IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 187 OF 2003

Suresh Prasad Singh                                        …     Appellant

Versus

Dulhin Phulkumari Devi & Ors.                        … Respondents

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal against the judgment and order dated  

19.02.2001 of the Division Bench of the Patna High Court in  

L.P.A. No. 127 of 2000 (for short ‘the impugned judgment’).

2. The relevant facts briefly are that land measuring 1.30  

acres comprising Revisional Survey Plot Nos.1501, 1512,  

1513, 1514 and 1527 of Khata No.229 in village Paiga in  

District Bhojpur in Bihar was sold by Brij Bihari Singh  

and Rash Bihari Singh to respondent No.1 by a registered  

Sale Deed on 04.08.1980.  Soon thereafter, the appellant  

filed  an  application  before  the  Deputy  Collector,  Land

Reforms, Sadar, Arrah, under Section 16(3) of the Bihar  

Land Reforms (Fixation of Ceiling Area and Acquisition of  

Surplus  Land)  Act,  1961 (for  short  “the  Act”)  claiming  

that he was a co-sharer and a boundary raiyat in respect  

of the land and that the land be transferred to him.  The  

appellant  also  deposited  the  purchase  money  together  

with  10% extra  of  the  purchase  money  in  accordance  

with  the  proviso  to  Section  16(3)(i)  of  the  Act.   The  

Deputy  Collector,  Land  Reforms,  however,  rejected  the  

application  of  the  appellant  by  his  order  dated  

10.02.1981.   The  appellant  thereafter  filed  an  appeal  

against  the  order  of  rejection  before  the  Additional  

Collector, Bhojpur (Arrah) and by order dated 06.04.1993  

the  Additional  Collector  allowed  the  appeal.   The  

Respondent No.1 challenged the order of the Additional  

Collector before the Board of Revenue in a revision and  

the Board of Revenue set aside the order passed by the  

Additional  Collector.   The  appellant  then  filed  a  Writ  

Petition being C.W.J.C. No.13318 of 1993 and by order  

dated 06.03.1995, a learned Single Judge of the Patna  

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High Court set aside the order passed by the Board of  

Revenue and remitted the matter back to the Board of  

Revenue  for  reconsideration  on  the  question  whether  

there has been a partition between the appellant and Brij  

Bihari Singh and Rash Bihari Singh prior to 21.06.1980  

and whether the appellant ceased to be a co-sharer in  

respect  of  the  land.  Thereafter,  the  Board  of  Revenue  

again  held  that  the  appellant  was  not  entitled  to  pre-

empt under Section 16(3)  of  the Act and set  aside the  

order  of  the  Additional  Collector  in  the  appeal  and  

restored  the  order  of  the  Deputy  Collector  dated  

10.02.1981 rejecting the claim of pre-emption made by  

the appellant.  Aggrieved, the appellant filed a fresh Writ  

Petition being C.W.J.C. No.7714 of 1997 before the Patna  

High  Court  and  the  learned  Single  Judge  of  the  High  

Court  dismissed  the  Writ  Petition  by  order  dated  

17.11.1999.   The  appellant  then filed L.P.A.  No.127 of  

2000 before the Division Bench of the High Court and by  

the impugned judgment, the Division Bench of the High  

Court dismissed the L.P.A. of the appellant.   

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3. Learned  counsel  for  the  appellant  submitted  that  the  

Division Bench of the High Court, while dismissing the  

L.P.A.,  has  held  that  the  Court  cannot  ignore  two  

important facts and these are:  firstly,  that the right of  

pre-emption  is  a  weak  right  and  secondly,  that  the  

vendee has remained in possession for more than twenty  

years  and at  this  stage  the  Court  was not  inclined  to  

interfere with the matter.  He submitted that the Division  

Bench of  the  High  Court  failed  to  appreciate  that  the  

right of pre-emption under Section 16(3) of the Act was a  

statutory right and the appellant had filed an application  

under Section 16(3) of the Act within three months of the  

date  of  registration  of  the  Sale  Deed  as  provided  in  

Section 16(3) of the Act.  He cited the judgment of this  

Court  in  Shaym Sunder  & Ors.  v.  Ram Kumar  &  Anr.  

[(2001) 8 SCC 24] in which it has been held that the right  

of pre-emption under statutory law is mandatory and not  

discretionary and submitted that the view taken by the  

High Court that the right of pre-emption is a weak right  

and should  not  be  enforced so  as  to  disturb  the  long  

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possession of the respondent No.1 in respect of the land  

is not correct.

