Ram Roop Yadav vs The State of Bihar and others

N. P. Singh, J.—The dispute involved in both the writ applications is in respect of pre emption of lands transferred by two sale deeds executed by the lame respondent in favour of the petitioner. The pre-emptor respondents are, however, different. As common questions of law and fact are involved in both the writ applications they were heard together and an disposed of by a common judgment.On 16.12.1978, Mostt. Bhawani Devi respondent 3rd party executed two sale deeds in respect of Plot No. 18 and Plot No. 22 which are adjacent to each other, of village Romjapur, District Bhagalpur, in favour of the petitioner, for a consideration of Rs. 21,000/- and Rs. 20,000/- respectively. The registration was completed on 13.1.1979. On 28.2.1979, two applications u/s 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter referred to as ''the Act'') were filed on behalf of respondent Nos. 5 to 7 of C.W.J.C. No. 1939 of 1980 and respondent Nos. 5 and 6 of C.W.J.C. No. 1940 of 1980, claiming the transfer of the aforesaid two plots, on the ground that they were holders of lards adjoining to the lands transferred in favour of the petitioner. Both the pre-emption applications were dismissed by the Deputy Collector Land Reforms on a finding that the petitioner having purchased two adjacent plots was himself holder of adjoining lands and as such none of the two pre-emption applications filed by two different sets of pre-emptors could be allowed. The pre-emptors of the two applications being aggrieved by the orders aforesaid filed appeals before the Additional Collector, who allowed the same on the finding that as the two pre-emptors were holders of the lands adjacent to the two plots purchased by the petitioner, their right of pre-emption has to be upheld. Revisions filed on behalf of the petitioner before the Member, Board of Revenue was dismissed affirming the order of the Additional Collector. The validity of the orders passed by the Additional Collector and affirmed by the Member, Board of Revenue, has been questioned in the present two writ applications.

Sub-section (3) of section 16 of the Act gives a statutory recognition of customary law of pre-emption with the object of consolidating the holdings. In view of aforesaid sub-section, whenever there is any transfer of land to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document of the transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed. On a plain reading, the right for reconveyance of the lands transferred can be exercised by a co-sharer of a holder of adjoining land, when the land has been transferred to any person other than a co-sharer or a raiyat of an adjoining land.

In the instant case, the two sale deeds having been executed in respect of Plot Nos. 18 and 22 in favour of the petitioner, after the registration of two deeds the petitioner became holder of two adjoining plots. In this background, when two applications for pre emption were filed by two separate sets of pre-emptors in respect of two plots transferred, the petitioner can legitimately resist the claim in both the applications that he himself is a holder of the adjoining plot. In other words, the petitioner in application for pre-emption in respect of Plot No. 18 filed by respondent Nos. 5 to 7 of C. W. J. C. No, 1939 of 1980 can take a defence that he is the holder of adjoining Plot No. 22, as such application for pre-emption should not be allowed. Same plea is available to him in the other application for pre-emption in respect of Plot No. 22 filed by respondent Nos. 5 and 6 of C. W. J. C. No. 1940 of 1980, that he himself is the holder of adjoining Plot No. 18. Perhaps, the matter would have been different if same person or same set of persons had filed the two applications for pre-emption claiming to be adjoining raiyats of both the plots purchased by the petitioner.

On behalf of the pre-emptor-respondents it was urged that the petitioner had purchased two plots by two sale deeds with the purpose of defeating any application for preemption. It need not be pointed out that right of pre-emption is a very weak right which can be defeated by the purchaser by any legitimate means. Reference in this connection may be made to the well known case of the Supreme Court in the case of Bishan Singh v. Khazan Singh (AIR 1953 Supreme Court 838) where it was pointed out that the person claiming pre-emption has "to show not only that his right is as good as that of the vendee, but that it is superior to that of the vendee......this superior right must subsist at the time the pre-emptor exercises his right". A Full Bench of this Court in the case of R. C. Srivastava v. P. N. Singh (1970 B. L. J. R. 1101) reiterated the same principle in connection with section 16 (3) of the Act itself, pointing out that the right of pre-emption u/s 16 (3) "is a very weak right, that it must subsist at the time when the pre-emptor seeks to exercise it and that it can be defeated if by that time the person against whom it is sought to be exercised has acquired a right or status which is equal to that of the pre-emptor".

In view of the series of judgments of this Court, it is almost settled that before an application u/s 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 the adjoining land after filing of the application u/s 16 (3) of the Act. In the instant case, the petitioner has not 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 u/s 16 (3) of the Act. As such there should not be any difficulty in holding that when the pre-emption applications were filed by two different sets of pre-emptors for 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. In my view, the Land Reforms Deputy Collector rightly dismissed the application. The Additional Collector and the Member, Board of Revenue, have wrongly placed reliance on the Full Bench case of Sheo Kumar Dabey v. Sadania Devi (AIR 1962 Patna 124). In the aforesaid case, it had been observed "it is thus evident that the entire land is clogged with an encumbrance in the shape of the right of preemption. It is not a personal right; the vendor possesses the property not absolutely, but subject to the right of pre-emption." In the case of R. C Srivastava v. P. N. Singh (Supra), the Full Bench explained the view expressed in the case of Sheo Kumar Dubey v. Sudama Devi (Supra) and observed as follows :--

In Sheo Kumar Dubey''s case, Kanahiya Singh, J, had no occasion to consider the question as to how the right of pre-emption accrues or the question as to how such a right can be or is lost. His Lordship was merely describing the legal incidents of a perfected right of pre-emption. He was not dealing with a situation arising out of some events which may have the effect of nullifying that right before any step is taken to enforce it.

The learned Additional Collector should have followed the views expressed in the later Full Bench judgment in connection with an application u/s 16 (3) of the Act, instead of a view expressed in the earlier Full Bench case in connection with customary right of pre-emption. In the result, the writ applications arc allowed. The orders passed by the Member, Board of Revenue and the Additional Collector are quashed. The orders, passed by the Land Reforms Deputy Collector dismissing the two applications for per-emption u/s 16 (3) of the Act are upheld. In the circumstances of the case, there will be no order as to costs.

S. S. Sandhawalia, C. J.

I agree.