Full Judgment
S.K. Katriar, J.
1. Heard Mr. Wasi Akhtar for the petitioner, Mr. Dinu Kumar, learned standing counsel (Ceiling) for respondent Nos. 1 to 4, and Mr. Syed Firoz Raza for respondent Nos. 5 to 7. None appears on behalf of respondent No. 8 inspite of valid service of notice. These two writ petitions arise out of a common order dated 23.3.2000, passed by learned Additional Member, Board of Revenue, Patna, in case No. 61/98/62/98, Md. Jilani v. Abdul Jalil, whereby the revision applications of respondent Nos. 5 to 7 herein under Section 32 of the Bihar [Consolidation of Holdings] Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act (hereinafter referred to as 'the Act') has been allowed, and the orders of the learned first authority and the appellate authority have been set aside. It arises out of two applications under Section 16(3) of the Act.
2. The petitioner is the pre-emptor, respondent Nos. 5 to 7 are the purchasers, and respondent No. 8 is the vendor. Respondent No. 8 executed two documents of absolute sale on 8.11.1990, in favour of respondent Nos. 5 to 7, conveying right, title and interest of different portions of plot No. 306, which are admittedly side by side. The same were registered on 30.3.1993. The petitioner filed two separate pre-emption applications claiming reconveyance of the lands in question by virtue of being an adjoining raiyat. The two applications were allowed by a common order dated 20.3.1997 (Annexure-3), passed by the learned LRDC, East Muzaffarpur, whereby it was held that respondent Nos. 5 to 7 are neither co-sharers nor adjoining raiyats with respect to the vended plot, and the petitioner is adjoining raiyat with respect to both the plots. Respondent Nos. 5 to 7 preferred appeal which was dismissed by order dated 30.12.1997 (Annexure-2), and the findings of fact recorded by the learned first authority were affirmed. Respondent Nos. 5 to 7 preferred revision applications which have been allowed by the impugned order. In view of the decision of the Division Bench of this Court reported in 1987 PLJR 455, Ram Roop Yadav v. State of Bihar, he has held that respondent Nos. 5 to 7 are adjoining raiyat with respect to the vended plots. Hence this writ petition are the instance of the pre-emptor.
3. It may be stated for the sake of clarity that land ceiling case No. 12/93 gave rise to ceiling appeal No. 112/96-97 which, in its turn, gave rise to revision case No. 61/98. ultimately giving rise to CWJC No. 4594 of 2000. Similarly, land ceiling case No. 13/93 gave rise to land ceiling appeal No. 113/96-97 which, in its turn gave rise to revision case No. 62/98, which has ultimately giving rise to CWJC No. 4599 of 2000, All the three authorities below have disposed of the matters before them by common orders. The two writ petitions are being disposed of by a common judgment.
4. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the learned revisional authority has misappreciated and misapplied the ratio of the judgment in Ram Roop Yadav v. State of Bihar (supra). He particularly relied on paragraph 4 of the judgment which is set out hereinbelow for the facility of quick reference :--
'4. In the instant case, the two sale deeds having been executed in respect of plot Nos. 18 and 22 in favour of the petitioner, after the registration of two adjoining plots. In this background, when two applications for pre-emption were filed by two separate sets of pre-emptors in respect of two plots transferred, the petitioner can legitimately resist the claim in both the applications that he himself is a holder of the adjoining plot. In other words, the petitioner in application for pre-emption in respect of plot No. 18 filed by respondent Nos. 5 to 7 of CWJC No. 1939 of 1980 can take a defence that he is a holder of adjoining plot No. 22, as such application for pre- emption should not be allowed. Same plea is available to him in the other application for pre-emption in respect of plot No. 22 filed by respondent Nos. 5 and 6 of CWJC No. 1940 of .1980, that he himself is the holder of adjoining plot No. 18. Perhaps, the matter would have been different if same person or same set of persons had filed the two applications for pre-emption claiming to be adjoining raiyats of both the plots purchased by the petitioner.'