4. Learned  counsel  for  the  appellant  next  submitted  that  

the  learned  Single  Judge  while  dismissing  C.W.J.C.  

No.7714  of  1997  has  held  that  there  was  a  definite  

finding  that  the  appellant  was  not  a  co-sharer  in  the  

revisional order of the Board of Revenue.  He submitted  

that  the  finding  of  the  Board  of  Revenue  that  the  

appellant was not a co-sharer was wholly erroneous as  

there was no partition in the branch of Deoki Singh and  

this  is  clear  from the  entries  in  the  Revisional  Survey  

Records of the year 1972-73 as well as the entries of the  

Chakbandi/Consolidation Khatiyan.  He submitted that  

the  Board  of  Revenue  appears  to  have  taken  into  

consideration  recitals  in  a  sale  deed dated 16.01.1981  

made  after  21.06.1980  in  favour  of  respondent  No.1,  

despite the fact that by the order dated 06.03.1995 of the  

learned  Single  Judge  in  C.W.J.C.  No.13318/1993,  the  

Board  of  Revenue  was  directed  to  exclude  from  

consideration any document that might have come into  

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existence after 21.06.1980 on whether there has been a  

partition in respect of the land prior to 21.06.1980.  

5. Learned counsel  for the respondent No.1,  on the other  

hand, submitted that a claim for pre-emption made by a  

co-sharer will not be available under Section 16(3) of the  

Act against the transferee who holds the land adjacent to  

the transferred land.  In support of this submission, he  

relied on the decision of the Patna High Court in  Ram  

Pravesh  Singh v.  Additional  Member,  Board  of  Revenue  

[1995 (1) Patna LJR 764].  He submitted that respondent  

No.1 had earlier purchased 1.33 acres of several plots in  

the same Khata No.229 by sale deed dated 11.01.1980  

and was thus a boundary raiyat holding land adjacent to  

the transferred land and the appellant could not have a  

claim  of  pre-emption  under  Section  16(3)  of  the  Act  

against the respondent No.1.  He submitted that this is  

one of the reasons why the Deputy Collector dismissed  

the application of  the appellant  for  pre-emption by his  

order dated 10.02.1981.

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6. Learned counsel for the respondent No.1 next submitted  

that the Board of Revenue had come to a finding of fact  

that  there  was  a  prior  partition  in  the  family  of  the  

appellant and this finding of fact was not interfered with  

by the High Court in the impugned judgment.  He cited a  

decision of this Court in Satya Gupta (Smt.) alias Madhu  

Gupta v. Brijesh Kumar [(1998) 6 SCC 423] wherein it has  

been  held  that  where  findings  of  fact  of  the  lower  

appellate court are based on evidence, the High Court in  

second appeal cannot substitute its own findings on re-

appreciation of the evidence merely on the ground that  

another view was possible.  He submitted that this Court  

should  not  for  the  same  reasons  interfere  with  the  

findings of fact recorded by the Board of Revenue.

7. Learned counsel for the respondent No.1 submitted that  

the learned Single Judge and the Division Bench of the  

High  Court  have  held  that  considering  the  long  

possession of the respondent No.1 for 19 years, the claim  

of pre-emption of the appellant cannot be allowed.  He  

submitted  that  this  finding  on  equity  should  not  be  

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disturbed  and  cited  the   decision  of  this  Court  in  

Radhakrishan  Laxminarayan  Toshniwal v.  Shridhar  

Ramchandra  Alshi  & Ors.  [AIR  1960  SC 1368]  for  the  

proposition that there is no equity of a pre-emptor, whose  

sole object is to obstruct a valid transaction by virtue of  

the right created in him by statutes.  Relying on Shaym  

Sunder & Ors. v.  Ram Kumar & Anr. (supra),  Bhagwan   

Das v.  Chet Ram [(1971) 1 SCC 12 = 1971 (2) SCR 640]  

and  Rikhi  Ram v.  Ram Kumar [(1975)  2 SCC 318],  he  

submitted  that  the  pre-emptor  must  have  the  right  to  

pre-empt not only at the time of the date of sale, but also  

at the time of adjudication of the suit in which the claim  

for pre-emption has been made and if he loses that right  

any time before the adjudication of the suit, no decree for  

pre-emption can be granted by the Court even if he may  

have had such right on the date of filing the suit.   He  

submitted  that  the  sale  deed  dated  16.01.1981  would  

show that Raghu Bansh Singh son of Hirdaya Singh and  

the brother of Hari Nandai Singh, who was the father of  

the appellant, had executed a sale deed in favour of Smt.  

