(1.) This application is directed against the orders dated 7-7-1989 passed by the respondent No. 4, the order dated 2-1-1991 passed by the respondent No. 3 and the resolution dated 18-2-1992 passed by the respondent No. 2 as contained in Annexures 1, 2 and 3 respectively.

(2.) Shortly put the fact of the matter is as follows; - The petitioner by reason of a registered deed of sale dated 19-3-1987 purchased the lands in question from Rajendra Thakur. The said deed of sale was registered on 3-5-1988 subsequently the petitioner sold the said land to Ram Kishore Choudhary who allegedly purchased the same for construction of dwelling house by a deed of sale dated 2-41987 which was registered on 14-7-1987.

(3.) A pre-emption application was filed by the respondent No. 5 on 1-8-1988 purported to be in terms of Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus La4d) Act, 1961 (hereinafter referred to as the Act) claiming pre-emption in relation to the aforementioned deed of sale dated 19-3-1987. In the aforementioned proceeding the petitioner raised an objection with regard to the maintainability of the proceeding in absence of Ram Kishore Choudhary who as noticed hereinbefore, was the subsequent purchaser.

(4.) It was further contended that as the pre-emptor had not deposited the requisite amount in terms of Section 16(3) of the Act claiming pre-emption in respect of the deed of sale dated 2-4-1987, the said application for pre-emption was liable to be rejected.

(5.) An application for addition of aforementioned Ram Kishore Choudhary was filed by the pre-emptor on 14-2-1989. The said Ram Kishore Choudhary, appeared and filed a show cause wherein he inter alia asserted that he had purchased the lands in question for the purpose of constructing his residential house. By reason of the impugned order, the aforementioned application for pre-emption has been allowed inter alia on the ground that the said purported deed of sale dated 2-4-1987 was a sham transaction.

(6.) Mr. Tara Kant Jha, the learned counsel appearing on behalf of the petitioner has raised a short question in support of this application. The learned counsel submitted that the application for pre-emption was not maintainable as the aforementioned Ram Kishore Chaudhary was impleaded (sic) as a party in the proceeding only on 14-2-1989 i.e. after the expiry of the period of limitation as provided under Section 16(3) of the said Act read with Rule 19 of the Bihar Land Reforms (fixation of Ceiling Area and Acquisition of Surplus Land) Rules.

(7.) The learned counsel further submitted that in any event no legal evidence had been brought on records in order to enable the courts below to arrive at the finding that the subsequent deed of sale dated 14-7-1988 (sic) was a sham an farji transaction.

(8.) Mr. S. K. Mazumdar learned counsel appearing on behalf of the respondent No. 5, on the other hand, submitted that the sale deed, dated 19-3-1987 was executed for a consideration of Rs. 10,000.00 whereas the purported deed of sale dated 2-4-1987 was executed for a sum of Rs.49,500.00 and further as evidently, Ram Kishore Choudhary is the brother-in-law of the petitioners brother and he had no land in the village from before, clearly demonstrates that a transaction was a sham and farzi one.

(9.) The learned counsel, further submitted that in view of the concurrent finding of fact arrived at by all the courts below, this court should not interfere with the impugned order.

(10.) It is now well know that the right of pre-emption is a weak right. Such a right can be defeated by a subsequent transaction. In Dhanik Lal v. Addl. Member reported in 1985 BBCJ 597 it has been held as follows;-

"The contention aforesaid takes one to the very root of the nature of the right of preemption generally and in particular under Section 16(3) of the Act. It is common ground before us that Section 16(3) is only a very limited statutory recognition of the otherwise well known customary right of pre-emption. It has been held in a long line of precedent having the stamp of approval of the final court that the right of pre-emption is indeed a practical right which may well be defeated by all legitimate means. Now, the explanation to sub-section (I) of Section 6 in terms excludes inheritance, bequest or gift from the ambit of transfer under the said Section. Therefore, if a valid and genuine deed of gift is made, the same is obviously not pre-emptable under the Statute, Consequently, a bona fide transaction of gift can legitimately affect and defeat a tenuous claim to pre-emption. It has been authoritatively so held in Bishan Singh v. Khazan Singh (AIR 1958 SC 835) in terms following; "Courts have not looked upon this right with great favour, presumably, for the reason that it operates as clog on the right of the owner to alienate his property. The vendor and vendee are, therefore, permitted to avoid accrual of the right to pre-emption by all lawful means. The vendee may defeat the right by selling the property to a rival preemptor with right by selling preferential or equal right".

