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PATNA HIGH COURT
N.L.Untwalia and S.Akbar Husain JJ.
Sudama Devi
Versus
Rajendra Singh
Civil Writ Jurisdiction Case No. 1949 of 1970 ; 1950 of 1970 ;
Decided On : SEPTEMBER 20, 1972
PRE-EMPTION - RIGHT OF - TRANSFER OF LAND - SUBSEQUENT TRANSFER BY PURCHASER - EFFECT ON PRE-EMPTION RIGHT - DOCTRINE OF LIS PENDENS - APPLICABILITY - SECTION 16(3) OF THE BIHAR LAND REFORMS (FIXATION OF CEILING AREA AND ACQUISITION OF SURPLUS LAND) ACT, 1961.
Fact of the Case:
Two writ applications were filed challenging the orders passed by the Sub-divisional Officer, Additional Collector, and the Board of Revenue in two separate cases related to pre-emption rights under the Bihar Land Reforms Act, 1961. In both cases, the petitioners had purchased land from the same vendors and subsequently transferred the land to a third party, Shyam Narain Singh, before the pre-emption applications were filed. The pre-emptors claimed that the subsequent transfer was a sham transaction and that the petitioners were still the owners of the land.
Finding of the Court:
The court held that the subsequent transfer of the land by the petitioners to Shyam Narain Singh, if not a sham transaction, was not hit by the doctrine of lis pendens and was a good transfer. Therefore, no order of pre-emption could be made against the original purchasers under Section 16(3) of the Act, as such an order would be futile and infructuous. The court also held that the question of whether the subsequent transfer was a sham transaction had not been properly investigated by the lower courts and remanded the cases back to the first court for a fresh disposal.
Issues: 1. Whether the subsequent transfer of the land by the petitioners to Shyam Narain Singh was a sham transaction. 2. Whether the doctrine of lis pendens applied to the subsequent transfer. 3. Whether an order of pre-emption could be made against the original purchasers under Section 16(3) of the Act.
Ratio Decidendi: 1. The court held that the subsequent transfer of the land by the petitioners to Shyam Narain Singh, if not a sham transaction, was not hit by the doctrine of lis pendens and was a good transfer. 2. The court held that the doctrine of lis pendens did not apply to the subsequent transfer because the sale deed in favor of Shyam Narain Singh was executed before the filing of the pre-emption applications, even though it was registered later. 3. The court held that no order of pre-emption could be made against the original purchasers under Section 16(3) of the Act because they had transferred the land to Shyam Narain Singh before the pre-emption applications were filed.
Final Decision: The court allowed both writ applications, set aside the orders passed by the lower courts, and remanded the cases back to the first court for a fresh disposal in accordance with the directions given in the judgment.
Untwalia, J.
1. These two writ applications have been heard together and are being disposed of by a common judgment, as the facts are similar and the points involved in them are identical. C.W.J.C. 1949 of 1970
2. The facts of this case are that respondents 8 and 9 executed a sale deed on 16-12-65 for a sum of Rs. 625/- in favour of the petitioners conveying to them three plots, details of which are mentioned in paragraph 1 of the writ application. The registration of this document was complete under Sec. 61 of the Registration Act on 2-3-66. Dharkhan Singh, ancestor of respondents 1 to 6, and Sahdeo Singh, respondent 7, filed an application on 5-3-66 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, claiming to be either co-sharers of some of the plots transferred or adjoining raiyats of some of the plots. The petitioners filed a rejoinder to the application filed by Dharkhan and Sahdeo. In their rejoinder they did not take their full defence in regard to all the facts but reserved their right to take a fuller defence at a later stage.
The main plank of defence was that they had transferred all the lands purchased by them by the sale deed dated 16-12-65 to one Shyam Narain Singh by a deed executed on 2-3-66. It may be mentioned here that the registration of this sale deed dated 2-3-66 was complete on 23-5-66. It would thus be seen that the sale deed in favour of Shyam Narain Singh was executed before the filing of the application under Sec.16 (3) of the Act but was registered later. The petitioners in their rejoinder also stated that the application filed by Dharkhan and Sahdeo under Sec.16 (3) of the Act was not in accordance with law as engrafted in the Act and the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963, hereinafter called the Rules, framed under the Act.
3. Dharkhan and Sahdeo, the two pre-emptors, in view of the stand taken in the rejoinder tiled by the petitioners that they had transferred the land to Shyam Narain Singh, filed an application on 31-7-67 in the court of the Sub-divisional Officer who was in seisin of the case for adding Shyam Narain Singh as a party to the application under Sec.16 (3). So far at I have been able to gather from the materials placed before us, it appears that Shyam Narain Singh was not formally added as a party to Case No. 26 of 1966 but notice was issued to him. He appeared and filed a show cause petition. In the application filed by the pre-emptors on 31-7-67 it was stated that the sale deed executed by the petitioners in favour of Shyam Narain Singh was a farzi transaction meaning thereby that, in fact, there was no sale at all and the purported sale was a sham transaction.
4. The Subdivisional Officer, by his order dated 10-12-68, a copy of which is annexure 1 to the writ application, dismissed the application of the pre-emptors filed under Sec.16 (3) of the Act on the ground that the land had been sold to Shyam Narain Singh prior to the filing of the application. The pre-emptors filed an appeal on 6-2-69 impleading therein the petitioners and the transferors; Shyam Narain Singh was not made a party to this appeal. Later, on 18-7-69 they filed an application before the Additional Collector, the appellate authority, for adding Shyam Narain Singh as a party in Appeal No. 169 of (968-69, But this prayer was refused. Relying upon a Bench decision of this Court in Phulena Prasad V/s. Jagdish Choudhary, 1969 BLJR 569, the Additional Collector, by his order dated 18-12-69 (annexure 2), allowed the appeal and held that a subsequent transfer by the purchasers could not defeat the right of the pre-emptor. The petitioners filed Revision No. 57 of 1970 before the Board of Revenue. The Board, by its order dated 2-9-70 (annexure 3), has upheld the order of the Additional Collector. The petitioners have challenged the orders (annexu
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