SANJU PANDA, J. O.J.C. NO.13331 OF 2000 (Decided on 09.03.2011) PANIKA BHOI …. …Petitioner. .Vrs. KUNU BARIHA & ORS. …….. Opp.Parties. (A) TRANSFER OF PROPERTY ACT, 1882 (ACT NO.4 OF 1882) – S.41. (B) ORISSA LAND REFORMS ACT1960 (ACT NO.16 OF1960) – S.23. For Petitioner - M/s. N.C.Pati, A.K.Mohapatra, S.Mishra, S.Tripathy, N.Singh & A.K.Panda. For Opp.Party No.1. – M/s. Ajodhya Ranjan Dash & S.K.Nanda S. PANDA, J. The petitioner has filed this writ petition challenging the impugned orders in Annexures 4 to 6 passed by opposite parties 5 to 7 respectively under Section 23 of the Orissa Land Reforms Act (in short, “the OLR Act”). 2. The brief facts of the case are that basing on the report of A.D.W.O, Patnagarh, Revenue Misc. Case No.8/6 of 1994 was initiated before the Sub-Collector, Patnagarh under Section 23 of the Act. It was alleged that the disputed land originally belonged to Lochana Bariha, the grand-mother of opposite parties 1 and 2, who is a Scheduled Tribe. She transferred the same in favour of one Rohitaswa Bariha, who also belongs to Scheduled Tribe, by executing a registered sale deed dated 5.2.1974. Rohitaswa Bariha, in his turn, sold the land in question to Panika Bhoi, the present petitioner, by executing two registered sale deeds dated 5.7.1985 and 6.7.1985. However, opposite parties 3 and 4 Kairu Sahu and Rasika Sahu respectively are the real owners of the disputed land. They purchased the property Benami in the name of Rohitaswa Bariha as they do not belong to Scheduled Tribes. As the sale deeds were executed without obtaining permission from the competent authority, they claimed for restoration of the said property. In the said case, they did not implead the present petitioner as a party but subsequently the present petitioner was made a party on an application being filed by him. He filed his show cause. Opposite parties 3 and 4 filed their show cause taking a plea that they had neither purchased the property ever in the name of Rohitaswa Bariha nor had any interest in the disputed land. A false case had been foisted against them due to party-faction in the village. Rohitaswa Bariha had purchased the disputed property and executed the two sale deeds in favour of the present petitioner. The purchaser was in possession of the property in pursuance of the said registered sale deeds. The present petitioner being a third party purchaser filed his show cause stating therein that Lochana Bariha was the real owner of the disputed land and she transferred the property in the name of Rohitaswa Bariha on 5.2.1974. Both the vendor and the purchaser belong to Scheduled Tribe. Subsequently Rohitaswa Bariha transferred the disputed land by two registered sale deeds dated 5.7.1985 and 6.7.1985 in favour of the present petitioner. The present petitioner is also a Scheduled Tribe person. Therefore, prior permission was not necessary and from the date of purchase he is in possession of the property in question. 3. Opposite parties examined six witnesses in support of their claims. The present petitioner also examined six witnesses and filed certain documents i.e. registered sale deeds, current record-of-right which showed that the petitioner was in possession of the disputed land and some affidavits. Rohitaswa Bariha filed an affidavit supporting the case of oppositeparties 1 and 2. Subsequently he filed another affidavit supporting the case of the present petitioner. The Sub-Collector, without appreciating the matter in its proper perspective, relying on the affidavit filed by Rohitaswa Bariha passed the impugned order, under Annexure-4 on 27.3.1996 in favour of opposite parties 1 and 2. Against the said order, the petitioner filed OLR Appeal No.6 of 1996 before the Addl. District Magistrate, Bolangir who dismissed the appeal holding that the ROR of the current settlement showed that the name of Rohitaswa Bariha had been recorded in the remarks column as “in illegal possession”. The ROR would have been prepared in his name, had he been the real owner. Challenging the said order, OLR Revision No.21 of 2000 was filed before the Collector, Bolangir. The revisional authority also dismissed the revision holding that Rohitaswa Bariha was the Benamidar and the two contradictory affidavits filed by Rohitaswa Bariha created doubt regarding the proof of transfer of land through execution of a registered sale deed in the name of a Benamidar. Since the proceeding under Section 23 of the OLR Act is of summary nature and enquiry should be conducted before disposal to the full satisfaction of the Revenue Officer, the provision of Sections 91 and 92 of the Indian Evidence Act, 1872 cannot be taken into consideration in respect of the cases under the provisions of the OLR Act. Hence this writ petition. 