JUDGMENT
S.K. Choudhuri, J.
1. These four writ applications have been heard together and are being disposed by a common judgment as the facts are similar and the points involved are common.
2. All these writ applications arise out of a common order passed by the Additional Member, Board of Revenue, respondent No. 1 dated 18-9-1975 disposing of four revision applications. By the said order the member allowed all the revision applications after holding that the applications for pre-emption filed under Section 16 (3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act 12 of 1962) (hereinafter called the Act) were not maintainable in the absence of the subsequent transfer.
3. One Kadam Lal Yadav is the petitioner in all these writ applications who filed four pre-emption applications under Section 16 (3) of the Act, all on 14-11-1969 claiming the said right against the original transferees. Respondents Nos. 1 to 4 in each of the writ applications are the revisional, appellate and the original authorities under the Act. These four applications gave rise to four cases which were separately numbered. The first transferee has been shown as respondent No. 5 in each of the writ applications. The first sale deeds in all the cases were executed on 9-10-1969. The property conveyed under the said sale deeds have been described in para 2 of each of the writ applications. The vendor was one Roshan Rai. predecessor-in-interest of respondents 6 and 7 of each of the writ applications and one Kashim Rai who has been made respondent No. 8. The sale deeds executed on 9-10-1969 were registered on 29-10-1969.
4. In C. W. J. C. 3342 of 1974 and C. W. J. C. 3345 of 1975 the second sale deed conveying the property covered by
the first sale deed was executed by the first transferee on 7-11-1969 in favour of Bishundeo Yadav who has been made respondent No. 9 in each of these two writ applications. The registration of the sale deed was completed on 16-12-1969.
In C. W. J. C. 3343 and 3344 of 1975 the first transferee executed sale deeds on 13-11-1969 which were registered on 14-1-1970.
5. The petitioner’s case put forward in the pre-emption application was that the original transferee, respondent No. 5 was neither a co-sharer nor an adjoining raiyat whereas the petitioner is a co-sharer and adjoining raiyat with regard to the property conveyed under the sale deed registered on 29-10-1969 and is entitled to re-conveyance of the land from the original transferee. The Deputy Collector. Land Reforms, respondent No. 4 issued notice to the transferors and the first transferee. After notice the transferors appeared and filed a petition stating that they had ceased to have any interest in the lands in question and therefore not necessary parties. In the show cause filed by the first transferee, respondent No. 5 it was stated that he has already transferred the lands in question to respondent No. 9 and the application for pre-emption was premature. Having come to know of the second transfer from the show cause filed by the original transferee four separate applications were filed in each of the four pre-emption cases for adding the subsequent transferee as a party on the ground that he had no knowledge previously about the subsequent transfer and that the said transfer is collusive, sham and farzi. created to defeat the purpose of the Act, Respondent No. 4 by his order dated 25-5-1970, rejected all the 4 petitions and a copy of the order has been made Annexure 2 to each of the writ applications. Therefore respondent No. 4 dismissed the pre-emption cases by a common order dated 20-6-1970, a copy of which has been made Annexure 4. Accordingly four appeals were filed which were allowed by common order dated 17-11-1971 (Annexure 5). Thereafter four revision applications were filed before the Board of Revenue whch were heard by the Additional Member who was pleased to allow the applications by a common order dated 18-9-1975 contained in annexure.
6. Mr. Kailash Roy, learned Counsel appearing in support of all these writ applications contended that in the facts
and circumstances of the case the subsequent transferee who has been mada respondent No. 9 should have been allowed to be added as party by the Board of Revenue as the petitioner had no knowledge of the subsequent transaction but came to know of the same only from the show cause filed by the first transferee in the original court. Learned Counsel, therefore contended that it was a fit case where respondent No. 9 should have been allowed to be added as party respondent and the Board would have been justified in remanding the case for a fresh decision in accordance with law. Mr. Parmeshwar Pd. Sinha, learned Counsel who opposed these applications, on the other hand, contended that the pre-emption applications having been directed against the first transaction, the Board of Revenue was fully justified in allowing the revision applications on the ground that the pre-emption application were not maintainable in the absence of the subsequent transferee.
7. In support of the contention put forward by Mr. Roy he relied upon a Bench decision of this Court in Ram-chandra Yadav v. Anutha Yadav, (1971 BLJR 994). According to the learned Counsel this decision on all fours applies to the present case and according to the principle laid in that case that if the petitioner had no knowledge of the second transaction he should have been allowed to make him a party in the proceeding instead of rejecting the application under Section 16 (3) of the Act. Learned counsel drew our attention to the fact that when the pre-emption application were filed the second transfer deed was not registered and therefore they could not have any knowledge of the second transaction though they were executed prior to the filing of the pre-emption application. I have already disclosed above the different dates of the transactions. In two of the cases only one day before the filing of the pre-emption applications the second deeds were executed whereas in the other two cases they were executed only one week before. In my opinion, therefore, Mr. Roy was right in contending that the petitioner had no knowledge of the execution of the second deeds when the pre-emption applications were filed. It is true that the view taken by the Board that on registration of the second deeds of title would actually relate back to the date of execution under Section 47 of the Indian Registration Act, 1908
and therefore the subsequent transferee was a necessary party is correct. There-fore the question is as to whether in the facts and circumstances of the case the subsequent transferee namely respondent No. 9 should be allowed to be added as party and the case should be decided afresh in their presence.
