Ram Chandra Yadav (deceased) represented by Heirs Ram Bilas Prasad and Others vs Sri A. Wati Ao, Additional Member, Board of Revenue and Others

B.P Singh, J.—The instant writ petition arises out of a proceeding u/s 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961. The said proceeding for pre-emption was initiated on an application filed by Respondent No. 5 herein. The Deputy Collector, Land Reforms, Biharshariff by his order dated 27th July, 1993, rejected the application for pre-emption on a finding that since the Petitioner, who was the purchaser, was also an adjacent raiyat of the land in question, Respondent No. 5 could not maintain an application for pre-emption as against him. However, the appellate authority, namely, the Additional Collector, Nalanda, Biharshariff, by his order dated 10.8.1984 (Annexure-2) allowed the appeal which order was affirmed in revision by the Additional Member, Board of Revenue, Bihar, Patna, on 4.4.1985. The orders passed by the appellate and the revisional authority had been challenged in the instant writ petition by the Petitioner, who was the purchaser.

The facts of the case are that the Petitioner purchased a plot of land measuring two kathas and odd pertaining to plot No. 5124 in Khata No. 318 from Respondent No. 6. the sale deed was executed on 25th March, 1982, but the same was registered on 16.9.1982. From the aforeside sale deed it is apparent that plot Nos. 5122 and 5123 were to its adjacent east. To the south of the plot sold were plot Nos. 5126 and 5127.

Even before an application for preemption could be filed by Respondent No. 5, the purchaser/Petitioner purchased a portion of plot No. 5126 under a sale deed executed on 19.10.1982. The sale deed was presented for registration on 12.11.1982, but was actually registered on 14.5.1983.

After execution of the sale deed in favour of the Petitioner on 19.10.1982, Respondent No. 5 filed an application exercising his rights of pre-emption in respect of plot No. 5124 sold under the sale deed dated 25.3.1982, which was registered on 16.9.1992. In his application Respondent No. 5 claimed that he was owner of plot Nos. 5122 and 5125 which were adjacent to the plot sold under the said sale deed and, therefore, claiming to be an adjacent raiyat he exercised his right of pre-emption u/s 16(3) of the Act.

The purchaser/Petitioner resisted the claim of Respondent No. 5 on the ground that even before filing of an application for pre-emption he had also purchased plot No. 5126 on 19.10.1982. By reason of the sale deed executed on 19.10.1982 he also became an adjacent raiyat of a plot of land adjacent to the land purchased by him, since plot No. 5126 purchased by him on 19.10.1982 was adjacent to plot No. 5124 purchased by him earlier in respect of which pre-emption was claimed. The Deputy Collector, Land Reforms, rejected the application for preemption holding that since the Petitioner was himself an adjacent raiyat, an application for pre-emption by Anr. adjacent raiyat against him was not maintainable under the Act. The order dismissing the pre-emption application was challenged in appeal, which was disposed of by the Additional Collector; who held that though the sale deed in respect of plot No. 5126 was executed on 19.10.1982, it was presented for registration on 12.11.1982. Before that, on 11.11.1982 an application for pre-emption had been filed by Respondent No. 5 in exercise of his right u/s 16(3) of the Act. On the date of the application filed u/s 16(3) of the Act, the Petitioner could not claim to be an adjacent raiyat, because though a sale deed had been executed in his favour in respect of an adjacent plot, the sale deed had not been presented for registration by the time the application for preemption was filed. On such finding, holding Respondent No. 5 to be an adjacent raiyat, he allowed the appeal and consequently allowed the application for pre-emption. The appellate order has been affirmed by the revisional authority.

On facts it cannot be disputed that Respondent No. 5 is an adjacent raiyat of plot Nos. 5122 and 5125. It cannot also be disputed that plot No. 5126 purchased by the Petitioner under the sale deed executed on 19.10.1982, which was registered later, is also adjacent'' to plot No. 5124 earlier purchased by him. It is well- settled that the right of pre-emption cannot be claimed by an adjacent raiyat or co-sharer against Anr. adjacent raiyat or co-sharer, as Section 16(3) of the Act is quite clear on this point and permits of no ambiguity. It has also been held by this Court in several decisions, and law is well-settled, that the date which is relevant for considering the claim of pre-emption is the date on which an application is filed by the pre-emptor exercising his right u/s 16(3) of the Act. Keeping in view the settled legal position, Respondent No. 5 no doubt being an adjacent raiyat can maintain an application for pre-emption. However, his right is defeated if on or before the date of his filing the application exercising the right of pre-emption, the purchaser also acquires the status of adjoining raiyat or co-sharer. Applying the principle to the case in hand, it has to be seen whether on 11th November, 1982 when Respondent No. 5 filed an application exercising his right of pre-emption u/s 16(3) of the Act, the Petitioner who was the purchaser, had also acquired the status of an adjacent raiyat as claimed by him.

