Letters Patent Appeal No. 148 of 2006 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.148 of 2006 IN Civil Writ Jurisdiction Case No. 5306 of 2004 ======================================================== 01.Shyam Nandan Prasad Singh @ Shyam Nandan Singh, S/o Late Gulab Singh, R/o Village- Rupsipur, P.S.- Mahnar, District- Vaishali at Hajipur … (Preemptor) Petitioner/ Appellant Versus 01. The State Of Bihar through District Magistrate, Hajipur at Vaishali 02. Urmila Devi, W/o Ram Ekbal Bhagat, R/o Marauatpur, P.S.- Desri, District- Vaishali at Hajipur, present residing at C/o Ram Ekbal Bhagat (E) Contractor, Plot No. 391, Prachi Vihar, Palasoni, Bhuvneshwar, Orissa ….. (Purchaser) 03. Krishnandan Prasad Singh 04. Ram Nandan Prasad Singh 05. Harinandan Prasad Singh All sons of Late Gulab Singh, R/o Village- Rupsipur, P.S.- Mahnar, District- Vaishali ….. (Vendors) 06. Additional Member, Board of Revenue, Patna 07. D.C.L.R. Land Reforms, Vaishali at Hajipur ….. Respondents/Respondents with Letters Patent Appeal No. 152 of 2006 IN Civil Writ Jurisdiction Case No. 5263 of 2004 ======================================================== 01. Shyam Nandan Prasad Singh @ Shyam Nandan Singh, S/o Late Gulab Singh, R/o Village- Rupsipur, P.S.- Mahnar, District- Vaishali at Hajipur (Preemptor)... Petitioner/ Appellant Versus 01. The State Of Bihar through District Magistrate, Hajipur at Vaishali 02. Ram Ekbal Bhagat, S/o Late Musaphir Bhagat, R/o
Legal Reasoning
in nature as held by a Division Bench of this Court in case of Udai Narain Singh and Ors. Versus the State of Bihar and Others, reported in 2008 (2) PLJR 409. 8. Learned counsel for the petitioner avers that his right of pre-emption is a statutory right and it cannot be treated as a weak right and the petitioner having proved that the land in question was not a homestead land nor had any construction thereto his right should have been affirmed by the Revenue Court as well as by this Court. In this connection he relies upon a decision of the Apex Court in case of Suresh Prasad Singh Versus Dulhin Phulkumari Devi and Ors., reported in 2010 (2) PLJR (SC) 167. 9. Learned counsel for the petitioner claims that the Revenue Authorities gave their findings which were complete mis-construction of the materials on record and they based their findings with respect to the land on mere surmises and conjectures which should not have been affirmed by the learned Single Judge
Arguments
Marauatpur, P.S.- Desri, District- Vaishali at Hajipur, presently residing at Plot No. 391, Prachi Vihar, Palasoni, Bhuvneshwar, Orissa ….. (Purchaser) 03. Krishnandan Prasad Singh 04. Ramanandan Prasad Singh 05. Harinandan Prasad Singh All sons of Late Gulab Singh, R/o Village- Rupsipur, P.S.- Mahnar, District- Vaishali 06. Additional Member, Board of Revenue, Patna ….. (Vendor) Patna High Court LPA No.148 of 2006 dt.19-06-2013 2 ….. Respondents/Respondents ======================================================== (In LPA No. 148 of 2006) For the Appellant : Mr. ARVIND KUMAR TRIPATHI Mr. Aditya Nr.Singh I Mr. Rakesh Kumar For the Respondents : Mr. RAM SHANKAR DAS (In LPA No. 152 of 2006) For the Appellant : Mr. ARVIND KUMAR TRIPATHI Mr. Aditya Nr.Singh I Mr. Rakesh Kumar For the Respondents : Mr. RAM SHANKAR DAS Mr. (Sc16) ======================================================== P R E S E N T: HONOURABLE MR. JUSTICE S.N. HUSSAIN HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH and S.N. Hussain & Ahsanuddin Amanullah, J.J. J U D G M E N T Heard learned counsel for the petitioner and learned counsel for the State of Bihar (respondent no.1) in both the aforesaid cases. 2. No one appears either for the purchaser (respondent no.2) or for the Vendors (respondent nos. 3 to 5) in both the cases, although the name of their counsel is noted on the daily cause list. 3. Both these appeals arise out of the two sale- deeds, both dated 21.11.2000, executed by the same vendors (respondent nos. 3 to 5) with respect to 7.5. Decimals each of the same Plot no. 1376, R.S. Khata No. 130 situated in Mouza- Marauatpur, P.S.