Patna High Court
Smt.Asha Lata Sinha vs The State Of Bihar & Ors on 5 August, 2011
Author: S K Katriar
Bench: Sudhir Kumar Katriar
CIVIL WRIT JURISDICTION CASE NO.6707 OF 2001
WITH
CIVIL WRIT JURISDICTION CASE NO.6532 OF 2001
WITH
CIVIL WRIT JURISDICTION CASE NO.6625 OF 2001
WITH
CIVIL WRIT JURISDICTION CASE NO.6676 OF 2001
WITH
CIVIL WRIT JURISDICTION CASE NO.6710 OF 2001
WITH
CIVIL WRIT JURISDICTION CASE NO.1612 OF 2002
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In the matter of applications under Article 226 of the
Constitution of India.
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In CWJC No.6707 of 2001:
1. Dr. Sushil Kr. Verma,
2. Madhup Kr. Verma
Both sons of late Kanak Lata Verma, wife of late Yashodanand
Prasad Verma, resident of village- Laukar, P.S. Mainatand, District-
West Champaran.
3. Smt. Sushma Verma, W/o Dr. K.N. Verma, resident of Chhata Chowk,
P.S. Kalambagh, District- Muzaffarpur.
.... .... Petitioners.
Versus
1. The State of Bihar.
2. The Additional Member, Board of Revenue, Patna.
3. The Collector, West Champaran, Bettiah.
4. The Additional Collector (Ceiling), West Champaran, Bettiah.
5. The Anchal Adhikari, Mainatand, West Champaran, Bettiah.
.... .... Respondents.
********
In CWJC No.6532 of 2001:
Smt. Mohini Rai, wife of Shri S.R. Ray, resident of Mohalla-Jagat
Narayan Road, Kadam Kuan, P.O. & P.S. Kadam Kuan, District- Patna, at
present resident of Village- Dharauji, P.O. & P.S. Gaunaha, District- West
Champaran.
.... .... Petitioner.
Versus
1. The State of Bihar.
2. The Additional Member, Board of Revenue, Patna.
3. The Collector, West Champaran, Bettiah.
4. The Additional Collector (Ceiling), West Champaran, Bettiah.
5. The Anchal Adhikari, Mainatand, West Champaran, Bettiah.
.... .... Respondents.
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In CWJC No. 6625 of 2001:
Smt.Asha Sinha, D/O Shri S.P. Verma, resident of Niranjanpur, P.S.
Arwal, District- Gaya, w/o Shri Akshay Kumar Sinha, at present resident
2
of village- Dharampur, P.S. Gaunaha, District- West Champaran.
.... .... Petitioner.
Versus
1. The State of Bihar.
2. The Additional Member, Board of Revenue, Patna.
3. The Collector, West Champaran, Bettiah.
4. The Additional Collector (Ceiling), West Champaran, Bettiah.
5. The Anchal Adhikari, Mainatand, West Champaran, Bettiah.
.... .... Respondents.
********
In CWJC No. 6676 of 2001:
Smt.Raj Mohini Sinha, wife of K.A. Sinha, resident of Giddi Colliery, P.S.
and District- HJazaribagh, at present resident of village- Dhanauji, P.O. &
P.S. Gaunaha, District- West Champaran.
.... .... Petitioner.
Versus
1. The State of Bihar.
2. The Additional Member, Board of Revenue, Patna.
3. The Collector, West Champaran, Bettiah.
4. The Additional Collector (Ceiling), West Champaran, Bettiah.
5. The Anchal Adhikari, Mainatand, West Champaran, Bettiah.
.... .... Respondents.
********
In CWJC No. 6710 of 2001:
Smt.Indu Sinha @ Indu Devi, daughter of late Kailash Bihari Sinha,
resident of Mohalla- Mewalipur, P.O. & P.S. & District- Gorakhpur, Uttar
Pradesh, presently resident of Village- Laukar, P.S. Maintand, District-
West Champaran.
.... .... Petitioner.