Within this jurisdiction the matter has been equally well elaborated with regard to the statutory right of pre-emption under Section 16(3) in a Division Bench decision in Sint. Sudama Devi v. Rajendra Singh (AIR 1973 Pat 199 ) therein it has been observed as follows;

"But the law of pre-emption engrafted in Section 16(3) of the Act, to my mind, is of weaker nature than the customary law of preemption or the customary law of pre-emption a preferential right to acquire land is not a right to, or a right, in that land, I fail to understand how under Section 16(3) a person who becomes entitled to file an application under the said provision of law acquires any kind of right to, or right in, the land transferred. No order of pre-emption can be made against the original transferee if he has transferred the land to another person before the filing of the application for pre-emption."

(11.) A valid transaction made subsequent to one which is the subject matter of the application under Section 16(3) of the Act, thus would defeat the claim of the pre-emptor unless the subsequent transaction is made the subjects Matter of an application for pre-emption. One of the exceptions, to the aforesaid rule is when the subsequent purchase is held to be a sham and farzi transaction or hit by the doctrine of lis-pendens. Reference in this connection may be made to in the case of Sudama Devi v. Rajendra Singh reported in 1973 Pat LJR 534: (AIR 1973 Pat 199 ).

(12.) There cannot be any doubt that a Collector under the Act is entitled to enter into the question as to whether a transaction is a sham and farzi one, but before arriving at such a finding, materials in that regard must be brought on records.

(13.) The Member Board of Revenue in his resolution dated, 18-2-1992 as contained in Annexure-3 to the writ application held as follows; -

"The L.R.D.C. has noted that the consideration of 1st sale deed was only Rupees 10,000/- but the same land within a few days was (sic) only to be sold for Rs. 49,000.00. It has also been found that 2nd transferee is a Sale of the brother of the Petitioner and he is a resident of another village. He has no land in the village in which the vended land is situated. He bas no paraphernalia of cultivation in the village on which land has been purchased. Beside these facts it could not be proved by the petitioner that the transferee had so much or resources as to invest such a huge sum of Rs.49,000.00, in one go his financial soundness could not be proved. The 2nd transferee did not come forward with any proof regarding his available resources to have such a huge investment in land in another village wherg he does not have any paraphernalia of cultivation. I think the aforesaid consideration noted by the LRDC as pointed out by me are relevant and they sufficiently point towards the sham character of the 2nd transaction. The indecent hurry in which the petitioner transferred the lands in favour of this brothers Sala is also not worthy. He transferred it and got the sale deed registered in favour of O.P. No. 7 even before the sale deed in his favour and be (sic) registered. The huge hike shown in the consideration money is also untrustworthy and it does not inspire confidence and adds to the same nature of the transaction." It does not appear that any evidence was led to show that the subsequent purchasers did not have sufficient resources to invest such a huge amount. The Member, Board of Revenue, therefore, in passing his judgment committed an error of record. However in order to enable him to arrive at such a finding the Respondent No. l were bound to bring on records sufficient materials by adducing oral and/or documentary evidence.

(14.) Payment of a higher amount of consideration or transfer in favour a near relation by themselves may not be sufficient to arrive at the conclusion that the transaction was a sham or farzi one. Such a conclusion has to be arrived at keeping in view the ingredients of a sham or collusive transaction which includes non passing of the consideration, non-delivery of possession of the property, conduct of the parties and other relevant factors. -

(15.) In this case the respondent No. 4 in his impugned order held as follows: -

"From close observation of the Sale deeds some unusual things are noticed. (i) Ram Ekwal purchased on 19-3-87 for Rs. 10,000.00 and sold to Ram Kishore on 2-4-1987 for Rs. 49,000.00within 13 days the value of the land became about five times. (ii) Ram Ekwal sold before registration of the deed of his own purchase. (iii) Sale deed favouring Ram Ekwal was executed and presented on 19-3-1987 but was registered on 3-5-1988. But the deed of 2nd transfer was executed on 2-4-1987 and was registered on 14-7-1987. Registration of earlier presented deed was made later. These transactions are so uncommon that they cannot be relied upon as genuine. The second transaction has been done fraudulently with the purpose of defeating the provisions of the Act. If the objection on the grounds cunningly created be allowed, it would be devoid of natural justice. Therefore the objection is over ruled and the petition is allowed."

