JUDGMENT
U.N. Sinha, J.
1. This application has been filed by three petitioners under Articles 226 and 227 of the Constitution of India, praying that an order passed by the Additional Member, Board of Revenue, Bihar, dated the 18th April, 1967 (Annexure G), in proceeding under Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act XII of 1962) may be quashed. In order to appreciate the relevant facts, stated hereinafter. Section 16(3) of this Act is quoted below:–
“Section 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 transferred, shall be entitled within three months of the date of registration of the document of 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;
Provided that no such application shall be entertained by the Collector unless the purchase-money together with a sum equal to ten per cent, thereof is deposited in the prescribed manner within the said period.
(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;
Provided that where the application is rejected, the co-sharer or the raiyat as the case may be, shall be evicted from the land and possession thereof shall be restored to the transferee and the transferee shall be entitled to be paid a sum equal to ten per cent. of the purchase-money out of the deposit made under Clause (i).
(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 he neglects or refuses to comply with the direction, the procedure prescribed in Order 21, Rule 34 of the Code of Civil Procedure, 1908 (V of 1908) shall be so far as may be, followed.”
2. The facts necessary for determination of this writ application are as follows: The petitioners had filed an application under Section 16(3) of this Act before the appropriate authority, mentioning that Srimati Urmila Devi, respondent No. 3 of this Court, had transferred 5 kathas 12 dhurs of land, described in schedule 1 of this application, by a sale deed registered on the 30th March, 1965, to three persons, namely, (1) Smt. Sarjug Kumari, wife of Jugal Potdar, (2) Smt. Nanheeyan Devi, wife of Ramcharitar Potdar, and (3) Smt. Parvati Devi, wife of Ram Agar Potdar. (The three ostensible vendees have been impleaded in this Court as respondents Nos. 4, 5 and 6 and their respective husbands have been impleaded as respondents Nos. 7, 8, and 9). The petitioners claimed that the vended properties may be transferred to them on the terms and conditions contained in the deed of sale. A copy of the registered deed was attached and it may be mentioned that the sale deed had been executed on the 25th March, 1965. A rejoinder to this application was filed by the three ladies and their husbands (Annexure B), substantially making out the following case. It was alleged in paragraph 5, quoted below, that, the three husbands of the three ladies had purchased the disputed properties by a sale deed dated the 25th March, 1965, for Rs. 1500/-, from Srimati Urmila Devi.
The details of the lands sold were also mentioned. Paragraph 5 of the rejoinder runs thus:–
“That the applicants have filed this case
and put their claim under Section 16(3)
of the Act over the lands described below
which the Opposite Party Nos. 4 to 6
have purchased by virtue of a registered
sale deed dated 25-3-65 for Rs. 1500/-
from Smt. Urmila Devi village Palidih
T. No. 4148 thana No. 305.
Khata Plot Area.
216 148 0-2-10
145 0-2-10
197 0-0-12.”
It was alleged, further, that on the eastern boundary of plot No. 148 Jangal
Potdar, Ram Charitar Potdar and one
Sukhdeo Potdar had land in plot No. 459
by settlement. It was contended, there
fore, that plot No. 148 could not be the
subject-matter of a proceeding under
Section 16(3) of the Act. So far as plot
No. 145 was concerned, it was alleged,
that, ‘the Opposite Party’ had also lands
adjoining this plot and so plot No. 145
also could not be the subject-matter of
this proceeding.
Similarly, It was alleged, that, ‘the Opposite Party’ had some land adjoining plot No. 197 also, and, therefore, this plot also could not be the subject-matter of a proceeding under this Act. It will be necessary to quote here paragraph 12 of the rejoinder, dealing with plot No. 197, for reasons to be clarified later on. That Paragraph runs thus:–
“12. That plot No. 197 is in the eastern and northern boundary of plot No. 195 Khata No. 222 which is the land of the opposite party. The name of the opposite party Jangal Potdar is recorded in the landlords’ Sherista and also in the sherista of the Anchal the opposite party pays and and (sic) gets rent receipts from the State of Bihar having its jamabandi No. 2 in which land of plot No. 145 is also included.”
