Patna High Court
Dhaka Singh And Etc. vs Baleshwar Prasad Singh And Ors. on 15 December, 1986
Equivalent citations: AIR1988PAT160, 1987(35)BLJR426, AIR 1988 PATNA 160, 1987 BBCJ 157, (1987) BLJ 632, 1987 BLJR 426
JUDGMENT Sinha, J.
1. This Second Appeal by the plaintiff is against a judgment of reversal.
2. The only significant question involved in this second appeal is whether Section 43 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (shortly known as the Bihar Land Ceiling Act) was a bar to the jurisdiction of the Civil Court to maintain the suit.
3. On 13-9-1966 a Ceiling Case No. 6 of 1966-67 was filed under Section 16(3) of the Bihar Land Ceiling Act (hereinafter referred to as the Act) by the intervenor-defendants of the suit in question. Admittedly in that Ceiling Case the plaintiff-appellant was not a party. But defendants 5 to 8 of the present suit were parties in the Ceiling Case filed by the intervenor-defendants.
The present suit by the plaintiff-appellant was filed the very next day of the filing of Ceiling Case No. 6 of 1966-67 by the intervenor-defendants (claiming pre-emption) i.e. the suit in question was filed on 4-9-1966. The aforesaid case under the Ceiling Act and the suit -- both proceeded simultaneously. The case under the Ceiling Act was disposed of by order dt. 13-5-1971 and the suit was decreed on 28-3-1972.
4. The contesting respondents in the present appeal filed an application in the suit for impleading them as intervenor-defendants and their prayer being allowed, they were added as intervenor-defendants. It were only these intervenor-defendants who contested the suit.
5. The plaintiff's case was that he and the father of defendant No. 1 jointly purchased 1.55 dec. of land bearing plot Nos. 227 and 282 appertaining to khata No. 15 from one Bandhu Gerai in the name of their friend Ganauri Mahton of village Sadarpur. According to the plaintiff, this Ganauri, in whose name the lands were purchased, was a mere Benamidar in respect of the suit land and he had never any concern with the same. The plaintiff's further case was that the land covered by the sale deed (4-2-1937) was later partitioned between the purchasers and the parties came in their respective possessions -- The plaintiff came in possession in respect of 77 1/2 decimals which is the subject matter of the suit. The plaintiffs further case was that subsequently on 25-5-1966 the defendant 1 in collusion with the defendant second party (heirs of the said benamidar) got a sale deed with respect to entire suit land executed by defendant second party in his favour.
In the circumstances the plaintiff filed the suit in question for declaration of title and confirmation of possession to the extent of plaintiffs share in the suit land. The plaintiff further prayed to declare the sale deed dt. 25-5-1966 executed by the defendant second party in favour of defendant 1 to be null and void.
6. As already stated above, the only contesting defendants were the intervenor-defendants and their case was that Ganauri was the real owner and not a mere benamidar. Further case was that on the death of Ganauri, his heirs i.e. defendants 5 to 8 sold the suit land to defendant by the registered sale deed dt. 25-5-1966.
The intervenor-defendants also a verred that as the intervenor-defendants possessed land in the boundary of the suit lands, they were entitled to pre-emption and hence had filed a case claiming pre-emption under Section 16(3) of the Ceiling Act. According to the intervenor-defendants (contesting defendants), the suit filed by the plaintiff was a collusive one and was filed only with a view to defeating the provision of Section 16(3) of the Ceiling Act.
7. I have already stated above that Ceiling Case No. 6 of 1966-67, filed by the intervenor-defendants, filed a day earlier to the suit, was proceeding side by side with the suit and the L. R. D. C. dismissed the pre-emptors (intervenors') application for pre-emption. The order was confirmed by the Sub-Divisional Officer as well as the Collector. The Commissioner, too, dismissed the pre-emptor's application. The matter went to the Board of Revenue and learned member of the Board of Revenue by resolution dt. 27-8-77 also dismissed the pre-emptor's application.
Thereafter the pre-emptors (intervenor-defendants) moved this court by a Writ Case which was numbered as C. W. J. C. No. 666 of 1978. This Writ Case was also dismissed by a reasoned order on 23 Jan. 1985.
8. Against the dismissal of the Writ Case the pre-emptors (intervenor-defendants) filed , Letters Patent Appeals which was numbered as L. P. A. 20 of 1985.
On 18-3-1986 this court ordered that the L. P. A. be put up for admission along with the regular hearing of the Second Appeal No. 659 of 1975. Thus the admission of L. P. A. in question was to be considered along with the hearing of the Second Appeal itself.
9. As already indicated in the early part of the judgment, the sole question involved in the present second appeal is whether Section 43 of the Bihar Land Ceiling Act, 1961 was a bar to the maintainability of the suit specially in the nature of the suit that it is.
The learned counsel for the plaintiff/ appellant submitted that Section 43 of the Act was not a bar in deciding the question of title over the land in dispute and the suit was maintainable; whereas, on the other hand the learned counsel for the intervenor-defendants/respondents submitted that Section 43 of the Act was a bar to the maintainability of the suit as the question of benami had to be gone into in the present suit and as the benami question was raised in Ceiling Case No. 6 of 1966-67 in the Revenue Court, Section 43 of the Act was a bar to the maintainability of the suit.
10. In order to decide the question involved it is pertinent to quote Section 43 of the Act (The Bihar Ceiling Act, 1961) :
"Section 43; Bar of jurisdiction of Civil Court :-
(i) Save and except as provided in this Act no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Board of Revenue, the appellate authority or the Collector."
