Jharkhand High Court
Bulbul Bhandari vs State Of Jharkhand on 20 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 7473 of 2011
1. Bulbul Bhandari
2. Shiv Bhandari
3. Lakhan Bhandari All sons of late Rameshwar Bhandari and
residents of village- Upper Bhojudih, P.O.- Maharajganj, P.S.-
Tundi, District- Dhanbad
... ... Petitioners
Versus
1. State of Jharkhand
2. Member, Board of Revenue, at Dhurwa, P.O. Hatia, P.S.:
Jagarnathpur, Jharkhand
3. Additional Collector, Land Revenue, At and PO and PS Dhanbad
4. Deputy Collector Land Reforms, at + PO and PS: Dhanbad,
Dhanbad
5. Dilip Mahto, s/o Sri Kanchan Mahto
6. Balika Devi widow of Gour Napit
7. Nemai Bhandari
8. Gopal Bhandari both sons of late Gaur Napit, Respondents 5 to 8
r/o village- Upper Bhojudih, P.O.- Maharajganj, P.S.- Tundi,
District- Dhanbad
9. Gita Devi d/o Gaur Napit and wife of Dhiraj Pramanik, r/o village-
Katras, P.O.- Panchgarhi, P.S.- Katras, Dhanbad
... ... Respondents
10.Fatik Bhandari son of late Rameshwar Bhandari, r/o village- Upper
Bhojudih, P.O.- Maharajganj, P.S.- Tundi, District- Dhanbad
... ... Proforma Respondent
---
CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Petitioners : Mr. Mahesh Tewari, Advocate
Mr. Ritesh Kumar Mahto, Advocate
For the Respondent No. 5: Mr. Yogendra Yadav, Advocate
For the Respondent-State : Ms. Shalini Shahdeo, Advocate
---
13/20.03.2023 Heard the learned counsel for the parties
2. This writ petition has been filed for the following reliefs:
"For issuance of an appropriate writ/rule/order/ direction
in the nature of Certiorari for quashing the order dated
30.09.11 passed by respondent no. 2 dismissing Land
Ceiling Revision no. 05/09 preferred by the petitioners
under section 32 of The Bihar Land Reforms (Fixation of
Ceiling Area and Acquisition of Surplus Land) Act, 1961
(hereinafter referred to as "the act") AND for quashing
the order dated 24.01.08 passed by respondent no. 3
dismissing L.C. appeal no. 03/07 preferred by the
petitioners under section 30 of the act AND for quashing
the order dated 28.02.07 passed by respondent no. 4
dismissing L.C. case no. 11/03 and rejecting the claim of
pre-emption under section 16(3) of the act, made by the
petitioners with respect to the lands in question AND for
issuance of such other writ/rule/order/direction as Your
Lordships may deem fit and proper in the facts and
circumstances of the case."
Arguments of the petitioner.
3. 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. He
further 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.
4. The learned counsel submits that upon remand, the authorities
have passed fresh order against the petitioners by referring to the
subsequent sale deed in connection with Plot No. 44 by the same
vendor.
5. The learned counsel also 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 subsequently
transferred in favour of the private respondent by the same vendor
vide registered sale deed, 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.
6. 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 are 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.
Arguments of the private respondent no.5
7. Learned counsel for the private respondent no. 5 submits that it
has been recorded in order dated 02.01.2023 that the private
respondent no. 6, who is the widow of the vendor of the property, has
already expired and this has already been recorded as back as on
22.10.2019. He submits that though respondent no. 6 has expired and
no petition for substitution has been filed, but both her sons are on
record as respondent nos. 7 and 8 and her daughter i.e. respondent no.
9 is also on record. He submits that therefore, the vendor of the
property is already represented before this Court.
8. While referring to the facts of the present case, the learned
counsel for the private respondent no. 5 has submitted that the father
of the petitioners had filed his application claiming pre-emption with
respect to plot no. 43 and he claimed that he is the adjoining raiyat and
co-sharer of plot no. 44. The learned counsel submits that the plot no.
