IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.424 of 2009 1(i) DUKHNI DEVI, Wife of Late Yadu Nandan Prasad Yadav 1(ii) Pintu Yadav @ Vijay Kumar Yadav, son of late Yadu Nandan Prasad Yadav 1(iii) Chintu Yadav, son of late Yadu Nandan Prasad Yadav 1(iv) Mahadevi Devi, wife of late Yogendra Prasad Yadav 1(v) Mukesh Kumar, son of late Yogendra Prasad Yadav 1(vi) Laloo Kumar Yadav, son of late Yogendra Prasad Yadav 1(vii) Kanchan Kumari, D/o late Yogendra Prasad Yadav 1(viii) Gunjan Kumari, D/o late Yogendra Prasad Yadav, Applicant Nos. 5 to 8 are minor under guardianship of his mother namely Mahadevi Devi, all resident of Mohalla Bhirkhi Utarwari, Post & P.S. Madhepura, District Madhepura … Appellants Versus 1. THE ADDL.MEMBER, BOARD OF REVENUE, BIHAR, PATNA 2. The Collector, Madhepura, at & P.S. Madhepura, District Madhepura 3. The Deputy Collector, Land Reforms, Madhepura, At & P.S. Madhepura, District Madhepura 4. Ram Sevak Mahto, son of Sarjug Mahto, resident of Mohalla Bhirkhi Uattarbari, P.O. & P.S. and District Madhepura … Respondents/Respondents 5. Jagdish Mandal, son of Lakshman Mandal, resident of Mohalla Bhirkhi Uattarbari, P.O. & P.S. and District Madhepura … Petitioner/Respondent. ----------- For the Appellants: Mr. Surendra Kishore Thakur,Adv. For respondent no.5: Mr. Lala Sachindra Kr.,Adv. ----------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (9.4.2010) As per Mihir Kumar Jha,J. Heard counsel for the appellants as also 2 counsel for the contesting respondent no.4. 2. In this intra-Court appeal the appellant has assailed the order dated 10.5.2007 passed by the learned Single Judge in C.W.J.C.No. 5129/1989, whereby and whereunder the writ application filed by respondent no.4 assailing the revisional order of the Additional Member, Board of Revenue dated 12.4.1989 has been allowed and consequently the application of pre-emption filed by respondent no.4 has also been allowed. 3. In order to appreciate the issues involved in this appeal it would be necessary to take into account the admitted facts which in fact lie in a very narrow compass. 4. By virtue of a sale deed dated 7.2.1981 a piece of land measuring 1 Bigha in old Plot No. 35, Khata No. 33, corresponding to new plot No. 155, Khata No. 267 was purchased in the name of Alodhini Devi by the deceased appellant (since substituted by her legal heirs) for a consideration money of Rs. 3,000/- and after completion of registration on 18.3.1981 while she had come in possession, an application for pre-emption under section 16(3) of the Bihar Land Reforms (Fixation of 3 Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as „the Act‟) was initiated by respondent no.4- writ petitioner by filing an application on 27.5.1981 on a claim of his being adjacent raiyat by virtue of having purchased 60½ Kathas of land through registered sale deed dated 6.7.1972 in the same plot no. 35, Khata No.33 and a specific assertion that the original appellant, the purchaser was not an adjacent raiyat. The application for pre-emption filed by respondent no.4- writ petitioner was allowed by an order dated 27.5.1981 passed by the D.C.L.R., Madhepura, wherein the claim of respondent no.4- writ petitioner was upheld and the plea of the appellant that she being herself an adjacent raiyat by virtue of being co-sharer in plot No.44, Khata No.50, corresponding to new plot no. 150, Khata No. 292 was rejected. The D.C.L.R. had held that the appellant was a real purchaser and that the land of Plot No. 44, Khata No.50 did not belong to Ramji Yadav, the husband of the original appellant. 5. As against the aforementioned order of the D.C.L.R., Madhepura allowing the pre-emption application of respondent no.4- writ petitioner dated 4 30.9.1982 an appeal preferred by the original appellant being L.C.Appeal No. 24/1982 was also dismissed by the Collector of Madhepura District by his order dated 7.8.1985 affirming the original order passed by the D.C.L.R., Madhepura. The original appellant thereafter had filed a revision application in the Board of Revenue in Revision Case No. 279/1985 which was allowed by the Additional Member, Board of Revenue, by setting aside the order of the D.C.L.R. and the Collector allowing pre-emption in favour of respondent no.4- writ petitioner by holding that by virtue of the land held by the respondent of original appellant in capacity of co- sharer the original appellant being actually Benamidar of her husband was herself an adjoining raiyat of the land in question and therefore, there was no question of allowing the pre-emption application filed by respondent no.4- writ petitioner. 6. It is this order of the Additional Member, Board of Revenue, dated 12.4.1989 in Revision Case No. 279/1985 which was made subject matter of the connected writ petition, C.W.J.C.No. 5129/1989, which has been allowed by the learned Single Judge by his 5 impugned order dated 10.5.2007 giving rise to the present appeal. 7. Mr. Surendra Kishore Thakur, learned counsel for the original appellant, now sought to be represented by his substituted heirs and legal representatives has submitted that there is no dispute that the husband of the original appellant was holding land in plot no.44 which was adjacent to plot no.35 which was the subject matter of pre-emption case. In fact this aspect of the matter has been gone into by the Additional Member, Board of Revenue, in a graphic manner as would be evidenced from paragraph 4 of the revisional order which reads as follows: “4. Perusal of the village map shows that plot 35 is a big one and plot 44 is located in its south, khata of plot 44 is reported to be recorded in the name of Barju Dahiar. According to the DCLR, the petitioner‟s husband had no concern with this khata. On the record of the pre-emption case, there is one petition dated 15.8.82 filed by the petitioner‟s husband mentioning therein that Barju Dahiar‟s son was Mithu Dahier whose son Hari Dehier/Yadav was the father of Ramji Yadav, husband of the petitioner. This point has not been adequately dealt with the DCLR. There appears to be no reason to disbelieve the assertion of the petitioner‟s husband who appears to be holding plot 44. It is not uncommon for a person to purchase land in the name of 6 his wife. Therefore, the contention of the petitioner that she was a mere name-lender to her husband appears to be correct. OP 2, the pre-emptor claims to be the purchaser of a portion of plot in question, but in view of the possession of the petitioner‟s husband over the neighbouring plot, it is difficult to sustain the pre- emption claim. Copy of a „Not-Final‟ Khatiyan of the Revisional Survey of Madhepura Municipality in respect of now khata 32 shows that old plot 35 has been split into many new plots. Since neither new map nor the khatiyan of all the relevant new khatas has been produced, it is difficult to come to the conclusion that OP 2 is actually the boundary raiyat of the land in question. For a pre- emption claim to be successful, the pre-emptor has to prove his claim to be superior to that of the purchaser. Since OP 2 has not been able to do so, the claim fails.” 