Suresh Prasad Singh vs Dullin Phul Kumari Devi And Ors

restored the order of the Deputy Collector dated

10.02.1981 rejecting the claim of pre-emption made by

the appellant. Aggrieved, the appellant filed a fresh Writ

Petition being C.W.J.C. No.7714 of 1997 before the Patna

High Court and the learned Single Judge of the High

Court dismissed the Writ Petition by order dated

17.11.1999. The appellant then filed L.P.A. No.127 of

2000 before the Division Bench of the High Court and by

the impugned judgment, the Division Bench of the High

Court dismissed the L.P.A. of the appellant. 4

3. Learned counsel for the appellant submitted that the

Division Bench of the High Court, while dismissing the

L.P.A., has held that the Court cannot ignore two

important facts and these are: firstly, that the right of

pre-emption is a weak right and secondly, that the

vendee has remained in possession for more than twenty

years and at this stage the Court was not inclined to

interfere with the matter. He submitted that the Division

Bench of the High Court failed to appreciate that the

right of pre-emption under Section 16(3) of the Act was a

statutory right and the appellant had filed an application

under Section 16(3) of the Act within three months of the

date of registration of the Sale Deed as provided in

Section 16(3) of the Act. He cited the judgment of this

Court in Shaym Sunder & Ors. v. Ram Kumar & Anr.

[(2001) 8 SCC 24] in which it has been held that the right

of pre-emption under statutory law is mandatory and not

discretionary and submitted that the view taken by the

High Court that the right of pre-emption is a weak right

and should not be enforced so as to disturb the long 5

possession of the respondent No.1 in respect of the land

is not correct.

4. Learned counsel for the appellant next submitted that

the learned Single Judge while dismissing C.W.J.C.

No.7714 of 1997 has held that there was a definite

finding that the appellant was not a co-sharer in the

revisional order of the Board of Revenue. He submitted

that the finding of the Board of Revenue that the

appellant was not a co-sharer was wholly erroneous as

there was no partition in the branch of Deoki Singh and

this is clear from the entries in the Revisional Survey

Records of the year 1972-73 as well as the entries of the

Chakbandi/Consolidation Khatiyan. He submitted that

the Board of Revenue appears to have taken into

consideration recitals in a sale deed dated 16.01.1981

made after 21.06.1980 in favour of respondent No.1,

despite the fact that by the order dated 06.03.1995 of the

learned Single Judge in C.W.J.C. No.13318/1993, the

Board of Revenue was directed to exclude from

consideration any document that might have come into 6

existence after 21.06.1980 on whether there has been a

partition in respect of the land prior to 21.06.1980.

5. Learned counsel for the respondent No.1, on the other

hand, submitted that a claim for pre-emption made by a

co-sharer will not be available under Section 16(3) of the

Act against the transferee who holds the land adjacent to

the transferred land. In support of this submission, he

relied on the decision of the Patna High Court in Ram

Pravesh Singh v. Additional Member, Board of Revenue

[1995 (1) Patna LJR 764]. He submitted that respondent

No.1 had earlier purchased 1.33 acres of several plots in

the same Khata No.229 by sale deed dated 11.01.1980

and was thus a boundary raiyat holding land adjacent to

the transferred land and the appellant could not have a

claim of pre-emption under Section 16(3) of the Act

against the respondent No.1. He submitted that this is

one of the reasons why the Deputy Collector dismissed

the application of the appellant for pre-emption by his

order dated 10.02.1981.

7

6. Learned counsel for the respondent No.1 next submitted

that the Board of Revenue had come to a finding of fact

that there was a prior partition in the family of the

appellant and this finding of fact was not interfered with

by the High Court in the impugned judgment. He cited a

decision of this Court in Satya Gupta (Smt.) alias Madhu

Gupta v. Brijesh Kumar [(1998) 6 SCC 423] wherein it has

been held that where findings of fact of the lower

appellate court are based on evidence, the High Court in

second appeal cannot substitute its own findings on re-

appreciation of the evidence merely on the ground that

another view was possible. He submitted that this Court

should not for the same reasons interfere with the

findings of fact recorded by the Board of Revenue.