4. Learned counsel appearing for the petitioner submitted that the impugned orders passed by the OLR authorities are vitiated for the reason that the said authorities, while passing the orders, did not keep in mind the essential ingredients of Benami transaction. Opposite parties 1 and 2 having failed to prove the ingredients of Benami transaction, their claim should have been dismissed by the OLR Authorities. Since the affidavits of Rohitaswa Bariha are oath against oath, the OLR authorities should have discarded the same as contradictory. The petitioner who is a Scheduled Tribe person purchased the disputed property and is in possession thereof as the real owner of the same. The claim of opposite parties 1 and 2 should have been rejected as the proceeding was initiated in the year 1994 in view of the provisions of the Benami Transactions (Prohibition) Act which came into force in the year 1988. Therefore, interference of this Court is warranted by quashing the impugned orders passed by the OLR authorities. In support of his contentions, he cited the decisions of the apex Court in the cases of Jaydayal Poddar through L.Rs and another v. Mst. Bibi Hazra and others, AIR 1974 SC 171 and R.Rajagopal Reddy (dead) by L.Rs and othrs v. Padmini Chandrasekharan (dead) by L.Rs., AIR 1996 SC 238 and the decision of this Court in the case of Sri Madan Mohan Das Babaji v. Brundaban Pal, (38) 1972 CLT 1323. 5. Learned counsel appearing for opposite party no.1 supporting the impugned orders submitted that the petitioner being third party to the transaction, the provision of the Benami Transactions (Prohibition) Act is not applicable to them and rightly the OLR authorities did not entertain the application and coming to a finding that the property was purchased Benami by opposite parties 3 and 4, it directed for restoration of possession of property to opposite parties 1 and 2. In pursuance of the said order, opposite parties 1 and 2 came to possess the disputed property on 30.6.2000. In support of his submission, he cited the decision of the apex Court in the case Gopal Bariha v. Satyanarayan Das and others, AIR 1991 Orissa 131. 2 6. Considering the above submissions of the parties, this Court has to determine the following questions; (i)Whether the Benami Transactions (Prohibition) Act, 1988 is applicable to the present proceeding?, and (ii)Can the OLR authorities restore back the properties evicting the present petitioner, who is a Scheduled Tribe person and is a bona fide purchaser, from the disputed property? 7. This Court, after perusal of the impugned orders passed by the Revenue authorities, finds the followings admitted facts: (a) The property originally belongs to the grand-mother of opposite parties 1 and 2 i.e. Lochana Bariha who belongs to Scheduled Tribe. She executed the sale deed on 5.2.1974 in favour of Rohitaswa Bariha. (b) Thereafter Rohitaswa Bariha executed two registered sale deeds dated 5.7.1985 and 6.7.1985 in respect of the disputed land in favour of the present petitioner-Panika Bhoi who is in possession of the disputed property. The proceeding under Section 23 of the OLR Act was initiated in the year 1994. (c) The ROR reveals the possession of “Rohitaswa Bariha”. 8. For better appreciation, Section 23 of the OLR Act is extracted below: “23. Effect of transfer in contravention of Section 22 – (1) In the case of any transfer in contravention of the provisions of sub-section (1) of S.22 the Revenue Officer on his own information or on the application of any person interested in the land may issue notice in the prescribed manner calling upon the transferor and transferee to show cause why the transfer should not be declared invalid.” 9. Opposite parties 1 and 2 filed an application to restore the possession of the disputed land as they are the legal heirs of the original owner-Lochana Bariha who belongs to Scheduled Tribe and opposite parties 3 and 4 purchased the property from their grand-mother Lochana Bariha illegally in the name of Rohitaswa Bariha. They filed their show cause taking a specific plea that at no point of time they purchased the property or they were in possession of the property; rather a false case had been foisted against them due to party-faction in the village. However, the present petitioner filed an intervention application before the OLR authorities. His application was allowed and he was permitted to contest the proceeding. He purchased the property through two registered sale deeds and after purchase he is in possession of the property. He also produced the original registered sale deeds before the OLR authorities. Since he belongs to a Scheduled Tribe and the transfer was made by a Scheduled Tribe person in favour of another Scheduled Tribe person, no permission was necessary. 