Banarsi v. The State of Bihar

affirmed the order passed by the Deputy Collector, Land Reforms, Bhagalpur, by order, dated 28.06.2004. The preemptor preferred Revision case No. 148 of 2004, which was heard and decided by the Additional Member, Board of Revenue. The Additional Member, Board of Revenue, by his order, dated 16.05.2006, allowed the claim of the preemptor. The finding recorded by the Additional Member, Board of Revenue, is that the petitioner is the boundary tenant of the transferred land. Non-compliance of Rule 19 of the Act has not caused any prejudice to the petitioner. The plea taken by the transferee that the nature of the land is homestead is not correct as in the recent consolidation survey record of right, the land is found recorded as agricultural. It was also held that on perusal of the sale deed it transpires that both vendors and vendee are professional cultivators, as such, the land must have been purchased for agriculture purposes.

6. The counsel for the petitioner has submitted that it is settled law that if the purchaser purchases two portions of same plot by two separate registered sale deeds, the preemption application can not be allowed as transferee himself becomes an adjoining raiyat of each transferred lands on account of other sale deed. In support of this contention the petitioner has placed reliance on a decision reported in 2004(2) P.L.J.R., 334 ( Nathuni Mahto Vrs. The State of Bihar & Ors.). The facts, reported in decision, are similar and identical to the present case and the finding recorded are as follows : “In view of the series of judgments of this Court, it is almost settled that before an application under section 16(3) of the Act is filed, the purchaser by purchasing an adjoining plot can himself become the holder of an adjoining plot in order to defeat the pre-emption application which is filed later. Of course different considerations will arise where purchaser tries to become a holder of an adjoining plot by making purchase of adjoining land after filing of the application under section 16(3) of the Act. In the instant case the petitioner has knot purchased the adjoining plot on different dates but on the same day and the registration in respect of the two deeds had also been completed much before filing of the two applications under section 16(3) of the Act. As such there should not be any difficulty in holding that when the pre-emption applications were filed two different sets of pre-emptors reconveyance of the two plots in two cases, on that day, the petitioner himself had become the holder of adjoining plots in both the cases and he could have resisted the claim for reconveyance of either of the plots.”

7. Counsel appearing for respondent no. 5 has, on the other hand, submitted that respondent no. 5 is a boundary raiyat on the basis of purchasing part of the same plot from the co-sharer of the vendor in the year 1971. On the other hand, petitioner purchased the disputed land in the year 2000, since, respondent no. 5 became the boundary tenant much earlier than the petitioner, as such, he has got a preferential right on account of being the boundary tenant of the purchased land.

8. I find that the law, in this regard, is otherwise. The right of preemption is a very weak right. In case, the purchaser himself becomes a boundary tenant of vended plot before filing of the preemption application in that case preference has to be given to purchaser and the claim of the preemptor can not be allowed on this count that prior to purchase of the vended land by the purchaser, the preemptor was a boundary tenant preemptor‟s claim can be allowed only when there is any evidence to show that any purchase has been made by the purchaser subsequent to filing preemption application, with an intention to defeat the right of preemption. In the present case, the facts are otherwise. The petitioner had purchased adjacent plot on the same date through two registered sale deeds and it can not be stated that there was any design to defeat the right of preemption. Considering the facts of the case and the reported decision 2004(2) P.L.J.R., 334 ( Nathuni Mahto Vrs. The State of Bihar & Ors.), I find that the finding recorded by the Additional Member, Bore of Revenue, Bihar, Patna, is incorrect and the finding recorded by the Collector, Bhagalpur, and the Deputy Collector, Land Reforms, Bhagalpur, are inconsonance with the law.

9. The counsel for respondent no. 5 has also submitted that Rule 19 is not mandatory Rule rather it has been held to be directory and in case of no prejudice being caused to the purchaser, preemption application can not be held to be not maintainable. In support of his contention, relating to Rule 19 of the Act, he has placed reliance on a decision reported in 2005(3) P.L.J.R., 352 (Siyawati Devi Vrs. The State of Bihar & Ors.). Respondents, on the other hand, are relying on a decision reported in 1995 (1) P.L.J.R., 851 (Md. Shafique Ahmad Vrs. The State of Bihar & Ors.) where it is held that omission to comply with the provisions of Rule 19(3) of the Act would prove fatal to a claim for preemption. In the present case transferors were not impleaded as party in the initial stage and consequently they were impleaded. In the given circumstance, as decided in 1989 P.L.J.R., 103 (Ram Chandra Singh Vrs. The Sub Divisional Officer, Hajipur & Ors.) the effect will be fatal and the subsequent steps taken by the preemptor to implead the transferor will not cure the illegality which has already been caused due to non-compliance of Rule 19(3) of the Act. The finding recorded by the Additional Member, Board of Revenue, on this count is also not sustainable and it is set aside.

10. The other point which has been raised by the petitioner relates to the nature of the land. Counsel for the petitioner has stated that the land was purchased for homestead which is evident considering the area of land. It can not be conceived that such a small area of land was purchased for agriculture purposes. The nature of the land being the homestead, the preemption application in any case was not maintainable. There is concurrent finding of the Deputy Collector, Land Reforms, and the Collector on this point that the vended land is a homestead land. There was no reason for the Additional Member, Board of Revenue, to set aside the finding recorded by two Courts on the question of fact. In support of this contention, the petitioner has placed reliance on a decision reported in 2007(2) P.L.J.R., 205 (Laxman & Anr. Vrs. The State of Bihar & Ors.) where it has been held that the concurrent finding of the fact recorded by two Courts reversed by the revisional Court without application of mind is illegal.

11. Considering the submissions made by the parties and the different decisions relied upon by them as well as the law applicable in the facts of the case, I am of the view that leaving apart of all other questions the preemption application filed by respondent no. 5 in the present case is not maintainable for a simple reason that the petitioner himself became adjacent right of the remitted land on the date of purchase itself, that is, much before the date of filing of preemption application. This, in itself, is sufficient for rejecting the claim of preemption of respondent no. 5.

12. Accordingly, the order passed by Additional Member, Board of Revenue, Bihar, Patna, dated

16.05.2006, passed in Revision Case No. 148 of 2004 is quashed.

13. This application is allowed. (Mridula Mishra, J.) Cp:2/S.A.