Smt. Pyari Devi, wife of Ram Narain Mahto v. Additional. Member, Board Of Revenue, Bihar, Patna

Patna High Court CWJC No.1374 of 1990 dt.02-08-2013 2 residential house. Original respondent No. 4, Baleshwar Singh, who is now dead and has been substituted by his heirs and legal representatives, was the pre- emptor. Respondent No. 5, Kusesar Singh, who is none else than the full brother of the petitioner, is the vendor of the lands under dispute.

It is not in dispute that the contesting parties in the present proceeding are descendants of their common ancestor, namely, Ramlal Mahto. The pre-emptor Baleshwar Singh was one of the sons of aforesaid Ramlal Mahto, whereas the vendee i.e. the writ petitioner and the vendor i.e. respondent No. 5 are the daughter and son respectively of one Madhuri Singh, son of aforesaid Ramlal Mahto. Thus, apparently, original respondent No. 4, Baleshwar Singh, was the own uncle of the petitioner.

The petitioner purchased the lands under dispute through a registered deed of sale dated 27.10.1984, which was duly registered on 2.7.1985, whereafter, original respondent No. 4 Baleshwar Singh, claiming to be a boundary raiyat of the vended land and co-sharer of the vendor, filed a petition under Section 16(3) of the Land Ceiling Act raising his claim of pre-emption with respect to the vended plot, which gave rise to Ceiling Case No. 4 of 1985-86 in the court of the respondent Deputy Collector Land Reforms, Rosera.

After hearing the parties, the claim of pre-emption made on behalf of the pre-emptor-original respondent No. 4 was allowed by an order dated

15.11.1985 (Annexure-1) passed by respondent D.C.L.R., Rosera (Samastipur). The petitioner, being aggrieved by the aforesaid order, preferred Land Ceiling Appeal No. 248 of 1985-86/38 of 1986-87, which was finally heard and allowed by an order dated 17.2.1988 (annexure-2) passed by the respondent Additional Collector (Land Ceiling), Samastipur. He has set aside the order passed by the respondent Deputy Collector Land Reforms, Rosera, and has dismissed the claim of pre-emption filed on behalf of the pre-emptor-original respondent No. 4. Thereafter, the matter was taken to the Board of Revenue, Bihar, by the aforesaid Baleshwar Singh, which gave rise to Case No. 131 of

1988. The aforesaid revision case filed by respondent No. 4 was finally heard and allowed by the impugned order dated 30.10.1989 (Annexure-3) passed by the respondent Additional Member, Board of Revenue, Bihar, whereby he has set aside the order passed by the appellate authority and has restored that of the original authority, and, thereby claim of pre-emption made on behalf of original Patna High Court CWJC No.1374 of 1990 dt.02-08-2013 3 respondent No. 4 has been allowed. Hence, the present writ petition at the behest of the purchaser of the lands under dispute.

Learned counsel appearing on behalf of the petitioner submits that the petitioner is a landless lady and because of death of her husband, she wanted to live at her paternal village. Therefore, she purchased the lands under dispute from her own brother, namely, Kusesar Singh (respondent No. 5) for the purpose of construction of her residential house. It is asserted by the learned counsel appearing on behalf of the petitioner that she constructed her residential house and is living there with her family members. It is pointed out by the learned counsel appearing on behalf of the petitioner that respondent Deputy Collector Land Reforms, Rosera, as also the respondent Additional Collector (Land Ceiling), Samastipur, both have noticed in their respective orders that the petitioner is a landless lady and is having no other land except the land purchased by her. It is further contended that respondent No. 4 was not the boundary raiyat of the vended plot, as respondent No. 5 has still some more land left in the vicinity of the vended land. On these grounds, besides others, a prayer has been made that the impugned orders passed by the original authority and revisional authority be set aside and the order passed by the appellate authority be affirmed.

Learned counsel appearing on behalf of the substituted respondent No. 4 has strongly opposed the prayer made on behalf of the petitioner and has supported the orders passed by the original authority as also the revisional authority. It is contended by the learned counsel appearing on behalf of the substituted respondent No. 4 that there has been no family partition by metes and bounds. Therefore, original respondent No. 4, being the own uncle of vendor and vendee both, was the co-sharer of the vendor-respondent No. 5 and he was also the boundary raiyat. Therefore, according to him, the respondent Deputy Collector Land Reforms, Rosera, has rightly allowed the claim of pre-emption with respect to the vended plot and has been justifiably affirmed by the revisional authority. On these grounds besides others, it is submitted that the writ petition is liable to be dismissed.

After having heard the parties at great length and on consideration of the entire materials available on record, this Court finds that indisputably there is close relationship between the petitioner and respondent No. 5 at one side and original respondent No. 4 on the other side. They all are Patna High Court CWJC No.1374 of 1990 dt.02-08-2013 4 descendants of their common ancestor, namely, Ramlal Mahto. Admittedly, original respondent No. 4, Baleshwar Singh, was own uncle of the present petitioner. This Court further finds that there is also no dispute that petitioner is a widow and is living in the village in question. The respondent Deputy Collector Land Reforms, Rosera, and respondent Additional Collector, (Land Ceiling) Samastipur, both have noticed in their respective orders that petitioner is a landless lady. In para-7 of the writ petition, it has been asserted by the petitioner that she is a landless lady and has purchased this one katha of land for the purpose of construction of her residential house. Though original respondent No. 4 filed an exhaustive counter affidavit, but the claim of the petitioner being landless lady has not been disputed any where rather from the averments made in para-6(b) of the counter affidavit, it is apparent that claim of the petitioner to be a landless lady stands affirmed.

