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IN THE HIGH COURT OF JHARKHAND AT RANCHI
ANUBHA RAWAT CHOUDHARY, J.
Jai Shankar Vishwakarma & Ors. - Petitioners
Versus
State of Jharkhand & Ors. - Respondents
W.P. (C) No. 7084, 7102 of 2011
Decided On : 23-02-2018
Code of Civil Procedure, 1908 – Order 21, Rule 34 – Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 – Section 16 – Pre-emption application – Registration of Land – It is submitted by the counsel for the petitioners that the petitioners are members of hindu undivided family. – Two properties were purchased by the petitioners bearing registered sale deed on account with which the respondent no. 5 had filed a pre-emption application which is the subject matter in these two writ petitions and accordingly both the writ petitions have been tagged and are to be heard together – WPC relates to sale deed and WPC no. 7084 of 2011 relates to sale deed No. 590 of 2005 – Held, It was held that if the application for pre-emption is allowed, it would become onerous for the purchaser and the right between the parties is required to be balanced. – As this Court does not find any malafide intention on the part of the petitioners or any intention to defeat the provisions of the said Act, this court is of the considered view that the petitioners intended to buy a large chunk of land covered by two sale deeds executed by two persons. – Accordingly the application for pre-emption filed by the respondent no. 5 in connection with sale deed has been wrongly allowed by the original authority and this aspect of the matter has not been considered by the authorities below. – Even otherwise as per the judgment relied upon by the petitioners reported in 1997(2) PLJR 412 the right of pre-emption has to be seen on the date of filing of the application and on the date of application, the petitioners were adjoining raiyats by virtue of sale deed and sale deed although they were simultaneously purchased from two different persons. – There is no doubt that the petitioners had claimed to be the adjoining raiyat of this property by virtue of another sale deed itself. – The allegation of the respondents that these two sale deeds having been executed as a device to defeat the provisions of law is not sustainable. – It appears that petitioners intended to buy the entire chunk of land and for that purpose they entered into two different sale deeds executed by two different persons and both these sale deeds got registered on the same day. – No malice can be attributed to the writ petitioners for this action. – Writ Petitions Allowed
1. Heard Mr. Birendra Kumar, learned counsel appearing for the petitioners, Mr. Ayush Aditya, learned counsel appearing on behalf of private respondent no. 5 and Mr. Radha Krishna Gupta, learned counsel appearing on behalf of respondent-state.
2. It is submitted by the counsel for the petitioners that the petitioners are members of hindu undivided family. Two properties were purchased by the petitioners bearing registered sale deed No. 589 of 2005 and 590 of 2005 both dated 31.03.2005 on account with which the respondent no. 5 had filed a pre-emption application which is the subject matter in these two writ petitions and accordingly both the writ petitions have been tagged and are to be heard together. WPC no 7102 of 2011 relates to sale deed no 589 dated 31.03.2005 and WPC no. 7084 of 2011 relates to sale deed No. 590 of 2005
3. These two writ petitions have been filed by filed by the petitioners challenging the order dated 22.10.2011 passed by the respondent no. 2 in Land Ceiling Revision Case Nos. 34/2009 and 33 of 2009.
The petitioners have further challenged the two appellate orders both dated 19.09.2009 passed by the Respondent no 3 in Land Ceiling Appeal Nos. 05/2007-08 and 12/2007-08.
The petitioners have also challenged the orders dated 12.01.2007 passed by the respondent no. 4 in Land Ceiling Case No. 1/2005-06 and 2/2005-06. The Land Ceiling Cases was instituted on the basis of application for pre-emption filed by the respondent no. 5 in relation to sale deed No. 589 of 2005 and sale deed no 590 of 2005 both dated 31.03.2005.
4. The brief facts as submitted by the counsel for the petitioners in relation to sale deed No. 589 of 2005 are as under:-
a. The specific case of the petitioners is that by virtue of registered sale deed no. 494 dated 18.4.2001, the father of the petitioners namely Dwarika Vishwakarma purchased the land of 20 decimals from the owner of the land namely Khobhari Singh Kushwaha and Lakshman Singh Kushwaha in Old Khata No. 38 (New Khata No. 104), Old Plot No. 79 (New Plot No. 318) with boundary.
| North : | Nij. |
| South : | Shiv Sao and Murat Sao |
| East : | Mahesh Singh |
| West : | Tulsi Sao |
The sale-deed bearing no. 494 dated 18.04.2001 is at Annexure-1 to the writ petition bearing no. W.P.(C) No.7102 of 2011.
b. In the year 2005, one of the boundary raiyats towards southern side of the property as contained in Sale-Deed No.494 dated 18.04.2001 sold out 31 decimals of land in Khata No.30 (New Khata No.109), Plot No.151(New Plot No.315) to the petitioners by registered sale-deed no. 589 dated 31.03.2005 with the following boundary:
| North : | Dwarika Vishwakarma |
| South : | Shiva Sao |
| East : | Basudeo Mishra & Raj Ballabh Singh |
| West : | Sitaram Master |
c. The sale-deed dated 31.03.2005 bearing 589 clearly shows Dwarika Vishwarkarma to its North, which is on account of sale-deed no. 494 dated 18.04.2001, therefore, there was no dispute that the father of the petitioner namely, Dwarika Vishwarkarma who was the member of the joint family , was the adjoining raiyat of the property as contained in sale-deed no.589 dated 31.03.2005 and accordingly the petitioners also have the status of the adjoining raiyat of the property covered under sale deed no 589 dated 31.03.2005 and accordingly the petitioners have rightly purchased the property and there has been no violation of section 16 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred as ‘aforesaid Act’).
d. The condition precedent for filing application under Section 16(3) of the aforesaid Act is that the transfer of land is made to any person other than the co-sharer of the vended property or to a person other than the adjoining raiyat of the vended property. Only if the said condition is satisfied the raiyat of the ad
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