44 has been subsequently purchased by the private respondent no. 5
through a registered sale-deed from the same vendor who has
executed the sale-deed in favour of the private respondent no. 5 with
respect to the plot no. 43, though it happened during the pendency of
appeal arising out of preemption application.
9. The learned counsel submits that a fresh order was passed
pursuant to order of remand dated 09.11.2006 passed by the Member,
Board of Revenue in Revision Case No. 46 of 2006 (Annexure- 8) and
the remand was limited only to find out who exactly was in occupancy
of plot no. 44. The learned counsel submits that after necessary
enquiries, it was found that the private respondent no. 5 is in
possession of plot no. 44 having common boundary for plot no. 43 and
44. The learned counsel submits that though the petitioners are
claiming to be the co-sharer of plot no. 44 also, but pursuant to the
sale-deed executed with respect to plot no. 44, the petitioners did not
file any application for pre-emption claiming themself to be the co-
sharer of the property. The vendor of the property has not only
executed the sale-deed in favour of the respondent no. 5 with respect
to plot no. 43 as well as plot no. 44, but has also given the possession
of the said property to respondent no. 5 and the respondent no. 5 is in
possession of the property. He submits that this aspect of the matter
has been considered by the authorities below and all the three
authorities have decided against the petitioners after the order of
remand. He submits that there is no perversity in the impugned orders.
He also submits that the right of pre-emption is a weak right.
10. Learned counsel for the respondent No. 5 has also 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 they were 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 was entitled for the property by virtue of registered gift deed
executed as back as on 18.02.1959.
11. 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).
Arguments of the respondent state.
12. The learned counsel for the respondent - State has adopted the
arguments of the respondent no. 5 and submits that the arguments
advanced by learned counsel for respondent no. 5 are based on
materials on record and she has nothing further to add to it.
13. However, it is observed that 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 as co-sharer of the Plot No. 44 by stating that there has
never been any partition amongst the recorded tenant of the properties.
Findings of this court.
14. There is no doubt that the right to pre-emption under the
provisions of the Act namely Bihar Land Reforms (Fixation of
Ceiling Area and Acquisition of Surplus Land) Act, 1961 is a statutory
right and having been recognized by a statute , it has been treated as
mandatory and not discretionary. Such view has been taken by the
Hon'ble Supreme Court in the judgement reported in (2001) 8 SCC 24
(Shyam Sunder and Others vs. Ram Kumar & Another) and
reiterated by the Hon'ble Supreme Court, inter alia, in Civil Appeal
No. 187 of 2003 (Suresh Prasad Singh Vs. Dulhin Phulkumari Devi
and Others) decided on 12.05.2010. The Hon'ble Supreme Court
while deciding the case of Civil Appeal No. 187 of 2003 (Supra) has
also taken note of judgement passed by the Hon'ble Division Bench of
Hon'ble Patna High court in the case of "Sudama Devi Vs. Rajendra
Singh" (AIR 1973 Patna 199) and also the judgement passed in the
case of "Ram Pravesh Singh Vs. The Additional Member, Board of
Revenue and Others" reported in [1995 (1) Patna PLJR 764] and has
observed that whatever may have been the views of Patna High court
regarding the right of pre-emption being a weak right, a five judge
Bench of Hon'ble Supreme Court in the case of "Shyam Sunder &
Others Vs. Ram Kumar & Another) has held that where a right of
pre-emption is recognized by statute, it has to be treated as mandatory
and not discretionary. The provisions of right of pre-emption are under
Section 16 of the aforesaid Act of 1961 and what is required to be
seen in the present case is-
whether the condition precedent for claiming right to pre-
emption has been satisfied by the petitioners or their
predecessor-in-interest or not?
