NARENDRA KUMAR GHOSE Vs. SHEODENI RAM

JUDGEMENT

(1.) Feeling aggrieved by the order dated 4-5-68 of the Additional Member, Board of Revenue, Bihar, passed in case No. 28 of 1968 in a case under the Bihar Land Reforms (Fixation of Ceiling Areas and Acquisition of Surplus Land) Act, 1962, hereinafter called the Act, the petitioners have obtained a rule from this Court under Articles 226 and 227 of the Constitution of India against the respondents to show cause why the order aforesaid be not called up and quashed and why an appropriate order be not made. Cause has been shown by respondent No. 1 who alone is interested in the matter.

(2.) The petitioners' case is that Narendra Kumar Ghose, petitioner No. 1, is a raiyat in village Phulwaria Tajpur, police station Pipra in the District of Champaran. Parasnath Sinha, petitioner No. 2, is claimed to be a friend of petitioner No. 1. The latter's case is that he purchased for a sum of Rs. 6,000/- 14 kathas, 5 dhurs of land comprised in plot No. 2261, khata No. 152 in village Phulwaria Tajpur. He claims further that he is an adjacent raiyat of the plot purchased by him holding land on its boundary on three sides, i.e., North, East and West. In order to save the land from a claim of his brother, he purchased it benami in the name of petitioner No. 2.

(3.) On the 15th September, 1966 respondent No. 1 filed an application under Section 16 (3) of the Act claiming pre-emption as being the adjacent raiyat of the land transferred. In that application, petitioner No. 2 naturally was impleaded as the sole opposite party. He, however, took the plea --and filed affidavit in support of that plea -- that he was the benamidar of Narendra Kumar Ghose in whose favour during the pendency of that case he had executed a ladabi deed also on the 5th of December, 1966. Since Narendra Kumar Ghose was also an adjacent raiyat of the land transferred, rather, according to his case, he was on three sides, it was asserted -before the Sub-Divisional Officer who exercised the power of the Collector --under the Act in the first instance that no" order of pre-emption could be made in favour of respondent No. 1 as in terms of the Statute such an order cannot be made against a transferee who himself is an adjacent raiyat of the land transferred. The Sub-Divisional Officer, by his order dated 19-7-67, a copy of which is Annexure 7 to the writ application, allowed the pre-emption. I am constrained to observe that he did so by a cryptic order without deciding the necessary questions which he was enjoined to decide under the Act and the Rules framed thereunder; not only that, he committed a gross error of record in saying in his order that the plea of the opposite party (Parasnath) was that he was no longer in possession of the land since he had transferred it to one Narendra Kumar Ghose by registered sale deed dated 5-12-66. It was not so. On that date only a ladabi deed had been executed, which means that Parasanath by that document had recognised that the real owner of the property was Narendra Kumar Ghose. Under that wrong impression that the subsequent sale deed executed by Parasnath cannot defeat the claim of pre-emption made by respondent No. 1, he allowed the latter's application. Parasnath went up in appeal and his appeal being Revenue Appeal Case No. 121 of 1967-68 was allowed by the Additional Collector, Motihari, by his order dated 16-1-68 (Annexure 8). In this order, he referred to the affidavits and petition filed by Jagdeo Ram, one of the vendors, the other vendor being Ramdeo Ram, respondent No. 3, his brother, showing that the land really had been transferred to Narendra Kumar Ghose who had paid the consideration money. Relying upon these materials, the Additional Collector held that Narendra Kumar Ghose was the real owner and set aside the order of the Sub-Divisional Officer. Sheodeni Ram, respondent No. 1, went up in revision before the Board of Revenue. A copy of the Board's order dated 4-5-68 is Annexure 9 to the writ application. In this order, the learned Additional Member, while allowing the revision application, has stated that the case was filed on 17-9-66 and the ladabi deed came into existence in December, 1966. He further observed that--