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Ramjaro Devi in respect of 1.21 Dec. of land from Plot  

Nos. 306 and 284 of Khata No. 229 after permission was  

obtained from the consolidation authority and this clearly  

shows  that  there  had  been  partition  between  the  two  

sons of Hirdaya Singh.  He submitted that similarly sale  

deed  dated  16.01.1981  shows  that  in  the  Southern  

Boundary of Plot No. 284, the name of the appellant has  

been  shown  and  this  shows  that  the  appellant  had  

exclusive  share  in  the  south  of  Plot  No.284.   He  

submitted that relying on these two sale deeds, the Board  

of Revenue has come to the conclusion that the appellant  

had ceased to be a co-sharer and therefore cannot claim  

the right of pre-emption under Section 16(3) of the Act.

8. Learned  counsel  for  the  respondent  No.1  finally  

submitted that this Court has held in  Bishan Singh v.  

Khazan  Singh [AIR  1958  SC  838]  and  Radhakrishan  

Laxminarayan  Toshniwal v.  Shridhar Ramchandra Alshi  

& Ors.  (supra)  that the right of pre-emption is a weak  

right.   He submitted that considering the fact  that the  

respondent No.1 has been in possession of the land since  

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last 19 years and the land is contiguous to her other land  

and had in fact merged with her other land, any order  

passed by this Court ordering transfer of the land to the  

appellant  would  result  in  fragmentation  of  the  land  

holding of the respondent No.1, and will result in gross  

miscarriage of justice.   

9. Section 16(3) of the Act is quoted herein below:  

“16(3)(i) When any transfer of land is made after the  commencement of this Act to any person other than  a co-sharer or a  raiyat of  adjoining land, any co- sharer of the transferor or any  raiyat holding land  adjoining  the  land  transferred,  shall  be  entitled,  within three months of the date of registration of the  document  of  the  transfer,  to  make an application  before  the  Collector  in  the  prescribed  manner  for  the transfer of the land to him on the terms and  conditions contained in the said deed:

Provided  that  no  such  application  shall  be  entertained  by  the  Collector  unless  the  purchase  money  together  with  a  sum equal  to  ten  percent  thereof is deposited in the prescribed manner within  the said period.

(ii)  On such deposit  being made, the co-sharer  or  the raiyat shall be entitled to be put in possession of  the land irrespective of the fact that the application  under clause (i) is pending for decision:

Provided that where the application is rejected,  the co-sharer or the raiyat as the case may be, shall  be evicted, from land and possession thereof shall  

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be  restored  to  the  transferee  and  the  transferee  shall  be  entitled  to  be  paid  a  sum  equal  to  ten  percent of the purchase money out of  the deposit  made under clause (i).

(iii) If the application is allowed, the Collector shall  by an order direct the transferee to convey the land  in  favour  of  the  applicant  by  executing  and  registering a document of transfer within a period to  be  specified  in  the  order  and,  if  he  neglects  or  refuses to comply with the direction, the procedure,  prescribed in Order XXI, Rule 34 of the Code of Civil  Procedure, 1908 (V of 1908), shall be, so far as may  be, followed.”

A plain reading of Section 16(3)(i) of the Act would show that  

any  “co-sharer  of  the  transferor”  is  entitled  to  make  an  

application for  the transfer  of  the land to him.  Hence,  the  

expression “co-sharer of the transferor” would mean co-sharer  

in the land transferred.   

10. Accordingly, the first question which has to be decided  

in this case is whether the appellant was a co-sharer of the  

transferor in the land which was transferred by way of sale to  

respondent No.1.  The land transferred to the respondent No.  

1 under the sale-deed executed by Brij Bihari Singh and Rash  

Bihari  Singh,  the  transferors,  was  1.30  acres  comprising  

Revisional Survey Plot Nos.1501, 1512, 1513, 1514 and 1527  

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of Khata No.229 in village Paiga in District Bhojpur in Bihar.  

The  Board  of  Revenue  in  para  5(a)  of  its  order  dated  

21.09.1996 in case No. 301 of 1993, copy of which has been  

annexed in the paper book as Annexure P-4, has recorded the  

following findings with regard to Revisional Survey of Khata  

No.229 in village Paiga:

‘5(a) The revisional survey khatiyan of Mauja Paiga  Khata no.229 shows that there are as many as 36  plots  under  this  khata  with  a  total  area  of  25.2  acres.  The khata has been prepared in the following  manner:

“Hirdaya Singh and Devi Dayal Singh and  Chandreshwar Singh sons of Deoki Singh  9  shares  equal,  Raja  Ram  Singh  and  Rajendra Singh son of Yadunandan Singh  2 shares equal and Braj Bhan Singh son  of Budh Ram Singh 1 share.”   

