DULHIN BASMATIA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This is an appeal under clause 10 of the letters patent. It arises out of an application under Articles 226 and 227 of the constitution of India. The facts giving rise to the appeal, shortly stated, are these.

(2.) Respondent No. 3 Keshav Chandra Pratap Singh made a transfer by sale of 42 acre land of plot No. 1244 of village Ratangarh in the district of Bhojpur in favour of respondent No. 2, Raja Ram Singh. The appellant made an application under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (in short 'the Ceiling Act') claiming right of pre-emption on the ground of adjacency to the vended plot. The claim was resisted by the purchaser on the ground that be was a Sikmider i. e. an under Raiyat not only of the vended plot but also the adjacent plot bearing plot No. 1243. According to him, as a Sikmider, he has acquired certain rights and privilege in the land. The Deputy Collector Incharge Land Reform, exercising the powers of the collector under the Act allowed the claim. The appeal and the revision preferred by the purchaser having gone in vain, he came to this Court in c. W J. C. No. 2169 of 1979. The said writ petition has been allowed and the orders of the authorities below set said by the judgment and order under appeal (Judgment is seperted in 1985 BBCJ 458). The learned Judge held that the rights conferred upon a Raiyat of the adjoining plot of land or co-sharer to resist the claim of pre-emption is also available to an under-Raiyat having right of occupancy.

(3.) Mr. Dinu Kumar, learned counsel for the appellant, submitted that the learned Judge has erred in law in referring to the provisions of the Bihar tenancy Act in coming to the conclusion that the status of an under-Raiyat is the same as that of Raiyat when the two expressions have been separately denned in the Ceiling Act itself. Counsel submitted that the Ceiling Act makes clear distinction between Raiyet and an under-Raiyat and, therefore, it cannot be said that an under-Raiyat stands on the same footing as a Raiyat. Reference was made to definition of the terms Raiyat and under-Raiyat occurring in Section 2 of the Act, and also to Section 21 of the Act.