PRASANTA KUMAR MOHANTA Vs. ADDL. DISTRICT MAGISTRATE (OLR)

JUDGEMENT

(1.) In this writ application, petitioner challenges the order passed by the Additional District Magistrate, Mayurbhanj in Regulation - II Appeal Case No. 16 of 1989 confirming the order passed by the Sub-Collector, Baripada in Regulation-II Case No. 199 of 1976 in the matter of a proceeding under section 3(1) and (2) of the Orissa Scheduled Areas Transfer of Immovable Property (By Scheduled Tribes) under Regulation 1956, (hereinafter called as Regulation II of 1956) declaring the sale deeds no. 6041 and 6042 dated 13.12.1960, 5433 dated 17.9.1962, 559 dated 05.02.1962 and 3689 dated 22.08.1966 as illegal and void on the ground that the land which is said to have been transferred ultimately in favour of the present petitioner (opposite party in the court below) is through Benami transaction in order to avoid rigours of law and the possession of the land by the petitioner to be unauthorized and as such the petitioner is liable to be evicted.

(2.) The facts necessary for the purpose as under :- The opposite parties 3 and 4 filed an application under Section 3(1) of the Regulation-II of 1956, which necessitated for registration of Regulation II Case No. 199 of 1976. It is stated therein that the father of the present petitioner having advanced a loan of Rs. 100/- to the father of the opposite party, could not get back the same. So in order to grab the land and to acquire the same in favour of the opposite party no.3, the petitioner's father first managed the lands to be purchased just in the name of one Samai Majhi and Lasa Majhi, being the members of the Scheduled Tribes by two registered sale deeds dated 13.12.1960 as no permission for the same as contemplated in the Regulation II of 1956 was the need. It is further stated that subsequently, in order to fructify the real intention, the lands have been shown to have been transferred in favour of the petitioner with due permission from the competent authority. These were done in piecemeal under Registered Sale Deeds dated 05.02.1962, 17.09.1962 and 22.08.1966. Thus it is stated that the sale deed dated 13.12.1960 showing the transaction between the father of the opposite party no.3 and those Samai and Lasa are just for the purpose of avoiding the rigours of law of obtaining prior permission for such transfer in favour of the member not belonging to the Scheduled Tribe which would not have been possible. It is thus stated that Lasa and Samai were just name lenders and were not the real beneficiaries and have been set up for this purpose. They also did not derive any benefit out of those transactions except being shown in documents as purchasers for name sake. In that event, it is stated that the possession of the petitioner is neither on the basis of a valid title nor he has been authorized by the owner of the property to possess the land in a lawful manner. In other words, in view of Benami transaction, the petitioner's possession is said to be unauthorized and as such liable for restoration in favour of true owner i.e., the opposite party no. 3 and 4.

(3.) The Sub-Collector holding an enquiry at the first instance in a plain and simple manner without going deep into the matter, in view of the permission granted for the subsequent transaction said the properties to have been sold by Lasa and Samai to the petitioner and rejected the claim of opposite parties no. 3 and 4. So they challenged the said order before the Additional District Magistrate who remanded the matter to the Sub Collector for fresh adjudication making necessary observation with regards to the settled position of law indicating the angles of examination required to be made for the purpose. On recording the evidence being tendered by the parties, finally the Sub-Collector held the initial transaction to be Benami for the purpose of facilitating the subsequent transactions which are also the paper works when the beneficiary under the transaction from the beginning remained the same as the ultimate beneficiary upon the subsequent transaction. This order was further challenged in an appeal advancing one more ground as regards the perfection of title by adverse possession. The appellate court then accepted the contention of this petitioner that there has been extinguishment of title of the initial owner prior to the coming into force of section 7(D) of Regulation II of 1956. The matter came before this Court in OJC No. 502 of 1991. By order dated 04.01.1994, this Court quashed the order of the appellate authority and remitted the matter to the said authority to decide the appeal on merit without considering the aspect of adverse possession holding it to be not legally tenable for the case. On 24.11.1994, the appellate authority as directed by this Court, disposed of the appeal rendering the findings that the transactions right from the beginning are Benami transaction and as such void and the possession of the petitioner thus being unauthorized is liable for being restored to the true owner.