Jharkhand High Court
Mohan Mahto Son Of Late Ganju Mahto vs State Of Jharkhand on 13 July, 2018
Equivalent citations: 2019 (1) AJR 702, 2019 AIR CC 1111 (JHA), (2019) 196 ALLINDCAS 574 (JHA), (2019) 2 JCR 127 (JHA), (2018) 4 JLJR 661
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.4967 of 2011
1. Mohan Mahto son of Late Ganju Mahto
2. Most. Tetri Devi widow of Late Chhedi Mahto
3. Smt. Shobha Devi wife of Sri Mohan Mahto
4. Pancham Mahto
5. Anil Mahto
both sons of Late Chhedi Mahto
All by Caste-Koiri Mahto by occupation- Agriculturist
Resident of village-Dungri Chapatoli, P.O. and P.S. Hatia, District -
Ranchi ..... Pre-emptors/Petitioners
Versus
1. State of Jharkhand
2. Satyanarayan Lal, son of Late Gandouri Sahu, resident of Plaza
Road, P.S. - Lalpur, Dist. - Ranchi
....Vendor/Opposite Parties
3. Nanki Devi wife of Bhuneshwar Yadav
4. (a) Bausli Mahto
(b) Devan Mahto
5.(i) Bhola Mahto, husband of Late Janki Mahto
5. (ii) (a) Rita Kumari,
5. (ii) (b) Sachin Kumar
5. (iii) Rajesh Mahto Son of Bhola Mahto
5. (iv) Bhagwan Mahto Son of Bhola Mahto
5. (v) Sigashan Mahto son of Bhola Mahto
All C/o Gajadhar Mahto, all resident of Mecon Colony, P.S. Doranda,
Dist - Ranchi
6. Smt. Lilawati Devi wife of Krishna Mahto
All resident of Mecon Colony, P.S. Doranda, District - Ranchi
..... Purchasers/ opposite parties
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
For the Petitioners : Mr. Shanshank Shekhar, Advocate
For the Respondent-State : Mr. Satish Kumar, A.C. to A.G.
For the Private Respondents: Mr. S.K. Sharma, Advocate
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16/13.07.2018 Heard Mr. Shanshank Shekhar, counsel appearing on behalf of the petitioners
2. Heard Mr. S.K. Sharma, counsel appearing on behalf of the private respondents.
3. Heard Mr. Satish Kumar, counsel appearing on behalf of the respondent State.
4. This writ petition has been filed for the following reliefs:
"For quashing and setting-aside the impugned order dated 2.7.2011 disallowing the pre-emption passed by the Court of Member Board of Revenue Jharkhand in Ceiling Revision No.14 of 2009, whereby and 2 whereunder the order of Deputy Commissioner, Ranchi allowing the Pre- emption is set-aside and the order of Land Reforms Deputy Collector, Ranchi, disallowing the Pre-emption is upheld."
SUBMISSIONS OF THE COUNSEL APPEARING FOR THE PETITIONERS
5. The property involved in this case relates to Khata No.107, Plot No. 128 situated at village-Dungri Tupudana District- Ranchi, having land of about 37 decimal.
On 13.2.2001, Mohan Mahto purchased a land of Khata No.107, plot No.128, area 42 ½ decimal and the nature of land as recorded in the record of right is Tand - II.
Vide another sale deed dated 13.2.2001, Cheedi Mahto purchased the land of Khata No.107, plot No.128, Area 42½ decimal and the nature of land of this property was also shown in the record of rights as Tand - II.
6. Vide four different sale deeds all dated 27.07.2001 , the respondent No.2 namely Satnarayan Lal transferred the disputed land pertaining to khata No.107, plot No.128 to the following persons:-
Nanki Devi, an area of 6 decimal, Lal Muni Devi, an area 7 decimal, Janki Devi, an area 4 decimal, Leela Devi, an area 20 decimal and all are members of same family.
