GANESH PRASAD Vs. JUGESHWAR TEWARI AND ORS.

JUDGEMENT

(1.) A piece of homestead land, the area of which is 10 dhurs and comprised in plot no. 3639, admittedly belonged to Sheo Shankar Pandey, respondent no. 2 of this writ application. He executed a kebala in respect of the said land on the 4th of October, 1966 in favour of Ganesh Pd. the petitioner, and registered it on the 19th December, 1966; the consideration money in the kebala was Rs. 200/ -. On the 29th of December, 1966 Jugeshwar Tewari, respondent no. 1, filed an application under Sec. 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962) hereinafter called the Act. In the petition, a copy of which is Annexure 1 to writ application and which was in Form LC 13 as prescribed by Rule 19 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963, the fact stated was that Jugeshwar Tewari was the Raiyat of the land adjoining the land of the raiyat Sheo Shankar Pandey, the land which was transferred by the sale deed aforesaid to the petitioner. In Schedule 1 the description of land transferred given was that it was 'homestead'. No further statement was made in the petition to indicate as to whether it was homestead as defined in the Act or it was homestead as is the meaning ascribed to the term in several decisions under the Bihar Tenancy Act, to say that it was a piece of land fit for building purposes, on which actually no dwelling house stood. The petitioner filed a rejoinder, a copy of which is Annexure 2. In this rejoinder, he claimed that Jugeshwar Tewari was neither a co -sharer nor a raiyat of the land adjoining that which was transferred to the petitioner and that the land was in his (petitioner's) peaceful possession for more than 36 years but in order to ratify his possession the sale deed in question had been executed. In Schedule 2 of Annexure 1 wherein description of the adjoining land of Jugeshwar Tewari was given, it was mentioned that it was comprised in plot no. 3637 measuring 1 katha 19 dhurs. Respondent no. 1 claimed to be a part owner of this plot adjacent east of the land transferred. Affidavits were filed on behalf of both the parties before the Sub -divisional Officer. He did not allow the application of Jugeshwar Tewari. The appeal was allowed by the Additional Collector; a copy of his order is Annexure 6 to the writ application. His order dated 25.8.67 has been upheld by the Additional Member, Board of Revenue, in the Board's resolution dated 8.4.68, a copy of which is Annexure 8, whereby the revision application filed by the petitioner has been dismissed. It may be stated that the petitioner had also gone before the Commissioner of Tirhut Division in revision which was rejected as not maintainable.

(2.) The Additional Collector as also the Additional Member, Board of Revenue, has accepted the case of respondent no. 1 that on private partition he got the western portion of plot No. 3637 which portion is adjoining area of the land transferred.

(3.) The land is situated in Kesaria Bazar in the district of Champaran. The decision of a Bench of this Court in (1) Mohammad Yasin V. Abdul Rauf (1967 B.L.J.R. 49) was cited before the Board in support of the petitioner's contention that since the land was situate in a business or bazar area, the provisions of the Act could not apply to it and no right of pre -emption could be granted to respondent no. 1 under Sec. 16(3) of the Act. The learned Additional Member of the Board distinguished the decision on the ground that - -