Navaniti Pd. Singh, J.
1. Heard.
2. By registered sale deed the petitioner had purchased some lands. The private-respondent No. 4 alleging that he was an existing adjoining raiyat sought to pre-empt this purchase and filed an application in this regard before the respondent-D.C.L.R. Bhagalpur, in terms of Section 16(3) of the. Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act. While filing the said application it is provided by the rules in respect thereof that he must deposit the consideration amount plus ten percent and annex a receipt thereof to his application. Further he must notice the vendor and vendee by registered post and must annex proof thereof. Admittedly, these two things were not complied with. Petitioner, being the vendee, on being noticed, objected to the pre-emption application. Objection was that the respondent had only disclosed that he had purchased certain adjoining lands but the details of purchase was not given. The claim of the respondent, being adjoining raiyat, was disputed. It was then said that the pre-emption application itself was not maintainable inasmuch as filing of challan showing deposit of the money and proof of sending notices to the vendor and vendee, as required at the time when preemption application was filed. The matter was heard before the D.C.L.R. The D.C.L.R. dismissed the pre-emption application on the ground of maintainability holding that in absence of money receipt being filed and in absence of evidence of notice being sent and appended to the application of pre-emption, the application was not maintainable.
3. I may mention here that it was admitted case of the parties that money was deposited subsequent to the filing of the application and whatsoever notices were sent after filing of the application but both were done within the time available. Against this order, the respondent appealed to the Additional Collector. The Additional Collector held that requirement of annexing receipts showing payment and with regard to notices were not mandatory as they were directory. They having been complied it should not be said that the pre-emption application was not maintainable. Having thus held instead of remanding the matter for consideration of merits, he merely held that in course of arguments, it was not disputed on behalf of the petitioner that the private-respondent was not an adjoining raiyat and thus he allowed the appeal, which was unsuccessfully challenged before the Board of Revenue by the petitioner. Thus, the petitioner is before this Court challenging the order of the Board of Revenue who has allowed the pre-emption application.
4. The private-respondent has appeared and filed a counter affidavit. Parties have been heard and with their consent this application is being disposed of at the admission stage itself.
5. Learned Counsel for the petitioner submits that once the Additional Collector at the appellate stage found that the preemption application was maintainable and further that D.C.L.R. had not decided the case on merit, it was only appropriate for him to remand the matter for consideration afresh on merit and could not have proceeded and summarily allowed the appeal. Thus allowing the pre-emption itself. The same applies to the revisional order of Board of Revenue. He further submits that right to pre-emption in respect of agricultural land is a special statutory right created by virtue of Section 16(3) of the Act. It has been recognized as a very weak right. It depends on various conditions to be fulfilled before such an application can be allowed and fulfilment of those conditions is a condition precedent for entertaining such an application. In that view of the matter onus lies entirely on the pre-emptor to establish the facts necessary for entitling him to pre-empt. In the present case, it is submitted that such facts have not been brought on record, much less with any clarity. It is not for the petitioner, the vendee, to object and prove his objection rather the onus is on the pre-emptor to establish the fulfilment of conditions necessary for the exercise of such a right. This not having been done, the matter has to be reconsidered at the original stage. For this, reliance has been placed on the judgment of this Court in the case of Ram Pravesh Singh v. The Additional Member Board of Revenue and Ors. since reported in 1995 (1) PLJR 764. To the contrary, learned Counsel for the respondent submits basing on the judgment of the Apex Court as reported in : AIR1966SC292 , Tek Bahadur Bhujil v. Debi Singh Bhujil and Ors. and : (1993)4SCC6 . Lohia Properties (P) Ltd. Tinsukia v. Atmaram Kumar that, once a claim of preemption is raised then the onus is on the vendee to dispute the same and establish that the claim of the pre-emptor is wrong and non denial thereof would be taken to be admission entitling pre-emption.
6. Having considered the matter. I am of the opinion, that it is undisputed that the private-respondent claims right of pre-emption, which is a special right and depends on several conditions to be fulfilled, the primary condition there being he must be either a co-sharer and an adjoining raiyat. Fulfilment of this condition is a sine qua non for exercise of his right.
7. In that view of the matter, the entire onus lies on the pre-emptor to establish the conditions to satisfy in this regard. He cannot succeed merely on the ground of non travers the pleading or improper pleading of the vendee because the vendee could only be called upon once the pre-emtor establishes his right to file such an application claiming such a right. To my mind, this is the import of the decision of this Court as well as 1995 (1) PUR 764 referred to above.
8. In my view it is well established that a litigant must succeed on his own pleadings and not by folly of the other side. In he present case, even if the finding of the Additional Collector that there is no specific denial by the petitioner is accepted it is not sufficient to allow the application for preemption ipso facto. The pre-emptor must establish the conditions and the authorities must find that the conditions are satisfied before the right can be granted to him. None of the authorities, in my view, has decided that the respondent has established that he is an adjoining raiyat and thus entitled to exercise the right of pre-emption. The cases before the Apex Court as relied by the respondent, are in relation to civil suits, which have little bearing in the present matter where it is a special right conditioned upon the special conditions to be satisfied. These conditions have to be solely established by the pre-emptor before the vendee can even be called upon to defend. Those cases are distinguishable on facts and in law. Having thus held it is evident that none of the authorities has applied his mind to the matter of the merits in true legal perspective.
9. I accordingly have no option but to set aside the order dated 29-11 -2005 passed by the Additional Member Board of Revenue, Bihar in Ceiling Revision Case No. 225/2002 and remand the matter to the respondent-D.C.L.R. Bhagalpur for a fresh consideration on the merit of the matter.
10. Yesterday a counter affidavit has been filed by the private respondent bringing on records that during the pendency of this writ application in January, 2007, under orders of the Court a sale deed has been registered in favour of the pre-emptor-private-respondent. To my mind, such a sale deed having been executed after notice of the proceedings and that too during the pendency of this proceeding before this Court would be hit by the principle of lis pendens. However, I need not finally set aside the sale deed but direct that the same shall not operate as against or in favour of any party so long the matter is pending final adjudication before D.C.L.R. on remand by this Court. The parties will maintain status quo in the meantime.
11. This writ application is allowed with the above observation and direction.