JUDGMENT
Ravi Nandan Sahay, J.
1. The petitioner purchased a piece of land measuring 6(3/4) decimals bearing plot No. 101 khata No. 17 of village Nima Pandey P.S. Halsi in the district, of Munger by sale-deed dated 19-5-1981. The land was purchased for construction of house for large family of the petitioner.
2. According to the petitioner, the scribe of the deed due to inadvertence omitted to mention the land as parti piece of land unsuitable for agricultural purposes. The scribe further omitted to mention that there was a Gali on the south boundary and that a house of Khublal Kewat on west boundary.
3. The respondent No. 2, who is now represented by his legal heirs after his death filed an application before the L.R.D.C., Lakhisarai under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 claiming pre-emption of the land purchased by the petitioner on the ground that he was co-sharer and adjoining raiyat of the land in question described in Schedule of Form No. L.C. 13 as Agricultural land.
4. The petitioner filed objection (Annexure-1) that the purchased land was homestead land and never used for agricultural purposes. Southern boundary of the disputed land is village pond which was dug 40 years back and with the soil extracted from the pond the disputed land as well as the land of the bank of the pond had been converted into Dih. It is further stated that the vendor of the petitioner had also constructed a house which collapsed due to heavy rain in the year 1980. The petitioner constructed thatched roof house for his family. The petitioner denied that the land in question was agricultural land rather the land is a homestead one. It was stated that the physical feature of the land shows that in the west boundary of the land is a house and south a Gali and also the house of the petitioner upon the pond land. The petitioner, therefore, prayed that the application of the respondent No. 2 under Section 16(3) of the Act be rejected.
5. The petitioner filed-an application before the L.R.D.C. for appointment of Advocate Commissioner to inspect the disputed land. That application was opposed by the contesting respondent. The vendor of the petitioner Ramdhani Kewat filed an affidavit that there were several houses in plot No. 101.
6. The L.R.D.C. by order, as contained in Annexure-4, rejected the application of respondent No. 2. He found that the house of the applicant-respondent was situated after the Gali. There were several houses within the vicinity of the pond.
7. The pre-emptor filed an appeal before the Additional Collector, Munger. The additional Collector held that the disputed land was raiyati land and there was no evidence that it was a homestead land. Therefore, he allowed the prayer for pre-emption.
8. The petitioner then filed a revision before the Board of Revenue. His application was disposed of by order (Annexure-6).
9. The order of the Additional Collector shows that he had committed several errors of record. At the first place, he held that the Additional Collector had disallowed the appeal whereas the appeal had been allowed. He next held that the appellate Court has recorded that the land in question is Basgit which is corroborated by the sale-deed. It is contended that the Additional Member Board of Revenue was not able to appreciate the dispute between the parties.
10. Learned Counsel for respondent No. 2 submitted that the finding of the appellate Court is correct and is supported by the recital of the sale-deed.
11. In Fakir Mohammad v. Salahuddin . Full Bench of this Court held that the homestead as mentioned in the Explanation appended to Clause (f) of Section 2 must be a homestead of a land-holder, as Clause (f) requires. It was held that a parti piece of land belonging to a raiyat, an agriculturist, which is homestead on which there is. no dwelling house or any of the things as mentioned in the Explanation, is not a land. It was held that description of land given in Form L.C. 13 is not conclusive. It is open to the Court to examine the question whether the land in question is the homestead land in the facts and circumstances of the case.
11. In Ganesh Prasad v. V.J. Tewari 1969 PLJR 284, it was decided as follows:
This seems to be clear from the definition of the land’ itself as it must be a land which is either used or capable of being used for agricultural or horticultural purposes, and even if it is a homestead as described in the explanation appended to Clause (f) of Section 2, it must be a homestead of a land-holder, as defined in Clause (g). That would bring about the distinction that if the land is not the homestead of a land-holder, that means of a raiyat engaged in agriculture, it will not be a land within the Act and hence provision of Section 16(3) will not be applicable to it.
12. The main objection of the petitioner was that the land which was subject-matter of pre-emption was not agricultural land rather homestead land as defined in Section 2(f) of the Ceiling Act and this crucial question has not been properly considered either by the Board of Revenue or the Appellate Authority, who as stated earlier, has committed several errors of law. There is 110 finding that the land in question was capable of being used as agriculture or horticulture, as defined under the Act.
13. The order of the Board of Revenue, as contained in Annexure-6 is hereby set aside and the matter is remitted to the Board of Revenue to decide it afresh in the light of the observations made in this order.
14. This writ application is accordingly allowed. However, there shall be no order as to costs.