7. Learned counsel for the respondent No.1 submitted that

the learned Single Judge and the Division Bench of the

High Court have held that considering the long

possession of the respondent No.1 for 19 years, the claim

of pre-emption of the appellant cannot be allowed. He

submitted that this finding on equity should not be 8

disturbed and cited the decision of this Court in

Radhakrishan Laxminarayan Toshniwal v. Shridhar

Ramchandra Alshi & Ors. [AIR 1960 SC 1368] for the

proposition that there is no equity of a pre-emptor, whose

sole object is to obstruct a valid transaction by virtue of

the right created in him by statutes. Relying on Shaym

Sunder & Ors. v. Ram Kumar & Anr. (supra), Bhagwan

Das v. Chet Ram [(1971) 1 SCC 12 = 1971 (2) SCR 640]

and Rikhi Ram v. Ram Kumar [(1975) 2 SCC 318], he

submitted that the pre-emptor must have the right to

pre-empt not only at the time of the date of sale, but also

at the time of adjudication of the suit in which the claim

for pre-emption has been made and if he loses that right

any time before the adjudication of the suit, no decree for

pre-emption can be granted by the Court even if he may

have had such right on the date of filing the suit. He

submitted that the sale deed dated 16.01.1981 would

show that Raghu Bansh Singh son of Hirdaya Singh and

the brother of Hari Nandai Singh, who was the father of

the appellant, had executed a sale deed in favour of Smt. 9

Ramjaro Devi in respect of 1.21 Dec. of land from Plot

Nos. 306 and 284 of Khata No. 229 after permission was

obtained from the consolidation authority and this clearly

shows that there had been partition between the two

sons of Hirdaya Singh. He submitted that similarly sale

deed dated 16.01.1981 shows that in the Southern

Boundary of Plot No. 284, the name of the appellant has

been shown and this shows that the appellant had

exclusive share in the south of Plot No.284. He

submitted that relying on these two sale deeds, the Board

of Revenue has come to the conclusion that the appellant

had ceased to be a co-sharer and therefore cannot claim

the right of pre-emption under Section 16(3) of the Act.

8. Learned counsel for the respondent No.1 finally

submitted that this Court has held in Bishan Singh v.

Khazan Singh [AIR 1958 SC 838] and Radhakrishan

Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi

& Ors. (supra) that the right of pre-emption is a weak

right. He submitted that considering the fact that the

respondent No.1 has been in possession of the land since 10

last 19 years and the land is contiguous to her other land

and had in fact merged with her other land, any order

passed by this Court ordering transfer of the land to the

appellant would result in fragmentation of the land

holding of the respondent No.1, and will result in gross

miscarriage of justice.

9. Section 16(3) of the Act is quoted herein below:

"16(3)(i) When any transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co- sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document of the transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed:

Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten percent thereof is deposited in the prescribed manner within the said period.

(ii) On such deposit being made, the co-sharer or the raiyat shall be entitled to be put in possession of the land irrespective of the fact that the application under clause (i) is pending for decision:

Provided that where the application is rejected, the co-sharer or the raiyat as the case may be, shall be evicted, from land and possession thereof shall 11

be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten percent of the purchase money out of the deposit made under clause (i).

(iii) If the application is allowed, the Collector shall by an order direct the transferee to convey the land in favour of the applicant by executing and registering a document of transfer within a period to be specified in the order and, if he neglects or refuses to comply with the direction, the procedure, prescribed in Order XXI, Rule 34 of the Code of Civil Procedure, 1908 (V of 1908), shall be, so far as may be, followed."

A plain reading of Section 16(3)(i) of the Act would show that

any "co-sharer of the transferor" is entitled to make an

application for the transfer of the land to him. Hence, the

expression "co-sharer of the transferor" would mean co-sharer

in the land transferred.

10. Accordingly, the first question which has to be decided

in this case is whether the appellant was a co-sharer of the

transferor in the land which was transferred by way of sale to

respondent No.1. The land transferred to the respondent No.

1 under the sale-deed executed by Brij Bihari Singh and Rash

Bihari Singh, the transferors, was 1.30 acres comprising

Revisional Survey Plot Nos.1501, 1512, 1513, 1514 and 1527 12

of Khata No.229 in village Paiga in District Bhojpur in Bihar.