Various allegations were made as against the applicants under Section 16(3) of the Act with respect to their claim to be rai-yats of the adjoining lands. The prayer made in the rejoinder petition was to the effect that the parties filing the rejoinder may be restored to possession, after rejecting the application filed under Section 16(3) of the Act.
3. By order dated the 21st June, 1966, the Additional Collector of Monghyr allowed the application filed under Section 16(3) of the Act, directing that the disputed lands be conveyed to the applicants (Annexure C). This order was confirmed by the Commissioner of Bhagalpur Division by his order dated the 26th December, 1966 (Annexure E). Thereafter, the impugned order was passed by the Additional Member, Board of Revenue, on an application filed by the three ladies and their husbands jointly under Section 32 of the Act. The learned Additional Member has set aside the orders passed by the two authorities mentioned above.
4. The point on which this writ application can be decided is the question as to who had purchased the disputed properties — the three ladies mentioned in the sale deed or their husbands. This point had been urged before the learned Additional Member of the Board of Revenue and he has dealt with it thus:–
“Finally, it was urged on behalf of the petitioners that they did hold land on the boundary of the plots in question; and that it was wrong to assume that the land adjacent to plot 197 only was in their possession. On this point, it was submitted on behalf of the opposite parties that the original sale deed had sought to convey the land in favour of petitioners 1, 2 and 3 before the Board who were wives of petitioners 4, 5 and 6 before the Board. It was submitted that the property of the wife was, under the Hindu Law, meant for her benefit; and that her husband’s interest in his own land would not form the basis of a claim on her own part as regards interest in adjacent land. The Board’s attention was drawn to AIR 1965 SC 271 and to 1965 BLJR (sic) in this connection. But whether the purchase of land by a wife was a benami transaction on the part of her husband, would entirely depend on the result of an examination of relevant facts. There has been no such examination in the present case in respect of the purchases made by petitioners 1, 2 and 3.”
5. Learned counsel for the petitioners has argued that the sale deed in question states that the disputed properties had been sold to the three ladies, and even if their husbands were raiyats of the adjoining lands, the ladies must be compelled to transfer the disputed lands in favour of the petitioners, if they themselves are neither co-sharers of the transferred lands, nor are they raiyats of adjoining lands. So far as the petitioners are concerned, reference is made to paragraph 3 of the writ application where the petitioners have mentioned their interest in the adjoining lands, a fact which is said to have gone unchallenged in this Court.
Learned counsel for the petitioners has also referred to the case of Kankarathanammal v. V.S. Loganatha Mudaliar, AIR 1965 SC 271, and to the case of Hazaribagh Mica Mining Co. Ltd. v. Ashalata Kapoor, AIR 1952 Pat 61, urging that when the husbands had not proved that they were, in fact, the purchasers of the disputed lands, the petitioners’ application under Section 16(3) of the Act should not have failed. Learned counsel for opposite parties Nos. 4 to 9 has referred to paragraph 5 of the rejoinder, quoted above, and has argued that the husbands had purchased the disputed properties from Srimati Urmila Devi, in the name of their wives, who were really Banamdars and, therefore, the husbands were justified in contesting the application for re-transfer as raiyats of adjoining lands. Having heard the learned counsel for the parties. I am of the opinion, that, the main contention urged on behalf of the petitioners must prevail, on the facts and circumstances of the case and the order of reconvevance passed in favour of the petitioners had rightly been made under Section 16(3) (iii) of the Act. The ladies had not proved that they were either co-sharers of the vended lands or that they were raiyats of the adjoining lands and, therefore, the Additional Member of the Board of Revenue had erred in reversing the orders passed by the authorities subordinate to him. It will be necessary to refer to an aspect of the matter which has been mentioned by the Bench in its order dated the 16th