Versus
1. The State of Bihar.
2. The Additional Member, Board of Revenue, Patna.
3. The Collector, West Champaran, Bettiah.
4. The Additional Collector (Ceiling), West Champaran, Bettiah.
5. The Anchal Adhikari, Mainatand, West Champaran, Bettiah.
.... .... Respondents.
********
In CWJC No. 1612 of 2002:
Smt.Asha Lata Sinha, wife of Shri Muneshwari Prasad Sinha, resident of
Mohalla- Ranighat, Mahendru, near Baby Land School, P.O. & P.S.
Mahendru, District- Patna, presently residing at Village- Dharampur, P.S.
Gaunaha, District- West Champaran.
.... .... Petitioner
Versus
1. The State of Bihar.
2. The Additional Member, Board of Revenue, Patna.
3. The Collector, West Champaran, Bettiah.
4. The Additional Collector (Ceiling), West Champaran, Bettiah.
5. The Anchal Adhikari, Mainatand, West Champaran, Bettiah.
.... .... Respondents.
********
3
For the Petitioners: Mr Keshav Srivastava,
(in all cases) Sr. Advocate
For the Respondents: Ms. Kumari Amrita, G.P.10 &
(in all cases) Mr. Ajay, S.C. 11.
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PRESENT
THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR
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S.K. Katriar, J. This batch of writ petitions is directed against a
common order dated 7.3.2000 (Annexure-9), passed by the learned
Additional Member, Board of Revenue, in the following six
revision applications, whereby alienations made by the land-
holders in favour of different transferees who are the petitioners in
five writ petitions, other than CWJC No.6707 of 2009, have been
set aside on the ground that those were intended to defeat the
provisions of the Bihar Land Reforms Fixation of Ceiling Area and
Acquisition of Surplus Land Act 1961 (hereinafter referred to as
„the Act‟), and are within the mischief of Section 5(1)(iii) of the
Act:
(i) Revision Case No.70 of 1997 (Kanak Lata Verma vs. The
State of Bihar), giving rise to CWJC No.6707 of 2001.
(ii) Revision Case No.71 of 1997 (Indu Sinha vs. The State of
Bihar), giving rise to CWJC No.6710 of 2001.
(iii) Revision Case No.72 of 1997 (Smt. Asha Sinha vs. The State
of Bihar), giving rise to CWJC No.6625 of 2001.
(iv) Revision Case No.73 of 1997 (Smt. Asha Lata Sinha vs. The
State of Bihar), giving rise to CWJC No.1612 of 2002.
(v) Revision Case No.74 of 1997 (Mohini Rai vs. The State of
Bihar), giving rise to CWJC No.6532 of 2001.
(vi) Revision Case No.42 of 1998 (Raj Mohini Sinha vs. The
State of Bihar), giving rise to CWJC No. 6676 of 2001.
2. Before we proceed further, we would like to clarify
that C.W.J.C. No.6707 of 2001 had originally been preferred by
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Smt. Kanak Lata Verma, the land-holder, who died during the
pendency of the present proceeding, and has been substituted by
her heirs who are now the petitioners before us.
3. A brief statement of facts essential for the disposal
of these writ petitions may be indicated. A brief genealogy of the
parties relevant in the present context is reproduced hereinbelow:
Pandey Jagarnath Prasad died in 1920s, at the age of 39
Indira Devi died in 1980
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Pandey Brijnandan Pd. Verma Rama Devi
died in 1949 wife of late Shambhu Saran
Widow Sarju Devi died in 1972 | |
| Satish Sharan Shailesh Sharan
| Madhuri Sharan Ratan Sharan
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Pandey Jashodanand Prasad Verma died in 1960, at the age of 34
Widow kanak Lata Verma died on 5.9.2006.
