AI Structured Summary
Not yet generated for this judgment
Judgment
S.B. Sinha, J.—Both these applications involving common questions of law and fact were heard together and are being disposed of by this common judgment.
For the purpose of disposal of the case, the representative matrix of facts is being noticed from C.W.J.C. No. 946/1979.
Admittedly, respondents Nos. 7 to 9 were the original owners of the land. On 24-1-1976 the respondents Nos. 7 to 9 executed a deed of sale in favour of respondent No. 6 which was also registered on that date. However, registration of the said deed in terms of Section 61 of the Registration Act was done on 16-2-1976. On 9-3-1976 respondent No. 6 executed a registered deed of sale in respect of the land question in favour of the petitioner.
The respondents Nos. 4 and 5 filed an application for pre-emption in terms of Section 16 (iii) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred for the sake of brevity as ''the Act) on 21-3-1976 inter alia on the ground that they are adjacement raiyats as also co-sharers of the vendor.
The respondent No. 6 was only im-pleaded a party in the aforementioned proceeding. Respondent No. 6 after notice filed an objection inter alia therein that he had already sold the land in question in favour of the petitioner.
Despite the same, the petitioner was not impleaded as a party in the said proceeding. The D.C.L.R., however, by his order dated 12-4-1976 allowed the application for pre-emption without impleading the petitioner as a party. An appeal against the aforementioned order was preferred by respondent No. 6 and the Collector by his order dated 24-7-1978 allowed the said
The pre-emptions respondents Nos. 4 and 5, thereafter, filed a revision application before the Board of Revenue in terms of Section 32 of the said Act. Before the Revisional Authority, for the first time, the petitioner was impleaded as a party. In the said proceeding he allegedly did not appear.
By the impunged order dated 13-2-1979 the said application has been allowed.
Mr. Sinha, learned counsel appearing on behalf of the petitioners has raised a short question in support of this application.
The learned counsel submitted that, although, the petitioner was the second purchaser, he was not impleaded as a party respondent in the application u/s 16(iii) of the Act and, thus, the entire proceeding became vitiated in law. The learned counsel in support of his contention relied upon a Division Bench decision of this Court in Smt. Sudama Devi and Others Vs. Rajendra Singh and Others, .
The learned Standing counsel appearing on behalf of the State accepts this position in law. The learned counsel appearing on behalf of respondents Nos. 4 and 5, on the other hand, submitted that in view of the fact that the deed of sale dated 9-3-1976 was a sham transaction and the registration in relation to the said deed having been completed on the date when the application for pre-emption was filed, the second purchaser was not a necessary party. It was further submitted that the petitioner did not appear before the Revisional Authority and, thus, he must be deemed to have accepted the said order and, thus, has no locus standi to file this application.
The learned counsel submitted that in view of the fact that the respondents Nos. 4 and 5 complied with the requirements as laid down u/s 16(iii) of the said Act as also Rule 19 of the Rules the pre-emption application must he held to have been rightly allowed.
It is not disputed that Respondent No. 6 transferred his right, title and interest in favour of the petitioner on 21-2-1976 i.e. prior to file of the pre-emption application by respondents Nos. 4 and 5. In this view of the matter, there cannot be any doubt the petitioner was a necesssary party.
It is true that in a case where the transaction was a sham transaction, in a preemption proceeding the purchase in respect of the second deed of sale may not be a necessary to pray for (sic) setting aside the same. But even in such a case in my opinion, the second transferer would be a necessary party in as much as such a question can only be decided in his presence. This aspect of the matter was considered by a Division Bench of this Court in Smt. Sudama Devi and Others Vs. Rajendra Singh and Others, , wherein it was held as follows (at pp 204, 205 of AIR :--
"The petitioners who were seeking to preempt were concerned with the sale deed executed in favour of opposite party No. 4 and not with the other transactions that opposit party No. 4 entered into with other persons in regard to the same property, because they cannot hold to have acquired any title under the sale deeds in their favour."
It was further held:
"If a sale deed is executed before the filing of the suit but is registered later then such a transfer is not pendenti lite the transferee because the owner of the property, in view of the provision of law contained in Section 47 of the Registration Act, prior to the filing of the suit.
The aforementioned decision of this Court has also been considered by a learned single Judge of this Court in Parmeshwar Singh v. Sukhdeo Mahato reported in 1985 BBCJ 346.
Before parting with this case, however, I may mention that my attention has been drawn to another Division Bench decision of this Court in Ganesh Prasad and Others etc. Vs. State of Bihar and Others, . However, in that case, the second purchaser was already a party and in that situation it was held by the Division Bench that he was not prejudiced.
In Ganesh Prasad and Others etc. Vs. State of Bihar and Others, , however, the earlier decision of this Court in Smt. Sudama Devi and Others Vs. Rajendra Singh and Others, has not been noticed. In any event even in Ganesh Prasad''s case, the Court refused to exercise its jurisdiction only on the ground that the second purchaser has not been impleaded as a party for the aforesaid reason.
It is true that the petitioner did not appear before the Member, Board of Revenue. However, in view of the fact that he was not impleaded as a party before the D.C.L.R., the question that he had been made a party in the revision application became wholly irrelavent. The learned Member, Board of Revenue in absence of any materials on record could not have held that the deed of saie dated 21-2-1976 executed by respondent No. 6 in favour of the petitioner was a sham transaction. Except an affidavit which was also not filed with the leave of the Court, no other material had been brought before the Member, Board of Revenue.
The contention of the respondents Nos. 4 and 5 that the transaction in question was a sham transaction, thus, could not have been decided by Board of Revenue. In any event the revisional authority could not have decided the said question itself but it could only have remitted the matter to the original Court.
For the reasons fore mentioned, these two writ applications are allowed and the Annexures 1 and 3 to the writ applications are set aside.
In view of the facts and circumstances of the case, these matters are remanded to D.C.L.R., Lakhisarai, who shall implead the petitioner as a party and proceed to adjudicate the application of pre-emption of respondents Nos. 4 and 5 in accordance with law.
In the facts and circumstances of the case, there would be no order as to costs.