7. Mohan Mahto and Chedi Mahto, claimed themselves to be the adjoining raiyat of the property filed four preemption applications in connection with all the purchases dated 27.07.2001, which were numbered as Preemption Case Nos.9 of 2001-02, 11 of 2001-02, 13 of 2001-02 and 12 of 2001-02 respectively. The notices were issued to the private parties and vide common order dated 7.12.2002, the land Reforms Deputy Collector, Ranchi dismissed the preemption application by recording that the nature of land has changed from agriculture land to residential land and neither discussed the 3 evidences on record nor recorded any finding as to whether the petitioners were adjoining raiyat or not of the vended property.
8. Aggrieved by this common order dated 7.12.2002, the petitioners filed an appeal before the Deputy Commissioner Ranchi, which was numbered as Preemption Case No.164 R-15 of 2002-03 and he submits that the appellate authority considered all the material evidences on record and returned a specific finding that the petitioners are the adjoining raiyat of the vended property and further allowed the applications for preemption filed by the petitioners. Against this order, the private respondents filed revision petition before the revisional authority, which was numbered as Ceiling Revision Case No.14 of 2009 and was decided vide impugned order dated 2.7.2011. Counsel for the petitioners submits that the revision was allowed in favour of the private respondents and hence this writ petition.
9. While assailing the impugned order dated 2.7.2011, the counsel for the petitioners submits that the revisional order does not discuss any of the evidences on record and further he submits that there is no discussion by the revisional authority as to whether the petitioners are the adjoining raiyat or not. He further submits that the finding of the appellant authority, that the petitioners are the adjoining raiyats, has not been set-aside by the revisional order dated 2.7.2011. Counsel for the petitioners further submits that the revisional authority, instead of going through the materials on record and deciding the case on the basis of materials on record, called for a report from the Circle Officer vide order dated 11.12.2010 and thereafter a report dated 20.4.2011 was filed under the signature of In-charge Additional Collector and in the said report, it has been mentioned that the Circle Officer has examined and reported that although the property is recorded as Tand-II, but upon the spot inspection, it was found that there has been no agricultural activity on the land and boundary walls and houses are made and a portion of the land is still vacant.
410. Counsel for the petitioners submits that the order dated 11.12.2010, was itself not in accordance with law as the revisional authority has to examine the materials on record and has got no jurisdiction to pass order for fresh inspection and in an alternative, he submits that any inspection carried out in the year 2011, is of no use in connection with the nature of the property, particularly when the application for preemption was filed as back as in the year 2001, then no order can be passed on the basis of the inspection conducted in the year 2011.
11. Counsel for the petitioners submits that the revisional authority erred in law and has failed to consider that the law regarding preemption is the mandate of law under Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of surplus land) Act, 1961. He submits that in a given case, if the conditions precedent for applicability of law of pre-emption under Section 16(3) of the aforesaid Act is satisfied, then the application for pre-emption has to be allowed.
12. He has relied upon the followings judgment reported in
a) (2010) 6 SCC 441(Suresh Prasad Singh Vs. Dulhin Phulkumari Devi and Others) para-20 and (2001) 8 SCC 24 (Shyam Sunder and Others Vs. Ram Kumar and Another) para-17 on the point that the right to pre-emption is recognized by the statute, it has to be treated as mandatory and not discretionary.
