SURESH PRASAD SINGHversusDULHIN PHULKUMARI DEVI AND ORS.

                    [2010] 6 S.C.R. 1047


                 SURESH PRASAD SINGH                               A
                               v.
          DULHIN PHULKUMARI DEVI AND ORS.
             (Civil Appeal No. 187 of 2003)
                        MAY 12, 2010
                                                                   B
[DR. MUKUNDA~~AM SHARMA AND A.K. PATNAIK, JJ.)

    Bihar Land Reforms (Fixation of Ceiling Area and
Acquisition of Surplus Land) Act, 1961:

    s.16(3) - Object of - Discussed.
                                                                   c
     s. 16(3) - Right of pre-emption - Held: Is conferred on the
co-sharer of the land transferred as a/so on the raiyat holding
land adjoining to the land transferred - On facts, co-sht;lrer
made an application under s. 16(3) within 3 months of the date     D
of registration of sale deed - Authorities ought to have allowed
the application considering the mandatory nature of the right
of pre-emption conferred by s. 16(3) - Vendee of the adjoining
land cannot be allowed to defeat the right of pre-emption of
co-sharer - Even after a long lapse of 19 years, High Court        E
should not have rejected the claim for pre-emption since it
was lodged in accordance with the statute and within the time
prescribed by the statute -J)irection_Jg_Colfector to facilitate
conveyance of the land in faV071TOfco-sharer - ~elay/laches
- Land laws - Pre-emption.                           1             F

     s. 16(3) - Claim under, rejected on the glound that
claimant was not co-sharer - Reliance placed on     ~/~deeds
- Held: On facts, not correct - Entries in the ReviSlonal
Survey Khatiyan and the Chakbandi Khatiyan made by pubtiC'
authorities were relevant for deciding whether the claimant was G
co-sharer in respect of the land transferred - As per the
Revisional Survey Khatiyan and the Chakbandi Khatiyan,
claimant was the co-sharer of the transferor in the land
transferred - Deeds and documents.
                                                                H
                              1047
    1048   SUPREME COURT REPORTS              [2010] ~ S.C.R

A      The suit land was sold to the respondent 1 by 'B' and
  'R' by a registered deed. Appellant thereafter filed an
  application under Section 16(3) of the Bihar Land
  Reforms (Fixation of Ceiling Area and Acquisition of
  Surplus Land) Act, 1961 for transfer of the suit land in his
B favour on the ground that he was a co-sharer and a
  boundary raiyat in respect of the land and had right of
  pre-emption. He also deposited the purchase money in
  accordance with the proviso to Section 16(3)(i) of the Act.
  Deputy Collector rejected the application. The appellant
C filed appeal which was allowed. In revision, Board of
  Revenue held that the appellant was not entitled to pre-
  empt under Section 16(3) of the Act. Appellant filed writ
  petition before High Court. The High Court dismissed the
  writ petition holding that the right of pre-emption was a
  weak right and moreover the vendee had remained in
0
  possession of suit land for more than 20 years. Hence the
  appeal.

       Allowing the appeal, the Court

E      HELD: 1. A plain reading of Section 16(3)(i) of the
  Bihar Land Reform (Fixation of Ceiling Area and
  Acquisition of Surplus Land) Act, 1961 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
F expression "co-sharer of the transferor" would mean co-
  sharer in the land transferred. The Board of Revenue had
  placed reliance on the recitals in the two sale-deeds for
  recording a finding that the appellant and the transferors
  of the land transferred were not co-sharers. The recitals
G in the two sale-deeds made by the parties to the sale
  deeds were not relevant rather the entries in the
  Revisi.:>nal 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. As per the Revisional
H
SU RESH PRASAD SINGH v. DULHIN PHULKUMARI 1049
              DEVI AND ORS.
Survey Khatiyan of the suit land and the Chakbandi              A
Khatiyan, the appellant and the transferors were co-
sharers of the land transferred to respondent No.1. 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. Section             B
16(3)(i) states that 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        c
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            D
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
                                                                E
by Section 16(3) of the Act. Thus, even if there was a long
lapse of 19 years, the High Court could not have rejected
the claim of the appellant for pre-emption when the claim
recognized by the statute, was lodged in accordance
with the statute and within the time prescribed by the
statute and in the manner provided by the statute. [Paras       F
9, 11-13] (1057-8; 1058-G-H; 1059-A-E; 1060-E-F]

   Shaym Sunder & Ors. v. Ram Kumar & Anr. (2001) 8
sec 24, relied on.
                                                                G
    Ram Pravesh Singh v. Additional Member, Board of
Revenue 1995 (1) Patna LJR 764; Satya Gupta (Smt.) alias
Madhu Gupta v. Brijesh Kumar (1998) 6 SCC 423;
Radhakrishan Laxminarayan Toshniwal v. Shridhar
Ramchandra Alshi & Ors. AIR 1960 SC 1368; Bhagwan Das           H
    1050   SUPREME COURT REPORTS              [2010] 6 S.C.R.


