Upendra Prasad Yadav and Others vs The State of Bihar and Others

V.N. Sinha, J.

Heard learned counsel for the petitioner-purchaser and the counsel for the State A.C. to G.P. 10 as also counsel for the preemptor Respondent No. 4.

Petitioner purchased the lands-in-question through registered sale-deed dated 20.02.1993, Annexure-2. He is aggrieved by order dated 06.04.1994 passed by Additional Collector, Sitamarhi in Case No. 29/93-94 (Annexure-4), whereunder appeal filed by the preemptor Respondent No. 4 has been allowed. He is also aggrieved by the resolution of the Board of Revenue date 14.11.1994 passed by Additional Member, Board of Revenue, Bihar, Patna in Case No. 273/ 1994, Annexure-5, whereunder the revision filed by him against the order dated 06.04.1994, Annexure-4 has been rejected.

It is submitted on behalf of the petitioners that perusal of the sale-deed dated 20th February, 1993 would indicate that 6 decimals of land in Plot No. 2856 was purchased for the purpose of raising a house and remaining land for ingress and egress from the house, appreciating such fact Collector under the Act i.e. D.C.L.R., Sitamarhi rejected the claim of the preemptor under order dated 27.12.1993 passed in Case No. 18/93-94, Annexure-3 holding that land having been conveyed for the purpose of raising a house and using remaining land for the purposes of ingress and egress from the same, the claim of preemption could not be allowed but while granting certified copy of the order dated 27.12.1993 at the top of the said order erroneously it has been mentioned ''Court of Additional Collector, Sitamarhi'', which is a mistake, from the last page of the said order at Page 25 of the brief it appears that the said order has been passed by the Deputy Collector, Land Reforms, Sitamarhi.

Against the order of the Collector under the Act preemptor filed appeal before Additional Collector, who allowed the same under order dated 06.04.1994, Annexure-4 which was assailed by the purchaser by filing Revision Case No. 273 of 1994 before the Board of Revenue but the Board of Revenue rejected the revision under resolution dated 14.11.1994, Annexure-5, whereafter petitioner filed this writ petition on 10.01.1995 and this Court under order dated 03.02.1995 issued notice to the preemptor Respondent No. 4 and the vendor, Respondent No. 5 with further direction that meanwhile petitioner shall not be dispossessed from the disputed land. The case was admitted for hearing under order dated 07.08.1995 with direction to issue fresh notice for appearance of Respondent No. 5.

During hearing of this application, counsel for the petitioner submitted that the lands-in-question having been conveyed in his favour by the vendor for raising a house as also for using the remaining land for the purpose of ingress and egress from the said house, preemption application dated 18.05.1993 was not maintainable and the Collector under the Act rightly dismissed the same under order dated 27.12.1993, Annexure-3. He further submitted that the appellate, revisional court have erroneously concluded under order dated 06.04.1994 and resolution dated 14.11.1994, Annexure-4 and 5 respectively that the lands-in-question is a raiyati land and not meant for raising a house and using the remaining land for ingress and egress from the house. In this connection he placed reliance on the revisional survey khatiyan of the plot in question annexed by Respondent No. 4 in his counter affidavit as Annexure-B and pointed out that the nature of the lands-in-question in the Khatiyan also has been described as homestead having a house over the same and submitted that in view of the fact that the revenue records itself indicate that the lands-in-question has a house, the preemption application was rightly rejected by the D.C.L.R. and the appellate court as also the revisional court erroneously allowed the appeal and dismissed the revision.

Counsel for Private Respondent No. 4 on the other hand submitted that the lands-in-question was never a homestead land rather the same was purchased for using it as a raiyati land but in order to defeat the claim of preemptor it was mentioned in the sale-deed that the land is being sold for raising a house and for using the remaining land for ingress and egress from the house. He further submitted that after the Additional Collector set aside the order dated 27.12.1993 passed by the D.C.L.R. under order dated 06.04.1994, Annexure-4 he was put in possession of the lands-in-question on 24.07.1994 at 11:25 A.M. as would appear from the warrant given to the bailiff for handing over possession of the lands-in-question to the preemptor Respondent No. 4 vide Annexure-C to the counter affidavit and the order of the Additional Collector having been upheld by the Board of Revenue under resolution dated 14.11.1994, this Court may not interfere with the impugned orders as the house which is shown in the Khatiyan has been raised by him.

Perusal of the Khatiyan, Annexure-B indicates that the same was published on 24th April, 1967 and on the adjoining lands Respondent No. 4 and his father raised house much prior to the execution of the impugned sale-deed conveying the lands-in-question in favour of the purchaser by the vendor, Respondent No. 5 for the purpose of raising the house. In the circumstances, there is no difficulty in concluding that the lands-in-question has been conveyed for the purpose of raising a house and on the adjoining land also there exist a house from prior to 24.04.1967, the date of publication of the khatian Annexure-B. If that is so, the preemption application was rightly dismissed by the Collector under the Act under order dated 27.12.1993, Annexure-3. The Additional Collector and the Member, Board of Revenue has erroneously allowed the appeal and dismissed the revision. The order, resolution passed by the appellate, revisional authority i.e. dated 06.04.1994, 14.11.1994, Annexure-4 and 5 respectively is set aside and D.C.L.R., Sitamarhi is directed to hand over the possession of the lands-in-question to the petitioners within four weeks from the date of receipt/production of a copy of this order. In case, the D.C.L.R. has also conveyed a sale-deed in favour of Respondent No. 4, he should also cancel the same within 30 days from the date of this order.

It appears petitioner was dispossessed from the lands-in-question with effect from 24.07.1994 and has remained so during the pendency of this writ application for 22 years, though this Court asked the authorities under order dated 03.02.1995 to ensure that petitioner is not dispossessed from the lands in dispute. Request of Respondent No. 4 to vacate the stay order was initially dismissed for default under order dated 28.02.1996 and thereafter again under order dated 18.12.1998, yet possession of the petitioner over lands-in-question was not restored.

Appreciating the plight of the petitioners it is directed that the preemptor shall also pay a cost of Rs. 5,000/- to the petitioners within a period of 30 days from the date of this order.

The writ application is, accordingly, allowed.