15. The property involved in the present case is 6 ½ decimal of land
of Khata No. 40, Plot No. 43 situated at village Upper Bhojudih, P.S.-
Tundi, District- Dhanbad which was sold by Gour Napit to Dilip
Mahto (respondent no. 5) vide registered sale-deed no. 4471 dated
25.06.2003. The petitioners/their father claimed to be the co-sharer of
the vended property as well as co-sharer of the adjoining property and
filed application for pre-emption on 14.07.2003 which was numbered
as Land Ceiling Case No. 11 of 2003-04 and complied with the
required condition. Dilip Mahto (respondent no. 5) filed his show-
cause on 22.09.2003 stating that Rameshwar Bhandari (father of the
present petitioners) was neither a co-sharer nor the adjoining raiyat of
the vended property. A supplementary show-cause was also filed on
27.12.2003. Vide order dated 08.11.2004, the respondent no. 4, after
making some on the spot enquiry, allowed the application for pre-
emption filed by Rameshwar Bhandari by holding that Rameshwar
Bhandari was not a co-sharer of the land in question, but he being in
possession of land of plot no. 44 was an adjoining raiyat and Dilip
Mahto was an outsider to the family and was not an adjoining raiyat.
16. On 03.12.2004, Dilip Mahto preferred appeal which was
numbered as Land Ceiling Appeal No. 37 of 2004 and during the
pendency of the appeal, Dilip Mahto purchased part of plot no. 44
from Gour Napit vide sale deed no. 9805 dated 10.12.2004.
Thereafter, Rameshwar Bhandari expired and the present petitioners
were substituted. The aforesaid appeal was decided on 17.04.2006
whereby the respondent no. 3 dismissed the appeal.
17. Dilip Mahto (respondent no.5) preferred revision which was
numbered as Land Ceiling Revision No. 46 of 2006. The revisional
authority clearly recorded that the vended property was a portion of
the gift executed by Padmawati Devi to Gour Napit by registered gift
deed no. 4829 dated 18.02.1959 and out of the said gifted property,
Gour Napit sold 6.25 decimal of Plot No. 43 to Dilip Mahto. The
Findings in this connection are quoted as under:
"I have carefully gone through the record and the pleadings of
all parties. For an application under Section 16(3)(1) of the Act
to succeed the applicant has to prove that the vendee is neither
a co-sharer of the vended land and nor is he a raiyat of land
adjoining the vended land. At the same time the applicant has to
also prove that he is either a co-sharer of the vended land or a
raiyat of adjoining land. The recorded Khatiyani raiyats of
Khata No. 40 to which the disputed Plot No. 43 appertains, are
Bansi Napit, Dayal Napit and Lagu Napit. Bansi Napit has
three sons namely Bhusan Napit, Sadhu Napit and Bisheshwar
Napit. Bisheshwar Napit in turn has five sons namely Murlidhar
Bhandari, Rameshwar Bhandari. Gaur Napit (the vendor), Nitai
Napit and Jagadish Napit. Another Khatiyani raiyat Sadhu
Napit died issueless and his share of land devolved upon his
wife Padmawati Devi. Padmawati Devi gifted the entire land
inherited by her measuring 2.24 acres to Gour Napit, s/o
Bisheshwar Napit vide registered gift deed No. 4829, dated
18.02.1959. Out of this gifted land Gour Napit sold 6.25
decimals of Plot No. 43 to the petitioner. The remaining 1.75
decimals of this plot comprises of a Kali Mandir situated within
its own boundary."
18. The revisional authority also recorded that the submissions
were silent about the successor of Dayal Napit, who was also one of
the originally recorded raiyat as well as the status of four sons of
another recorded raiyat namely Bisheshwar Napit. The revisional
authority rejected the claim of the pre-emptor (present petitioners) that
the pre-emptor was the co-sharer of the vended property. Such plea of
being a co-sharer of the vended property was based on the pleadings
that there was never any partition between the original recorded
raiyats and that the entire land continued to be the joint family
property of the descendants of the recorded raiyats.
19. The revisional authority relied upon the fact about the
execution of gift deed dated 18.02.1959 and recorded that had there
been no partition between the recorded raiyats, then the gift deed
would certainly have been challenged before the competent court and
the revisional authority rejected the plea of co-sharer as claimed by the
pre-emptor and held that the DCLR, Dhanbad had rightly held that the
pre-emptor was not a co-sharer of the disputed land.
