ABDULLAH MIAN Vs. JODHA RAUT AND OTHERS

JUDGEMENT

(1.) Both these writ applications have been filed by the same petitioner and arise out of a common order dated 10th April 1973 (Annexure 4) passed by the Member Board of Revenue, Bihar, Patna (Respondent no. 5) disposing of two proceedings initiated by respondent no. 1 under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962) - -to be referred hereinafter only as the 'Act' - -setting aside the previous orders of the authorities subordinate to him and remanding the two cases to the Land Reforms Deputy Collector, Motihari, for a fresh decision by treating the petitioner as a party to the proceedings. All the parties are common in both the cases, and so are the facts and, accordingly, they are being disposed of by this judgment. The short facts relevant for appreciation of the question raised before us are these; Respondent No. 1 Jodha Raut filed two applications under Sec. 16(3) of the Act on 8.3.1968 before the Land Reforms Deputy Collector, Motihari, claiming a right of pre -emption in respect of the lands transferred by Bidneshwari Prasad (respondent no. 3) and Balram Prasad (respondent no. 4 - -since dead) to Lallan Prasad (respondent no. 2) under two sale deeds dated 27.9.1967; one in respect of 6 kathas 7 dhurs of survey plot No. 1164, under khata No. 281 for Rs. 1270/ - and another in respect of 7 kathas 15 dhurs of survey plot No. 1135, under khata No. 112 of village Pataura Tola Lalla for Rs. 1500/ - on the ground that he was a raiyat adjoining both the plots in question and, therefore, entitled for the transfer of the same in accordance with the above provision of law. Both the sale deeds were registered on 18.12.1967, but even before that, Lallan Prasad transferred the plot to the petitioner for a total consideration of Rs. 8,000/ - by a sale deed executed on 21.11.1967 and registered on 16.1.1968.

(2.) The Land Reforms Deputy Collector dismissed both the applications by order dated 29.7.1969 (Annexure 1) on the ground that in the absence of the subsequent transferee, namely, the petitioner, the applications were not maintainable, and on that account, the deposit made by Jodha Raut, as required by the proviso to Sec. 16(3) of the Act also fell short. On appeal by Jodha Raut against the orders of the Land Reforms Deputy Collector, the appellate authority taking a view that it was not necessary to add subsequent transferee as a party, allowed the appeals by order dated 23.6.1970 and held that Jodha Raut was entitled to preemption. The appellate order has been made Annexure 2. Lallan Prasad then filed two revisions before the Commissioner, Tirhut Division, as directed by the Board of Revenue. The Commissioner, in his turn, transferred the cases to the Collector of Champaran, who by his order dated 1.5.1972 (Annexure 3), relying upon a Bench decision of this Court, restored the order of the Land Reforms Deputy Collector. Then Jodha Raut, the pre -emptor, came to the Board of Revenue, and the Member, Board of Revenue, on his own accord, added the petitioner as apposite party No. 4 for the first time. In view of a Bench decision of this Court in (1) Ram Chandra Yadav v/s. Anutha Yadav and others (1971 B.L.J.R. 994), also referred to by the Collector, Motihari, the Member, Board of Revenue, took the view that in absence of the subsequent purchaser, namely, the petitioner, the applications for pre -emption were not maintainable. But instead of dismissing the applications for this reason, he remanded them to the Land Reforms Deputy Collector to issue notice to the petitioner and then to decide the matter afresh. It is this order that is under challenge in these applications.

(3.) Mr. Thakur Prasad appearing for the petitioner in this Court challenged the impugned order of the Board of Revenue remanding the proceedings to the Court of the first instance for fresh hearing after notice to the petitioner on the ground that his addition in the proceedings was barred by limitation under Article 137 of the Limitation Act, 1963 - the residuary Article under the Third Division of the Limitation Act, which prescribes a period of three years for making such applications for which no period of limitation is provided elsewhere. He contended that inasmuch as the transfer in favour of the petitioner was already complete. On 16.1.1968, his addition for the first time in the revisional applications before the Board of Revenue, which were filed in the year 1972, was apparently barred by limitation.