The Board of Revenue in para 5(a) of its order dated

21.09.1996 in case No. 301 of 1993, copy of which has been

annexed in the paper book as Annexure P-4, has recorded the

following findings with regard to Revisional Survey of Khata

No.229 in village Paiga:

`5(a) The revisional survey khatiyan of Mauja Paiga Khata no.229 shows that there are as many as 36 plots under this khata with a total area of 25.2 acres. The khata has been prepared in the following manner:

"Hirdaya Singh and Devi Dayal Singh and Chandreshwar Singh sons of Deoki Singh 9 shares equal, Raja Ram Singh and Rajendra Singh son of Yadunandan Singh 2 shares equal and Braj Bhan Singh son of Budh Ram Singh 1 share."

It is thus clear that the shares of each co-parcener has been numerically defined and determined even in the R.S. Khatiyan. Not only the shares of Deoki Singh (9 shares), Yadunandan Singh (2 shares) and Budh Ram Singh (1 share) have been defined in the lands of khata no.229, but even the shares of the three sons of Deoki Singh, 2 sons of Yadunandan Singh and the only son of Budh Ram Singh have been ascertained and defined.' 13

The Board of Revenue has further found that Chakbandi

Khatiyan has been prepared on the identical lines as the

Revisional Survey Khatiyan.

11. It thus appears that the land in Khata No.229 has 36

plots and is of a total area of 25.2 acres and in this land in

khata No.229 the family of Deoki Singh had 9 shares and in

these 9 shares, the three sons of Deoki Singh, namely,

Hirdaya Singh, Devi Dayal and Chandreshwar Singh had

equal shares but the land had not been partitioned by metes

and bounds. Consequently, it could not be ascertained which

particular plot of land or part of plot of land in khata No.229

was owned by Hirdaya Singh, Devi Dayal or Chandreshwar

Singh. In other words, all the three sons namely, Hirdaya

Singh, Devi Dayal and Chandreshwar Singh were co-sharers

in the 9 shares of the land in khata No.229. The appellant

belongs to the sub-branch of Hirdaya Singh, whereas the

transferors of the land, namely, Brij Bihari Singh and Rash

Bihari Singh belong to the sub-branch of Chandreshwar

Singh. The appellant and the transferors were, therefore, co-

sharers in the land transferred to respondent No.1. The Board 14

of Revenue appears to have wrongly construed the Revisional

Survey Khatiyan and Chakbandi Khatiyan in respect of khata

No.229 and has arrived at an erroneous finding that the

appellant and the transferors of the land were not co-sharers

of the land. The Board of Revenue has also relied on the

recitals in the sale-deeds dated 11.01.1980 and 16.01.1981

for recording a finding that the appellant and the transferors

of the land transferred were not co-sharers. In our considered

opinion the recitals in the two sale-deeds made by the parties

to the sale deeds were not relevant rather the entries in the

Revisional Survey Khatiyan and the Chakbandi Khatiyan

made by public authorities were relevant for deciding whether

the appellant and the transferors of land were co-sharers in

respect of the land and we have found that as per the

Revisional Survey Khatiyan of the land in khata No.229 and

the Chakbandi Khatiyan, the appellant and the transferors

were co-sharers of the land transferred to respondent No.1.

12. The appellant being a co-sharer of the transferor in the

land transferred to respondent No.1 had a statutory right of

pre-emption under Section 16(3) of the Act. As the language of 15 Section 16(3)(i) shows, any co-sharer "shall be entitled" within

three months of the date of registration of the document of the

transfer, to make an application before the Collector in the

prescribed manner for the transfer of the land to him on the

terms and conditions contained in the transfer deed. It is not

disputed that the appellant in fact made such an application

within three months of the date of registration of the sale deed

executed by the transferors in favour of respondent No.1 and

also deposited the purchase money together with sum equal to

10% thereof in the prescribed manner within the period of

three months as provided in the proviso of Section 16(3)(i).

The Deputy Collector, therefore, had no discretion but to allow

the application considering the mandatory nature of the right

of pre-emption conferred by Section 16(3) of the Act.

