BASUDEO RAI Vs. ALTAN RAI

JUDGEMENT

(1.) Whether oral sale is reckonable under the provision 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) is the question, which falls for decision in these two writ petitions. These two writ petitions have come up before this bench on reference by single Judge. As the point is common to both the writ petitions, this judgment will govern and dispose of the cases.

(2.) The point being short, I shall narrate only those facts, which are germane for this purpose. The petitioners are purchasers. By two safe deeds dated 14-4-1971, 12 Kathas and 1 Katha 15 dhoors, out of the survey plot No. 1433 C. S. appertaining to Khata No. 337, Village-Sivaisinghpur, P. S. Mohiudhinagar, District-Samastipur, were acquired by the petitioners. The sale deeds were registered under the Registration Act on 5-5-1971. On 2-6-1971, two applications under Section 16 (3) of the Act were filed by respondents bearing Ceiling Case Na 9 of 1971 (12 Kathas) and Ceiling Case No. 10 of 1971 (1 Katha 15 dhoors). The said claim was on the basis of being adjacent raiyat of cadastral survey plot No. 1432. The petitioners disclosed in the show-cause that prior to the filing of ceiling cases, they had acquired by oral sale 5 dhoors of land of C. S. plot No. 1432 for a consideration of Rs. 50/-. Therefore, they being adjacent raiyat, the ceiling cases filed by the respondent are not maintainable. It may be stated here that out of C. S. plot No. 1432 during the re-visional survey, three plots have been curved out and they bear Nos. 3252, 3253 and 3251 R. S. The oral purchase of 5 dhoors is out of R. S. plot No. 3251. The respondents are admittedly owner of R S. Plot Nos. 3252 and 3253. Pre-emption application of the respondent failed both in the court of Deputy Collector, Land Reforms as well as before the Additional Collector. Against that the respondents preferred two revisions before the Member, Board of Revenue bearing Nos. 448/74 and 449/74. Member, Board of Revenue, however, was of the opinion that since the claim of the purchaser is based on oral sale to justify their adjacency prior to the filing of pre-emption application, and as oral sale cannot be taken notice of under the provision of Section 16, the same cannot defeat the claim of pre-emptor. The two revision petitions were disposed of by common judgment by Member, Board of Revenue. The purchasers have, therefore, filed two writ petitions assailing the decision of the Member, Board of Revenue in refusing to reckon their oral purchase on 25-4-1971 of the adjacent plot, prior to the filing of preemption application on 2-6-1971.

(3.) Mr. Balbhadra Prasad Singh, learned counsel appearing for the petitioners has submitted that under Section 54 of the Transfer of Property Act, tangible immovable property of a value less than Rupees 100/- can be effected merely by delivery of the property. It is not required in law that such transfer should be made by a registered instrument. According to the learned counsel, under Section 18 of the Registration Act, 1908, registration in such cases is optional. This being the law regarding registration, the oral purchase of the petitioner was illegally ignored in granting relief to the respondent, pre-emptor. The right of pre-emption itself being a very weak right, the court should be slow in upholding pre-emption. Mr. Parmeshwar Prasad, learned counsel, appearing for the respondent, pre-emptor, on the other hand, contended that for the purpose of Section 16 of the Act, every transfer must be by a registered document in accordance with the provision of Registration Act and drew our attention to Section 16 (2) (iii). He further contended that if they be not so, the very purpose and object of Section 16 will be frustrated. According to the learned counsel, whether the pre-emptor's right is weak one is wholly irrelevant for the purpose of the determination of the question in hand.