Ramji Ram and Others vs The Member, Board of Revenue and Others

Aftab Alam, J.—This application arises from a preemption proceeding u/s 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act.

The three Petitioners and Respondent No. 21 being own brothers were the preemptors; father of Respondents 4 and 5, Respondents 6, 7, 8, father of Respondents 9 to 13 and Respondent No. 14 were the purchasers (hereinafter collectively referred to as ''the purchasers''); Respondents 5 to 21 were the vendors.

The purchasers purchased a large number of plots (about 24 in number) appertaining to Khata No. 49 and adding up to a total area of 2.85 acres from the vendors for a sum of Rs. 3000/- only under a sale deed which was executed on 31.10.71. The registration of the sale deed was completed on 21.11.1977. The three Petitioners along with Respondent No. 21 filed a single joint application for pre-emption after depositing the consideration money plus 10% as provided in law and after complying with the necessary formalities. Their claim for pre-emption was based on the plea that each of the four preemptors was a co-sharer in respect of each of the vended plots of land; in addition, each of the pre-emptors claimed to be an adjacent raiyat in respect of each of the vended plot.

The claim for pre-emption was allowed by the L.R.D.C., Giridih by his order dated 29.8.1978 (Annexure 3) passed in Case No. 36/77-78/6/78-79. In his order the L.R.D.C. upheld the pre-emptors claim that they were raiyats of adjoining lands too. The purchasers filed an appeal before the Addl. Collector, Giridih who held that the finding that the pre-emptors were the adjacent raiyats of the vended plots was not sustainable and further that in the preemption application the details of the vended lands had not been furnished properly. He, accordingly, set aside the order passed by the L.R.D.C. and allowed the appeal by his order dated 22.8.1991.

Against the appellate order the four pre-emptors filed a revision before the Member, Board of Revenue which was registered as Revision No. 352/1991. There one of the pre-emptors, Respondent No. 21 filed an application, supported by affidavit, seeking to withdraw from the case. It was stated on his behalf that he no longer wished to press his claim of pre-emption and he further prayed for a direction that his share of the money deposited along with the pre-emption application be refunded to him. The revision filed by the Petitioners was rejected by the Member, Board of Revenue by order dated 22.8.1991 on the sole ground that one of the pre-emptors had withdrawn from the case. The learned Member, Board of Revenue observed that the consequence of withdrawal of one of the pre-emptors would be that prayer of the remaining Petitioners "would amount to a claim of partial pre-emption", which was not permissible.

I find the reason assigned by the learned Member, Board of Revenue for rejecting the revision filed by the Petitioners quite mis-conceived and unsustainable. The learned Member seems to have overlooked that according to the pre-emptors each of them was a co-sharer in each of the vended plots. Therefore, in case of withdrawal of one of the pre-emptors, the remaining would still continue to be co-sharers and would therefore have the sight to press their claim for pre-emption.

It may be clarified at this point that in case a joint application for pre-emption is filed on behalf of more than one persons in respect of more than one plots of vended land, there may be two possibilities; one is that all the plots can not be claimed by any one of the claimants and different claimants are co-sharers/adjacent raiyats in respect of different plots being the subject matter of the claim of pre-emption. In such event, it would be a case of partial pre-emption and the claim of pre-emption would not be maintainable either severely or jointly. The other possibility, like the present case as claimed by the Petitioners, is that each of the claimants is a co-sharer/adjacent raiyat in respect of each of the vended plots. In such an event the withdrawal of one or more claimants would have no effect on the right of the remaining claimant(s) as the remaining claimant(s) in their own individual rights can claim pre-emption.

At this stage, it may be noted that Mr. Shyameshwar Dyal, learned Counsel appearing on behalf of the purchasers submitted that Respondent No. 21 had also made a prayer for the refund of his share of the money deposited with the pre-emption application. Learned Counsel submitted that in case his share of money was refunded to him, the remaining would fall short of the requisite amount as required by law and the claim of pre-emption would, therefore, fail on that ground. I am unable to accept this submission. As noted, a single joint application was filed which was accompanied with a challan showing the deposit of the requisite money. There is nothing to indicate that for making the deposits the four applicants had contributed equally; it is equally possible that the entire money was paid by any one of the applicants or that they had made contributions in unequal proportions. Further, any direction for the refund of his money, as claimed by Respondent No. 21, would require an adjudication on this aspect of the matter which is clearly outside the scope of preemption proceeding and beyond the jurisdiction of the revenue authorities. In case Respondent No. 21 had given any money to the three Petitioners and wants his money back, he can seek his remedy by taking such legal course as may be available to him but this controversy certainly cannot be decided in this proceeding.

For the reasons stated above, I am unable to uphold the revisional order. It is accordingly set aside and the matter is remitted back to the Board of Revenue with a direction to examine whether in the facts of this case the claim of the three Petitioners that each one of them was co-sharer/adjacent raiyat in respect of each of the vended plots was acceptable or not. The Board of Revenue will then pass orders, in accordance with law and on the basis of its finding recorded on this point.

I would like to clarify here that this Court has set aside the order passed by the Board of Revenue on the sole ground that the Petitioner''s revision case was rejected by it for a reason untenable in law. This Court has not gone into the merits of the Petitioner''s claim and no observation made in this judgment may be construed as expressing any opinion on the Petitioner''s claim of being co-sharers/adjacent raiyats in respect of the vended plots.

in the result, this application it allowed to the extent indicated above ang| subject to the above observations and directions.