Patna High Court
Narendra Kumar Ghose And Anr. vs Sheodeni Ram And Ors. on 3 February, 1971
Equivalent citations: AIR1972PAT1, AIR 1972 PATNA 1, ILR (1971) 50 PAT 656 1971 BLJR 528, 1971 BLJR 528
Author: N.L. Untwalia
Bench: N.L. Untwalia
JUDGMENT Untwalia, J.
1. Feeling aggrieved by the order dated 4-5-68 of the Additional Member, Board of Revenue, Bihar, passed in case No. 28 of 1968 in a case under the Bihar Land Reforms (Fixation of Ceiling Areas and Acquisition of Surplus Land) Act, 1962, hereinafter called the Act, the petitioners have obtained a rule from this Court under Articles 226 and 227 of the Constitution of India against the respondents to show cause why the order aforesaid be not called up and quashed and why an appropriate order be not made. Cause has been shown by respondent No. 1 who alone is interested in the matter.
2. The petitioners' case is that Narendra Kumar Ghose, petitioner No. 1, is a raiyat in village Phulwaria Tajpur, police station Pipra in the District of Champaran. Parasnath Sinha, petitioner No. 2, is claimed to be a friend of petitioner No. 1. The latter's case is that he purchased for a sum of Rs. 6,000/- 14 kathas, 5 dhurs of land comprised in plot No. 2261, khata No. 152 in village Phulwaria Tajpur. He claims further that he is an adjacent raiyat of the plot purchased by him holding land on its boundary on three sides, i.e., North, East and West. In order to save the land from a claim of his brother, he purchased it benami in the name of petitioner No. 2.
3. On the 15th September, 1966 respondent No. 1 filed an application under Section 16 (3) of the Act claiming pre-emption as being the adjacent raiyat of the land transferred. In that application, petitioner No. 2 naturally was impleaded as the sole opposite party. He, however, took the plea
--and filed affidavit in support of that plea
-- that he was the benamidar of Narendra Kumar Ghose in whose favour during the pendency of that case he had executed a ladabi deed also on the 5th of December, 1966. Since Narendra Kumar Ghose was also an adjacent raiyat of the land transferred, rather, according to his case, he was on three sides, it was asserted -before the Sub-Divisional Officer who exercised the power of the Collector --under the Act in the first instance that no" order of pre-emption could be made in favour of respondent No. 1 as in terms of the Statute such an order cannot be made against a transferee who himself is an adjacent raiyat of the land transferred. The Sub-Divisional Officer, by his order dated 19-7-67, a copy of which is Annexure 7 to the writ application, allowed the pre-emption. I am constrained to observe that he did so by a cryptic order without deciding the necessary questions which he was enjoined to decide under the Act and the Rules framed thereunder; not only that, he committed a gross error of record in saying in his order that the plea of the opposite party (Parasnath) was that he was no longer in possession of the land since he had transferred it to one Narendra Kumar Ghose by registered sale deed dated 5-12-66. It was not so.
On that date only a ladabi deed had been executed, which means that Parasanath by that document had recognised that the real owner of the property was Narendra Kumar Ghose. Under that wrong impression that the subsequent sale deed executed by Parasnath cannot defeat the claim of pre-emption made by respondent No. 1, he allowed the latter's application. Parasnath went up in appeal and his appeal being Revenue Appeal Case No. 121 of 1967-68 was allowed by the Additional Collector, Motihari, by his order dated 16-1-68 (Annexure 8). In this order, he referred to the affidavits and petition filed by Jagdeo Ram, one of the vendors, the other vendor being Ramdeo Ram, respondent No. 3, his brother, showing that the land really had been transferred to Narendra Kumar Ghose who had paid the consideration money. Relying upon these materials, the Additional Collector held that Narendra Kumar Ghose was the real owner and set aside the order of the Sub-Divisional Officer. Sheodeni Ram, respondent No. 1, went up in revision before the Board of Revenue. A copy of the Board's order dated 4-5-68 is Annexure 9 to the writ application. In this order, the learned Additional Member, while allowing the revision application, has stated that the case was filed on 17-9-66 and the ladabi deed came into existence in December, 1966. He further observed that--
"If Shri Narendra Kumar Ghosh has claim over the disputed land, it is for him to settle the matter in a competent civil Court. Reliance cannot be placed on the benami transaction and the ladavi deed. The petitioner got possession of the land from Paras Nath Sinha as a result of the orders passed by the learned Sub-Divisional Officer on 19-7-1967."
On the basis of the order of the Sub-Divisional Officer directing Parasnath Sinha to give possession of, and to convey, the land to Sheodeni Ram, he seems to have held that the land was in possession of Parasnath and he could not give delivery of possession of the land to the petitioner before him if actually it was not in his possession. It seems to me, therefore, that at one place the learned member, Board of Revenue, refused to go into the question of benami and at another he seems to have decided one ingredient of such a transaction, namely, the question of possession. Narendra Kumar Ghose and Parasnath Sinha have, as stated above, come to this Court.