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Sushil Kumar Verma Madhup Kr. Verma Shushma Verma
Punam Verma Shiela Verma Krishnanand Verma
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Akanksha Verma Ananya Verma Ananta Verma | Kannika Verma Samarth Verma
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Aishwarya Vardhan Verma Janmejay Verma
It is evident that Pandey Brijnandan Pd. Verma died in
1949, leaving behind his widow Sarju Devi who died after
9.9.1970, and his son, Pandey Jashodanand Prasad Verma. He died in 1960, leaving behind his widow, Kanak Lata Verma, who died on 5.9.2006, leaving behind her heirs who are now petitioners before us in CWJC No.6707 of 2001. It is thus evident that Sarju Devi and Kanak Lata Verma became land-holders in their own 5 right after demise of their respective husbands. 3.1) Sushil Kumar Verma, a major on 9.9.1970, had alienated certain lands in favour of Upendra Kumar, Narendra Bahadur, and Ravindra Sinha, by separate deeds of absolute sale which were executed on 28.8.1970, and were registered on 29.8.1970. These alienations have been upheld by the learned first authority under the Act and attained finality, no appeal having been filed by anybody with respect to the same.
3.2) Smt Sarju Devi and Smt. Kanak Lata Verma had alienated lands by separate deeds which were executed on 28.8.1970 and 4.9.1970, and were registered on 18.9.1970, by four registered deeds of absolute sale by each (in total eight documents), in favour of the petitioners of the five writ petitions before us, other than CWJC No.6707 of 2001. The learned three authorities under the Act have consistently held that these eight registered documents were executed with the intention to defeat the provisions of the Act, are within the mischief of section 5(1)
(iii) of the Act, and impugned herein. All the six writ petitions arise out of a common land ceiling proceeding, have been disposed of by common orders of the learned three authorities under the Act, and are being disposed of by a common judgment of this Court.
4. Land Ceiling proceeding under the Act was started with respect to the lands of Sarju Devi and Kanak Lata Verma 6 which was registered as Land Ceiling Case No.277 of 1976-77. The learned Additional Collector, Bettiah, being the first authority, by his order dated 3.2.1986 (Annexure-1), declared the aforesaid alienations made by Sushil Kumar Verma in favour of Upendra Kumar, Narendra Bahadur, and Ravindra Sinha, valid on the ground that those were bona-fide alienations. This aspect of the matter rested there, and the State of Bihar never challenged the same. He further held that the land-holders were entitled to four units who have felt satisfied with the same and has remained unchallenged. The learned first authority further held that the aforesaid alienations made by Smt. Sarju Devi and Smt. Kanak Lata Verma in favour of the transferees, who are the petitioners in the other five writ petitions before us, were invalid because those were intended to defeat the provisions of the Act. Aggrieved by this part of the order, Smt. Kanak Lata Verma and the petitioners of the other five writ petitions preferred separate appeals, which were dismissed by the learned Collector of the district of West Champaran, Bettiah, by order dated 13.9.1997 (Annexure-2), who upheld the order of the learned first authority. The petitioners preferred separate revision applications before the Board of Revenue, which were dismissed by a common order dated 13.1.1998.
4.1) Aggrieved by the same, the petitioners preferred six 7 writ petitions in this Court, namely, CWJC No.5185 of 1998, CWJC No. 10741 of 1997, CWJC No.5238 of 1998, CWJC No.5261 of 1998, CWJC No.5262 of 1998 and CWJC No.6467 of 1998. The same were allowed by a learned Single Judge of this Court by a common judgment dated 17.9.1998 (Annexure-8), wherein it was held that the authorities had not applied their minds to the grievance of the petitioners as to how and why the alienations made by Smt. Sarju Devi and Smt. Kanak Lata Verma had been declared invalid, when in identical situation the alienations made by Sushil Kumar Verma had been upheld. The learned Single Judge further observed that the learned authorities under the Act had erred in holding that Smt. Sarju Devi and Smt. Kanak Lata Verma had no title to the lands alienated by them in favour of the transferees. He held that, in view of the demise of their respective husbands, they had right, title and interest of the lands they had alienated. The learned authorities had erred by their failure to realize this legal position. The learned Single Judge, therefore, remitted the matter to the Board of Revenue to reconsider the matter after taking into account both the aspects of the matter.