8. In Ramchandra Yadav’s case (supra) a day prior to the filing of the application under Section 16 (3) of the Act the second deed was executed though it was registered later. It has been pointed out that under Section 47 of the Indian Registration Act the title on registration would relate back to the date of execution. The question raised in that case was as to whether in such circumstances a person claiming the right of pre-emption could proceed with his application in the absence of the subsequent transferee. It has been stated in that case that mere purport” ed execution of the document may not be sufficient to defeat the application under Section 16 (3) of the Act, If the execution was made before the application for preemption was filed claiming the right of re-conveyance of the property conveyed under the first deed in favour of the original transferee, though registered later on, the application under Section 16 (3) of the Act will fail because the registration relates back to the date of execution. It has been further held that if however it is found that the document was antedated and that it was, as a matter of fact, after the filing of the pre-emption application executed by the subsequent transferee by ante-dating the sale deed the right of pre-emptor under Section 16 (3) cannot be defeated nor can ft be defeated if the sale deed was farzi. After discussing the law aforesaid in that case and pointing out the circumstances of that case and indicating the uncertainty in the position of law their Lordships in exercise of their discretion did not feel inclined to deny the opportunity to the petitioner of that case to substantiate his claim in regard to the second sale deed. Accordingly, their Lordships allowed the writ application and remitted back the case to the first authority for retrial after giving an opportunity to the petitioner to implead the subsequent transferee as party in the application filed under Section 16 (3) of the Act. Question of limitation was not relevant for decision in the circumstances of the case.
It is not necessary to refer in detail to the other decision cited by Mr. Roy
namely AIR 1973 Pat 199 (Smt. Sudama Devi v. Rajendra Singh). Suffice it to say that the same principle pointed out in Ramchandra Yadav’s case (1971 BUR 994) (Supra), has been laid down in this case also after discussion of relevant decisions.
9. Mr. Parmeshwar Pd. Sinha, however, in support of his contention relied upon a Bench decision of this Court in Abdullah Mian v. Jodha Rout, (1976 BBCJ 649 3 (AIR 1977 NOC 120), but that case is clearly distinguishable as the pre-emption application was filed in that case after the registration of the second transfer was complete and therefore in that case the principle that the title on registration relating back to the date of execution under Section 47 of the Indian Registration Act did not arise, It appears from the judgment of that case that though the fact of the second transfer was mentioned in the pre-emption application itself still the second transferee was not made a party and the pre-emption application was not directed against the second transferee. Under those set of circumstances it has been held in that case that the second sale deed having been registered before the application under Section 16 (3) of the Act was filed, it should have been directed against the second transaction making the petitioner of that case a party to the proceeding who was the second transferee. Under those set of circumstances the petitioner of that case (who was the second transferee) was not allowed to be made party on the ground that the application under Section 16 (3) of the Act had become barred long ago against the petitioner (of that case). Therefore, in my opinion, this case does not support the contention put forward on behalf of the respondent.
10. For the reasons stated above and special circumstances pointed out above I am of the opinion that after following the case of Ramchandra Yadav (1971 BL JR 994) (Supra), the subsequent transferee should be allowed to be added as a Party in the proceeding and the proceeding should be decided afresh by the authority.
11. An objection was raised by Mr. Parmeshwar Pd. Sinha that the Member of the Board of Revenue having found that the lower appellate court was not Justified in recording a finding of benami nature of transaction with regard to the second transfer deeds, the law applicable on the subject has been rightly applied
by it. It is true that the Board has stated that the finding of the lower appellate court regarding benami nature of the transaction was not satisfactory and was based on insufficient materials but Mr. Kailash Roy pointed out that Benami nature of transaction was not raised in the applications under Section 16 (3) of he Act by the petitioners. There what was pleaded was that the subsequent transactions were collusive, sham and farzi and executed in order to defeat the provision of Ceiling Act. Learned Counsel, therefore, contended that the authorities contused fraudulent and sham nature of the transaction with that of Benaml According to the learned counsel the authorities should have given a finding on the sham nature of transaction instead of entering into Benami character whose ingredients are different. It appears that the submission of Mr. Roy is well founded and therefore, the petitioner should get an opportunity to support his allegation regarding the sham nature of the subsequent transfer.
12. For the reasons stated above all the four writ applications are allowed, the Judgments of the authorities contained In annexures 2, 4 and 5 are quashed and all the four cases are remanded to the original authority which will give opportunity to the petitioner to add the subsequent transferee, who has been made respondent No. 9 to each of the writ applications, as party to each of the proceedings and after notice decide all the four cases in accordance with law.
There will however be no order as to
costs.
Sarwar Ali, J.
13. I agree,