10. So far as transfer made by Lochana Bariha in favour of Rohitaswa Bariha is concerned, the allegation of opposite parties 1 and 2 is that Rohitaswa Bariha is a Benamidar. The real owners of the properties are opposite parties 3 and 4. However, opposite parties 1 and 2 while advancing the plea of Benami transaction did not adduce 3 any evidence from which it can conclusively be inferred that the transaction between Lochana Bariha and Rohitaswa Bariha was a benami transaction. 11. Benami transactions were the recognized species of legal transactions pertaining to immovable properties and the said transactions were recognized prior to coming into operation of Benami Transactions (Prohibition) Act (45 of 1988). Therefore, it was a legal right of a party to contend in those days that even though the transfer of the property had been effected in the name of a Benamidar for a party from whom the consideration had moved, the party was the real owner. Hence, the Benamidar was bound to restore such property to the real owner. If the Benamidar took up a different attitude then the law provided, a substantive right accrued to the party to come to the court for getting appropriate declaration and relief of possession on that ground. However, after coming into operation of the Benami Transactions (Prohibition) Act in the year 1988, such transactions are prohibited. The Act No.45 of 1988 in its preamble states that it is an Act to prohibit benami transactions and the right to recover property held benami and for matters connected therewith or incidental thereto. 12. The apex Court in R.Rajagopal Reddy’s case (supra) held that the Act cannot be treated to be declaratory in nature. Declaratory enactment declares and clarifies the real intention of the legislature in connection with an earlier existing transaction or enactment, it does not create new rights or obligations. On the express language of Section 3, the Act cannot be said to be declaratory but in substance it is prohibitory in nature and seeks to destroy the rights of the real owner qua properties held benami and in this connection it has taken away the right of the real owner both for filing a suit or for taking such a defence in a suit by benamidar. Such an Act which prohibits benami transactions and destroys rights flowing from such transactions as existing earlier is really not a declaratory enactment. Therein, the apex Court further held, with respect, that the decision of the apex Court in Mithilesh Kumari v. Prem Bihari reported in AIR 1989 SC 1247 does not lay down correct law so far as the applicability of Section 4(1) and Section 4(2) to the extent indicated in that judgment, to pending proceedings when these Sections came into force, is concerned. 13. Therefore, from the said decision it appears that the Act 1988 is prospective and nobody can take a plea of benami transaction after coming into operation of the said Act. The contention of learned counsel for opposite parties 1 and 2 is that a third party can raise the said question as held by this Court in Gopal Bariha’s case (supra). Hence, OLR authorities have rightly determined the said question in the present case. The aforesaid proceeding was initiated before the 1988 Act came into force. However, from the orders of the OLR authorities it appears that they did not take into consideration whether the transaction between Lochana Bariha and Rohitaswa Bariha was a benami transaction or not. They have not given any finding on that score. 14. It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. The question as to what his intention has to be decided on the basis of the surrounding circumstances, the 4 relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc. 15. Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down, in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances. 16. The benamidar is an ostensible owner and if a person purchases from a benamidar without knowing anything about benami transaction after due enquiry and the benamidar has also not disclosed anything, in that case the purchaser is protected for his bona fide as per Section 41 of the Transfer of Property Act. 17. For better appreciation, Section 41 of the Transfer of Property Act is quoted below: “41. Transfer by ostensible owner Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: Provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.” 