A v. Chet Ram (1971) 1 SCC 12; Rikhi Ram v. Ram Kumar
  (1975) 2 SCC 318; Bishan Singh v. Khazan Singh AIR 1958
  SC 838; Sudama Devi v. Rajendra Singh AIR 1973 Patna
  199; Ramachabi/a Singh v. Ramsagar Singh 1968 PLJR
  279, referred to.
B
       2. The respondent No.1 claiming to be a boundary
  raiyat stated 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 had applied for pre-
  emption under Section 16(3) of the Act. Section 16(3)
C confers the right of pre-emption not only on the co-sharer
  but also on the raiyat holding land adjoining to the land
  transferred. However, 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-
0 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 objecf-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
E 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 for right of
  pre-emption of a co-sharer or a boundary raiyat on the
  basis of such first purchase of a plot of land. The
F concerned Collector is directed to direct respondent No.1
  to convey the land in favour of the appellant by e..xecuting
  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. [Paras 14,
G 15] [1060-G-H; 1061-A-G]
                       Case Law Reference:
    (2001) 8 sec 24           relied on          Paras 3, 13
    1995 (1) Patna LJR 764 referred to           Paras 5, 14
H
    SURESH PRASAD SINGH v. DULHIN PHULKUMARI 1051
                 DEVI AND ORS.

     (1998) 6 sec 423            referred to          Para 6           A

     AIR 1960 SC 1368            referred to          Paras 7, 8
     (1971) 1 sec 12             referred to          Para 7
     (1975) 2 sec 318            referred to          Para 7           B
     AIR 1958 SC 838             referred to          Para 8

     AIR 1973 Patna 199          referred to          Para 13

     (1969 BLJR 203              referred to          Para 14
                                                                       c
        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 187
    of 2003.

        From the Judgment & Order dated 19.02.2001 of the High
•   Court of Judicature at Patna in LP.A. No. 127 of 2000.
                                                                       D
        Akhilesh Kumar Pandey, Shalini Chandra and Sudhanshu
    Saran for the Appellant.

        Rajiv Shankar Dvivedi and Ajay Choudhary for the
    Respondents.                                                       E
        The Judgment of the Court was delivered by

          A. K. PATNAIK, J. 1. This is an appeal against the
    judgment and order dated 19.02.2001 of the Division Bench
    of the Patna High Court in LP.A. No. 127 of 2000 (for short        F
    '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
                                                                       G
    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       H
    1052    SUPREME COURT REPORTS                 [2010] 6 S.C.R.

A 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,
B 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
c 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 High Court set aside the
0
  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
E 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-
F 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
G Division Bench of the High Court and by the impugned
  judgment, the Division Bench of the High Court dismissed the
  LP.A. of the appellant.

       3. Learned counsel for the appellant submitted that the
H Division Bench of the High Court, while dismissing the LP.A.,
 SURESH PRASAD SINGH v. DULHIN PHULKUMARl1053
       DEVI AND ORS. [A.K. PATNAIK, J.]

has held that the Court cannot ignore two important facts and       A
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 thE1 Court was not
inclined to interfere with the matter. He submitted that the
Division Bench of the High Court failed to appreciate that the      B
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        c
& 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         D
 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         E
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   F
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      G
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 existence after 21.06.1980 on whether there has
been a partition in respect of the land prior to 21.06.1980.        H
    1054    SUPREME COURT REPORTS                  [2010] 6 S.C.R.


A      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
B aecision 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
c 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.
D      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
E Gupta (Smt.) alias Madhu Gupta v. Brijesh Kumar ((1998) 6
  sec 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
F 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
G 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 disturbed and cited the decision of this
  Court in Radhakrishan Laxminarayan Toshniwal v. Shridhar
H
SURESH PRASAD SINGH v. DULHIN PHULKUMARI 1055
      DEVI AND ORS. [A.K. PATNAIK, J.]

