TUSHAR KANT UPADHAYA Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) Two intra-court appeals have been filed by the pre-emptors assailing a common order passed by the learned Single Judge in two writ applications setting aside the order of the learned Additional Member, Board of Revenue, Bihar, Patna Patna High Court LPA No.530 of 2016 dt. 02-07-2018 dated 30.03.1992 in two separate revision proceedings where their claim for pre-emption had been allowed and the order passed by the DCLR and the Additional Collector in favour of the writ petitioners-purchasers has been upheld.

(2.) The short facts giving rise to the two writ applications (C.W.J.C. No. 10728 of 1992 and C.W.J.C. No. 10730 of 1992) filed by the writ petitioners-respondent no. 5, is that two sale deeds were executed by respondent no. 6 Kedar Nath Tiwari(substituted by his legal heirs) in favour of Ram Udar Upadhaya (since deceased) and substituted by his legal heirs/ representatives and the other in favour of Din Bandhu Upadhaya (also substituted by his legal heirs) on payment of consideration money on 28.12.1978 duly registered on 29.01.1978. Respondent no. 5 (petitioner in C.W.J.C. No. 10728 of 1992) had purchased from Kedar Nath Tiwari (vendor) plot no. 32(1.36 acres), plot no.43 (55 decimals) and plot no. 84(73 decimals) appertaining to khata no. 19 situated in village Parasia, P.S. Buxar in the district of Buxar by a registered sale deed dated 29.01.1979 for a consideration of Rs. 20,000/-. Respondent No. 5 had purchased plot no. 480 (81 decimals), plot no. 57 (1.36 decimals) and plot no. 9 (56 decimals) appertaining to khata no. 19 situated in village Parasia Patna High Court LPA No.530 of 2016 dt. 02-07-2018 in the district of Buxar from the said Kedar Nath Tiwari, which was also registered on 29.01.1978. The original pre-emptors Shankar Dayal Upadhyay and Chaturbhuj Upadhaya both substituted by their legal heirs, who are appellants in the present appeal, claimed pre-emption under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act) before the Deputy Collector Land Reforms, Buxar, which gave rise to Ceiling Case No. 05/1979-80 and Ceiling Case No. 04/1979-80. According to the pre-emptors they held land adjacent to the vended plots being a cosharer and adjoining raiyat of the said plots. They claimed pre-emption of the said vended plots. The DCLR by order dated 10.03.1980 held the pre-emptors in C.W.J.C. No. 10728 of 1992 not to be an adjoining raiyat to plot nos. 32 and 43 as there existed a public road between plot no. 32 of the vendee and plot no. 33 of the pre-emptor having a separate plot no. 36, as such, plot nos. 32 and 43 did not constitute a compact block. It was also disputed that plot no. 33 claimed by the pre-emptor to be owned by him belonged to one Mostt. Budhiya, who died in the year 1978 leaving behind her daughter as the legal heir. The appeal filed before the Additional Collector, Bhojpur, Ara by the pre-emptor giving rise to Appeal Patna High Court LPA No.530 of 2016 dt. 02-07-2018 No. 15/1988-89 was also dismissed on 12.08.1991 holding that because of existence of plot no. 36, which was a District Board road, the pre-emptors were not boundary raiyats.

(3.) So far as the case of the pre-emptors before the DCLR is concerned, vide Ceiling Case No. 04/1979-80 they claimed to be boundary raiyat on being owners of plot no. 49 and 481 but the vendees-writ petitioners claimed that with regard to plot no. 57 they were themselves boundary raiyat as plot no. 55 was acquired by them by virtue of registered deed of Bajidawa dated 24.07.1979 from one Sheo Bihari Upadhyay, hence, the DCLR, Buxar upheld the claim of the writ petitioner that he was himself adjoining raiyat being owner of plot no. 55, which is adjacent to plot no. 57, hence, pre-emption was disallowed. The appellant-pre-emptor moved the Additional Collector, Bhojpur at Ara in Appeal No. 14/1988-89 further expanding their claim stating that plot no. 49, which is on the boundary of plot no. 57, was acquired by them from one Moti Ranu Kuer by a registered deed of gift but was challenged by the vendee that the deed of gift was found to be a fabricated one by the Consolidation Authorities. As regards being adjoining raiyat of plot no. 9 being owner of plot no. 84 which was situated on the southern boundary of plot no. 9 held by the Patna High Court LPA No.530 of 2016 dt. 02-07-2018 pre-emptors, it was held by the Appellate Authority that the claim based on the deed of exchange was not maintainable as it was not registered. The pre-emptors then moved the learned Additional Member, Board of Revenue, Bihar, Patna in Revision Case No. 325 of 1991 and 326 of 1991. The revisional authority had based his finding on an erroneous premise and the learned Single Judge had this to say :