5. The learned Additional Member reconsidered the matter on remand and reiterated his earlier conclusion by a common order and impugned in these writ petitions. Hence these 8 six writ petitions at the instance of the petitioners of the six revision applications before the Board of Revenue. The net result of the impugned order is that the alienations made by Smt. Sarju Devi and Smt. Kanak Lata Verma are invalid.
6. While assailing the validity of the impugned order, learned counsel for the petitioners submits that the learned Member did not fully appreciate the findings and the tenor of the judgment dated 17.9.1998 (Annexure-8), that Smt. Sarju Devi and Smt. Kanak Lata Verma had right, title and interest to make the alienations, and how the alienations by Sushil Kumar Verma stand on a different footing. He next submits that the deeds of absolute sale by the two ladies have undoubtedly been executed prior to 9.9.1970, and were registered just after 9.9.1970. In other words, the learned Additional Member has failed to appreciate that the effect and validity of a registered document date back to the date of execution. He relies on the following reported judgments:
(i) Division Bench judgment of this Court in Nanhak Singh vs. The Additional Collector of Bettiah and others [1978 (26) BLJR 375.
(ii) Division bench judgment of this Court in Prabhu Narain Singh vs. The State of Bihar (1984 PLJR 842 6.1) He next submits that the learned Additional Member has failed to take into account the relevant factors to consider the validity or otherwise of the alienations within the meaning of section 5(1) (iii) of the Act. He has also failed to take into account 9 the recitals made in the registered documents plus the affidavits placed on record. He has erred in holding that the alienations by the two ladies are invalid because several sale-deeds had been executed and/or registered on the same date, and for the further reason that several deeds had been executed on the same day. He relies on the judgment of a Division Bench of this Court in Bachchan Singh vs. The S.D.O. & ors. (1977 BBCJ 728). He also submits that the alienations by Sushil Kumar Verma on the one hand, and the alienations by the two ladies, on the other, are identical and on the same footing. He next submits that the learned Additional Member has failed to carry out the remand order on the lines indicated by the learned Single Judge on the previous occasion. He lastly submits that law is well settled that in case of doubt or difficulty with respect to transactions under the Act, the Court shall lean in favour of the land-holder. He relies on the judgment of a Division Bench of this Court in Haricharan Chamar and others vs. Kapilmuni Ojha and others [2008(2) PLJR 495].
7. Learned Government Pleader has supported the impugned order. She submits that the learned authorities under the Act have conducted the requisite enquiry in terms of section 5(1)
(iii) of the Act. She submits in the same vein that the alienations by the two ladies were intended to defeat the provisions of the Act.10
She also submits that the onus is on the transferor to prove the bona fides of alienations. She next submits that a large number of alienations on the same day is a circumstance to indicate that those were made to defeat the provisions of the Act. She also submits that the alienations by Sushil Kumar Verma were rightly upheld by the learned authorities under the Act which stand on a different footing. She lastly submits that the issues are concluded by findings of facts and may not be reopened by this Court in writ jurisdiction.
8. We have perused the materials on record and considered the submissions of the learned counsel for the parties. It is evident that the land-holders are not aggrieved by the number of units allotted to them which indeed rested with the order of the learned first authority. It is equally evident that the alienations made by Sushil Kumar Verma were upheld by the learned first authority. The State of Bihar did not challenge the same and attained finality. These two issues, therefore, do not arise for our consideration.
9. The only question which arises for our consideration is whether or not the alienations by Smt. Sarju Devi and Smt. Kanak Lata Verma, the sale-deeds of which were executed prior to 9.9.1970, and were registered just after 9.9.1970, were valid alienations, or were meant to defeat the aims and objects of the 11 Act. The most important aspect of the matter which comes to our mind is that Sushil Kumar Verma had made identical alienations by separate documents executed on 28.8.1970, which were registered on 29.8.1970. The same have been upheld and declared to be bonafide and valid alienations consistently by the three learned authorities. We do not see any significant difference between the alienations of Sushil Kumar Verma on the one hand, and those of Smt. Sarju Devi and Smt. Kanak Lata Verma, on the other, except that the latter deeds of absolute sale were executed before 9.9.1970, and registered just after 9.9.1970.
