2006 Supreme(SC) 512

2006(4) Supreme 274
SUPREME COURT OF INDIA
(From Patna High Court)
Arijit Pasayat & Tarun Chatterjee, JJ.
Chandrika Singh (Dead) Thr. L.Rs.—Appellants
versus
Arvind Kumar Singh (Dead) By L.Rs. & Ors.—Respondents
Civil Appeal No. 3842 of 2000
Decided on 12-5-2006
Counsel for the Parties :
For the Appellants : S.K. Sinha and Prakash Kumar, Advocates.
For the Respondents : Gopal Singh, Nishakanth Pandey and B.B. Singh, Advocates.

Headnote:Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961—Section 16(3)—Pre-emption application by appellant claiming to be a raiyat of adjoining lands of suit lands—Defended on plea that lands in question had already been transferred in favour of ‘G’ on 12-10-1983 however sale deed was registered on 31-8-1984—Sale deed in favour of defendant executed on 10-8-1983 was registered on 14-6-1984 and pre-emption application had been filed on 17-7-1984—Deputy Collector allowed the pre-emption application—Collector upheld the judgment in appeal—‘G’ the second purchaser from defendant, who had not been joined party in pre-emption application filed writ in High Court and Court allowed it and set aside order of pre-emption—Appeal—Application for pre-emption could be allowed if any transfer of land was made and pre-emption could be asked within three months from date of registration of document of transfer—Second sale in favour of ‘G’ by defendant was registered on 31-8-1984 i.e. after pre-emption application was filed on 17-7-1984—Appellant-pre-emptor was entitled to file pre-emption application and sale deed executed by defendant in favour of ‘G’ prior to registration of 1st sale deed could not negate the right of pre-emptor—Impugned judgment was liable to be set aside.

       Held : From a plain reading of Section 16(3) of the Act, it is clear that an application for pre-emption can be allowed if any transfer of land is made, after the commencement of the Act, to any person other than a co-sharer or a raiyat of adjoining land and any such co-sharer or raiyat of adjoining land, as the case may be, shall be entitled to ask for pre-emption within three months from the date of registration of the document of transfer, by making an application. In the case before us, no dispute was raised that the pre-emption application was not filed within three months from the date of registration of the sale deed in favour of Paras Sah. Also, no contention was raised before us that the appellant was not raiyat of adjoining lands, who can maintain the application for pre-emption, with respect to the lands in question, under Section 16(3) of the Act. The only ground on which the application for pre-emption was challenged by Paras Sah, which also found favour with the High Court, was that the pre-emption application filed by the appellant could not be said to be maintainable against the first sale deed in view of the fact that the lands in question were conveyed by him in favour of Smt. Ghurla Kuer prior to the filing of the pre-emption.(Para 11)

       As noted herein before, the first sale deed was executed on 10th of August, 1983 in favour of Paras Sah, which was registered on 14th of June, 1984. Therefore, it cannot be disputed that the sale deed registered on 14th of June, 1984 could be pre-empted only within three months from 14th of June, 1984. Admittedly, in this case, the application for pre-emption was filed on 17th of July, 1984 i.e. well within the limitation period of 3 months. At the same time, it is also not in dispute that the second sale deed, which was executed by Paras Sah in favour of Ghurla Kuer for a consideration of Rs. 4000/- was registered on 31st of August, 1984, that is, after the registration of the first sale deed and after the pre-emption application, under Section 16(3) of the Act, was filed by the appellant, on 17th of July, 1984. Further, under Section 16(2) of the Act, a sale is complete only when the document of transfer is registered and unless and registration is complete under section 60 of the Registration Act, the transfer of the land in question would still be inchoate. From a plain reading of section 16(3) of the Act it is clear that a pre-emptor can only be permitted to file the pre-emption application within 3 months from the date of registration of transfer deed. Therefore, the right to file the pre-emption application under section 16(3) of the Act accrues only when the registration of the document is completed.(Para 13)

       Under section 16(2) and (3) of the Act, no transfer takes place unless the deed is registered. Registered is complete when the certificate under the provisions of the Registration Act is issued. That being the position, we are of the view that the right of re-conveyance accrues to the pre-emptor only on the date of the completion of the registration of the transfer deed and an application for pre-emption under section 16(3) of the Act filed before such date would be pre-mature. Therefore, we hold that the pre-emptor, Chandrika Singh, appellant herein, was entitled to file the pre-emption application against Paras Sah, only after the first sale deed was registered on 14th June 1984 and not before that date. It is clear that the registration of the sale deed executed in favour of Smt. Ghurla Kuer by Paras Sah was not complete and effective, for want of registration, when the application for pre-emption was filed by Chandrika Singh against Paras Sah. Accordingly, we do not find any reason to hold that the application for pre-emption, filed by Chandrika Singh could not be maintained against Paras Sah, the first transferee. For the reasons aforesaid, it would not be necessary for us to go into the question whether the second sale was a sham transaction or not.(Paras 13 and 14)

       Accordingly, we have no hesitation in our mind to hold that a sale deed executed by Paras Sah in favour of Smt. Ghurla Kuer prior to the registration of the first sale deed, cannot negate the right of the pre-emptor to proceed against Paras Sah under section 16(3) of the Act as, it is an admitted position in this case that the second sale deed was not registered at the time the pre-emption application was filed by Chandrika Singh against the first transferee, Paras Sah. Before we part with this judgment, we may also keep it in mind that the writ petition at the instance of the Smt. Ghurla Kuer ought not to have been entertained by the High Court when, admittedly, Smt. Ghurla Kuer was not party to the proceedings before the Deputy Collector and she did not file any appeal or revision either before the Collector or Board of Revenue.(Paras 15 and 16)