale deeds was completed on 29-6-1979. On 8-8-1976. the pre-emptor, common in both the proceedings and who has been impleaded as respondent No. 4 in the two writ petitions filed an application for pre-emption under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter to referred as the Act). This application was original filed impleading the vendors and the first purchasers as opposite parties and was accompanied by the necessary deposits of the consideration money (a sum of Rs. 5,000 for each case along with an additional sum @ 10%). The firts purchasers in both the proceedings appeared in pursuance to the notices issued before the Deputy Collector Land Reforms. Bihar Sharif on 16-10-1979. Then a prayer was made on their behalf for adjournment of the case for filing their show cause. On the next date i.e. 30-10-79 neither any show cause was filed nor any Pairvi was made on their behalf. On the next date i.e. 6-11-1979 a petition was again filed for time and in this manner adjournments were sought on 20-11-1979, 27-11-1979 and 4-12-1979. Thu;, the proceeding lingered on without the 'first purchaser's filing any show cause ,or even stating that they had transferred the land to some one else before the filing of the pre-emption application by respondent No. 4. Finally on 11-1-1980 a written statement was filed on behalf of the 'first transferees of both the proceedings disclosing for the first time that the lands in question had been transferred to the second transferees. The second transferees in the two proceedings were two different persons who are the writ petitions in the two writ petitions.
5. One cannot fail to notice the curious nature of the situation where the two 'first transferees' although different persons were acting almost in tandem, taking adjournments on the same dates and finally filing their show cause on the same date disclosing that they had executed sale deeds in favour of two different persons on same dates prior to the date of filing of the pre-emption application.
6. The 'first transferes' in CWJC No. 5998 of 1984 executed a sale deed in favour of the petitioners of that case on 9-7-1979 while the 'first transferees of CWJC No. 6020 of 1984 executed a sale deed in favour of the petitioners of that case on 11-7-1979. However, both these deeds were presented for registration two months after the date of execution on 11-9-1979 and the registration was completed on 11-10-1979.
7. After the filing of the show cause by the 'first transferees' on 11-1-1980 disclosing the transfer of the lands in favour of the 'second transfrees', the pre-emptor filed petitions for impleading the 'second transfees in both the second transferees in each of the two cases were impleaded as opposite , parties. They also filed their separate show cause.
8. The pre-emption applications have been allowed by the three courts successively, namely that of the Deputy Collector Land Reforms, the Additional Collector and the Addl. Member, Board of Revenue. The three orders passed by them have been enclosed with the writ petitions as Annexures-1, 2 and 3 respectively and come under challenge in the two writ petition. The claim of pre-emption advanced by respondent No. 4 has been allowed by the revenue Courts on a finding that the second transfer was sham and wanting in bona fides and was solely intended to frustrate the pre-emption applications filed by respondent No. 4 the finding is primarily based on the circumstance that there was a long and unexplained gap between the execution of the two sale deeds and their presentation for registration. The learned Addl. Member Board of Revenue has to say this in that regard :
The sale deeds in favour of the petitioners are purported to have been executed on 9-7-79 and 11-7-79 respectively. But both were registered on 11-10-79. There is no explanation for withholding the subsequent sale deeds for two months and presenting them for registration before the Sub-Registrar on 11-9-79 much after the date of filling of the pre-emption application. Since these subsequent sale deeds were presented for registration after the date of filling of the pre-emption application and since there is no explanation for with holding these sale deeds for about two months after the execution on 9-7-79 and 11-7-79, they are clearly ante dated and as such hit by the doctrine of list pendens.
9. Mr. K. N. Choubey, learned Counsel appearing on behalf of the petitioners assailed the finding recorded by the Addl. Membber, Board of Revenue and submitted that no such finding could be legally arrived at on the sole ground of delay in presenting the sale for registration. In this regard he relied upon a Division Bench decision of this Court in the case of Chandradip Singh and Anr. v. Addl, Member, Board of Revenue, Patna and Ors. so far as this aspect of the matter is concerned, it is indeed true that the facts of the case relied upon by Mr. Choubey is very similar to the facts of the case in hand, in the above referred case Division Bench held that the mere fact of delay in the presentation of a deed for registration or the coincidence of dates' as the expression has been used by their Lordships cannot form the basis of a finding that the sale was sham or lacking in bona fides. The relevant passage in this regard is in para 3 of the judgment which is extracted below :
The only reason for recording the finding that the two sale deeds were not bona fide has been given by the Addl. Member as coincidence of dates, namely, 19th June, 1970 as the date of execution, 21st July, 1970 as the date of filing of the premption application and 4th'August, 1970 as the date of presentation of the documents in the Registration Office. This coincidence of dates is said to support the allegation of respondent No. 4 that the two sale deeds in question were ante dated. One further reason, if that may be called a reason at all, is that petitioner No. 1 signed the document on the date of presentation on the 4th August, 1970. The aforesaid finding of the Board cannot be sustained, as it is vitiated by error of law apparent on the face of the order. The coincidence of dates may at best lead to a suspicion. I may use-fully point out here that the term 'Farzi' has been used by respondent No. 4 loosely. What is meant to be said it that the deeds were sham and ineffective, passing no title thereunder. In other words, the impugned sale deeds were executed fraudulently and collusively. It is well settled that the charges of fraud and collusion must be proved by those who make them proved by established facts or inference legitimately drawn from those facts taken together as a whole. Suspicions, surmises and conjectures are not permissible to come to such a finding. Of course, it is true that every puzzling artifice or contrivance resorted to by one accused of fraud must not necessarily be completely unravelled and cleared up and made plain before a verdict can be properly found against him. If this were not so, many a clever and dexterous knave would escape. Reference in this connection may be made to the observations of Lord Atkinson in Satis Chandra Chatterji v. Kumar Satish Kantha Roy AIR 1923 PC 73. As we have already pointed out earlier the coincidence of dates leads to nothing further than a more suspicion not sufficient to outweigh the reasons of the two courts below.