10. Section 5(1) (i) of the Act lays down to the effect that it shall not be lawful for any family to hold, except otherwise provided under this Act, land in excess of the ceiling area. Section 5(1) (iii) lays down to the effect that Collector shall have power to make enquiries in respect of any transfer of land by a land-holder whether by a registered instrument or otherwise made after 22.10.1959, whether or not it has been done to defeat the aims and objects of the case. The relevant portion of Section 5 of the Act is reproduced hereinbelow:
"5. No person to hold land in excess of the ceiling area. - (1) (i) It shall not be lawful for any family to hold, except otherwise provided under this Act, land in excess of the ceiling area.
xxx xxx xxx
xxx xxx xxx
12
(iii) Notwithstanding anything to the contrary contained in any judgment, decree or order of any court or authority the Collector shall have power to make enquiries in respect of any transfer of land by a land-holder whether by a registered instrument or otherwise made after the 22nd day of October, 1959, and if he is satisfied that such transfer was made with the object of defeating, or in contravention of the provisions of this Act or for retaining, benami or farzi land in excess of the ceiling area, the Collector may after giving reasonable notice to the parties concerned to appear and be heard, annul such transfer and thereupon the land shall be deemed to be held by the transferor for the purposes of determining the ceiling area he may hold under this section."
11. The scope of section 5(1) (iii) of the Act has been the subject-matter of discussion in various judgments of this Court. It has been held that all alienations prior to 22.10.1959, have got to be accepted on its face value and cannot be subjected to any enquiry. As to the alienations made between 22.10.1959 and 9.9.1970, it has been held that it will be open to the authorities to examine the validity of such alienations to satisfy themselves whether or not the same were bonafide transactions, or were intended to defeat the aims and objects of the Act. Such alienations are not Per Se invalid. The alienations after 9.9.1970 are Per Se bad in law and no enquiry is needed.
12. It has been held by a Division Bench of this Court in Nanhak Singh Vs. The Additional Collector of Bettiah (supra), that although registration may have taken place after 9.9.1970, if 13 execution of the documents have been taken place prior to that date then, in view of the provisions of section 47 of the Indian Registration Act, title passes from the date of execution. It was, therefore, held that it was not open to the authorities under the Act to annul the documents on the ground that, though the documents had been executed prior to 9.9.1970, but the same had been registered thereafter. Paragraphs 2 and 3 of the judgment are reproduced hereinbelow:
"2. Learned counsel for the petitioners pointed out that in all the four cases the sale deeds in favour of the petitioners have been executed before the 9th September, 1970, although they have been registered on the 27th November, 1970. On registration, it was contended that the title passed from the date of execution, which in all the cases is prior to the 9th of September 1970. Learned counsel further pointed out that the only reason given by the learned Additional Member Board of Revenue for ignoring these transfers is that the transfer have been registered after the 9th of September, 1970 without obtaining the prior permission of the Collector. Learned counsel contended that although the registration taken place after the 9th September, 1970 but since the execution was before that date, in view of the provisions of section 47 of the Indian Registration Act the title passes from the date of the execution. Reference in this connection was made to the decisions in the cases of Faiya-Uddin Khan v. Mst. Zahur Bibi (AIR 1930 Pat. 134), Chanier Singh v. Jamuna Prasad Singh (AIR 1958 Pat. 195), Smt. Sudama Devi v. Rajendr Singh (AIR 1973 Pat.
199), and M/s. Purtahpore Co. v. State of Bihar (AIR 1977 Pat. 283). In our view, the learned counsel is correct in so far as this part of argument is concerned. If it is accepted that the execution was before the 9th of September 1970, as is the 14 petitioners‟ case, than since the title passes from the date of execution, as held in all these cases, the authorities under the said Act are not entitled to ignore these transfers or annul them on the ground the transferees had taken place after the relevant date, namely, the 9th of September, 1970."