b) (2018) 12 SCC 576 (Gandhe Vijay Kumar Vs. Mulji alias Mulchand) para - 2 & 3 on the scope of revisional jurisdiction and submits that in revisional jurisdiction , the court is expected to see only whether the findings are illegal or perverse in the sense that a reasonably informed person will not enter such a finding;
c) (2017) 1 JCR 224 (Kalipada Mahato Vs Babi Mahatain and Another) para - 9 & 10 on the point that the object of local investigation by appointing pleader commissioner is 5 not to collect evidence which can be adduced in court. A commissioner will not be in a position to determine the question as to who is in possession of the property. It is for the court who has to decide the matter on the basis of evidence to be adduced by the parties or the evidence already on record;
d) (2012) 1 SCC 656 (Suraj Lamp and Industries Private Limited Vs. State of Haryana and Another) para - 16 & 19 to submit that agreement of sale which is not registered deed of conveyance would fall short of the requirement of section 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immoveable property;
e) AIR 2007 SC 2025 (Adivekka & Ors. Vs. Hanamavva Kom Venkatesh) para - 15 to submit that adverse inference has to be drawn in case of non-examination of a party to suit;
f) 1987 PLJR 455 (DB) (Ram Roop Yadav Vs. State of Bihar) Para- 6 and 2001 (3) PLJR 469 (Dinanath Singh Vs. State of Bihar) para - 9 to submit that the pre-emptor by purchasing an adjoining plot can itself become the raiyat and holder of an adjoining plot;
g) 1997 (1) PLJR 46 SC (DB) (Sheoji Mahto & Ors. Vs. The Additional Member, Board of Revenue & Ors.) Para - 3; 1995 (1) PLJR 764 (Ram Pravesh Singh Vs. Addl. Member, Board of Revenue) Para - 3 to submit that the condition precedent for pre-emption are two folds, one he must be a co-sharer or an adjoining raiyat and second that the application for pre-emption must have been filed within three months from the date of registration;
h) 2007 (4) JLJR 198 (Kapil Mahto Vs. State of Jharkhand) Para - 7 to submit that a co-sharer or an adjoining raiyat (pre-emptor) has a superior right over the land than the opposite party who purchased the land for non -
agricultural purpose.
613. Counsel for the petitioners submits that the notices were issued to the seller of the property, but he has chosen not to appear in spite of substituted service of notice upon him and accordingly nobody is appearing on behalf of the seller of the property. He submits that from the records of the case, it appears that the seller of the property did not appear even before the authorities below. SUBMISSIONS OF THE COUNSEL APPEARING FOR THE RESPONDENT PURCHASER OF THE PROPERTY/ RESPONDENT STATE
14. So far as the Respondent counsel appearing for the purchaser of the property is concerned, it has been argued and submitted that the purpose of the aforesaid Act is to prevent the fragmentation of the agriculture land and if the purpose itself is not satisfied, then under such circumstance, the application of pre-emption should not be allowed. He submits that upon inspection conducted by the circle officer under the orders of the revisional court it appears that the property is no longer fit to be used as an agricultural property.
15. Counsel for the respondent also submits that the respondent had entered into an agreement of sale in connection with the property vide agreement dated 19.1.2001 with the vendors of the property and the respondent were in possession of the property, although the sale deeds were executed subsequently. He further submits that although that property at the time of purchase was vacant, but the purchasers of the property had purchased this property for the purposes of construction of the houses as the surrounding area had many residential houses. He submits that after the purchase of this property, the respondents have constructed their respective houses and are residing on that property and there are enough material on record to show that the nature of the land has now changed from agriculture to non-agricultural land.
16. He has also referred to clause 16(3) (ii) of the aforesaid Act, which provides that once an application is filed by the pre-emptor, then upon the required deposit having been made the preemptor, he 7 is entitled to be put in possession of the property, irrespective of the fact that the application for pre-emption under section 16(3) (i) of the aforesaid Act is pending for decision. He submits that the petitioners herein have never exercised their rights under clause 16(3)(ii) and having not done so, the application for preemption should not be allowed in their favour today in the year 2018.
17. Counsel for the respondents has relied upon the Judgment passed by Full Bench of Hon'ble Patna High Court reported in (1997) 2 BLJ 412 (Ram Chandra Yadav Vs. A. Wati Ao, Additional Member, Board of Revenue) to submit that the date relevant for consideration of claim of preemption was the date on which the application was filed by the pre-emptor and his right could be defeated on or before the filing of the application of preemption. He submits that the applications for pre-emption were filed only in the month of October 2001 and by that time, the house was in the process of construction by the Respondents. He has referred to the report of Circle Officer, which has been annexed along with the counter affidavit, to submit that on 30.5.2002, it was reported by the Circle Officer that there is mud house, so far as Lilawati Devi's property is concerned; there is a house of bamboo so far as property of Lal Mani Devi is concerned; there is house made up of a bamboo, so far as the house of Janki Devi is concerned and such constructions have come up six months earlier. He has referred to another Judgment delivered by the Jharkhand High Court reported in 2007 (2) JLJR 662 (Ram Prasad Sao and others vs. the State of Bihar and Others) wherein it has been held that authorities while considering an application under Section 16(3) of the aforesaid Act are required to examine, what is the primary object, for which such land was being used or is capable of being used and if it is found that the land was being retained by the transferor or was being transferred to another person for a purpose and object, which is not connected with agriculture land, then an application under Section 16(3) should not be entertained.