9. A. At the first sight, the aforesaid decision of the Division Bench appears to fully cover the facts of this case and seems to settle the matter in favour of the petitioners. There is, however, one difference of fact which is of great importance and it is this that in the reported decision the fact was noted that the second transferees, namely, the two petitioners (in the reported case) were also adjoining raiyats of the land in question The petitioners in the present two writ petitions have no such advantage. I went through the show cause filed by the petitioners in the two cases be fore the Deputy Collector Land Reform and 1 have satisfied myself that in their respective show cause they did not even claim being adjoining raiyats of the lands in question. Seen in this light the finding regarding the second sale being sham and ineffective assumes an altogether different significance. In the reported case, in the event it was held that he second transfer was not sham or ineffective, the 'second transferees' by virtue of being adjoining raiyats to the land in question were immune to any pre-emption proceeding against them. However, in the cases in hand even if it is held that the second transfer was not sham or ineffective, the present petitioners cannot claim any such immunity as they are not adjoining raiyats and are, thus, themselves vulnerable to a claim of pre-emption. In the present case, therefore, any finding regarding the genuineness or otherwise of the second sale deed loses all significance and even upholding the petitioners contention that the finding regarding the sale in their favour being sham was erroneously arrived at by the courts below, there shall be no change in the position and hence no interference would be warranted by this Court.
10. Mr. Choubey then strenuously argued that there being no pre-emption application against the petitioners and in respect of the second sale-deed, no order could be given to the petitioners to convey the land in favour of the pre-emptor by executing and registering a document of transfer. In this regard he has relied on the fact that the terms and. conditions of the first and second sales were different, the sale executed by the original vendor in favour of the first transferees being for a consideration of Rs. 5000 and the sale effect-ed by the first transferees in favour of the petitioners being for a consideration of Rs. 7,500. Mr. Choubey submitted that the pre-emption application being accompanied by the deposit of the purchase money @ Rs. 5000 (with the additional sum of 10%) would not suffice in so far as petitioners we concerned as the condition for the second sale involved a higher consideration.
11. In reply, learned Counsel appearing on behalf of the respondents relied upon a division Bench decision of this Court in the case of Ganesh Prasad and Ors. v. The State of Bihar and Ors. . The relevant paragraphs being 6 and 7 are quoted hereinunder :
The grievance of the learned Counsel of the peationers in both the cases is that the pre-emption application ought to have been filed against the subsequent sale deed dated 22nd January 1977. According to Section 16 (3) of the Act, an application under Section 16 (3) of the Act can be filed within the three months from the date of registration. In view of the fact that the second sale deed was not registered till 9th February, 1977, as such the Court below was right in holding that no pre-emption application can be filed against the subsequent sale deed date 22nd January, 1977 as the same was not registered till 9th February 1977. It is, therefore, clear that the pre-emption application was maintainable so far as the first sale deed is concerned.
7. A pre-emption application is required to be filed against the first sale deed. The only thing which is required is that the vendee of the second sale deed ought to be added as a party in the pre-emption application. It is an admitted position that the petitioners in CWJC No. 72 of 1979 who are the subsequent purchasers have been added as parties in the pre-emption case. Therefore, in the present case, no prejudice will be caused to the subsequent purchasers. Hence, I hold that in a case of this type, it is not necessary to file a pre-emption application in respect of the subsequent sale deed which was not registered on the date of filing an application for pre-emption. It is also not necessary to file a pre-emption application against the subsequent sale deed as all the authorities have concurrently held that the subsequent sale deed is a sham transaction.
12. Mr. Choubey contended that this decision is per incuriam as it did not take note of all the statutory provisions. Mr. Choubey reads Section 16(3) of the Act to mean that an application under that provision is to be made in the prescribed manner for the transfer of the land to the pre-emptor on the terms and conditions contained in the said deed. He further cites Section 16(3) (iii) to submit that Collector would by an order direct the transferee to convey the land in favour of the applicant. The submission of Mr. Choubey is that the second transfer having taken effect, it will be the terms and conditions contained in the second transfer that would be relevant for the purposes of the provision and it is the 'second transferee' who is the transferee within the meaning of Section 16(3)(iii). It it is accordingly submitted that the above referred Division Bench decision does not take into consideration this aspect of the statutory requirement. He, therefore, urged me not to follow the Division Bench judgment or at any rate to refer the question to a larger Bench.
13. I am afraid I do not feel pursuaded to accept this submission. The judgment might not have dealt with the question in the manner and in the language as suggested by Mr. Choubey but the contentions raised by him have been adequately answered when it is said that :
A pre-emption application is required to be filed against the first sale deed. The only thing which is required is that the vendee of the second sale deed ought to have been added as a party in the pre-emption application Hence I hold that in a case of this type it is not necessary to file a pre-emption application in respect of the subsequent sale deed which was not registered on the date of filing an application for pre-emption.
14. The above referred Division Bench decisions leaves no room for doubt that the second transferee having been impleaded in the proceeding, an order passed in the proceeding shall be equally binding upon him in so far as it directs the conveyance of the land to the pre-emptor, though on a lower consideration based on the first sale. For the redressal of his loss, if any, the second transferee can take steps as may be available to him in law against his transferor. The above view also finds support from another Division Bench decision of this Court in the case of Ram Chandra Yadav v. Anutha Yadav and Ors. reported in 1971 BLJR 994. I, thus, find no merit in this contention either.
15. Accordingly, the two writ applications are dismissed. However, without any order as to costs.