PHULENA PRASAD Vs. JAGDISH CHOUDHARY

JUDGEMENT

(1.) In this application under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for quashing the order of the Additional Member, Board of Revenue, Bihar, dated the 17th May, 1967 (Annexure 'C') as also the order of the Commissioner of Tirhut Division, Muzaffarpur, dated the 15th May, 1966 (Annexure 'B'), dismissing the petitioner's application 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), and for issue of a writ of mandamus directing opposite party Nos. 1 and 2 to execute a sale deed in respect of the land in question in favour of the petitioner.

(2.) By a registered sale deed dated the 21st August 1963, Surendra Prasad (opposite second party) transferred 10 dhurs of land of survey plot No. 470 of village Raipur, Police station Pupri, District Muzaffarpur, for a sum of rupees three hundred to Jagdish Choudhury and Vijay Kumar Choudhury (opposite first party), who according to the petitioner, are neither co-sharers nor Raiyats holding lands adjoining the transferred land. The petitioner, who is a co-sharer Raiyat of survey plot No. 470 filed an application on the 13th November, 1963, under Section 16(3) of the Act before the Collector of Muzaffarpur, praying that the transferees be directed to re-transfer that land to the petitioner. Along with his application, he deposited rupees three hundred, the consideration amount of the sale deed as also Rs. 30.00 being ten per cent of the consideration amount, as prescribed, with a certified copy of the sale deed. It was also averred in the application filed by the petitioner that the transferees were neither co-sharers nor Raiyats holding land adjoining the transferred land.

(3.) The transferees, opposite first party, filed objection and denied that the petitioner was a co-sharer of plot No. 470 and urged that as the plot in question was a homestead land, the provisions of the Act had no application. They further claimed that they have land in plot No. 469, which is on the northern boundary of plot No. 470, and they also hold land in plot Nos. 108 and 109 which are to the immediate west of the land sold to them. The opposite party also contended that they have taken settlement of plot No. 1002, in respect of which rent has been fixed in their favour on the 14th. October, 1963, by the State of Bihar. This plot No. 1002 is a plot number of the recent survey. It may be stated here that admittedly old survey plot No. 470 has been split up into four new survey plot Nos. 998, 999, 1000 and 1001, out of which, plot Nos. 998, 999 and 1000 have been recorded as Makan whereas plot No. 1001 has been recorded as Bhith. It is not disputed that a portion of recent survey plot No. 1001 has been transferred by the impugned sale deed to the opposite first party. The Collector allowed the application of the petitioner and found that the transferees, opposite first party, were neither co-sharers of the land sold nor they had been able to prove that they are Raiyats of land in the Vicinity of the land sold. He also found that the petitioner is a co-sharer of survey plot No. 470, inasmuch as the southern portion of the land belongs to him. It may be stated that this southern portion of plot No. 470 has been renumbered in the recent survey as plot No. 998, 999 and 1000. He also found that the disputed land is an agricultural land and, therefore, the provisions of the Act applied. On these findings, he allowed the application of the petitioner and directed the opposite first party to reconvey the land to the petitioner within thirty days by his order dated the 10th February, 1966 (Annexure 'A').