818. Counsel for the respondents also submits that without prejudice to the contention that the land in question could not be subject matter of preemption under Section 16(3) of the aforesaid Act, as the nature of land having been changed and the purpose of buying the property was to construct the house, but still the issue as to whether the petitioners are the adjoining raiyat or not has not been addressed by the revisional authority and in such circumstances, even if it is held that this property could be subject to preemption, then this issue has to be considered on the basis of the materials on record and he has referred to the grounds of revision, which has been quoted in his counter affidavit and has submitted that one of the grounds, which was raised before the revisional authority was that the petitioners are not the adjoining raiyat.
19. Counsel appearing on behalf of the respondent state has supported the case of the respondents and submits that the writ petition is fit to be dismissed under the facts and circumstances of this case.
FINDINGS OF THIS COURT
20. After considering the materials on record and after hearing the counsel for the parties, this Court finds that the writ petitioners Mohan Mahto and Cheedi Mahto had purchased certain properties by two different sale deeds sale deeds both dated 13.2.2001 and the petitioners claim that by virtue of these sale deeds they became adjoining raiyat of the properties involved in this case.
21. It has been claimed by the private respondents that prior to this sale deed, an agreement of sale in connection with the entire property involved in this case was entered into between the seller and the purchasers of the property, and vide sale deeds dated 27.7.2001, the property was transferred in favour of the private respondents. Thereafter, on 27.10.2001, the application for preemption was filed by the petitioners.
22. From perusal of the report of the Circle Officer, which is dated 30.5.2002, it appears that there were some houses made up of mud 9 and by bamboo six months prior to 30.5.2002. This report clearly indicates that the so called construction of houses of mud or bamboo, the same were constructed certainly after 27.10.2001, if six months is calculated back from 30.05.2002. The application for preemption was filed on 27.10.2001 and decided vide order dated 7.12.2002.
23. From perusal of order dated 7.12.2002 passed in the applications for pre-emption it appears that the authority has not given any definite/clear finding as to whether the petitioners are adjoining raiyat or not of the vended property. The reason for dismissing the application for preemption was that the nature of land had changed from agriculture to residential and that the respondents are landless persons.
24. Thereafter, the appeal was filed and before the appellate authority and the materials on record were considered, who returned a finding that the petitioners are the adjoining raiyat and the respondents are neither the adjoining raiyats nor co-sharer of the vended property. The appellate authority set-aside the order dated 7.12.2002.
25. Thereafter, the private respondents herein filed a revision petition before the revisional authority who by the impugned order has also not returned any findings as to whether the petitioners are the adjoining raiyats or not of the vended property. Rather he has not discussed this issue, at all, although this point was specifically raised by the respondents herein, before the revisional authority. The Revisional authority conducted a fresh inspection in the year 2011 and on the basis of this inspection, he decided the entire case by holding that the nature of land has changed and therefore the revision application was allowed. From perusal of the impugned order, it appears that none of the evidences which was there before the authorities has been discussed by the revisional authority.
26. Now before this Court, on the basis of arguments advanced by the parties, mainly three points arise for consideration which are as follows:
10A. whether the purpose of buying the vended property or any change in the land use of the vended property subsequent to purchase and subsequent to filing of application for pre-emption under section 16(3) of the aforesaid Act has any bearing on the right of a pre- emptor?