The revisional authority also recorded that the pre-emptors were
claiming that they are the raiyats of the land adjoining the disputed
land by virtue of being co-sharer of Plot No. 44 of Khata No. 40
which was towards the Northern Boundary of the disputed land. The
fact that Plot No. 44 was towards the Northern Boundary of the
disputed land, is not in dispute.
The revisional authority further recorded that the status of the pre-
emptor being adjacent raiyat was based simply on the statement of one
person present at the spot enquiry who stated that the Dilip Mahto -
the purchaser of the vended property used to cultivate the land by
taking it on 'Bandhak'. The revisional authority after having rejected
the status of the pre-emptor being the co-sharer of the vended
property, after having rejected the claim that the entire property was
joint property and also rejecting the plea that there has been no
partition amongst the three recorded raiyats, remanded the matter on
the limited point as to who exactly was in occupancy of Plot No. 44
and directed for passing a speaking order based on evidence. The
operative portion of the order passed by the revisional authority in
connection with the remand, is quoted as under:
"Here we have a case in which partition obviously took place
between the three recorded raiyats. The current vendor was
gifted the land by the widow of one of the three recorded raiyats.
The total land gifted by the widow of the recorded raiyat
measuring 2.24 acres out of which only 6.25 decimals had been
transferred to the petitioner. It is not at all clear from the records
as to where the remaining gifted land is located. Another
recorded raiyat had three sons, one of whom had five sons. The
original pre-emptor was the son of one of these five. It is not
known whether the four uncles of the original pre-emptor had
any heirs. If they did have heirs then what land is in their
possession?
In such a situation further enquiry into the question of
occupancy of plot No. 44, which lies on the northern boundary of
the disputed plot, is essential. Merely one person stating
something is not sufficient.
I, therefore, find that the DCLR has come to his findings
without going into the details of the matter. I also find that the
Additional Collector has passed his order in a purely routine
manner. This case is accordingly remanded to the DCLR,
Dhanbad with a direction to examine who exactly is in
occupancy of Plot No. 44 that is located on the northern
boundary of the disputed plot and to pass a speaking order based
on evidence." (emphasis supplied)
20. After having recorded a clear finding that partition had taken
place between the three recorded raiyats, the revisional authority
remanded the matter back to the DCLR, Dhanbad with a direction to
examine who exactly was in occupancy of Plot No. 44 that was
located on the northern boundary of the disputed plot and to pass a
speaking order based on evidence. Meaning thereby, finding of
partition amongst the recorded raiyats was already recorded and it was
remanded only for the purposes of finding out as to who exactly was
in possession of the plot number 44.
21. Thus, the finding that partition took place between the three
recorded raiyats attained finality.
22. Upon remand, it was found that Dilip Mahto was in possession
of the Plot No. 44 which was apparently on account of the fact that he
had purchased Plot No. 44 from the same vendor i.e. Gour Napit.
23. Fresh order was passed on 28.02.2007 in L.C. Case No. 11 of
2003 wherein it was recorded that Plot No. 43 (the vended property)
and Plot No. 44 were within the same boundary and were being
utilized by Dilip Mahto - respondent no. 5/purchaser of plot no 43 and
44. After having recorded this fact, the LRDC rejected the claim of
pre-emption.
24. The appellate authority also recorded that if the present
petitioners were the co-sharer of Plot No. 44, they would have
opposed the sale of Plot No. 44 by Gour Napit. The appellate authority
also took note of the fact that Plot No. 44 was sold only by Gour Napit
in favour of Dilip Mahto and the present petitioners though claiming
to be the co-sharer, did not raise any objection to sale of Plot No. 44
by Gour Napit. The appellate authority rejected the Appeal.
25. The revisional authority dismissed the revision case being
Dhanbad Case No. 05 of 2009 after recording a finding that in earlier
revision order dated 09.11.2006 being Revision Case No. 46 of 2006 ,
right of the pre-emptor as a co-sharer to the vended property was not
established and there was nothing to show that the pre-emptor had
filed any objection for pre-emption as a co-sharer with regard to sale
of the adjoining property i.e Plot No. 44 by the same vendor . The
revisional authority ultimately recorded a finding that it was very clear
that the pre-emptor did not have co-sharing right on Plot No. 44 and
therefore, he could not be said to be the adjoining raiyat of Plot No. 43
and dismissed the revision application.
