IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.10075 of 2011
Tabassum Ara
Versus
Sheikh Shahab Hussain & Ors
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02 29.06.2011 By this writ application, the petitioner challenges the
order passed in Revision Case No.357 of 2007 dated 28.12.2010 by
the Divisional Commissioner, Saran Division at Chapra in matters of
pre-emption affirming the appellate order and the order allowing pre-
emption claim.
Learned counsel for the petitioner submits that
petitioner’s father had gifted her said land. While the claim of pre-
emption was pending as against her father who had only recently
purchased the land she has been added in the proceedings. Learned
counsel for the petitioner further submits that finding of the D.C.L.R.
that the pre-emptor was a boundary raiyat as affirmed by the Collector
and the Divisional Commissioner is perverse. The D.C.L.R. has found
that the pre-emptor has purchased the entire share of Shiv Nandan
Sharma and, as such, what was sold by Parvati Devi to the petitioner’s
father was a land from within that share. If that be so then it is not a
case of pre-emption but it is a case of title which D.C.L.R. was not
competent to decide. He further points out that learned D.C.L.R. has
clearly noticed that in the sale deed itself it is mentioned that Parvati
Devi had retained about 5 dhurs of land while selling land to
petitioner’s father. In that view of the matter, the finding that the pre-
emptor was boundary raiyat is wholly incorrect and cannot be
sustained as right of pre-emption is a weak right. It is open to the
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D.C.L.R. or any authority while deciding the claim of pre-emption to
question the motive behind usage of land. Accordingly, it is submitted
that the order of pre-emption cannot be sustained.
Issue notice in the admission matter to respondent
nos.1,2&3 by ordinary process as well as registered post for which
requisites etc. must be filed within one week.
Learned counsel for the petitioner states that he would
persuade respondent nos.2&3 to appear immediately.
Let learned counsel for the State seek instructions and
file a counter affidavit if so advised.
Till further orders of this Court, the impugned order as
contained in Annexure-8, that is the revisional order affirming the
appellate and original order, being the order of the Divisional
Commissioner, Saran as noted above shall remain in abeyance.
List this case under the heading “For Admission” after
respondent no.1 appears.
Trivedi/ (Navaniti Prasad Singh, J.)