JUDGMENT
G.S. Chaube, J.
1. This is an application under Articles 226 and 227 of the Constitution of India for quashing two orders; one made by DCLR, Hazaribagh (Annexure-2), upholding the right of pre-emoption of respondent Nos. 5, 6, 7 and 8 under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling, Area and Acquisition of Surplus Land) Act, 1961 hereinafter to be referred to as the ‘Act’, and another made by the Member, Board of Revenue, Bihar, Patna, in Revision Case No. 13 of 1990 (Annexure-4) confirming the earlier order made as per Annexure-2.
2. The brief facts of the case are that on the basis of a registered sale-deed dated 23.10.1984 one Laxmi Ram respondent No. 10, purchased an area of land of 9 decimals of plot No. 44 of Khata No. 9 of village Basaria, District Hazaribagh from respondent No. 9, Jitan Bhuiyan. The consideration money paid for the land was Rs. 700/-. On 28.1.1985 respondent Nos. 6, 7 and 8 as well as their full brother Riwa Ram who was originally impleaded as respondent No. 5 in this writ application, who have already purchased an area of 17 decimals of adjoining plot No. 55 from none else than the present writ petitioner Charkhu Ram, filed an application under the provisions of Section 16(3) of the Act for direction to respondent No. 10 to transfer to them the land purchased by him from respondent No. 10 on the ground that they happened to be the raiyats of the land adjoining to the land sold. The application was registered as Land Ceiling Case No. 20/84-85 and notice thereof was sent to respondent No. 9 who appeared and filed his show cause (Annexure-1) on 7.9.1987. In his show cause petition, respondent No. 9 took various defences and also disclosed that he had already sold the land in question to the present writ petitioner for a sum of Rs. 2000/- only on the basis of a registered sale-deed dated 21.11.1985. Consequently, the writ petitioner was also impleaded in the proceeding aforesaid and the notice was served on him. He also appeared before the DCLR of Hazaribagh and filed his show-cause contesting the claim of the pre-emptors, namely, respondent Nos. 5, 6, 7 and 8 on the ground that he was also a raiyat of the land adjoining to the land sold in favour of the respondent No. 10. Therefore, the claim of the pre-emptors was fit to be dismissed. After hearing the parties, the DCLR upheld the claim of the pre-emptors holding that the subsequent transfer made by respondent No. 10 in favour of the writ petitioner was intended to frustrate the claim of the pre-emptors, namely, the applicants before him. Consequently, he allowed the application. Against that order the present writ petitioner filed an appeal before the Additional Collector (Land Ceiling) of Hazaribagh which was registered as Case No. 16 of 1998 and by his order dated 14.12.89, the learned Addl. Collector, Land Ceiling, reversed the order of the DCLR. Being aggrieved by the order of the Additional Collector, Land Ceiling, the pre-emptors filed a revision before the Board of Revenue. That revision application was allowed affirming the order of the DCLR in Land Ceiling Case No. 20/84-85 and the order of the Addl. Collector, Land Ceiling, was set aside.
3. Being aggrieved by the twin orders of the D.C.L.R. of Hazaribagh and Board of Revenue as per Annexures-2 and 4, the writ petitioner has approached this Court by filing the present writ application.
4. The learned counsel, appearing for the writ petitioner has contended, inter alia, that there is absolutely no bar to a transferee of a land to transfer the same to any other person during the pendency of a pre-emption proceeding. Therefore, on the basis of the transfer made by respondent No. 10 in his favour, the writ petitioner acquired a valid title to the land in question. He further contended that since the transfer in favour of the writ petitioner was made for a sum of Rs. 2000/- and the pre-emptors had deposited only a sum of Rs. 770/- only and not Rs. 2200/- in terms of the proviso to Clause (i) of Sub-section (3) of Section 16 of the Act, the application was not entertain able.
5. Therefore, the moot question which arises for consideration in the present case is whether there is bar for the act of subsequent transfer by the prior transferee during the pendency of a pre-emption proceeding under Section 16(3) of the Act; and if so, whether the subsequent transfer in favour of the writ petitioner was void.
6. Clause (i) of Sub-section (3) of Section 16 of the Act provides that 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, and 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 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 ten per cent thereof is deposited in the prescribed manner within the said period. “In the present case, there is not dispute regarding the fact that respondent Nos. 5, 6, 7 and 8 had jointly purchased 17 decimals land of plot No. 55 from none else than the present writ petitioner prior to the transfer made by respondent No. 9 in favour of respondent No. 10. It is also not in dispute that both plot Nos. 55 and 44 are adjacent to each other. Therefore, even though respondent Nos. 5 to 8 were not the co-sharers of respondent No. 9, they were certainly holding land adjoining to the land transferred by respondent No. 9 in favour of respondent No. 10. Therefore, in terms of the provisions of Section 16(3) of the Act, they were entitled to make an application before the Collector and that they did within three months of the date of registration of the transfer in favour of respondent No. 10 It is also not disputed in this case that the writ petitioner is also a raiyat holding land adjacent to plot No. 44. Therefore, he was also entitled to pre-empt in terms of Section 16(3) of the Act, but he failed to do so. It was only after the application under Sub-section (3) of Section 16 of the Act was filed by respondent Nos. 5 to 8 that the present writ petitioner persuaded respondent No. 10 to execute a transfer deed in his favour.