(Emphasis added)
13. It has been held by a Division Bench of this Court in Prabhu Narain Singh vs. The State of Bihar (supra) that, in view of the provisions of section 47 of the Indian Registration Act, title passes with effect from the date of the execution of the sale-deed. Paragraph 4 of the judgment is reproduced hereinbelow:
"It is well known that in view of section 47 of the Indian Registration Act, title passes with effect from the date of the execution of the sale deed. Reference in this connection may be made to Faiya-uddin Khan v. Mt. Jahur Bibi (A.I.R. 1930 Patna 134), Chander Singh v. Jamuna Prasad Singh (A.I.R. 1958 Patna 195), Smt. Sudama Devi v. Rajendra Singh (A.I.R. 1973 Patna 199)(:1973 P.L.J.R. 534), and M/s Purtabpur Company v. State of Bihar (A.I.R. 1977 Patna 283) (: 1978 P.L.J.R. 130). A Bench of this Court has considered this aspect of the matter in the case of Nanhak Singh vs. The Additional Collector, Bettiah (1978 B.B.C.J. 398) (: 1978 PLJR 478) in connection with section 5(iii) of the Act.
14. In exercise of the power under section 5(1) (iii) of the Act, the authorities conducted enquiry and have consistently found that all the alienations had been made by registered documents, and were executed prior to 9.9.1970. We have, therefore, no hesitation in holding that right, title and interest of 15 the lands alienated by Smt. Sarju Devi and Smt. Kanak Lata Verma had validly passed on to the transferees well before 9.9.1970.
15. Learned counsel for the petitioner has taken us through photo copies of all the registered documents executed by the two ladies which are on record. Photo copies of the registered documents executed by Smt. Sarju Devi on 28.8.1970, are marked Annexure-3 series, and photo copies those executed by Smt. Kanak Lata Verma on 4.9.1970, are marked Annexure-4 series. The recitals of each and every document state that the alienations were being made for education of the children of the family, construction and repair of their houses, and such other expenses. The respondent authorities failed to realize that Brijnandan Prasad Verma died in 1949, leaving behind his widow (Smt. Sarju Devi) who died in 1972, giving her widowhood of 23 years. Jashodanand Prasad Verma died way back in 1960, leaving behind his widow (Smt. Kanak Lata Verma), who died on 5.9.2006, giving her widowhood of 46 years. In other words, both Brijnandan Prasad Verma and Jashodanand Prasad Verma died very pre-mature death, leaving behind the family high and dry in life. One can well imagine the struggle and the responsibility on the two widows, particularly after 1960, to keep their family going. Failure to countenance the same will result in gross miscarriage of justice. In 16 such a situation, we are clearly of the view that the alienations made by the two widows to maintain the family and for the purposes stated in the deeds were undoubtedly bona fide alienations for pressing legal necessity. Any other view will be absolutely heartless, unrealistic, and inequitable, and any other mode and manner of dispensation of justice cannot be upheld by this Court, an aspect of the matter completely overlooked by the learned authorities. Indeed none of the three learned authorities under the Act have at all examined the recitals in the deeds, and the legal effect of the same. They have gone only by the mere date of registration which was just after 9.9.1970, which has no legal implications. Once the deed is registered, its effect dates back to the date of execution which in the present cases were prior to 9.9.1970.
16. It has been held by a Division Bench of this Court in Mahabir Prasad & others vs. The State of Bihar (1975 BBCJ 701: 1975 PLJR 338), that section 5(1) (iii) of the Act does not apply to bonafide transfers although made after 22.10.1959. Relying on the same, it has been held as follows in Prabhu Narain Singh vs. The State of Bihar (supra):
"7. It has been held by a Bench of this Court in the case of Mahabir Prasad v. The State of Bihar (1975 B.B.C.J. 701) (: 1975 PLJR 338) that section 5(iii) of the Act does not apply to bonafide transfers although made after 22nd October, 1959. It was 17 pointed out as follows:
"A mere reading of the section which is clear and unambiguous leads to the following conclusions:
(a) The transfers made prior to 22nd day of October, 1959 cannot be annulled under this provision. It is only transfers made after that date that are capable of annulment under the aforesaid provision.