8. The concept of wives being name lender in India to the land purchased by their husband in the name of their wives is a well accepted position, inasmuch as even when the Parliament had enacted the Benami transaction (Prohibition) Act, 1988 (hereinafter referred to as „the Benami Act‟) with a view to prohibit Benami transaction and right to recovered property held Benami, Section 3 thereof provided, inter alia, that when a property is purchased by a person in the name of his wife there is a rebutable presumption that the property had been purchased for the benefit of the wife. In fact the legislature itself under section 3 of the Benami Act had 7 made it absolutely explicit and clear by providing that: 3. Prohibition of benami transaction.-(1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to- (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. (b) the securities held by a- (i) depository as a registered owner under sub- section (1) of section 10 of the Depositories Act, 1996; (ii) participant as an agent of a depository. (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable.” 9. Once this position from the provisions of Benami Act becomes clear there would be little left for us to approve the findings of either the D.C.L.R. or the Collector of the District which has been restored in the order of the learned Single Judge by setting aside the revisional order of the Additional Member, Board of Revenue, inasmuch as the consistent case of respondent 8 no.4- writ petitioner before the authorities as also before the learned Single Judge was that the original appellant was a real purchaser in her name and could not have been held to be Benamidar of her husband who had admittedly land by the side of the disputed plot purchased by the original appellant. It has to be kept into account that the provision of Benami Act could not have nullified the purchase made by the original appellant unless it was proved by respondent no.4, the writ petitioner that the said property had been purchased for the benefit of the original appellant only. 10. This aspect of the matter, however, when raised before the D.C.L.R. had illegally shifted the burden on the original appellant to prove that she was not the Benamidar of her husband, whereas the requirement of section 3 of Benami Act is just to the contrary. In this regard the whole approach of the D.C.L.R., the original authority, seems to be vitiated, inasmuch as he had allowed the pre-emption application of respondent no.4- writ petitioner by holding that the original appellant could not prove that she was the Benamidar of her husband. Unfortunately this aspect of 9 the matter was not at all gone into by the appellate authority who had passed a very cryptic and perfunctory order in one line recording that “he did not find any ground in the claim of the appellant”, inasmuch as respondent no.4- writ petitioner had land by the side of the disputed land. Consequently, the finding recorded by the Additional Member, Board of Revenue on scrutiny of materials on record being the last court of fact ordinarily ought to have been not disturbed by the learned Single Judge who in fact has not at all gone into this aspect, inasmuch as the only paragraph of the impugned order as with regard to his own finding is paragraph no.10 which is not only cryptic but also does not deal with the crucial issue in question. The learned Single Judge in fact has in paragraph 10 held as follows: “In light of the discussions made above, the unescapable conclusion is that the order of the Board of Revenue is bad and unsustainable in law. It is accordingly set aside and the orders of the D.C.L.R. and the Collector are restored.” 11. As noted above, in the earlier paragraphs of the impugned order only the case history and the submission of the parties were recorded and therefore, this Court finds it difficult to approve the 10 aforementioned cryptic conclusion of the learned Single Judge. 12. Mr. Lala Sachindra Kumar, learned counsel appearing on behalf of respondent no.4- writ petitioner had tried to support the order of the learned Single Judge by making his own submissions and also placing reliance on the judgment of this Court in the case of Ram Jivan Singh & ors. vs. the State of Bihar & ors., reported in 1969 PLJR 517. 13. In the opinion of this Court the judgment of Full Bench in the case of Ram Jiwan Singh (supra) would not at all be applicable, inasmuch as the question of Benami transaction was not gone into on the ground that such plea was never raised before the authorities under the Act. In this regard the Full Bench had itself held as follows: “ On the general question of a Benami transaction, raised by the learned counsel for the contesting respondents it is enough to state that the matter had not been urged before the Addl. 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. … … … …” 11 14. The Full Bench in the case of Ram Jivan Singh (supra) had decided the matter on the facts of the case only without touching the issue of wives holding Benami land of their husbands and therefore, the decision will be of no assistance to us. 15. As indicated above, the position in law would be entirely different, especially after enactment of Benami Act which makes the land held in the name of the wives to be excluded from the ambit of Benami transactions. 16. Thus, for the reasons indicated above, we allow this appeal, set aside the order of the learned Single Judge and restore the revisional order of the Additional Member, Board of Revenue by dismissing the writ application of the respondent no.4- writ petitioner. 17. There would be, however, no order as to costs. (Dipak Misra.C.J.) (Mihir Kumar Jha,J.) Patna High Court Dated the 9th April 2010 NAFR/Surendra/