Jharkhand High Court
Bulbul Bhandari And Others vs State Of Jharkhand & Others on 17 January, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W. P. (C) No. 7473 of 2011
Bulbul Bhandari and Others ... ... Petitioners
Versus
State of Jharkhand & Others ... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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12/17.01.2023
1. Heard Mr. Mahesh Tewari, learned counsel appearing on behalf
of the petitioners along with Mr. Ritesh Kumar Mahto, Advocate.
2. Heard Mr. Yogendra Yadav, learned counsel appearing on
behalf of the respondent No. 5.
3. Heard Ms. Shalini Shahdeo, learned counsel appearing on
behalf of the respondent-State.
4. The matter was heard at length on 12.01.2023 in absence of
learned counsel for the petitioners. On 12.01.2023, the arguments of
the learned counsel for the respondent No. 5 and the State have been
recorded. Today when the case is taken up, learned counsel for the
petitioners has appeared and advanced his argument.
5. The learned counsel for the petitioners has submitted that the
father of the petitioners had filed the application for pre-emption on
14.07.2003 claiming himself to be the co-sharer and adjoining raiyat
of the vended property. The learned counsel submits that vended
property is Plot No. 43 and the adjoining property is Plot No. 44. The
learned counsel submits that initially the order was passed in favour of
the father of the petitioners and the claim for pre-emption was allowed
vide order dated 08.11.2004 and an inspection was also conducted.
The learned counsel submits that the respondent No. 5 preferred an
appeal on 03.12.2004 against the order dated 08.11.2004 before the
respondent No. 3, which was dismissed, against which revision was
filed and the matter was remanded for on the spot inspection with
regard to plot No. 44 and for passing order.
6. The learned counsel submits that upon remand , the authorities
have passed fresh order by referring to the subsequent sale deed in
connection with Plot No. 44 in favour of the petitioners by the same
vendor.
7. The learned counsel submits that the right of pre-emption is a
statutory right and the petitioners having satisfied all the required pre-
condition for claiming pre-emption had taken steps and such right
could not be defeated by referring to any subsequent sale-deed. The
learned counsel submits that the Plot No. 44 was transferred in favour
of the private respondent by the same vendor vide sale deed No. 9020
dated 26.12.2003 as mentioned in the revisional order, but the same
being subsequent to the sale deed involved in the present case could
not be used to defeat the right of the petitioners.
8. The learned counsel has relied upon the judgment passed by the
Hon'ble Supreme Court in Civil Appeal No. 187/2003 and has
referred to paragraph Nos. 13 and 14 thereof to submit that the matter
regarding right of pre-emptor has been ultimately crystalized by the
Hon'ble Supreme Court in the case of Shyam Sunder and Others vs.
Ram Kumar & Another and the argument of the private respondent
advanced on the last date that right of pre-emption is a weak right will
not defeat the right of the petitioners who is claiming statutory right.
The learned counsel has also relied upon a judgment passed by the
Hon'ble Patna High Court in the case of Rajkishore Singh vs.
Bhubneshwari Singh & Others reported in 1968 (16) BLJR 33 and
has referred to paragraph 8 thereof to submit that the right of pre-
emption stood crystalized in favour of the petitioners under the facts
and circumstances of this case and the same could not be defeated by
referring to any subsequent sale deed.
9. Learned counsel for the respondent No. 5 in furtherance to his
arguments, which was advanced on 12.01.2023, has submitted that the
petitioners did not produce any document to show that they were the
co-sharer/adjacent Raiyat of Plot No. 44 and the petitioners could not
lead any evidence to show that he was the co-sharer of the vended
property. Rather, the records of the case reveal that there was a
partition and the vendor of the property who had sold Plot No. 43 as
well as Plot No. 44 was entitled for the property by virtue of registered
gift deed executed as back as on 18.02.1959.
10. The learned counsel submits that the impugned order has been
passed pursuant to the order of remand passed by the revisional
authority and all the three authorities have returned findings against
the petitioners which do not call for any interference. The learned
counsel has relied upon the judgment passed by the Hon'ble Patna
High Court reported in 2007 SCC Online Pat 13 (Smt. Soma Pathak
vs. State & Others) para 6 and also the judgment passed in W.P. (C)
No. 1235/2007 (Rama Sahu vs. The State of Jharkhand & Others)
dated 06.02.2018 para 8(d).
11. From perusal of the earlier order of remand, it appears that the
specific case of the pre-emptors was that they were claiming to be the
co-sharer of the vended property i.e plot no 43 as well co-sharer of the
Plot No. 44 by stating that there has never been any partition amongst
the recorded tenant of the properties.
12. Arguments concluded.
13. Post this case for judgment on 13.03.2023.
(Anubha Rawat Choudhary, J.)
Mukul