7. In the entire scheme of the Act, there is no provision barring a transferee of the land from re-transferring the same to any other person within a period of there months from the date or registration of the transfer deed in his favour. Similarly, there is no bar to such transferee to transfer his land to anybody else been after expiry of the period of three months. However, the principle of lis pendens is very much applicable in such a case. If a person entitled to pre-emption made an application in terms of the provision of Sub-section (3) of Section 16 of the Act by transferring the same land to anybody else during the pendency of the proceeding the purchaser or his subsequent transferee cannot be permitted to frustrate the claim of the pre-emptors. The doctrine of lis pendens is based on the principle that nothing new should be introduced during the pendency of a litigation otherwise it would be impossible for any action to be brought to a successful termination if transaction pendente lite is permitted to prevail. Thus, the principle of lis pendens is applicable in such a proceeding. In this I am supported by a decision of this Court rendered in the case of Mir Ragique v. Addl. Member, Board of Revenue, Bihar and Ors. 1981 BLJ 52. It is only in case the purchaser transfers the land to another person prior to the filing of the pre-emption proceeding, that the right of the latter cannot be taken away. Since principle of lis pendens is applicable, the pre-emptors are not required to make similar application against a subsequent transferee of the purchaser against whom application under Section 16(3) of the Act has already been filed. On this premise, it is also clear that respondents 5 to 8 were not required to deposit the amount of consideration money allegedly paid by the writ petitioner together with a sum equal to 10 per cent thereof. It is agreed at the Bar that the pre-emptors had deposited together with their applications a sum of Rs. 770/- which is required to be deposited in terms of the proviso to Clause (i) of Sub-section (3) of Section 16 of the Act.
8. The learned Counsel for the writ petitioner also submitted that since the respondent No. 10 had already passed title to the writ petitioner respecting the land in question, whether the latter shall be divested of his title on execution of the sale deed in favour of the pre-emptors in terms of Clause (iii) of Sub-section (3) of Section 16 of the Act. Clause (iii) of Sub-section (3) of Section 16 of the Act provides that if the application is allowed, the Collector shall by an order, direct a 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 reguses to comply with the direction, the procedure prescribed in the Order XXI, Rule 34 of the CPC shall be so far as may be followed. Naturally, if the purchaser had not re-transferred the land to anybody else a direction would have to be given to him alone to execute the transfer deed, failing which the provisions of Order XXI, Rule 34 CPC were to be applied. Incidentally, in the present case, the purchaser transferred the land in question to the writ petitioner after initiation of the pre-emption proceeding. Similar situations arise in cases of specific performance of contract. In one such case the Apex Court has held that the proper course would be to direct both the proposed vendor and his transferee to execute the deed of sale (See A.I.R. 1964 Supreme Court 75). Therefore, applying the Same principle, in my opinion, it would be proper course to direct both the purchaser, namely, respondent No. 10 and his subsequent transferee, namely, the present writ petitioner to execute the transfer deed in favour of the pre-emptors in terms of Clause (iii) of Sub-section (3) of Section 16 of the Act and the money deposited in terms of the proviso to Clause (i) of Sub-section (3) of Section 16 or the Act shall be paid to the purchaser, namely, respondent No. 10.
9. The learned Counsel for the contesting respondents as drawn my attention to paragraph 3 of the counter affidavit filed on their behalf, wherein it has been averred that respondent No. 5 Riwa Ram, had died on 28.12.1990 itself leaving behind a widow, a son and three daughters, but they were not brought on the record. The learned Counsel has submitted that he had served copy of this counter affidavit on the counsel of the writ petitioner on 23.5.1991 itself, but there was no attempt on his part to bring on record the heirs and legal representatives of respondent No. 5. Therefore, the present application has become incompetent. When this matter was raised yesterday, the learned Counsel for the writ petitioner agreed that since respondent No. 5, Riwa Ram, had died even prior to the filing of the present application on 19.3.91, there was no question of substituting in this writ application his heirs and legal representatives. As a matter of fact, he should not have been impleaded as a respondent. Consequently, the name of respondent No. 5 was got deleted. Therefore, the present writ application remains against the three of the pre-emptors only. The learned Counsel for the writ petitioner submitted that since the application under Section 16(3) of the Act had been jointly filed by four full brothers who were members of a joint family, the application as against only three of them is competent. At least, there is nothing in the counter affidavit to indicate that four brothers were separate from each other. However, since the present writ application is liable to be dismissed on merit itself, I do not propose to decide the question of non-impleading of one co-sharer, namely, Riwa Ram or his heirs and legal representatives in this application.
10. In view of what I have discussed above, the application is devoid of merit; and, accordingly, the same is dismissed with cost. The writ petitioner shall pay to the contesting respondents 6, 7 and 8 a consolidated sum of Rs. 250/- only by way of cost.