B. Whether the petitioners having not exercised their rights under clause 16(3) (ii) to take possession of the property during the pendency of the application for pre-emption, the application for preemption should not be allowed in their favour today in the year 2018? C. Whether the claim of the respondent, purchaser of the property, that there was an agreement of sale between the seller and purchaser of the property prior to execution of sale deed has any bearing in the claim of right of pre-emption of the petitioners?
D. In case the aforesaid three points are decided in favour of the petitioner, what relief can be granted to the petitioners? POINT No. A
27. The counsel for the respondents has relied upon a Judgment passed by the full bench of Hon'ble Patna High Court reported in (1997) 2 BLJ 412 (Ram Chandra Yadav Vs. A. Wati Ao, Additional Member, Board of Revenue), but this Judgment appears to be in favour of the petitioners. This Judgment clearly lays down that the date relevant for consideration of the claim of preemption application was the date, on which the application was filed by the preemptor exercising his right under Section 16(3) of the aforesaid Act. Therefore, this Court finds that any subsequent development changing the land use has no bearing in the matter.
28. In the judgement passed by Hon'ble Supreme Court reported in (2001) 8 SCC 24 (Shyam Sunder & Ors. Vs. Ram Kumar & Anr.) it has been held in para-17, that the right of pre-emption under statutory law has been held to be mandatory and not mere discretionary. This Judgement has been followed in subsequent judgement passed by Hon'ble the Supreme Court Reported in (2010) 6 SCC 441 (Suresh Prasad Singh Vs. Dulhin Phulkumari Devi) whose para 20 reads as follows:-
11"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 Singh8 and the learned Single Judge in Ram Pravesh Singh v. Board of Revenue2 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 Kumar1 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 Kumar1 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 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."
29. Thus, this Court finds that even if there is a lapse of time from the date of filing of the application for pre-emption and now in the 12 year 2018 but the right of pre-emption being a statutory right the same cannot be said to have been diluted by passage of time. The right of pre-emption has to be granted to the person if the pre- requisites for applicability of the provisions granting the right of pre- emption under the aforesaid Act has been complied and the claim has to be adjudicated on the basis of the facts which existed as on the date of filing the petition for pre-emption. There is no dispute that the application for pre-emption was filed by the petitioner in accordance with the procedure prescribed by law.
30. In this view of the matter, the view which has been taken by the revisional authority that the nature of the land has changed and for this finding reliance on a report of circle officer dated 20.04.2011 which was called for by the revisional authority during the pendency of the revision case, is not sustainable in the eyes of law. The revisional authority ought to have based his findings on the basis of materials available on record. Accordingly the impugned order passed by the revisional authority is not sustainable in the eyes of law.
31. Accordingly Point No. A is decided in favour of the petitioners.
Point No. B
32. One of the arguments which has been advanced by the respondents is that the petitioner did not exercise his right to take possession of the property pending his application for pre-emption and therefore the writ petition be dismissed. This court finds that it was the discretion of the petitioner to exercise or not to exercise his right to take possession of the property during the pendency of the application for pre-emption and merely because such right has not been exercised, his right to due claim of pre-emption cannot be defeated or denied. Moreover there is no provision under the Act which denies the claim of pre-emption to the applicant, if the applicant does not exercise his right to take possession of the property during the pendency of application for pre-emption. As already held above even if there is a lapse of time from the date of 13 filing of the application for pre-emption and now in the year 2018 but the right of pre-emption being a statutory right the same cannot be said to have been diluted by passage of time. Accordingly this contention of the respondents is hereby rejected and Point No. B is decided in favour of the petitioners.
