AI Structured Summary
Not yet generated for this judgment
Judgment
S.K. Choudhary, J.—These three writ applications have been heard together as they raise a common question for decision. The petitioner in the first two writ applications is one Parmeshwar Singh and the petitioner in the third writ application is one Kamleshwari Singh. The purchasers in all the three writ applications are different persons and the vendors are the same. In the first two writ applications the subsequent purchaser is Mehi Lal Mahto (respondent No. 2); whereas in the third writ application the subsequent purchaser is Ramkhelawan Mahto (respondent No. 6). In all these three writ applications filed under Articles 226 and 227 of the Constitutions of India, the petitioners who are the pre-emptors prayed for quashing the orders of the Land Reforms Deputy Collector, Begusarai dated 16th May 1977 contained in Annexure 3 the appellate order passed by the Additional Collector, Begusarai dated 24th November, 1978 contained in Annexure 2 and the revisional order passed by the Additional Member, Board of Revenue, dated 30th July, 1979 as contained in Annexure 1.
It will suffice to give the relevant facts of C.W.J.C. No. 2625 of 1979, as. the dates of different sale-deeds, which occasioned the filing of the three pre-emption applications by the petitioners and the date of the subsequent sale-deed are the same and the order dismissing all the three pre-emption application, is common as also the appellate order and the revisional order.
The sale-deed in question was executed on 7th May, 1975 by the vendors in favour of the purchaser and was registered on 16.6.1975. The transferee under the first sale-deed executed a second sale-deed on 2.6.1975 which was registered on 25.7.1975 in favour of the subsequent purchaser. Pre-emption application, it appears was filed on 15th September, 1975 in relation to the three sale-deeds, which gave rise to three cases. They were heard together and disposed of by a common judgment as contained in Annexure 3 aforesaid. After the filing of the aforesaid pre-emption applications the first purchaser appeared and filed his show cause stating that he has already transferred the land to the second purchaser (subsequent purchaser). According to the petitioner, he came to know for the first time about the second transfer after the first purchaser filed his show cause and, accordingly, on 25th February, 1976, the pre-emptor, namely, the writ petitioner filed an application to add the subsequent purchaser as a party to the proceeding. The pre-emption application was heard and rejected by the order (Annexure 3). Three appeals were filed by the pre-emptors before the Additional Collector, but they were all dismissed by a common order as contained in Annexure 2. Thereafter, the Additional Member, Board of Revenue also dismissed the three revision applications preferred by the pre-emptors by the common order as contained in Annexure I.
Mr. Lakshuman Sharan Sinha, learned Counsel appearing on behalf of the writ petitioner in all the three writ applications strongly contended that when the writ petitioner had no knowledge of the second transfer, he was well within time from the date of the first sale-deed to file an application under Sections 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962) hereinafter called ''the Act'' The said application could not be defeated by the sale-deed executed and registered within the limitation period for filing pre-emption application. His further contention was that when there was specific assertion in the application for adding the subsequent purchaser as a party, and that the second transaction was sham, farzi and created only to defeat the purpose of the Act, the subsequent purchaser should have been allowed to be added as a party and the courts below should have investigated into the allegations regarding sham and farzi nature of the transaction. He, therefore, contended that none of the authorities below having entered into that question, the impugned Annexures are liable to be set aside and it is a fit case for sending back the matter to the original authority, namely, the Land Reforms Deputy Collector, Begusarai for hearing afresh and disposal in accordance with law.
In support of his argument, learned Counsel drew my attention to Annexure-4, which is a copy of the application filed before the original authority for adding the subsequent transferee as a party. That application has alleged in paragraph 2 that the second sale was entirely sham and farzi created to defeat the purpose of the Act. The passing of consideration under the second sale-deed was also challenged and it was stated that he was not a bona fide purchaser. The further allegation in that application was that the petitioner had no knowledge of the second sale-deed as the subsequent purchaser was never in possession; rather it was the first purchaser who was in possession. In view of these assertions in the application for addition of the subsequent purchaser as party, learned Counsel for the writ petitioner contended that it was the bounden duty of the authorities below to add the subsequent purchaser as party in the proceeding and determine the aforesaid question as to whether the subsequent sale-deed was a genuine document or it was farzi in nature. In support of his contention he has placed strong reliance upon a Bench decision of this Court in Smt. Sudama Devi and Others Vs. Rajendra Singh and Others, . He has placed reliance only upon a sentence appearing in paragraph 15 which reads thus:--
...The purchasers transferred the property to Shyam Narain Singh, which transfer, if not farzi and sham, is not hit by the doctrine of lis pendens, it would be good transfer and no order of pre-emption under Clause (iii) of Section 16(3) can be made against the original purchasers, as the order would be futile and infructuous...