Ramchandra Alshi & Ors. [AIR 1960 SC 1368) for the                   A
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              B
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    c
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      D
deed in favour of Smt. 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         E
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          F
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                G
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 last 19 years and the land is
contiguous to her other land and had in fact merged with her         H
    1056     SUPREME COURT REPORTS                    [2010] 6 S.C..R.


A   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:
B
         "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
c        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:
D
         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.
E        (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:

F       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 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).
G
         (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
H        he neglects or refuses to comply with the direction, the_
SURESH PRASAD SINGH v. DULHIN PHULKUMARI 1057
      DEVI AND ORS. [A.K. PATNAIK, J.]

    procedure, prescribed in Order XXI, Rule 34 of the Code         A
    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   B
    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 questior; which has to be decided
in this case is whether the appellant was a co-sharer of the        C
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          D
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. 301of1993, 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        E
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:                         F

            "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           G
            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 · H
    ·· 1oss   SUPREME COURT REPORTS                   [2010] 6 S.C.R.


A         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.'

B 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
C    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
D    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-
E    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 of Revenue appears to have
F    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
G    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
H    relevant for deciding whether the appellant and the transferors
SURESH PRASAD SINGH v. DULHIN PHULKUMARI 1059
      DEVI AND ORS. [A.K. PATNAIK, J.]

of land were co-sharers in respect of the land and we have          A
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.
                                                                    8
     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
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        C
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        D
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-   E
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 LP.A. appear
to have taken a view that the right of pre-emption is a weak
                                                                    F
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
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      G
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        H
    1060    SUPREME COURT REPORTS                    [201 O] 6 S.C.R.

A   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
B
        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
c       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-
D       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 the right of pre-
        emption under statutory law has been held to be mandatory
E       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
F   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.~, however, claims to be a boundary
    raiyat saying that she had purchased under an earlier sale-deed
G 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
H proposition that the claim of pre-emption was not maintainable
 SURESH PRASAD 'SINGl-:f.v:· Dl:fLHIN PHULKUMARI 1061
      . DEVI AND ORS. [A.K. PATNAIK, J.]

against a person who holds an adjacent plot of land. This view                        A
of the Patna High Court is based upon its earlier judgment in
Ramachabila Singh v. Ramsagaf Singh (1969 BLJR 203 :
1968 PLJR 27'.9) 'that if the transferee happens to be an
adjacent raiyat in respect 9f some. other plots, a co-sharer
cannot claim any right of pre-emption under Section 16(3) of                          B
the Act. ·As .a m.alter 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 theJand transferred. We are, however,
of the considered opinion ttiat·a· complete stranger who was
no'toriginally ·a· raiyat hqldin'g l~nd adjoining to the .land                        c
transferred ce)nnot be allowed to defeat the right of pre-emption
ofa co~sharer by first purchasing an adjoining plot of land and
thereafter c:laiming to be a raiyatholding land adjoining to the
land transferred. The decisions of the· Patna High Court are
ca~es ofor!ginal boundar)' r~iya.ts. resisting the claim of pre-                      D
emptiori by a co-sharer of the transferred land. The object of
Section 16(3) of the Actis to rec;ognise the right of pre-emption
of the. co"sharer       of
                        the transf~nor or. any raiyaf holding land
adjoining. to .th.e land. transferred and this object would be
frustrated if.strange~s.are allowed to first t:>uy one plotof land                    E
and then resist the claim right of pre-emption of a co-sharer or
a boundary raiyat on the basis of such first purchase of a plot
of land; :               ·•: .. , "

       15. For the afqre~jd r~sons, we set aside the impugned
judgment. of the piyision Bencr _in ~.P.A. No, 127 of 2000, the                       F
order of the learr;iedSlngle Juqge_ in C.W.J.C. No. 7714 r,f 1997
and the order .of.th,:d3oard of Revenue and the Dep1~ty Collector
and, direc::t th~. concerned, Co!'lector                to
                                         direct rc,spondent No.1
to conv~y)he Jan'd iriJav9ur ofJhe appell~'nt by executing and
 registering a· document. of transf~r 'and put 'the appellant in                      G
 vacant possession of the land in accordance with the provisions
of Sedion 16(3) of the Act. " .. · .     ·, ·· i
   ~   ~;   , ·   I     'i,   ·-,' .             ., t        . ;
       :f;h.e app~~I is acc,or~.ingly ci,119\'.lfed \'.'.~th no brde.r as to 9osts.

D.G.                                   ......"                     Appeal allowed.    H