Counsel submits that the Division Bench intended to observe that if the pre-emptors are different persons in a situation where vended plots are side by side, then the purchasers cannot defeat the claim for pre-emption on the ground that he (the purchaser) is an adjoining raiyat by virtue of being the owners of two adjoining plots.
5. Learned counsel for respondents No. 5 to 7 has opposed the submission and relied on the judgment of a learned Single Judge of this Court reported in 1998(3) PLJR 796 (Paras 7 to 10), Shashi Prabha Dew v. State of Bihar, and that of the Supreme Court reported in 1958 SC 838 (p. 11), Bishan Singh v. Khazan Singh.
6. I have perused the materials on record and considered the submissions of counsel for the parties. The admitted position is that respondent No. 5 to 7 purchased portions of the same plot which are side by side, I.e. are adjacent to each other. The petitioner claims right of pre-emption by two separate applications on the ground that he has lands on either sides of the vended portion of the plots. Thus the admitted position is that respondent Nos. 5 to 7 have lands adjoining, to each other and the petitioner (the pre-emptor) is an adjoining raiyat by virtue of being owners of plots on two different sides of the- vended plot. The primary question for consideration in the present case is whether or not the petitioner's case is covered by the judgment in Ram Roop Yadav v. State of Bihar (supra). That was a case where the two different persons had filed separate pre-emption applications. The vended lands there, as in the present case, were two different portions of the same plot side by side. The Division Bench felt that there cannot be any hesitation in rejecting the pre-emption applications because the purchasers can themselves claim to be adjoining raiyat in the two applications. The Division Bench did observe that '......perhaps, the matter would have been different if same person or same set of persons had filed the two applications for pre-emption claiming to be adjoining raiyats of both the plots purchased by the petitioner.' The issue is not free from difficulties. I, however, take the view that I have taken for the reasons indicated hereinbelow. In view of the facts and circumstances of that case, the question whether or not the purchaser in similar circumstances as in the present case can resists the claim of pre-emption in a situation where the pre- emptor in both the applications is one and the same person, did not arise for adjudication. The observations made by the Division Bench are, therefore, obiter dictum and, therefore, does not bind another Single Judge. Furthermore, the Division Bench did not decide the issue and left the issue open. The issue fell for the consideration of a learned Single Judge of this Court in the case of Shashi Prabha Dew v. State of Bihar (supra) wherein the learned Single Judge took his own view, untrammeled by the Obiter Dictum of the Division Bench. The reliance placed by learned counsel for respondent Nos. 5 to 7 on this judgment supports his contention. .
7. He is further right in placing reliance on the judgment of the Supreme Court reported in AIR 1958 SC 838, Bishan Singh v. Khazan Singh, paragraph 11 of which is set out hereinbelow for the facility of quick reference :--
'11. The plaintiff is bound to show not only that his right is as good as that of the vendee but that it is superior to that of the vendee. Decided cases have recognized that this superior right must subsist at the time the re-emptor exercises his right and that right is lost if by that time another person with equal or superior right has been substituted in place of the original vendee. Courts have not looked upon this right with great favour, presumably, for the reason that it operates as a clog on the right of the owner to alienate his property. The vendor and the vendee are, therefore, permitted to avoid accrual of the right of pre-emption by all lawful means. The vendee may defeat the right by selling the property to rival pre-emptor with preferential or equal right. To summarize : (1) The right of pre-emption, is not a right to the thing sold but a right to the offer of a thing about to be sold. (2) The pre-emptor has a secondary right or, a remedial right to follow the thing sold. (3) It is right of substitution but not of re-purchase, i.e. the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.'
The pre-emption is undoubtedly a weak right, and in case of doubt or difficulty, the Court will lean in favour of the purchaser. The purchaser will always be entitled to defeat the claim of pre- emption by lawful means. Relying on the ratio of the Division Bench in the case of Ram Hoop Yadav (supra) itself, I would prefer to take the view that by virtue of the two sale deeds, respondent Nos. 5 to 7 are the adjoining raiyats with respect to the vended plots. This will surely held them in defeating the claim of pre-emption. I agree with the impugned order.
8. In the result, these writ petitions are dismissed.