26. This Court finds that the petitioners have been claiming the
vended property (plot no. 43) in the capacity of being a co-sharer by
stating that there has been no partition amongst the three recorded
raiyats and on the strength of the same plea that there has been no
partition, petitioners were claiming to be the co-sharer of the adjoining
land (plot no. 44). Thus, the underlying plea with regards to the
vended property (plot no. 43 and 44) was one and same i.e. there has
been no partition amongst the recorded raiyats and plot no. 43 and 44
were part of the joint family property. In the earlier round of litigation
the revisional authority had clearly recorded a finding that partition
had taken place amongst the three recorded tenants and the matter was
remanded to ascertain as to in whose possession was the adjoining
property which was essentially to ascertain as to who had the right
over the plot no. 44 after partition which had already taken place.
The petitioners were claiming the status of raiyat of the disputed land
on the plea that there had been no partition but the plea of "no
partition" was rejected which attained finality.
27. Once the finding, that there had been partition amongst the
three recorded raiyats had attained finality, in order to claim the status
of adjoining raiyat, it was for the pre-emptor to show that the
adjoining property (plot no. 44) fell in their share upon partition,
which they miserably failed to prove. The authorities took into
consideration that the adjoining property i.e. Plot No. 44 was sold by
the same vendor i.e. Gour Napit, who had sold the property of Plot
No. 43, and the petitioners never claimed any right of pre-emption
over adjoining plot no. 44 claiming to be co-sharer of the plot no.44
which also indicated that adjoining property i.e. plot no. 44 was no
longer a joint property and therefore the petitioners could not claim
the status of co-sharer of the adjoining property (plot no. 44) . It was,
in this context, a reference was made to sale deed of plot no. 44 only
to show that the petitioners could not claim the status of adjoining
raiyat. The sale deed with respect of plot no. 44 was not used to create
any right over the vended property i.e. plot no.43 by giving any status
of adjoining raiyat by virtue of subsequent purchase of plot no. 44.
28. The finding that there has been partition amongst the three
recorded tenants having attained finality, has an important bearing in
the facts and circumstances of this case. In the present case , the pre-
emptor had claimed that there was no partition and consequently
claimed the status of adjoining raiyat by virtue of being the co-sharer
of the adjoining property. Such plea is devoid of any merits as the
factum of partition was recorded and attained finality in the earlier
round of revision proceedings.
29. The learned counsel for the petitioners has raised a plea that the
statutory right cannot be defeated by subsequent purchase of adjoining
property. Such plea does not apply in view of the fact that the
impugned orders are not based on any such fact that the right of pre-
emption was subsequently defeated on account of purchase of the
adjoining property and consequently becoming the adjoining raiyat.
The learned authorities have taken note of the fact that the sale of plot
no. 44 by Gour Napit in favour of Dilip Mahto (respondent no. 5) was
never challenged by the petitioners.
30. The fact that the petitioners, who were claiming to be the co-
sharers of the adjoining property, also did not question the execution
of sale-deed with regard to the adjoining property executed only by
Gour Napit, was enough to hold that the petitioners were not the
adjoining raiyat of the vended property.
31. Upon perusal of the records of this case, this Court is of the
considered view that the petitioners have failed to prove that they were
the co-sharers of the adjoining property and consequently, were
adjoining raiyat of the vended property. The finding in the earlier
round of litigation that the pre-emptors were not the co-sharers of the
vended property, has already become final. Thus, the petitioners have
failed to prove that they were the co-sharers of the vended property
and they were the adjoining raiyats of the vended property and
consequently, the condition precedent to claim pre-emption was not
satisfied. Consequently, there is no merit in this writ petition which is
hereby dismissed.
32. Pending interlocutory application, if any, is closed.
33. Interim order, if any, stands vacated.
(Anubha Rawat Choudhary, J.)
Pankaj/-
N.A.F.R.