13. The learned Single Judge deciding the writ petition

and the Division Bench of the High Court deciding the L.P.A.

appear to have taken a view that the right of pre-emption is a

weak right, presumably because the Division Bench of Patna

High Court in Sudama Devi v. Rajendra Singh (AIR 1973 Patna

199) and learned Single Judge in Ram Pravesh Singh v. The 16

Additional Member, Board of Revenue and Others (supra), has

taken this view. Whatever may have been the views of the

Patna High Court and this Court in the earlier decisions cited

by learned counsel for the respondent No.1, a five Judge

Bench of this Court in Shaym Sunder & Ors. v. Ram Kumar &

Anr. (supra) has now held that where a right of pre-emption is

recognized by statute, it has to be treated as mandatory and

not discretionary. The relevant passage from the judgment in

Shaym Sunder & Ors. v. Ram Kumar & Anr. (supra) is quoted

herein below:

"17. .............The right of pre-emption of a co-sharer is an incident of property attached to the land itself. It is some sort of encumbrance carrying with the land which can be enforced by or against the co- owner of the land. The main object behind the right of pre-emption, either based on custom or statutory law, is to prevent intrusion of a stranger into the family-holding or property. A co-sharer under the law of pre-emption has right to substitute himself in place of a stranger in respect of a portion of the property purchased by him, meaning thereby that where a co-sharer transfers his share in holding, the other co-sharer has right to veto such transfer and thereby prevent the stranger from acquiring the holding in an area where the law of pre-emption prevails. Such a right at present may be characterisd as archaic, feudal and outmoded but this was law for nearly two centuries, either based on custom or statutory law. It is in this background 17

the right of pre-emption under statutory law has been held to be mandatory and not mere discretionary........"

Thus, even if there has been a long lapse of 19 years, the High

Court could not have rejected the claim of the appellant for

pre-emption when the claim was recognized by the statute,

had been lodged in accordance with the statute and within the

time prescribed by the statute and in the manner provided by

the statute.

14. The respondent No.1, however, claims to be a

boundary raiyat saying that she had purchased under an

earlier sale-deed dated 11.01.1980 a plot of land adjoining to

the land in respect of which appellant has applied for pre-

emption under Section 16(3) of the Act. Learned counsel for

the respondent No.1 has relied on the decision of the Patna

High Court in Ram Pravesh Singh v. Additional Member, Board

of Revenue (supra) for the proposition that the claim of pre-

emption was not maintainable against a person who holds an

adjacent plot of land. This view of the Patna High Court is

based upon its earlier judgment in Ramachabila Singh v. 18

Ramsagar Singh (1969 BLJR 203 : 1968 PLJR 279) that if the

transferee happens to be an adjacent raiyat in respect of some

other plots, a co-sharer cannot claim any right of pre-emption

under Section 16(3) of the Act. As a matter of fact, Section

16(3) confers the right of pre-emption not only on the co-

sharer but also on the raiyat holding land adjoining to the

land transferred. We are, however, of the considered opinion

that a complete stranger who was not originally a raiyat

holding land adjoining to the land transferred cannot be

allowed to defeat the right of pre-emption of a co-sharer by

first purchasing an adjoining plot of land and thereafter

claiming to be a raiyat holding land adjoining to the land

transferred. The decisions of the Patna High Court are cases

of original boundary raiyats resisting the claim of pre-emption

by a co-sharer of the transferred land. The object of Section

16(3) of the Act is to recognise the right of pre-emption of the

co-sharer of the transferor or any raiyat holding land adjoining

to the land transferred and this object would be frustrated if

strangers are allowed to first buy one plot of land and then

resist the claim right of pre-emption of a co-sharer or a 19

boundary raiyat on the basis of such first purchase of a plot of

land.

15. For the aforesaid reasons, we set aside the impugned

judgment of the Division Bench in L.P.A. No. 127 of 2000, the

order of the learned Single Judge in C.W.J.C. No.7714 of 1997

and the order of the Board of Revenue and the Deputy

Collector and direct the concerned Collector to direct

respondent No.1 to convey the land in favour of the appellant

by executing and registering a document of transfer and put

the appellant in vacant possession of the land in accordance

with the provisions of Section 16(3) of the Act.

The appeal is accordingly allowed with no order as to

costs.

......................................J. (Dr. Mukundakam Sharma)

......................................J. (A. K. Patnaik)

New Delhi, May 12, 2010.