After having recorded the aforesaid findings of facts, now question arises as to whether the claim of pre-emption made on behalf of the original respondent No. 4 was/is at all maintainable and as to whether the impugned orders passed by the respondent Deputy Collector Land Reforms, Rosera, and the respondent Additional Member, Board of Revenue, Bihar, are sustainable in law.

The Hon’ble Apex Court as far as back in the year 1958 in the case of Bishan Singh and others Vrs. Khazan Singh and another (AIR 1958 SC 838) has held that right of pre-emption is a weak right which can be defeated by all legitimate methods.

Section 2 (f) of the Land Ceiling Act defines “land”, which reads as follows :- (f) “Land” means land which is used or capable of being used for agriculture or horticulture and includes land which is an orchard, Kharhur or pasturage or [ forest land or [ also the land] perennially submerged under water] or the homestead of landholder; ” From examination of the definition of the “land” under the Land Ceiling Act, it is apparent that homestead of a landholder is the land under the meaning of Land Ceiling Act, and if any transfer of such land is made, claim of pre-emption under Section 16(3) of the Land Ceiling Act can be raised either by a co-sharer of the vendor or by a boundary raiyat of the vended plot. But if at the Patna High Court CWJC No.1374 of 1990 dt.02-08-2013 5 time of purchase the land in question is an agricultural land and after such purchase it is developed as homestead by the purchaser, who is a landless person or having less than one acre of land so as to treat him landless or poor person in terms of Section 27 of the Land Ceiling Act, then , a claim of pre-emption shall not be maintainable against such transfer. In the present case, at the time of purchase, the lands in question was an agricultural land, but it was purchased for the purpose of construction of residential house by the petitioner. Therefore, if the lands under dispute has become a homestead of a purchaser, who is a landless person, therefore, it cannot be treated to be a “land” under the meaning of Section 2(f) of the Land Ceiling Act for the purpose of filing any petition under Section 16(3) of the Land Ceiling Act.

The issue at hand came up for consideration before a Full Bench of our own High Court in the case of Fakir Mohammad Vrs. Salahuddin and Others. ( A.I.R. 1975 Patna 119) wherein it was held that merely mentioning homestead in the sale deed would not create a right of pre- emption but it has to be seen whether it was a homestead of the landholder. If the lands so transferred are found to be homestead of a landless or poor purchasers, then certainly the right of pre-emption cannot be raised by the co-sharer of the vendor or by an adjacent boundary raiyat. A Division Bench of our own High Court in the case of Nathuni Singh Yadav & anr. Vrs. The State of Bihar & ors. [1997(2) PLJR 287] has further held that an application for pre-emption under Section 16(3) of the Land Ceiling Act shall lie only when all the three parties, namely, transferor, transferee and the pre-emptor are landholders. For coming to the aforesaid conclusion the Division Bench placed reliance on an earlier judgment of this Court handed down by another Division Bench in the case of Mukhi Mali Vrs. The State of Bihar & ors. [1979 BBCJ 151].

So far as the present case is concerned, admittedly, petitioner is not the landholder of any other land. She is admittedly a landless lady and has purchased the lands under dispute for construction of her residential house. The problem of a landless person for purchasing a plot of land for homestead can be examined from yet another angle. If a person is a landless person and has purchased a plot of land for homestead, then in that case the claim of pre- emption can always be raised by the boundary raiyats and in that case purchaser cannot resist the claim of pre-emption because he or she, being a landless person, Patna High Court CWJC No.1374 of 1990 dt.02-08-2013 6 will have no other land in the vicinity of the purchased land by him/her. In that situation, for the whole life no landless person can be permitted to purchase any plot of land for his homestead and in that case, he/she will have to remain shelterless for ever. This would put such a landless person in an unjust and inequitable position. I am sure, this could not have been the legislative intent of Section 16(3) of the Land Ceiling Act.

Taking into consideration the factual background of the case that petitioner is a widow and a landless lady, and further taking into consideration that she has purchased the lands under dispute for construction of her residential house from her own brother and particularly taking into consideration the legal position enunciated above, I am of the considered opinion that lands under dispute, being the homestead of the purchaser, cannot be treated to be a “land” under the meaning of Section 2(f) of the Land Ceiling Act. Therefore, the petition filed by original respondent No. 4 under Section 16(3) of the Land Ceiling Act was not maintainable. Consequently, the impugned order dated 15.11.1985 (Annexure-1) passed by respondent Deputy Collector Land Reforms, Rosera, as also the impugned revisional order dated 30.10.1989 (Annexure-3) passed by the respondent Additional Member, Board of Revenue, Bihar, are not sustainable in law and are hereby set aside. The petition of pre- emption filed on behalf of original respondent No. 4 is hereby dismissed.