JAGDISH SINGH Vs. RAMESHWAR SINGH

JUDGEMENT

(1.) Defendants first party are the appellants. The appeal is from a reversing judgment of the Second Additional Subordinate Judge, Madhubani dated 1st September, 1975 The plaintiff-respondents first party transferred certain lands of plot No. 545 to one Ramprit Singh (defendant 3rd party-defendant 17) by a registered sale-deed dated 28th July, 1965, The registration of the sale-deed was completed on 12th November 1965, but before the completion of registration the appellants, made an application for pre-emption under section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1962 (briefly to be called as the Act) on 27th October, 1965, before the Collector, Madhubani. The pre-emption was allowed by the Additional Collector by his order dated 1st December, 1976 (Ext. D). There was no appeal or revision against that order. The Additional Collector executed a sale-deed (Ext. B) on 27th February, 1968, in favour of the appellants. Being aggrieved by the same the plaintiffs filed the present suit for a declaration that the said order of The Additional Collector was illegal, void and without jurisdiction and for confirmation of possession in the alternative for recovery of possession over the disputed land. Both the sale-deeds were challenged as being void and inoperative. The trial court dismissed the suit but the lower appellate court decreed it.

(2.) It was first contended on behalf of the appellants that the plaintiff had failed to prove that the application for pre-emption dated 27th October, 1965 was premature and that the lower appellate court was not right in holding that the said application was premature. In my opinion, the contention is sound. It is true that the registration of the sale deed by the plaintiffs in favour of the first vendee Ram Prit Singh was completed on 12th November, 1965, and that t'he application for pre-emption was made a few days earlier i.e. on 27th October, 1965. However, the mere filing of such an application for preemption on a data before completion of the registration is not a decisive factor and it cannot be held that it is premature. It must further be shown that cognizance also was taken by the Collector on that application before date of completion of registration. The right of pre-emptor has to be judged on the commencement of the proceeding in the sense of taking action by the Collector. It is only when a proceeding is commenced by taking action by Collector on such an application before completion of registration of the sale-deed that the proceeding becomes without jurisdiction and void and that the proceeding becomes without jurisdiction and void and that the order passed therein will be a nullity : see the cases of Hiralal Agrawal v. Ram Padarath Singh, AIR 1969 SC 244 ; Kamleshwar Singh v. Padma Nand Choudhary, AIR 1972 Patna 407 Even in the Division Bench case of Nand Kishore Singh v. Satya Narain Singh, AIR 1978 Patna 315 which was heavily relied upon by Mr. S. C. Ghose appearing for the respondents, the same view has been taken. In that case the orders of the revenue authorities were held to be nullity because cognizance of the application had been taken before registration of the sale-deed was completed. That case, therefore, is on no help to Mr. S. C. Ghose. In the present case the plaintiffs did not even allege in the plaint as to when the Collector had taken cognizance of the application. No evidence was adduced by the plaintiffs on this point. In my opinion, the onus to prove that the application for pre-emption was premature was upon the the plaintiffs and this they could prove by showing not only that the application was filed before completion of registration but by further showing that cognizance of the application also was taken by the Collector before completion of registration The appellants have filed an application for taking the Collector's order dated 53th November 1965, as additional evidence for the purpose of showing that the Collector took cognizance of the application on 12th November, i.e. after 12th November, 1965 the date of completion of registration. Mr. S. C, Ghose has vehemently opposed this prayer of the appellants for taking it as additional evidence. It is submitted that the appellants fully knew about this order and the same could have been filed in the trial court or in the lower appellate court, if they so desired. On the other hand, Sri Vinod Chandra appearing for the appellants contended that this order should be taken as additional evidence for the ends of justice. I do not think it necessary to take this order as additional evidence because the onus, in my opinion, was on the plaintiffs to prove that the application for pre-emption was premature and this they failed to do. I may say that if I would have thought it necessary I would have accepted it as additional evidence. In the above circumstances I hold that the plaintiffs failed to prove that the application for pre-emption filed by the appellants on 27th October, 1965, before the Collector, Madhubani, was premature. It must, accordingly, be held that the order of the Additional Collector allowing the application for pre-emption dated 1st December, 1967, was within his jurisdiction and is not illegal or void.

(3.) Secondly, it was urged by the appellants that the jurisdiction of the civil court was barred by section 43 of the Act. It may be stated that both the courts below went into the question of passing of consideration under the sale-deed of Ramprit Singh, the defendant-third party. The trial court held that consideration did pass and that the sale deed (Ext. 2) in favour of Ram Prit Singh was valid. The lower appellate court, however, reversed this view and held that no consideration passed under that sale-deed and it being without consideration, was invalid. Sri S. C. Ghose appearing for the plaintiff-respondent further submitted that Ramprit Singh had also executed a Ladavi-deed in favour of his vendor on 11th October, 1965. In my opinion, none of the two courts below was competent to go into this question. The Act has entrusted the Collector with a jurisdiction to determine the question of pre-emption which includes the jurisdiction to determine whether the sale deed is good or bad. It is on that view of the matter that pre emotion can be allowed or rejected by the Collector. The matter being wholly within the jurisdiction of the Collector, his order cannot be questioned in the Civil Court. The Additional Collector did consider the question of passing of consideration and the execution of Ladavi-deed in his order dated 1st December, 1967 (Ext, D). In Gunjan Yadav v. Sitaram Choudhary, 1973 BBCJ 250 IV, it was held that the question of passing of consideration could bs decided by the revenue authority under section 16 of the Act and that it was not open to the civil court to inter into this question. In Narendra Kumar Ghose v Sheodani Ram, 1971 BLJR 528 : AIR 1972 Patna I, it was held that a question of benami can be raised in a proceeding under section 16(3) of the Act and that it was within the power of the revenue courts to deal with and decide such a question. The principles underlying these two cases find support from the decision in Rai Brij Krishna v. M/s. S. K. Shaw and Brothers, AIR 1951 SC 115. I, accordingly, held that the suit is barred under section 43 of the Act.