ISHAQUE HAJAM Vs. ADDL MEMBER BOARD OF REVENUE

JUDGEMENT

(1.) These two applications have been heard together and are being disposed of by a common judgment. Two sale deeds were executed by Rahman Hajam and Mahabali Hajam in favour of Radha Krishna Mishra father of respondents Nos. 4 and 5 on 6-7-1965, one in respect of 6 kathas of land of plot No. 531 and another in respect of 15 kathas 6 dhurs of the same plot. The petitioners filed two applications under S.16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, stating, inter alia, that they were co-sharers holding a portion of the same plot No.631. The cases were numbered as Ceiling Case No. 54 of 1965-66 and Ceiling Case No. 55 of 1965-66. The two cases were decided in favour of the pre-emptor. The petitioners filed appeals before the learned Additional Collector who ultimately set aside the order passed by the Land Reforms Deputy Collector and held that since the pre-emptors had transferred their interest in the holding the application could not be maintained. The matter was taken by the pre-emptor to the Board of Revenue, where it appears that he filed only one revision application which was numbered as Case No.202 of 1978. The Additional Member, Board of Revenue by a resolution dated 28-3-1979 dismissed the revision application and held that the pre-emptors were no longer boundary raiyats as they had sold their interest in plot No. 631 by two sale deeds dated 30-4-1970 and 8-5-1970. The revision application was, accordingly, dismissed. The petitioners have filed two writ applications being CWJC Nos.2107 and 2108 of 1979. In both of them the order passed by the Additional Member, Board of Revenue in Case No. 202 of 1978 (Annexure-1) as also the order passed by the Additional Collector in Appeals Nos. 845 of 1977-78 and 853 of 1977-78 have been challenged. It appears that only one revision application was filed before the Member Board of Revenue against the common order passed by the Additional Collector in the two ceiling appeals. In fact, two revision applications should have been filed. It is now admitted by learned counsel for the petitioners that this writ application is confined only to Ceiling Case No. 55 of 1965-66 which was in respect of 15 kathas 6 dhurs of land of plot No. 631. There is no application against the order passed in respect of sale deed of 6 kathas of plot No. 631. Learned counsel, therefore, confines himself to the case in respect of 15 kathas 6 dhurs of land of plot No. 631. Since both these writ applications are against the same order the one i.e., C.W.J.C. No. 2108 of 1979, in fact, has become infructuous and is not being pressed.

(2.) Mr. Susheel Chandra Sinha learned counsel appearing on behalf of the petitioners has submitted that original order was passed by the Land Reforms Deputy Collector on 6-10-1969 by which he allowed both the applications for pre-emption. He submitted that on that day i.e. the date on which the order was passed in the two cases, the sale deeds had not been executed by the pre-emptors transferring their interest in plot No. 631. In other words, learned counsel submitted that on the date of the order passed by the first Court the pre-emptors were the boundary raiyats and, therefore, they had a right to pre-empt.

(3.) The question for consideration is as to whether the owner of a contiguous plot is entitled to pre-empt, if he has sold his property to another person after institution of the case. Learned counsel for the petitioners had relied upon S.233 of Mulla's Mohammendan Law 17th Edition where it has been observed that the right in which pre-emption is claimed whether it be co-ownership or participation in appendages or vicinage must exist not only at the time of sale, but on the date of the suit for pre-emption and it must continue up to the time the decree is passed. It was submitted by the learned counsel that the decree was passed in the case on 6-10-1969 and until then the sale deed had not been executed by the pre-emptor that is to say, that he was having interest in plot No. 631. Learned counsel has put much emphasis on the date of decree. It will be relevant to state here that the orders passed by the Land Reforms Deputy Collector on 6-10-1969 in both the ceiling cases were challenged in appeal by the vendees and the appeals were pending on the date when the two sale deeds dated 30-4-1970 and 8-5-1970 were executed. Needless to say that once the appeals were filed the orders passed by the Land Reforms Deputy Collector on 6-10-1969 stood suspended. It has .been stated by Mulla at page 243 of the book (S.233) that if a plaintiff, who claims pre-emption as owner of a contiguous property, sells his property to any person after the institution of the suit, he will not be entitled to a decree, for he does not then belong to any of the three classes of persons to whom the right of pre-emption is given by law. Learned counsel also relied upon two decisions in Baldeo Misir v. Ram Lagon, 77 Ind Cas 694 and in Umrao v. Lachhmam, 79 Ind Cas 217. In both these cases it has been observed that in order to maintain a suit for pre-emption the plaintiff pre-emptor must establish that he had a right to pre-empt on the date of the sale and at the time when the suit was brought and on the date of the decree of the trial Court. I am unable to hold that the ultimate date will be the date when the trial Court passes its order. In my opinion, any order passed by a trial Court will be subject to the decision in appeal and revision which have been provided by the statute. The pre-emptor must hold the land until the pre-emption matter is finally decided by the ultimate Court i.e. the Board of Revenue and that shall be the crucial date and not the date on which the order has been passed by the Land Reforms Deputy Collector. In Bhagwan Das v. Chet Ram, AIR 1971 SC 369 also it was held that the pre-emptor in order to succeed must have a right to pre-empt not only at the time of sale of the land by the landlord but also at the time of institution of the suit for pre-emption and also at the time of passing of the decree in the suit by the trial Court. In other words his tenancy must remain intact and he must hold the land in his capacity as tenant till the date of the decree. Since according to me the decree stood suspended after filing of the appeals the ultimate date was the date on which the resolution was passed by the Additional Member, Board of Revenue as contained in Annexure-1. I agree with "the Member, Board of Revenue that the pre-emptor ceased to have any interest in the land held by him in the boundary much before the final order was passed by the Member, Board of Revenue. The application, therefore, fails and is dismissed but without costs. Petition dismissed.