33. The other judgement which has been relied upon by the respondents is judgement reported in 2007 (2) JLJR 662. This judgement also does not help the respondents in any manner as the property in that case was admittedly situated one mile from the town and the area was admittedly urbanized and was not being used for agricultural purposes. In the instant case there is no such similar facts involved. In the instant case , admittedly, the property in question is recorded as Tand-II i.e., Agricultural land and admittedly on the date of transfer , there was no construction on this property and the property was fit for agricultural use and it was merely purchased for construction of house. This is also fortified by the fact that the document on which the private respondents has relied upon i.e., the report of the Circle Officer of the year of 2002, clearly shows that the construction by way of mud or bamboo has come up only six months prior to 13.5.2002. The application having been filed on 27.10.2001 therefore, admittedly on 27.10.2001, there was no construction over the property. This Court is of the considered view that merely because a property has been purchased for the purpose of constructing a house, it will not frustrate the provisions of the Act and the right of the pre-emptor under the aforesaid Act. Therefore, it cannot be said that the provisions of Section 16 (3) of the aforesaid act is not applicable.
POINT No. C
34. The respondent has claimed that the sale of property involved in this case was preceded by an agreement of sale entered into by the vendor and the respondent as back as on 19.1.2001 which was prior to purchase of the so-called adjoining properties by the petitioners and the respondents were also given possession pursuant to such 14 agreement of sale. The respondents have claimed right over the property pursuant to such agreement of sale dated 19.1.2001 read with sale deeds dated 27.7. 2001. This court finds that the claim on the basis of the agreement of sale has been disputed by the petitioners and the same is not a registered document. This court further finds that the right to claim pre-emption accrues on the date of transfer as per the provision of the Act and in the judgement passed by Hon'ble Supreme Court, it has been held at para nos.16 to 19 of the judgement reported in (2012) 1 SCC 656 as follows:
"16. Section 54 of the TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam observed: (SCC pp. 254-55, paras 32-33 & 37) "32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Ram Baran Prasad v. Ram Mohit Hazra) The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
33. In India, the word 'transfer' is defined with reference to the word 'convey'. ... The word 'conveys' in Section 5 of the Transfer of Property Act is used in the wider sense of conveying ownership.
37. ... that only on execution of conveyance, ownership passes from one party to another...."
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra4 this Court held: (SCC p. 619, para 10) "10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property 15 till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed into service against a third party."
18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter."
35. In view of the ratio of aforesaid judgement of the Hon'ble Supreme Court, this Court finds that the alleged agreement of sale has no bearing in the matter and this Court decides the issue No. C in favour of the petitioners and against the respondents.
Issue No. D
36. From perusal of order dated 7.12.2002 passed in the applications for pre-emption it appears that the authority has not given any definite/clear finding as to whether the petitioners are adjoining raiyat or not of the vended property. The appellate authority returned a finding that the petitioners are the adjoining raiyat and the respondents are neither the adjoining raiyats nor co-sharer of the vended property. The appellate authority set-aside the order dated 7.12.2002. Thereafter, the private respondents herein filed a revision petition before the revisional authority who by the impugned order has also not returned any findings as to whether the petitioners are the adjoining raiyats or not of the vended property. Rather he has not discussed this issue, at all, although this point was specifically raised by the respondents herein, before the revisional authority. The 16 Revisional authority conducted a fresh inspection in the year 2011 and on the basis of this inspection, he decided the entire case by holding that the nature of land has changed and therefore the revision application was allowed. From perusal of the impugned order, it appears that none of the evidences which was there before the authorities has been discussed by the revisional authority.
37. This Court finds that, the revisional authority has not returned any finding as to whether the petitioners are the adjoining raiyats of the property involved in this case. Therefore, on this score, the matter has to be remanded back to the revisional authority. Accordingly, the order passed by the revisional authority in Revision No.14 of 2009 dated 02.07.2011 is hereby set-aside.
38. The parties are directed to appear before the revisional authority within a period of 12 weeks from today, who shall pass a fresh order on the point as to whether the petitioners are the adjoining raiyats or not and if this finding is recorded in favour of the petitioners, then he has no option, but to allow the application for preemption. All other issues have already been decided by this court as above. The revisional authority shall pass fresh order after hearing the parties within a period of six months from the date of appearance. It will be open to the parties to rely upon all the evidences, which are already on record.
(Anubha Rawat Choudhary J.) Jharkhand High Court Dated: 13.07.2018 Saurav/AFR