April, 1969, referring the case for decision by a larger Bench. It has been mentioned that according to the order of the first authority, dated the 21st June, 1966, “it was admitted by the pre-emptor that the transferee had his land on the boundary of one of the three plots transferred by the sale deed in question”. I do not think that the learned Chief Justice and Wasiuddin, J., meant to say that, without any doubt the ladies had land on the boundary of the three plots in dispute. In this context, paragraph 12 of the rejoinder, quoted above, may be considered. It is obvious that by that paragraph, the husbands, or at least, one of the husbands, namely, Jangal Potdar had claimed to be raiyat of the land adjoining plot No. 197. The Additional Collector while passing his order must have had this fact in mind when he referred to the so-called admission by the preemptors, that, the transferee was on the boundary of one of the three plots namely, plot No. 197, conveyed by the sale deed in question. So far as the present petitioners are concerned, the learned Commissioner had found that they were raiyats of the adjoining lands and the learned Additional Member of the Board of Revenue has not held otherwise. On the general question of a Benami transaction, raised by learned counsel for the contesting respondents, it is enough to state that the matter had not been urged before the Additional Collector and the Commissioner, and the learned Additional Member of the Board of Revenue has not decided the question, and so it is not necessary to deal with this matter at this stage. In view of the fact that this application is being allowed on the grounds stated above, it is no longer necessary to deal with the point formulated by the Division Bench, referred the case to a larger Bench.
6. In the result, the order passed by the Additional Collector, Monghyr, dated the 21st June, 1966 (Annexure C) and that of the Commissioner, dated the 26th December, 1966 (Annexure E) must be taken to be valid orders and a writ of Certiorori must issue, quashing the order of the Additional Member, Board of Revenue, Bihar, dated the 18th April, 1967 (Annexure G). In the circumstances of the case, parties are directed to bear their own costs of this Court.
6-A. MISRA, C.J.: I agree to the order proposed. The reference to the Full Bench was occasioned mainly to consider the soundness of the view expressed by a Division Bench of this Court in Ram Chabila Singh v. Ramsagar Singh, 1969 BLJR 203. My learned brother has thought it proper not to answer the question formulated because he has accepted the finding of fact that the preemptors had land all round the three vended plots, being portions of plots Nos. 145 and 148 and plot No. 197 (whole). The petitioners, Ram Jiwan Singh and others, claimed as preemptors of these three plots which were sold in favour of the opposite party, Mt. Sarjug Devi, Mt. Naniha. Mt. Parwati and their husbands, Jhangal Poddar, Ramcharittar Poddar and Ram Sagar Poddar. The learned Additional Collector and the Commissioner, Bhagalpur Division, allowed the claim of the preemptors on the ground that they had land near the disputed plots and the purchasers did not have any such land near these plots. The learned Additional Member, Board of Revenue, however, allowed the revision application filed by the purchasers on certain technical grounds. The Division Bench decision, however, which occasioned the reference, as I gather from the Supreme Court Department, is the subject-matter of an appeal in the Supreme Court.
Accordingly, it may not be necessary to answer the question formulated at this stage. As for the nearness of the land of the purchasers to plot No. 197, the finding of the Commissioner is not that they had no land in the neighbourhood of plot No. 197 but that the preemptors had land which was nearer to plot No. 197, plot No. 198 belonging to the preemptors is contiguous to plot No. 197 and plot No. 195, which also adjoins plot No. 197, however, was in possession of the purchasers. The learned Commissioner, therefore, went upon the closer proximity to plot No. 197 of plot No. 198 than plot No. 195. In that view of the matter also, this application can be disposed of only upon the finding of proximity. The pronouncement of the Supreme Court in the appeal filed is likely to settle the question.
S.N.P. Singh, J.
7. I agree.