18. The said principles are really the law on the subject of equitable estoppel. This section is an exception to the general rule that a person cannot convey a better title than he himself has in the property. The conditions set forth in the section must, therefore, be strictly complied with. Under the proviso to Section 41, the transferee must show that after taking reasonable care to ascertain that the transferor had power to make the transfer, he acted in good faith as a bona fide purchaser. 19. In the light of the aforesaid principle of law, it is to be decided whether the transferee is protected under Section 41 of the T.P. Act. The said principle is the settled principle. 20. The apex Court in Sankara Hali & Sankara Institute of Philosophy and Culture v. Kishori Lal Goenka, (1996) 7 SCC 55 while setting aside the Full Bench decision of the Calcutta High Court has held that the Act prohibits entering into benami transactions and says that no person shall enter into any benami transaction and further provides that whoever enters into such a transaction, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. Section 4 bars a suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is so held or against any other person by or on behalf of a person claiming to be the real owner of such property. Similarly, no defence based on any right, in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. Section 41 of the Transfer of Property Act is clearly intended to protect third party transferees who is a bona fide purchaser and after due care and caution purchase the property from the ostensible owner believing him to be the real owner. It may next be noted that even if it is so assumed, the Court is of the 5 opinion that in the instant case the ostensible owner having already released his right, title and interest as ostensible owner of the property in favour of the firm, the firm had acquired complete title over the property long before the Act came into force. Such a transaction which preceded the coming into force of the Act has not been voided by any specific provision in the Act. 21. Taking into consideration the above decisions of the apex Court, no doubt in the present case the OLR authorities have jurisdiction to enquire into benami transactions. However, opposite parties 1 and 2 signally failed to prove by admissible evidence regarding benami transactions by opposite parties 3 and 4. The OLR authorities have also not determined as to whether the transaction is a Benami transaction as indicated in Jaydayal Poddar’s case of the apex Court referred to above paragraphs. However after coming into operation of the Benami Transactions (Prohibition) Act, it is not permissible to a party to claim the property as real owner against the Benamidar and the said Act is not applicable to the present case. The conduct of the parties also reveals that the person in whose name the properties stand, he acted and sold the property like a real owner. 22. The contesting parties adduced evidence regarding possession over the disputed land. Without considering the same, the OLR authorities had given weightage to the report of the ADWO (Adivasi Development Welfare Officer) which is rebuttable. The parties have also adduced rebuttal evidence by filing ROR and examining the witnesses in support of their possession. The ROR shows the possession of Rohitaswa Bariha and the evidence available on record as noted by the appellate authority in OLR Appeal No.6 of 1996 were totally ignored and come to an abrupt conclusion that the transaction is a benami transaction. As such, the finding reached by the OLR authorities ignoring the materials available on record is not sustainable in law. Question No.(i) is answered accordingly. 23. Since none of the parties is claiming the property as a real owner or benamidar; rather the petitioner’s claim is that the property is his own and he is a bona fide purchaser for consideration and is in possession of the property when the proceeding was initiated and he is a Scheduled Tribe person, can the OLR authorities restore back the properties evicting him from the disputed property? The answer is obviously “No”. The petitioner has not contravened any provision of law. Question No.(ii) is answered accordingly. 24. Therefore, the impugned orders passed by the OLR authorities are illegal and liable to be set aside. Accordingly, this Court sets aside Annexures 4,5 and 6 and directs that the disputed property be restored back to the petitioner within a period of one month from the date of communication of this order. The writ petition is accordingly allowed. No costs. Writ petition allowed. 6