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The Writ Court held that the Gift deed executed on 24.09.1996 and registered on 17.03.1998 prior to the institution of the pre-emption application, was not the subject matter of challenge in the pre-emption proceeding. The subsequent transferee (writ petitioner-respondent no.5) was not impleaded as party. Observing that no submissions had been made on behalf of the parties with regard to the exclusion of a Gift deed from scrutiny in a pre-emption proceeding, it was held that annulment of a valid title acquired under a registered Gift deed was beyond the jurisdiction of the Revenue authorities or under the Act. The finding by the Member, Board of Revenue that the deed of gift had been executed only to overcome the rigors of pre-emption did not find favour holding that pre- emption was a weak right and could be defeated by any lawful method.

It was next submitted that there was a vital contradiction in the description of respondent nos. 6 to 9 as Vendees in the Sale deed dated 24.07.1996 and the Gift deed executed on 24.09.1996. The Sale deed did not describe respondent nos. 7 to 9 as minors while the Gift deed did so. If respondent nos. 7 to 9 were minors, no Sale deed could have been executed in their favour except through a guardian. Patna High Court LPA No.949 of 2011 dt.08-02-2013 5 Conversely, if they were major the Gift deed contained a fraudulent description. These were indicative of the fact that the Gift deed had been brought into effect only for the purpose of defeating a valid claim for pre-emption, it being an undisputed fact that the Appellant was a co-sharer and adjoining raiyat. The transfer by Gift was therefore fake. Title under the Sale deed could flow only after registration, the execution of the Gift deed prior to the same was a nullity. Reliance was placed on A.I.R.2009 Calcutta 182 (Arun Bhusan Guha v. Amal Roy) and 2006 (3)PLJR 195 (SC) ( Chandrika Singh v. Arvind Kumar Singh).

Relying on (2010) 6 SCC 441 (Suresh Prasad Singh v. Dulhin Phool Kumari Devi) referring to paragraph 21, it was submitted that preemption was a statutory right and if the conditions/requirements were fulfilled it was mandatorily required to be complied and could not be rejected simpliciter as being a weak right.

Learned counsel for respondent no. 5, submitted that section 37 of the Act as it stood was a residuary provision. Its applicability was dependent on the existence of a prior valid proceeding under the Act. If no pre-emption proceeding under the Act had been filed much less was pending, Patna High Court LPA No.949 of 2011 dt.08-02-2013 6 Land ceiling case no.1 of 1996/97 had no sanctity in the law much less did any so-called restraint order passed in the same have any validity in the law. Without prejudice to the same it was next urged that the alleged restraint order lost its validity on 26.12.1997 when section 37 stood deleted lending validity to the registration of the Gift deed on 17.3.1998. Without prejudice to the aforesaid, it was next submitted that no restraint order was served upon respondents 6 to 9 and the question of refusal by acceptance does not arise. The Gift deed was executed in favor of the 'Deity' Shankar Ji and respondent no. 5 was described as 'Shebaiat'. The 'Deity' being a juristic person was required to be impleaded as a party on its own identity. The 'Deity' or respondent number 5 was not originally impleaded in Land Ceiling case 2 of 1998/99. The amendment application challenging the Gift deed impleaded only respondent number 5 and not the 'Deity'. The Gift deed being prior to the institution of the pre-emption application, had to be challenged in the original application itself, as it had been registered before filing of the pre-emption application, in absence of which the pre-emption application itself not maintainable. Reliance was placed on 1971 BLJR 994 ( Ramchandra Yadav v. Anutha Yadav).