Relying op the sentence the contention of learned Counsel was that if the second transaction would be. found to be farzi and sham, then the pre-emption application filed as against the first sale-deed would be competent and would not become infructuous though the registration of the second sale-deed was completed before the filing of the pre-emption application u/s 16(3) of the Act. Acceptance of this submission would amount to stretching too far if the meaning of the sentence relied upon by the learned Counsel from the aforesaid decision in Smt. Sudama Devi''s case is accepted. In that case while discussing the relevant point Justice Untwalia, as he then was, has expressly stated while referring the case of Ramchandra Yadav v. Anutha Yadav (1971 B.L.J.R. 994) as follows:--
In Section 16(2), however, there is absolutely no provision made for making an order of pre-emption against a subsequent transferee on an application filed for pre-emption against the first transferee. If the subsequent transferee is, in fact and in law, a transferee of the property in respect of which claim for per-emption has been made then a question of his being a transferee with notice of the pre-emption application is not relevant in view of what I have said in my judgment in Ramchandra Yadav v. Anutha Yadav (1971 B.L.J.R. 994). I have pointed out three situations there. If the transferee of the property transfers it to a second purchaser by a document executed and registered before the filing of the application, the second transferee gels a good title to the property and there is no question of his right being defeated by a subsequent application filed by the pre-emptor, as he could not be presumed to have any knowledge of the application which may be filed in future. On the other side of the picture, the clear example is where the second sale-deed is executed and registered after the filing of the application for pre-emption. In such a case, the second transfer would be clearly hit by the doctrine of lis pendens engrafted in Section 52 of the Transfer of Property Act. But the difficulty arises when a document of sale is executed before the filing of the application for pre-emption, but is registered after its filing..... .... ...
In the reported case their Lordships were dealing with a case where a second sale-deed was executed prior to the filing of the pre-emption application, but registered thereafter. The effect of registration of such a second sale-deed was the question for decision in that case. It has been pointed out that in such a situation the second sale-deed which was registered after the pre-emption application was filed would relate back to the date of execution u/s 47 of the Indian Registration Act as the second sale-deed conferred title upon the second purchaser under that Section from the date of execution of the second sale-deed. It has been held in the said reported case that such transaction would not be hit by lis pendens, as the second transferee becomes the owner from the date of execution of the sale-deed. Their Lordships, therefore, thought it fit in such a situation to allow the writ petitioner (pre-emptor of that case) to add the second purchaser as a party to the proceeding and remanded the case to the lowest authority for a fresh decision in accordance with law. It was under those circumstances that one sentence from paragraph 15 of the above reported decision which has been, strongly relied upon by Mr. Sinha, has been used.
Mr. Surya Bhushan Prasad Singh for the second purchaser, however, supported the impugned orders and contended that in the facts and circumstances of the case, the impugned orders do not call for any interference, as the pre-emption application was not directed against the second purchase which was complete in all respects before the filing of the pre-emption application by the writ petitioner. According to the learned Counsel merely by making an allegation of sham and farzi nature of the transaction and ignoring the second sale-deed on that ground would not give the pre-emptor a right to file an application for pre-emption against the first sale-deed. Learned Counsel for the subsequent purchaser has argued that in such a situation, the pre-emptor ought to have filed the preemption application as against both the sale-deeds and alleging sham and farzi nature, of the transaction about the second sale-deed This not having been done on a date when the application for addition of the second purchaser was filed, the application for preemption against the second sale-deed was prima facie barred and the subsequent transferee was rightly not allowed to be added as a party to the proceeding by the authorities below. In my view this submission of learned Counsel for the second purchaser appears to have substance. It cannot be argued that the pre-emptor had no knowledge of registration of the second sale-deed on the date when the pre-emption application was filed. True it is that the pre-emption application was filed within time from the date of the registration of the first sale-deed. If, according to him, the second purchase was a sham and forged transaction and was created in order to defeat the pre-emption application and the second sale-deed having been registered before the preemption application, he should have added both the first purchaser as also the second purchaser as party in the proceeding and it was then that the allegation of sham and farzi transaction regarding the second sale-deed would have been considered and decided in presence of all the parties. It is not permissible in law to file an application subsequently ignoring the period of limitation for filing a pre-emption application to allow the pre-emptor at any time to add the subsequent purchaser as a party on the allegation of sham and farzi nature of the transaction and on the allegation that he had no knowledge about the second sale-deed. The sentence relied upon from the decision in Smt. Sudama Devi''s case (supra) does not help at all the pre-emptor. The said sentence has been used in the context of that case and cannot be stretched far. If the argument of Mr. Sinha is accepted then the position of the subsequent purchaser under the second sale-deed would remain precarious, and merely on allegation of sham and farzi nature of the transaction, the second purchaser though not a party in the pre-emption case and if such application is allowed, he would be bound by the sale-deed which may be executed by the first purchaser in favour of the pre-emptor in pursuance of the decision.
In my considered opinion, it appears to me that when the second sale-deed is complete in all respects and title passed upon the second transferee before the pre-emption application was filed, then, the allegation of sham and farzi nature of the transaction can only be investigated by filing a pre-emption application, which must be within the limitation period. If that is not done, then the pre-emptor is debarred from challenging the second sale-deed as sham and farzi and attempting after a long lapse of the limitation period to add the second purchaser as a party in the proceeding. For the reasons stated above, these three writ applications have got no merit and they are accordingly dismissed. In the circumstances of the case there will be no order as to costs.