RAM ROOP YADAV Vs. THE ADDITIONAL MEMBER, BOARD OF REVENUE AND OTHERS

JUDGEMENT

(1.) By this writ application the petitioner (pre -emptor) has prayed for quashing the order dated 3.10.1980 passed by the Deputy Collector Land Reforms, Sadar, Gaya, (Annexure 1), by which the Deputy Collector Land Reforms rejected the petitioner's application filed under Sec. 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, (hereinafter to be referred to as 'the Act'). The pre -emptor preferred an appeal and the learned Collector, Gaya (respondent No. 2) passed an order on 17.11.1980 (Annexure 2) by which he has upheld the order of the Deputy Collector Land Reforms. Thereafter the pre -emptor filed a revisional application before the Board of Revenue and the learned Additional Member, Board of Revenue, Bihar, by a resolution dated 27.11.1982 (Annexure 3) affirmed the orders passed by the Deputy Collector Land Reforms and also the appellate order passed by the Collector, Gaya. Hence, the application on behalf of the pre -emptor for quashing the aforesaid three orders (Annexures 1, 2 and 3). The facts of this case are that respondent Nos. 5 and 6, by a registered sale deed dated 9.11.1979, transferred 20 dec. of land in plot No. 51 (total area being 39 dec.) appertaining to Khata No. 69 in village Delha Kalyanpur alias Barki Delha in favour of respondent No. 4, (Kalawati Devi) for Rs. 4500/ - and put her in possession. On 10.12.1979 the petitioner deposited a sum of Rs. 495(sic)0/ - to the credit of the Deputy Collector Land Reforms, Sadar, Gaya, (Collector under the Act) and on 11.12.1979 the petitioner (pre -emptor) filed an application under Sec. 16(3) of the Act for re -conveyance of the land transferred by the sale deed dated 9.11.1979 on the ground that he was a raiyat holding the land adjoining to the land transferred and the pre -emptor's case was that the purchaser (respondent No. 4) was neither co -sharer nor a raiyat of the adjoining land. In the usual course notices were served upon respondents 4 to 6. Respondent (Kalawati Devi) (transferee) appeared and took a stand that she had already transferred the land, purchased by her, in favour of respondent No. 7 (Kanhai Yadav). The petitioner (preemptor) in reply to the stand taken by respondent No. 4 asserted that the subsequent transfer in favour of respondent No. 7 (Kanhai Yadav) by respondent No. 4 (Kalawati Devi) was nothing but a sham and farzi transaction and that the document was antedated one. The further assertion on behalf of the petitioner (pre -emptor) was that respondent No. 4 (the first transferee) had executed the deed in favour of respondent No. 7 (Kanhai Yadav), who was none else than her own brother and the document in question was manufactured after purchasing ante dated stamps, which was presented for registration on 11.12.1979 at 2 P.M. after filing of the pre -emption application by the petitioner the same day at 10.30 A.M. Admittedly, respondent No. 4 (Kalawati Devi) (the first transferee) executed the sale deed in favour of respondent No. 7 (Kanhai Yadav) on 6.12.1979, before the filing of the application under Sec. 16(3) of the Act by the petitioner (pre -emptor) which was filed on 11.12.1979. The petitioner accepts this position, i.e., execution of the subsequent transfer deed in favour of respondent No. 7 by respondent No. 4, prior to the filing of his application under Sec. 16(3) of the Act. The petitioner, in paragraph 10 of his writ petition, has asserted that the aforesaid subsequent transfer in favour of respondent No. 7, though made before the filing of the application under Sec. 16(3) of the Act, was really presented for registration after filing of his application under Sec. 16(3) of the Act, though on the same date (the words have been underlined by me for emphasis). The petitioner asserts in this paragraph 10 of the writ application that his application was filed at 10.30 A.M. on 11.12.1979 and the sale deed dated 6.12.1979 in favour of respondent No. 7 was presented for registration at 2 P.M., though the petitioner had already filed his application on the same day at 10.30 A.M.; in other words, the main stand of the petitioner (pre -emptor) is that though the first transferee (respondent No. 4) had executed the sale deed in favour of respondent No. 7 prior to the filing of the application under Sec. 16(3) of the Act, still he (the petitioner) had a superior title than the subsequent transferee as the sale deed was registered subsequent to the filing of the application under Sec. 16(3) of the Act.

(2.) The petitioner in paragraph 11 of his writ case has asserted that in support of his case that the subsequent transaction by respondent No. 4 (first transferee) was nothing but a farzi one, filed affidavits of two persons, that is, of Bhagwan Singh Yadav and Ram Singh Yadav. The petitioner has further asserted in that paragraph that respondent No. 4 (the first transferee) did not produce any evidence to rebut the same.

(3.) The learned Deputy Collector Land Reforms, by his order dated 3.10.1980 (Annexure 1) rejected the pre -emption application and held that the said and was subsequently transferred by respondent No. 4 (Kalawati Devi) (who was opposite party No. 1 before the courts below) in favour of respondent No. 7 (Kanhai Yadav) and this subsequent transfer was made prior to the date of filing of the pre -emption application. He further held that for want of the subsequent transferee (Kanhai Yadav) (respondent No. 7) being impleaded as a party to the case, the farzi, collusive and sham nature of the transaction could not be investigated and thus the application was dismissed. As already stated above, the petitioner (pre emptor) had filed a rejoinder petition to the objection filed by respondent No. 4 (the first transferee) and in this rejoinder the petitioner (pre -emptor) had definitely stated that the subsequent transfer by respondent No. 4 in favour of Kanhai Yadav (respondent No. 7) was a sham and farzi transaction and hence the right of the pre -emptor could not be defeated on that ground.