It is thus clear that the shares of each co-parcener  has been numerically defined and determined even  in the R.S. Khatiyan.  Not only the shares of Deoki  Singh (9 shares), Yadunandan Singh (2 shares) and  Budh Ram Singh (1 share) have been defined in the  lands of khata no.229, but even the shares of the  three sons of Deoki Singh, 2 sons of Yadunandan  Singh and the only son of Budh Ram Singh have  been ascertained and defined.’

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The  Board  of  Revenue  has  further  found  that  Chakbandi  

Khatiyan  has  been  prepared  on  the  identical  lines  as  the  

Revisional Survey Khatiyan.   

11. It thus appears that the land in Khata No.229 has 36  

plots and is of a total area of 25.2 acres and in this land in  

khata No.229 the family of Deoki Singh had 9 shares and in  

these  9  shares,  the  three  sons  of  Deoki  Singh,  namely,  

Hirdaya  Singh,  Devi  Dayal  and  Chandreshwar  Singh  had  

equal shares but the land had not been partitioned by metes  

and bounds.  Consequently, it could not be ascertained which  

particular plot of land or part of plot of land in khata No.229  

was owned by Hirdaya Singh,  Devi  Dayal  or  Chandreshwar  

Singh.   In other  words,  all  the  three sons namely,  Hirdaya  

Singh, Devi Dayal and Chandreshwar Singh were co-sharers  

in the 9 shares of the land in khata No.229.  The appellant  

belongs  to  the  sub-branch  of  Hirdaya  Singh,  whereas  the  

transferors of the land, namely, Brij  Bihari Singh and Rash  

Bihari  Singh  belong  to  the  sub-branch  of  Chandreshwar  

Singh.  The appellant and the transferors were, therefore, co-

sharers in the land transferred to respondent No.1.  The Board  

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of Revenue appears to have wrongly construed the Revisional  

Survey Khatiyan and Chakbandi Khatiyan in respect of khata  

No.229  and  has  arrived  at  an  erroneous  finding  that  the  

appellant and the transferors of the land were not co-sharers  

of  the  land.   The Board  of  Revenue  has also  relied  on the  

recitals  in the sale-deeds dated 11.01.1980 and 16.01.1981  

for recording a finding that the appellant and the transferors  

of the land transferred were not co-sharers.  In our considered  

opinion the recitals in the two sale-deeds made by the parties  

to the sale deeds were not relevant rather the entries in the  

Revisional  Survey  Khatiyan  and  the  Chakbandi  Khatiyan  

made by public authorities were relevant for deciding whether  

the appellant and the transferors of land were co-sharers in  

respect  of  the  land  and  we  have  found  that  as  per  the  

Revisional Survey Khatiyan of the land in khata No.229 and  

the  Chakbandi  Khatiyan,  the  appellant  and  the  transferors  

were co-sharers of the land transferred to respondent No.1.

12. The appellant being a co-sharer of the transferor in the  

land transferred to respondent No.1 had a statutory right of  

pre-emption under Section 16(3) of the Act. As the language of  

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Section 16(3)(i) shows, any co-sharer “shall be entitled” within  

three months of the date of registration of the document of the  

transfer,  to  make an application before  the  Collector  in the  

prescribed manner for the transfer of the land to him on the  

terms and conditions contained in the transfer deed.  It is not  

disputed that the appellant in fact made such an application  

within three months of the date of registration of the sale deed  

executed by the transferors in favour of respondent No.1 and  

also deposited the purchase money together with sum equal to  

10% thereof  in  the  prescribed manner  within  the  period  of  

three months as  provided in  the  proviso of  Section 16(3)(i).  

The Deputy Collector, therefore, had no discretion but to allow  

the application considering the mandatory nature of the right  

of pre-emption conferred by Section 16(3) of the Act.

