Mostt. Muni Kuer and Others vs The State of Bihar and Others

Barin Ghosh and Jayanandan Singh, JJ.—Heard Learned Counsel for the parties. We are satisfied that the order under appeal by which the writ petition was rejected contains a glaring error on the face of records. While, in fact, 21 decimals of land situate in Plot No. 513 were sold which led to filing of an application for pre-emption, the learned Judge proceeded on the basis as if the pre-emptor has contended that he owns Plot No. 513.

In the revenue records, Plot No. 513 containing 69 decimals of land has been shown to be situate on the North of Plot No. 514. There is no dispute that appellant-writ petitioner is the owner of Plot No. 514. However, the fact remains that the owner or part owner of Plot No. 513 did not sell 69 decimals of land in its entirety, she sold only 21 decimals of land. Which 21 decimals of land out of 69 decimals of land had been sold ought to have had been established by the appellant-petitioner without leaving any room for doubt so as to establish that 21 decimals of land sold out of Plot No. 513 were situate on the North of Plot No. 514, but, to that effect, no effort had been made by the appellant-petitioner. It was contended that the same could be done by taking recourse to local inspection and we should remand back the matter for that purpose.

Admittedly, no such local inspection was prayed for by the appellant-petitioners at any stage. The right of preemption rests in a co-sharer or in an adjoining raiyat. In order to exercise right of pre-emption, it was obligatory on the part of the appellant-petitioner to establish that he is an adjoining raiyat. He having failed to do so, we feel that the revisional authority rightly rejected his pre-emption application. The first authority under the Act as well as the appellate authority under the Act proceeded on a wrong assumption that Plot No. 513 in its entirety is being sold and made no effort to ascertain whether, in fact, 21 decimals of land out of 69 decimals of land of Plot No. 513 were situate on the North of Plot No. 514. In the circumstances although the order under appeal contains an error on the face of records, but still then we have no other option but to dismiss the appeal and, accordingly, the same is dismissed.