MD ARSHAD HUSAIN Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE instant appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna has been filed against the order dated 06.01.2010, passed in C.W.J.C. No. 14925 of 2009, whereby the learned Single Judge has affirmed the order of the learned Sub -Judge -III, Bhagalpur, holding that Pre -emption case no. 248 of 2004, is not maintainable in the Civil Court.

(2.) THE facts of the case in short are as follows: The appellant Ÿs father, Md. Abdul Lateef @ Md. Abdul (respondent no.4), executed a Power of Attorney in favour of respondent no.3, in respect of some agricultural lands located in village Sanhaulla under Sub -Registry Office, Kahalgaon, in the district of Bhagalpur. Respondent no.3, holder of the power of attorney, sold 03 decimals of the agricultural lands bearing plot no.709 of khata no.449 of village Sanhaula to respondent no.2 Md. Aiyub Hasan. The appellant filed suit being Pre -emption case no.248 of 2004, in the court of the learned Sub -Judge -III, Bhagalpur under Clause 231 (1) of Mulla Ÿs Commentary and Principles of Mahomedan Law. The appellant took the stand that Pre -emption matter concerning a Muslim would be governed by Clause 231(1), and not under the Ceiling Act. He claimed pre -emption on the ground that by virtue of being son of respondent no.4, he was co -sharer and co -raiyat of the land which has been transferred in favour of respondent no.2.

(3.) THE case of the respondent/vendee is that the Pre - emption suit in the civil court under Clause 231(1) of Mulla Ÿs Commentary and Principles of Mahomedan Law is not maintainable in view of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as žthe Act Ÿ), which provides elaborate provision for disposal of pre -emption matter, irrespective of the parties being Hindus or a Muslims. It was further the case of the respondents that the only remedy before the appellant was by way of filing a pre -emption application under Section 16 (3) of the Act before the Collector under the Act because a suit is barred under Section 43 of the Act. The vendee, who is respondent no.2 in this appeal prayed before the civil court to decide the question of maintainability as a preliminary issue which was rejected. The vendee preferred a review application which was also rejected by the trial court. The vendee (respondent no.2), filed two separate civil revision applications in the High Court against the aforesaid two orders. The civil revision preferred against the review application was taken up first and was dismissed with the observations that the dismissal would not affect any remedy against the substantive order. In due course, the second civil revision preferred against the substantive order refusing to consider the maintainability matter as a preliminary issue came up for hearing. The learned Single Judge allowed the revision application and directed the learned Sub -Judge in seisin of the Pre -emption case no. 248 of 2004, to decide the issue of maintainability as a preliminary issue.