(16.) The respondent No. 4, although, referred to an affidavit filed by the Bhagtu Thakur but neither relied upon the same nor discussed the effect thereof. It may be true that increase in the amount of consideration to the extent of five times of the original consideration within a span of 13 days may lead to a suspicion that the transaction was a sham one, but it is well known that suspicion, however, high, may be is not a substitute for proof.

(17.) It is true as has been submitted by Mr. Mazumdar that in terms of the provisions of Section 33 of the said Act, evidence can be adduced by way of affidavit. However, adduction of evidence by way of affidavits must conform to the provisions laid down under Order 19, Rule 1 of the Code of Civil Procedure.

(18.) Section 33 of the said Act reads as follows;

"33 Authorities under this Act to have powers of Civil Court. - The Board of Revenue, the appellate authority and the collector shall have the same powers in making enquiries under this Act, as are vested in a court under the Code of Civil Procedure, 1908 (V of 1908) in trying a suit, namely; - (a) admission of evidence by affidavits; (b) summoning and enforcing the attendance of any persons and examining him on oath; - (c) compelling the production of documents; and (d) award of costs."

(19.) From a bare perusal of the said Act it is evident that the Collector has the same power as are vested in the court under the Code of Civil Procedure inter alia in respect of admission of evidence by affidavits.

(20.) As the matter relating to admission by affidavits is governed by Order 19 of the Code of Civil Procedure, such evidence by affidavit may be admitted only if the same fulfills the conditions precedent therefor. In terms of Order 19, Rule 1 of the C.P.C. the court may at any stage permit a party to adduce evidence by affidavit on assigning sufficient or cogent reasons which clearly demonstrate the court allowing adduction of evidence by affidavit must apply its mind before such permission is granted to a party to the lis.

(21.) The provisions of Order 19, Rule 1 of the Code of Civil Procedure appears to be a mandatory one and thus unless the conditions precedents, provided therein are fulfilled, the courts under the said Act have no jurisdiction to admit the evidence by way of affidavit.

(22.) It is not the case of the respondent nor anything appears from the impugned orders that such permission was granted by the court before allowing the respondent No. 5 to adduce evidence by way of affidavit and any reason far less sufficient and cogent reasons were assigned.

(23.) The distinction between Order 19, Rule 1 and Order 19, Rule 2 is well known. Order .19, Rule 1 of the Code of Civil Procedure applies to the proceeding; whereas Rule 2 applies to the applications. Under Rule1, the court cannot direct that the whole case may be proved by affidavits. It can only order that particular fact or facts only may be proved by affidavit.

(24.) It must be borne in mind that the ordinary rule is that a decision on fact must be decided on evidence recorded vice-voce in court as provided by Order 19, Rule 4 of the Code of Civil Procedure. Order 19 of the Code of Civil Procedure is thus, an exception to the general rule. The provisions of Order 19, of the Code of Civil Procedure, thus, can be invoked only if the conditions precedent therefore, are satisfied.

(25.) In this view of the matter, in my opinion, the impugned orders cannot be sustained.

(26.) For the reasons aforementioned, this application is allowed the impugned orders as contained in Annexure 1, 2 and 3 respectively are quashed. The matter is remitted to the respondent No. 4 for a fresh decision in accordance with law.

(27.) The respondent No. 4 shall allow the parties to lead their respective evidence on all the issues including the one as to whether the deed of sale dated 2-4-1987 was a sham transaction or not and thereafter pass a judgment in accordance with law. In the facts and circumstances of the case; there shall be no order as to costs.

(28.) S. K. SINGH, J. :- I agree. Application allowed.