(b) Annulment is possible only on existence of certain specified circumstances: They are:
(i) Where the transfer is benami or farzi;
(ii) Where the transfer has been made with the intention of defeating the provisions of the Act. Such intention must be present on the date of transfer;
(iii) Where the transfer is such as defeats the purposes of the Act.
It is only on existence of the conditions aforesaid that annulment is permissible under the Act"
17. It has been held as follows in Nanhak Singh vs. The Additional Collector of Bettiah (supra):
"3... The crucial question, therefore, that had to be determined was the question of possession. We, however, do not find any finding of the Additional Collector on this aspect based on evidence. It has been held by this court in several cases that mere report of the officer of the State is no evidence. In the circumstances, we think that the proper order in this case would be to remand these cases and to direct re-investigation of all the relevant matters 18 and the question of possession. If the transferees are in possession and the transactions are bona fide, there does not appear to be any reason why such transfers should be annulled."
(Emphasis added) It is thus evident that it will add to the validity of such alienations if it is found that possession of lands have passed on to the transferees. In the present cases, there are duly-sworn affidavits by concerned persons and responsible persons that possession of the lands in question have passed on to the transferees, an aspect of the matter clearly in their favour and completely overlooked by the learned authorities under the Act. There is no material at all on record pointing in a different direction.
18. It has been held by a Division Bench of this Court in Bachchan Singh vs. The S.D.O. (supra), that execution of several sale deeds on one day is not a factor to show Benami or farzi nature of the transaction, nor can under-valuation be a factor for such consideration. Paragraphs 5 and 6 of the judgment are reproduced hereinbelow:
"5. The first factor which has been taken into consideration is that six sale deeds have been executed on the same date, namely, 29.8.1962. It has to be noticed that when the sale deeds in question were executed there was no legal bar to the sale of raiyati land. The mere fact, that five transactions had been entered in one day is not, in our view a factor which could have been taken into consideration in finding out the benami or farzi nature of the transactions.19
6. The second circumstance taken into consideration is that consideration money in respect of these transactions are wholly inadequate. We have not been able to find any material on the basis of which this inference could be drawn. No evidence was adduced before the Subdivisional Officer to show as to what was the true value of the lands of the same quality as were transferred under the documents in question. In this connection we may usefully refer to a decision of the Supreme Court in Rukmanand Bairoliya Vs. The State of Bihar and others. In that case in exercise of powers under section 4(h) of the Act certain settlement was annulled. The ground for annulling the settlement was that the rate of rent fixed by the settlement in question was low. The conclusion was arrived at by the authorities under the Act without there being any material in support of the finding. The Supreme Court held that the factor which weighed with the authorities was thus on pure assumption and conjecture and could not be availed as basis for annulling the settlement. Since no material has been brought to our notice in support of the conclusion that the consideration in respect of transfers in question was low, we are of the view that this factor should not have weighed with the authorities in coming to the conclusion that the transfer was not bona fide."
(Emphasis added) In the instant cases, there is no material at all on record to show that the consideration money in the present cases is inadequate. The contrary view taken by the learned authorities is their Ipse Dixit.
19. It has been held by a Division bench of this Court in Haricharan Chamar and others vs. Kapilmuni Ojha and others [2008(2) PLJR 495), that in case of doubt or difficulty in enforcing the provisions of the Act, the Court shall lean in favour 20 of the land-holders because they are being deprived of their property to which they have had valid title. Paragraph 8 of the judgment is reproduced hereinbelow:
"8. In so far as the first contention is concerned, the issue has been considered by the learned writ court and we entirely agree with the conclusion and the reasons assigned therein. In the facts and circumstances of the case, we respectfully agree with the view taken by the learned writ court that this was of the own making of the respondent authorities who failed to place on record a fresh verification report, leaving no option with the learned writ court except to rely on the earlier report, the authenticity of which has never been in doubt. Law is well settled that in case of doubt or difficulty in enforcing the provisions of the Act, the Court shall lean in favour of land holders because they are being deprived of their property to which they have had valid title. The contention is rejected."
