BANARSI DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India has been preferred for quashing the order dated 8.12.2005 passed in Board Revision Case no. 81/2003 by learned Additional Member of Board of Revenue, Bihar, Patna by which and whereunder he set aside the order dated 27.1.2001 passed by Deputy Collector Land Reform, Mahua, Vaishali in Land Ceiling Case no. 17/2000-01 through which learned DCLR, Mahua, Vaishali had rejected the petition filed under section 16 (3) of the Bihar Land Reforms ( Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (in short " Ceiling Act") filed by respondent nos.5 to 8.

(2.) Original petitioner nos.1 and 3 as well as petitioner no.2 and father of petitioner no.4 jointly purchased lands of khata no. 170 plot nos. 745, 746 and 747 measuring 2 kathas situated at village Rahim Alipur @ Ahiai P.S. Rajapakar District Vaishali through registered sale deed dated 22.6.2000 from respondent no.9 and got constructed a phoose house on the aforesaid lands and on the same day, petitioner no.2 purchased one katha of land of khata no. 170 plot nos. 745 through registered sale deed and prior to that father of petitioner no.4 had purchased 2 kathas of land of plot no. 747 of khata no. 170 through registered sale deed dated 24.5.1997. However, respondent nos.5 to 8 filed petition under section 16 (3) (1) of the Ceiling Act claiming their right of preemption on the ground of being adjoining raiyat. Learned DCLR, having got evidence of both parties, rejected the claim of respondent nos.5 to 8 vide order dated 27.1.2001 on the ground that the petitioners were themselves adjoining raiyats. Respondent nos.5 to 8 challenged the order of DCLR before the learned Collector, Vaishali in Ceiling Appeal no. 115/2000-01 which was dismissed by the learned Collector, Vaishali passing the order dated 6.1.2003. However, respondent nos.5 to 8 challenged the order dated 6.1.2003 passed by the learned Collector, Vaishali in Ceiling Appeal no. 115/2000-01 before the Board of Revenue in Board Revision Case no. 81/2003 which was allowed by learned Additional Member of Board of Revenue passing order dated 8.12.2005 on the ground that the petitioners are not boundary raiyats of the purchased plots rather respondent nos.5 to 8 are boundary raiyats of plots in question and furthermore, nature of the land was agriculture at the time of purchase of the aforesaid land.

(3.) Learned counsel for the petitioners assailed the impugned order submitting that learned Additional Member of Board of Revenue failed to appreciate the evidences available on record in right perspective and also failed to take note of this fact that both courts below had found that the petitioners were boundary raiyats of plots in question and nature of land was residential. He, further, submitted that annexure 8, RS map of plots in question, clearly goes to show that the petitioners are boundary raiyats of plots in question but the learned Additional Member of Board of Revenue gave finding beyond the evidence on record. He, further, submitted that admittedly, petitioner no.2 had purchased part of plot no. 745 on the day of purchase of other petitioners and, therefore, it goes to show that before filing of petition under section 16 (3) (1) of the Ceiling Act, petitioner no.2 had already become raiyat of plot in question. He, further, submitted that moreover, much prior to the above stated sale deed, father of petitioner no.4 had purchased part area of plot no. 747 and it is evident from perusal of RS map of plot in question that the above stated purchased land of father of petitioner no.4 was adjacent to the subsequent purchase but learned Additional Member of Board of Revenue failed to appreciate the aforesaid fact rather he gave wrong finding that area purchased by father of petitioner no.4 was not adjacent to plot in question and similarly, he gave wrong finding that between plot in question as well as purchased area of petitioner no.2, there was a road. He, further, submitted that admittedly, petitioners purchased three plots and even if case of respondent nos.5 to 8 assumed to be true for the sake of convenience of the argument, then also, respondent nos.5 to 8 was boundary raiyats of only one plot i.e. plot no. 745 because respondent nos.5 to 8 claimed their pre-emptory right on the basis of their plot no. 744 which is adjacent to plot no. 745. He, further, submitted that if preemptor is not boundary raiyat of all the sold plots, right of preemption can not be allowed. In support of his contentions, he referred decision of Ram Shankar Prasad Singh & others vs. Additional Member, Board of Revenue & others,1985 PLJR 680 wherein it has been held by this court that if two or more persons want to join hands in filing an application under section 16 (3) of the Ceiling Act, it is necessary for all applicants to establish that all of them are either co-sharers or adjoining raiyats of all the vended plots. He, further, submitted that in the present case, admittedly, respondent nos.5 to 8 are not co-sharers of vendor of the petitioners nor they are boundary raiyats of all vended plots but learned Additional Member of Board of Revenue failed to appreciate the aforesaid dictum of the law.