The facts of the case are not in dispute. The Petitioner claims to have become an adjacent raiyat, since he claims to have purchased plot No. 5126 on 19.10.1982 which was an adjacent plot, much before filing of the application by the pre-emptor exercising his right of preemption. It is, therefore, contended on behalf of the purchaser that the sale deed executed in his favour conferred on him the status of an adjacent raiyat, and even if the sale deed was registered later in point of time than the filing of the application u/s 16(3) of the Act, since the registration of the sale deed conferred upon him title in respect of the lands sold with effect from the date of sale, namely, 19.10.1982, he must be deemed to have become the owner of the adjoining land on 19.10.1982. Therefore, on 11.11.1982 when the application for pre-emption was filed by Respondent No. 5, he had already become an adjacent raiyat. It is not disputed that the sale deed executed in favour of the Petitioner on 10.10.1982 was presented for registration on 12.11.1982 and was actually registered on 14.5.1983.

A Full Bench of this Court in Ram Chandra Srivastava and Others Vs. Parsidh Narain Singh and Others, laid down the law thus:

It follows that the first question referred to us must be answered thus: u/s 16(3) of the Act the right of pre-emption which accrues to a co-sharer or a raiyat holding land adjoining the transferred land must subsist not only on the date of execution and registration of the document of transfer, but also on the date of the application which must be made within three months from the date of registration thereof. This right is ipso facto defeated if before the date of application the transferee himself acquires the same status in relation to the transferred land as the application.

It is, therefore, apparent that the right of Respondent No. 5 will be defeated if it is held that the Petitioner himself acquired the same status in relation to the transferred land as Respondent No. 5.

In Chandradip Singh and Another Vs. The Addl. Member, Board of Revenue and Others, a similar question arose for consideration by a Division Bench of this Court. A similar argument as has been urged on behalf of Respondent No. 5 in the instant writ petition, was urged before this Court and the was repelled. In that case it was urged by the pre-emptor that although the two sale deeds in question were executed by Respondent, No. 6 on 19th June, 1970, a month and two days prior to the filing of the pre-emption application, their registration having been completed on 9th September 1970, no cause of action could be said to have arisen to Respondent No. 4 as against the Petitioner on 21st July 1970, when the pre-emption application was filed. This Court after considering the authorities on the subject, including the pronouncement of the Supreme Court in reported decisions if a sale deed is ex-ecutect before the filing of the suit but is registered later then such a transfer is not pendente lite. The transferee became the owner of the property, in view of the provision of law contained in Section 47 of the Registration Act, prior to the filing of the suit. It was, therefore, held that title passed to the transferee under a registered deed of sale with effect from the date on which the sale deed was ex-ecuted. In the instant case the principle will operate to confer on the date on which the sale deed was executed in his favour in respect of plot No. 5126, namely, with effect from 19.10.1982. The application for pre-emption was filed later on 11.11.1982 and, therefore, it must be held that on the date on which the application for pre-emption was filed, the Petitioner, who was the purchaser had already acquired the status of an adjacent raiyat. The right of Respondent No. 5 to claim pre-emption stood defeated on the date on which he filed the application for pre-emption.

The same principle has been noticed and reiterated in Raju Kumar Prasad v. Additional Member 1985 PLJR 215, in Ganesh Prasad and Others etc. Vs. State of Bihar and Others, and in Sarju Pd. Singh v. Saryu Singh 1986 BBCJ 581. In view of these decisions which are binding upon me, I must hold that on the date on which Respondent No. 5 exercised his right of pre-emption by filing an application u/s 16(3) of the Act, the Petitioner had already acquired the status of an adjacent raiyat in view of the fact that he had become the owner of plot No. 5126 which was purchased by him under the sale deed executed on 19.10.1982, prior to the filing of the application for pre-emption.

Consequently, this writ petition must be allowed and is, accordingly, allowed. The impugned appellate order dated 10.8.1984 (Annexure-2) and the revisional order dated 4.4.1985 (Annexure- 3) are quashed, and the order passed by the Deputy Collector, Land Reforms dated 27.7.1983 (Annexure-1) is restored. There will be no order as to costs.