The main legal point established is that a pre-emptor cannot first refuse to purchase and then exercise the right of pre-emption, disentitling the pre-emptor from enforcing pre-emption.

Navaniti Prasad Singh, J.

In all the three appeals, applications for substitution of the appellant occasioned by his death during pendency of the appeal have been filed.

2. Having heard the parties, application is allowed and the parties mentioned in the substitution application, who have already appeared through Vakalatnama, are allowed to be substituted.

3. Heard Sri Rajendra Narain, learned Senior Counsel for the appellant and Sri Rajeev Kumar Verma, learned Senior Counsel for the contesting private respondents.

4. The matter relates to pre-emption in relation to agricultural land in terms of Section 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Act).

5. These three intra-court appeals under Clause 10 of the Letters Patent have been filed being aggrieved and dissatisfied with the common judgment and order dated 26.10.2010, passed by the learned Single Judge of this Court in three writ petitions being C.W.J.C. Nos. 4838 of 2004, 5166 of 2004 and 5236 of 2004. The appellant herein was respondent no. 5 in all the three writ petitions. He is the pre-emptor, whereas the writ petitioners were the two brothers and their mother, who were purchasers of three pieces of land from respondent no. 6 to the writ petition, who is respondent no. 6 here as well, namely, Bhikhari Choubey. Thus, the writ petitioners were the vendees. Bhikhari Choubey, respondent no. 6 was the vendor and respondent no. 5 in the writ petitions Narendradeo Choubey was the pre-emptor. Upon claim of pre-emption, the same was allowed by the Deputy Collector Land Reforms, Sasaram, Rohtas. Appeals were preferred unsuccessfully before the Additional Collector, Rohtas and then the matter travelled to the Board of Revenue, which affirmed the order of the Deputy Collector Land Reforms. The vendee thereafter filed the writ petition which was allowed and, hence, the pre-emptor is in the intra-court appeals.

6. The facts are not in dispute. The vendor Bhikhari Choubey claimed to be in possession of substantial lands on 15.10.1998. He got registered three sale deeds, one each in favour of the individual writ petitioners being two brothers and their mother in respect of about 44 decimals, 44 decimals and 45 decimals of agricultural land. All the three sale deeds were executed on 06.02.1998 and as noted about registered on 15.10.1998. On 15.01.1999 appellant filed three separate pre-emption applications. Upon notice vendee, whose purchases were being pre-empted, appeared and contested the matter. The two pleas were raised. Firstly, that the purchases being by the three family members in view of judgments of this Court pre-emption application did not lie. The second plea taken was that the vendor had earlier offered to sell the land to the pre-emptor but the pre-emptor having refused he had no option but to sell it to others. Having refused to purchase the land when offered he could not maintain pre-emption application later on. In support of this defence by the vendee affidavit of the vendor was filed and the vendor was examined as a witness. All the three authorities held that merely because there were three sale deeds executed for three members of the family i.e. two sons and their mother and registered, simultaneously, the right of pre-emption could not be defeated. The three did not accept the plea of the vendee that the vendor had offered the property for sale to the pre-emptor, who had refused. Thus, all the three authorities allowed the pre-emption applications. The matter was then brought to this Court by the three writ petitions filed by the three vendees challenging the legality of the pre-emption application itself.

7. Before the learned Single Judge two aspects were raised. Firstly, reliance was placed on the Division Bench judgment of this Court in the case of Ram Roop Yadav v. The State of Bihar and others since reported in 1987 PLJR 455 for the proposition that a person was pur