-Deshri, Sub-Registry- Mahnar, District- Vaishali, one in favour of Urmila Devi (respondent no.2 in the 1st L.P.A.) and the second in the name of her husband Ram Ekbal Bhagat Patna High Court LPA No.148 of 2006 dt.19-06-2013 3 (respondent no.2 to 2nd L.P.A.). 4. The petitioner claiming to be full brother and co- sharer of the vendors (respondent nos. 3 to 5) filed two pre- emption cases, before the Deputy Collector Land Reforms after depositing an amount equivalent to the consideration money plus 10% thereof, but both the cases were rejected by the Deputy Collector Land Reforms, Hajipur. Thereafter his Appeals filed before the Additional Collector, Vaishali and his Revisions filed before the Additional Member of Board of Revenue, Patna were also rejected. 5. Against the said orders, the petitioner filed C.W.J.C. No. 5306 of 2004 and 5263 of 2004 in this Court which were also dismissed by the learned Single Judge of this Court vide separate orders both dated 17.01.2006. Thereafter the pre-emptor petitioner has filed these two Letters Patent Appeal challenging the said orders of the learned Single Judge as well as the orders passed by the Revenue Authority. 6. Learned counsel for the petitioner submits that an enquiry was held by the Block Development Officer who submitted his report before the Sub-Divisional Officer stating that the entire land in question was ploughed by the purchaser. Furthermore, the Circle Officer also submitted a report to the Executive Officer in a proceeding under section 144 Cr.P.C. stating only that the land in question was in the form of Parti. 7. Learned counsel for the petitioner states that Patna High Court LPA No.148 of 2006 dt.19-06-2013 4 the two sale-deeds executed by the vendor do not show that the land sold was a homestead land and have been purchased for the purpose of construction of a house. Hence, he stated that the said two sale-deeds were executed on the same date merely to defeat the right of pre-emption of the petitioner and hence, it is collusive
Decision
in the writ petition. 10. On the other hand, learned counsel for the State of Bihar opposes the contention of the learned counsel for Patna High Court LPA No.148 of 2006 dt.19-06-2013 5 the petitioner and submits that all the three Revenue Authorities considered the claim of the parties in detail and after perusing the materials on record came to the specific finding on the basis of pleading and materials and the learned Single Judge while deciding the two writ petitions was quite justified in affirming the orders passed by the said Revenue Authorities. 11. Considering the averments made by the learned counsel for the parties and the materials on record, it is quite apparent that both the sale-deeds were for small portion of land measuring 7.5 decimals each sold for 47,500/- which was quite high for an agricultural land considering that the year of sale was 2000. Furthermore, the Revenue Authorities after considering the materials on record had come to the conclusion that the land in question is situated in the market area adjacent to the Municipal area of the Mahnar and was surrounded by dwelling houses and Mosque. 12. In addition to that the purchaser has stated before the said authority that they had purchased the land for construction of dwelling house and had also made constructions up till the plinth level. There is no material at all except the two reports of the Block Development Officer and the Circle Officer which falsify the said findings. The said reports cannot be relied upon as they contradict each other; one stating that the land is Parti, whereas the other stating that it was being ploughed. 13. In the said circumstances, the findings of the Patna High Court LPA No.148 of 2006 dt.19-06-2013 6 authorities that the land in question was homestead (Basgit) appear to be correct and justified. The petitioner has completely failed to show that the aforesaid homestead land was being used for agricultural purposes by any agriculturist and hence, his claim for right of pre-emption cannot be legally allowed. 14. In the aforesaid facts and circumstances of the case, this Court does not find any merit in these two appeals which are accordingly dismissed. (S.N. Hussain, J) (Ahsanuddin Amanullah, J) Patna High Court, The 19th June, 2013 NAFR/P.K./-