JALESHWAR CHAUBEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD learned Counsel for the petitioners and the counsel for private Respondents.

(2.) Petitioner No. 1 is the son and petitioner No. 2 is the grand son of the purchaser, Most. Kabutari who purchased 1 Bigha 6 Kathas 13 Dhurs of lands in Plot Nos. 1463, 1592, 1700, 1774 appertaining to Khata No. 446 of Village Khajuria, P.S. Barauli, District Gopalganj from Raghunandan Tiwari under registered sale deed dated 27.1.1977. They are aggrieved by the orders passed by the appellate authority dated 21.12.1998, Annexure -3 as also the revisional authority dated 22.5.2000, Annexure -4 whereunder order dated 22.9.1995, Annexure -2 dismissing the pre -emption case filed by original private Respondent No. 5 was set aside in appeal and the appellate order was affirmed in revision. The subject matter of the pre -emption case is the aforesaid 1 Bigha 6 Kathas and 13 Dhurs of land. On 11.1.1943 Ram Subhag Choubey, one of the recorded tenant and father -in -law of Most. Kabutari sold his half share in aforesaid Plot Nos. 1453, 1592, 1700 and 1774, in favour of Raghunandan Tiwari through registered sale deed dated 11.1.1943. Raghunandan Tiwari executed a mortgage deed for part of the aforesaid lands to the extent of 6 Kathas 1 Dhur of Plot No. 1774 in favour of pre -emptor Bhagwat Choubey, Respondent No. 5 and his brother Dharmdeo Choubey vide registered mortgage deed dated 10.8.1953, Annexure -1 to this writ application. The lands mortgaged was redeemed on 29.7.1970 by petitioner No. 1 as also the father of petitioner No. 2 in terms of the redemption note scribed and signed by Dharmdeo Choubey for himself and his brother Bhagwat Choubey on the reverse of page -1 of the registered mortgage deed dated 10.8.1953 and is dated 29.7.1970. It is submitted on behalf of the petitioners that having redeemed the land, the mortgage deed was also returned to petitioner No. 1 and his brother and endorsement to that effect was also made in the redemption note. The lands in question including the mortgaged lands were thereafter transferred by Raghunandan Tiwari in favour of Most. Kabutari vide registered sale deed dated 27.1.1977. The original private Respondent No. 5 being the son of the other recorded tenant and nephew of Ram Subhag Choubey having learnt about the sale deed dated 27.1.1977claiming to be boundary raiyat of each of the four vended plot filed preemption case under Sub -section (3) of Section 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land] Act, 1961 (hereinafter referred to as "the Act") impleading Most. Kabutari and the vendor Raghunandan Tiwari. Purchaser refuted the claim on the ground that she being a name lender preemption case is fit to be rejected for failure to implead her husband Thakur Choubey as Opposite Party. The authorities under the Act considered and dismissed the pre -emption claim. The pre -emptor, private Respondent No. 5 approached this Court in C.W.J.C. No. 5899 of 1983 and this Court having heard counsel for the parties under judgment dated 12.1.1995, Annexure -A to the counter affidavit, remanded the matter to the Collector under the Act for fresh consideration of the matter on merits with further direction to decide whether Most. Kabutari was the name lender for her husband Thakur Choubey. Once the matter was remanded, the Collector under the Act reconsidered the matter on the basis of the documents already on record and concluded under orders dated 22.9.1995, Annexure -2 with reference to the mortgage deed dated 10.8.1953 as also the redemption note dated 29.7.1970 recorded over the reverse of page -1 of the mortgage deed itself that the initial sale transaction under registered sale deed dated 11.1.1943 executed by Ram Subhag Choubey in favour of Raghunandan Tiwari was itself a sham transaction and the objectors remained in possession of the subject matter of the sale deed dated 11.1.1943 as also the mortgage deed dated 10.8.1953 throughout and the impugned sale transaction dated 27.1.1977 is also a sham transaction and in fact there has been no transfer of land from Raghunandan Tiwari to Most. Kabutari and as there is no sale transaction under registered sale deed dated 27.1.1977 the pre -emption application at the instance of the pre -emptor is not maintainable. On the question of original private Respondent No. 5 being a boundary raiyat of the transferred land, the Collector under the Act held after perusing sale deed dated 27.1.1977 that the pre -emptor is not shown as boundary raiyat of the lands in question, as such, his claim on that ground also must fail. Aforesaid order dated 22.9.1995, Annexure -2 was challenged in appeal. The appellate court having referred to the orders of this Court dated 12.1.1995, Annexure -A as also the contents of the pleadings filed by the parties held that the pre -emptor was the boundary raiyat of the vended plot as in all the plots he had his half share together with his brother Dharmdeo Choubey and further held that Most. Kabutari was not the name lender for her husband and in the light of the aforesaid two findings, allowed the pre -emption case under orders dated 21.12.1998, Annexure -3. Petitioners herein assailed the said order by filing revision before the Board of Revenue. The Board of Revenue considered the revision application as also the contents of the sale deed dated 11.1.1943 and the contents of the impugned sale deed dated 27.1.1977 and recorded a finding that the pre -emptor was the boundary raiyat of the vended land as he had his half share in all the plots by virtue of the fact that he was the son of Vidyapat Choubey, the other recorded tenant and nephew of Ram Subhag Choubey, who had executed sale deed dated 11.1.1943 for his half share in the plots in question. On the question whether Most. Kabutari was the name lender for her husband, the Board of Revenue also found that Most. Kabutari was not name lender, rather, she was purchaser of the lands in question under the sale deed dated 27.1.1977.

(3.) THE two orders passed by the appellate authority, Annexure -3 and the revisional authority Annexure -4 are being assailed by filing the present writ application. Learned Counsel for the petitioners has submitted that the orders passed by the appellate authority and the revisional authority are fit to be set aside on the ground that the two authorities while setting aside the order of the Deputy Collector, Land Reforms have not considered the effect of the registered mortgage deed dated 10.8.1953, Annexure -1 and the redemption note dated 29.7.1970 recorded over the reverse of page -1 of the deed coupled with the fact that the deed was returned by the mortgagee to the petitioner No. 1 and his brother, father of petitioner No. 2 and from their custody the same was produced to establish that the two sale transactions were only sham/paper transaction as throughout the lands in question remained with Ram Subhag Choubey, Thakur Choubey and his sons and Raghunandan Tiwari was only a name lender. He further contended that admittedly the pre -emptor, original Respondent No. 5 is the raiyat of the adjoining lands along with his brother, Dharmdeo Choubey who having not been impleaded as party in the pre -emption case, the pre - emption case on behalf of Bhagwat Choubey, Respondent No. 5 was not maintainable as other raiyat of the adjoining plots have not chosen to join the preemption case. In this connection, he referred to the provisions contained in Sub -section (3) of Section 16 of the Act and submitted that it is the raiyat who is given the statutory right to apply for pre -emption and the raiyat of the adjoining plots were both Respondent No. 5, Bhagwat Choubey and Dharmdeo Choubey and as Dharmdeo Choubey has not chosen to join the preemption case, the pre -emption case is fit to be dismissed as it is well known that right to pre -empt is a weak right and can be defeated on account of laches to implead a necessary party.