4. It seems to me that it is competent for the revenue authorities under the Act to go into the question of benami if such a question is raised before them. Benami transactions are so well recognised and in vogue from time immemorial in India that it is difficult to infer from any provision of the Act that a benami transaction has been done away with by the Act in Bihar. Section 16 (1) says--
"No person shall, after the commencement of this Act, either by himself or through any other person, acquire or possess by transfer, exchange, lease, mortgage, agreement or settlement any land which together with the land, if any, already held by him exceeds in the aggregate the ceiling area," (underlining is mine). The base is, therefore, on a person who wants to acquire or possess land by transfer within the meaning of that section not to acquire an excess area beyond the ceiling area even benami in the name of, or through, any person. Of course, under Sub-section (2) there is an inhibition on the registering authority not to register a document of transfer unless a declaration in writing duly verified is made and filed by the transferee before the registering authority under the Indian Registration Act, 1908 as to the total area of land held by him. Here, one may think that the declaration is to be made by the ostensible transferee although while making such declaration he can include in it not only the land held by himself but also the land held by him through any other person anywhere in the State. If benami transactions are recognised even after the passing of the Act, one may think that it will give a handle to the real transferee to circumvent the rigour of the law engrafted in Sub-section (2) of Section 16 of the Act. But such a fraudulent act of the real transferee can be amply checked and controlled by taking recourse to the provision of law contained in Section 17 of the Act. If any person has acquired land in excess of the ceiling area benami in the name of some person the land can be forfeited to the State under the provision of law contained in Section 17.
5. Coming to the provision of Sub-section (3) of Section 16, it would be noticed that 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, a co-sharer or a tenant holding land adjoining the land transferred can claim pre-emption. I see no reason to interpret the word 'transfer' in Sub-section (3) meaning transfer in favour of a person who has been shown as a transferee in the document of transfer. It is a well recognised principle of law in India that transferee would mean the real transferee whether he is shown in the document as a transferee or not.
6. The question, however, arises as to whether it is incumbent upon the Collector to decide such a question of benami if it is raised before him by a person proceeded against under Section 16 (3) of the Act. Answer to this question would necessarily depend upon the correctness of the view of the Board of Revenue as to whether a real owner can go to the civil court for redress of his grievance in respect of the land transferred.
7. I may here refer to the well-known proposition of law from a decision of the Privy Council in Gur Narayan v. Sheolal Singh, (AIR 1918 PC 140), wherein it has been held at page 143 (Column 1)--
"The bulk of judicial opinion in India is in favour of the proposition that in a proceeding by or against the benamidar, the person beneficially entitled is fully affected by the rules of res judicata. With this view their Lordships concur. It is open to the latter to apply to be joined in the action; but whether he is made a party or not, a proceeding by or against his representative in its ultimate result is fully binding on him. In case of a contest between an alleged benamidar and an alleged real owner, other considerations arise with which their Lordships are not concerned in the present case."
Applying the said principle for interpretation of Section 43 of the Act, it would be noticed that if an application under Section 16 (3) of the Act is allowed under Clause (iii), it would be binding on the real owner if the question of benami was not raised by the ostensible owner, or, if raised, it was decided against him or the real owner. Such a decision being binding on the real owner, it seems to me that if the question is raised then it is a question which is, by or under the Act, required to be settled, decided or dealt with by the Board of Revenue, the appellate authority or the Collector within the meaning of Section 43 of the Act, which bars the jurisdiction of the Civil Court in regard to a question which falls to be decided by the revenue authorities. I do not find any escape from the view I have expressed above that an order under Section 16 (3) of the Act made against an ostensible transferee would be binding on the real transferee. That being so, if the question is raised by the ostensible transferee that he is not the real owner of the property but the real owner is somebody else, it is in the discretion of the Collector to add that person as party to the proceeding and decide the question in his presence or to decide it even without adding him as a party; in either event the decision will be binding on the real owner. It is plain that the real owner will be debarred under Section 43 of the Act from going to the civil court to claim recovery of possession of a property which has been directed to be transferred to the pre-emptor under Section 16 (3) of the Act. The language of Sub-section (2) of Section 17 would also indicate that the real owner in occupation of the land is also liable to be ejected by the Collector if action is taken under Section 17 of the Act. I am, therefore, of the opinion that it was necessary for Board of Revenue to decide this question of benami within the ambit of its revisional powers when the point had been decided by the Additional Collector in appeal. Its view that it was open to Narendra Kumar Ghose to lay his claim over the disputed land in a Civil Court is not correct. It is not open to him to do so.
8. The learned Additional Member, Board of Revenue, seems to have held Parasnath to be in possession of the land transferred merely because on paper the order to deliver possession was passed against him which order was executed against Parasnath as if he were the transferee who had to deliver possession to Sheodeni Ram. I may indicate here that that by itself could not prove that Parasnath was in actual, physical possession of the land. Even if he was not so an order against the ostensible owner being binding on the real owner can be executed and possession can be delivered to the person in whose favour the order to deliver possession was made irrespective of the fact as to who actually was in physical possession of the land.
9. Mr. S.C. Ghose, learned Counsel for respondent No. 1, apart from the other points which have been dealt with above, also submitted that there is no procedure under the Act or the Rules, framed thereunder to decide a question of benami in a case filed under Section 16 (3) of the Act. I do not accept this contention as sound. Rule 19 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Rules, 1963 provides for the procedure of filing and disposal of application filed under Section 16 (3), Sub-rule (4) of which says--
The Collector shall issue a notice to the transferor, the transferee, and the applicant to appear before him, on a date to be specified in the notice and after giving cause, if any, and of being heard shall, by an order in writing, either allow the application in accordance with Clause (iii) of Sub-section (3) of Section 16, or reject it." If this procedure is comprehensive enough, as undoubtedly it is, to go into disputed questions of fact as to who is the co-sharer and who is the adjacent raiyat, in my opinion, it is wide enough to take within its sweep the question of benami if it is raised before the Collector. On such evidence as may be produced before him or as may be permitted by him to be produced, he is competent to decide this question.
10. For the reasons stated above, in exercise of the powers of this Court under Article 227 of the Constitution of India, I set aside the order dated 4-5-68 (Annexure 9) of the Board of Revenue, Bihar and remit the case back to it for a fresh decision of Case No. 28 of 1968 in accordance with law in the light of observations made above. The application is, accordingly, allowed but there will be no order as to costs.
Sarwar Ali, J.
11. I agree.