I have already referred to above the nature of the suit in question. The suit is one for declaration of title and confirmation of possession. It is also for a declaration that sale deed dt. 25-5-66 was null and void. The question of plaintiff's right, title and possession had to be gone into in the suit; whereas, in the case under the Ceiling Act, filed by the intervenor-defendants under Section 16(3) of the Act, the only question for consideration was whether the pre-emptors were owners of the adjoining plots and were in possession of the same.
It is true that a question of benami, if raised before the Revenue Court, the Revenue Court is competent to decide that issue. The question of benami before the Revenue Court, in the application under Section 16(3) of the Act, is only an ancillary question which may be gone into, if raised -- the primary question in such applications by the pre-emptors is whether the pre-emptors are the adjoining raiyats.
The present suit is purely of a civil nature and looking at Section 43 of the Act (quoted above) it is clear that a suit which is of a purely civil nature is not within its fold. Only because one of the many questions may have been raised before the Revenue Court, it cannot be said that Section 43 bars maintainability of a suit of purely civil nature involving question of title and possession. It is well settled that the Civil Court is quite competent to deal with a case where the decision of the Board of Revenue, the appellate authority or the Collector was without jurisdiction or that the orders passed by such authorities were not passed under the Act. If the submission, as advanced by the learned counsel for the intervenor-defendants/contesting respondents, is accepted then the Civil Court will have no jurisdiction even if the order passed by the Revenue Court was without jurisdiction. I hold that the submission advanced by the learned counsel for the intervenor-defendants/contesting respondents is without any substance.
It is also well settled that the bar raised by Section 43 of the Act does not operate against the maintainability of a suit for declaring that the order was void, ab initio.
11. The trial court, in the present suit framed an issue with regard to the maintainability of the suit and the trial court held that there was no evidence on the record to show that the question of benami was raised and decided in the pre-emption case filed by the intervenor-defendants before the Revenue Court. The Court of appeal below only referred to the pre-emptor's show-cause and amongst the many objections, one of the objections taken by the pre-emptor was that of a benami transaction. What is significant is that the Revenue Court rejected this objection also of the pre-emptors.
The learned counsel for the intervenor-defendants/contesting respondents relied upon the case of Narendra Kumar Ghosh v. Shivdani Ram, reported in AIR 1972 Pat 1 in support of his submission to the effect that Section 43 of the Act was a bar to the maintainability of the suit of the present nature.
I have already stated above that the plaintiff was not a party in that Ceiling Case (No. 6 of 1966-67) filed under Section 16(3) of the Act by the intervenor-defendants/contesting respondents. On this ground alone the submission advanced by the learned counsel for the contesting respondents must be rejected. I further hold that reliance placed in the case of Narendra Kumar Ghosh v. Shivdani Ram (supra) by the learned counsel for the contesting respondents is also under a misconception. This case only has decided that the question of benami if raised before the Revenue Court, the Revenue Court is competent to decide the same. This case further decided that if the property has been directed to be transferred to the pre-emptor under Section 16(3) of the Act, the real owner is debarred under Section 16(3) of the Act from going to the Civil Court to claim recovery of possession of that property. In the present case, as already stated above the pre-emptor lost throughout up to this court and the intervenor-defendants (pre-emptors) claim was rejected throughout. This case nowhere deals with the scope of Section 43 of the Act. The primary question gone into in that case was whether the Revenue authorities had the jurisdiction to go into the question of benami transactions.
Thus the reliance placed upon the case of Narendra Kumar Ghosh v. Shivdani Ram (AIR 1972 Pat 1) (supra) by the learned counsel for the contesting respondents is under misconception.
The learned counsel for the contesting respondents also placed reliance upon the Full Bench case of Jugal Kishor Singh v. State of Bihar reported in 1985 BBCJ 541 : (AIR 1985 Pat 265). This case reiterated the principles as decided in the case of Narendra Kumar Ghosh v. Shivdani Ram (supra). It reiterated that the well established and well entrenched concept of benami transaction was not ousted or abolished for the purpose of Section 16(3) of the Act; in other words it was well within the jurisdiction of the Revenue Authorities to go into the question of benami transaction in an application under Section 16(3) of the Act. Section 43 of the Act was not under consideration in the Full Bench case of Jugal Kishor Singh v. The State of Bihar (supra) and thus, again, reliance placed upon this case was under a total misconception.
12. On a plain reading of Section 43 of the Act (the Bihar Land Ceiling Act. 1961) and for the aforesaid reasons, I hold that a suit which is purely of a civil nature involving questions of title and possession is not barred under Section 43 of the Act and I further hold that, in the facts and circumstances of the present case, the suit in question was not barred under Section 43of the Act. I further hold, that the Court of Appeal below, while holding that the suit was barred under Section 43 of the Act committed a serious error in law.
13. In the result, this Second Appeal is allowed. The judgment and decree of the Court of Appeal below are set aside and that of the trial court is restored.
14. L. P. A. 20 of 1985.
The facts leading up to this Letters Patent Appeal have already been stated in the earlier part of judgment. I have already stated above that the appellants (the pre-emptors) lost in all the courts up to the Board of Revenue. Thereafter the pre-emptors (intervenor-defendants) moved this court in C. W. J. C. No. 666 of 1978 and the Writ Case was also dismissed.
It must be remembered that the right of pre-emption is a very weak right and it is for the pre-emptors to prove their case absolutely.
The pre-emptors (the appellants of the L. P. A.) having failed throughout (even in the Writ Case), I hold that there is no merit in this Letters Patent Appeal and hence this Letters Patent Appeal is dismissed.
15. However, on the facts and circumstances of the case there will be no order as to cost.
(lines have been marked by me for emphasis) Sandhawalia, C.J.
16. I agree.