13. The  learned  Single  Judge  deciding  the  writ  petition  

and the Division Bench of the High Court deciding the L.P.A.  

appear to have taken a view that the right of pre-emption is a  

weak right, presumably because the Division Bench of Patna  

High Court in Sudama Devi v. Rajendra Singh (AIR 1973 Patna  

199) and learned Single Judge in  Ram Pravesh Singh v.  The  

15

Additional Member, Board of Revenue and Others (supra), has  

taken this view.  Whatever may have been the views of  the  

Patna High Court and this Court in the earlier decisions cited  

by  learned  counsel  for  the  respondent  No.1,  a  five  Judge  

Bench of this Court in Shaym Sunder & Ors. v. Ram Kumar &  

Anr. (supra) has now held that where a right of pre-emption is  

recognized by statute, it has to be treated as mandatory and  

not discretionary.  The relevant passage from the judgment in  

Shaym Sunder & Ors. v. Ram Kumar & Anr. (supra) is quoted  

herein below:

“17. ………….The right of pre-emption of a co-sharer  is an incident of property attached to the land itself.  It  is  some sort  of  encumbrance carrying with the  land which can be enforced by or against the co- owner of the land. The main object behind the right  of pre-emption, either based on custom or statutory  law, is to prevent intrusion of a stranger into the  family-holding or property.  A co-sharer under the  law of pre-emption has right to substitute himself in  place  of  a  stranger  in  respect  of  a  portion  of  the  property purchased by him, meaning thereby that  where  a  co-sharer  transfers  his  share  in  holding,  the other co-sharer has right to veto such transfer  and thereby prevent the stranger from acquiring the  holding  in  an  area  where  the  law of  pre-emption  prevails.   Such  a  right  at  present  may  be  characterisd as archaic,  feudal and outmoded but  this was law for nearly two centuries, either based  on custom or statutory law.  It is in this background  

16

the  right  of  pre-emption  under  statutory  law  has  been  held  to  be  mandatory  and  not  mere  discretionary……..”

Thus, even if there has been a long lapse of 19 years, the High  

Court could not have rejected the claim of the appellant for  

pre-emption when the claim was recognized  by  the  statute,  

had been lodged in accordance with the statute and within the  

time prescribed by the statute and in the manner provided by  

the statute.

14. The  respondent  No.1,  however,  claims  to  be  a  

boundary  raiyat  saying  that  she  had  purchased  under  an  

earlier sale-deed dated 11.01.1980 a plot of land adjoining to  

the  land in respect  of  which appellant  has applied for  pre-

emption under Section 16(3) of the Act.  Learned counsel for  

the respondent No.1 has relied on the decision of the Patna  

High Court in Ram Pravesh Singh v. Additional Member, Board  

of Revenue  (supra) for the proposition that the claim of pre-

emption was not maintainable against a person who holds an  

adjacent plot of land.  This view of the Patna High Court is  

based  upon  its  earlier  judgment  in  Ramachabila  Singh v.  

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Ramsagar Singh (1969 BLJR 203 : 1968 PLJR 279) that if the  

transferee happens to be an adjacent raiyat in respect of some  

other plots, a co-sharer cannot claim any right of pre-emption  

under Section 16(3) of the Act.  As a matter of fact, Section  

16(3)  confers  the  right  of  pre-emption  not  only  on  the  co-

sharer  but  also on the raiyat  holding land adjoining to  the  

land transferred.  We are, however, of the considered opinion  

that  a  complete  stranger  who  was  not  originally  a  raiyat  

holding  land  adjoining  to  the  land  transferred  cannot  be  

allowed to defeat the right of pre-emption of a co-sharer by  

first  purchasing  an  adjoining  plot  of  land  and  thereafter  

claiming  to  be  a  raiyat  holding  land  adjoining  to  the  land  

transferred.  The decisions of the Patna High Court are cases  

of original boundary raiyats resisting the claim of pre-emption  

by a co-sharer of the transferred land.  The object of Section  

16(3) of the Act is to recognise the right of pre-emption of the  

co-sharer of the transferor or any raiyat holding land adjoining  

to the land transferred and this object would be frustrated if  

strangers are allowed to first buy one plot of land and then  

resist  the  claim  right  of  pre-emption  of  a  co-sharer  or  a  

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boundary raiyat on the basis of such first purchase of a plot of  

land.

15. For the aforesaid reasons, we set aside the impugned  

judgment of the Division Bench in L.P.A. No. 127 of 2000, the  

order of the learned Single Judge in C.W.J.C. No.7714 of 1997  

and  the  order  of  the  Board  of  Revenue  and  the  Deputy  

Collector  and  direct  the  concerned  Collector  to  direct  

respondent No.1 to convey the land in favour of the appellant  

by executing and registering a document of transfer and put  

the appellant in vacant possession of the land in accordance  

with the provisions of Section 16(3) of the Act.

The appeal  is  accordingly  allowed  with  no order  as  to  

costs.

………………………………..J.                                                       (Dr. Mukundakam Sharma)

………………………………..J.                                                       (A. K. Patnaik)

New Delhi, May 12, 2010.    

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