(Emphasis added) 19.1) I have held to the same effect in the case of Mahanth Brij Narain Das vs. The State of Bihar, 2004(1) PLJR 80. Relevant portion of the judgment is reproduced hereinbelow:
"...It may not be irrelevant to compare the aims and objects of the present Act in contradistinction of those of the Bihar Land Reforms Act. In so far as the latter is concerned, the intermediary rights were taken away of the persons who had no title to the property, whereas the aim and object of the present Act is to deprive the land-holder of their title to the property. In other words, it is confiscatory in nature and, in case of doubt or difficulty, the Courts would lean in favour of the land-holder."
20. The aforesaid situation has to be read with the three 21 alienations made by Sushil Kumar Verma which have consistently been upheld by the three authorities. We do not see any difference between the alienations of Sushil Kumar Verma on the one hand, and those of the two ladies, on the other. According to the learned authorities under the Act, the sale-deeds by the latter were registered after 9.9.1970, whereas those of Sushil Kumar Verma were registered prior to 9.9.1970. This distinction has no sanction in law, provided the sale-deeds were executed prior to 9.9.1970. We have held hereinabove that the title under the registered deeds of absolute sale in question passed to the transferee with effect from the dates of execution of the documents. We also note that the learned Additional Member did not carry out the remand order of the learned Single Judge in its true letter and spirit. The High Court had observed that the Board of Revenue shall, inter alia, consider the two aspects of the matter, namely, if the alienations by Sushil Kumar Verma were upheld, then how and why the alienations of the two ladies under identical circumstances have been annulled. The learned Additional Member has made passing reference of this issue without comparing and contrasting the two categories of alienations. The learned Additional Member has made one more error in faithfully carrying out the order of remand. Disagreeing with the view of the learned authorities under the Act, this Court had on the earlier occasion held that, in view of the 22 demise of Brijnandan Prasad Verma and Jashodanand Prasad Verma, Smt. Sarju Devi and Smt. Kanak Lata Verma had the right, title and interest with respect to the lands they had alienated. In other words, the learned Single Judge had directed the Board of Revenue to consider the effect of this proposition of law while considering the validity of the alienations made by them. We do not find any discussion in the impugned order in so far as this aspect of the matter is concerned.
21. The foregoing discussion leads us to the conclusion that the four registered deeds of absolute sale executed each by Smt. Sarju Devi and Smt. Kanak Lata Verma, eight registered sale deeds in total, were not farzi transactions, were not meant to defeat the aims and objects of the Act, were indeed bona fide alienations to meet genuine needs of the family, and beyond the mischief of section 5(1) (iii) of the Act. In that view of the matter, the right, title and interest with respect to the lands conveyed by the eight registered sale deeds stood conveyed to the transferees prior to 9.9.1970, and cannot be taken to be the lands of the land-holders on 9.9.1970. The same, therefore, go out of the reckoning for the purpose of calculating the surplus lands of the land-holders.
22. In the result, the writ petitions are allowed, the impugned order dated 7.3.2000 (Annexure-9), passed by the learned Additional Member, Board of Revenue, Bihar, Patna, in 23 Revision Case No.70 of 1997, Revision Case No.71 of 1997, Revision Case No. 72 of 1997, Revision Case No.73 of 1997, Revision Case No.74 of 1997, and Revision Case No.42 of 1998, is hereby set aside in the manner indicated hereinabove. The eight registered sale deeds, four each executed by Smt. Sarju Devi and Smt. Kanak Lata Verma, are hereby upheld, being valid alienations. In the circumstances of the case, there shall be no order as to costs.
(S K Katriar, J.) Patna High Court, Patna.
Dated the 5th day of August, 2011.
S.K.Pathak/ (AFR)