UPENDRA MISHRA Vs. INCHAN MISHRA

JUDGEMENT

(1.) This appeal is directed against the decision of the learned single Judge of this Court in C. W. J. C. No. 4226 of 1973 whereby he has allowed the writ application filed by respondents 1st party and set aside the orders of the revenue authorities, as contained in Annexures 1, 2 and 3 of the writ application.

(2.) It appears that the present appellants initiated a proceeding under Section 16 (3) of the Bihar and Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, before the Land Reforms Deputy Collector, Samasti- pur, claiming pre-emption in respect of 2 kathas 19 dhoors and one and a half Kanawa ol land bearing plot No. 4414 under Khata No. 927 of village Khas- Tabhka, which was purchased by the present respondents 1st party from respon dent 2nd party through a sale deed executed on 19-6-1972 and registered on 13-9-1972. The plea of the pre-emptors i.e., the present appellants was that they were the owners of the adjoining lands, whereas tne respondent the wife of Mahendra Mishra, the alleged co-owner of the boundary lands on the east and west and there is no presumption under the law that the land standing in the name of wife shall be deemed to belong to the husband. In the present case it may be pointed out that the pre-emption is being claimed against Smt. Inchan Mishra and not against her husband Mahendra Mishra, besides Sukhdeo Mishra who is the son of Shivanandan Mishra. It was also pointed out that it was not the case of the respondents 1st party that Mahendra Mishra had purchased the land in question through the said sale deed in the Benami name of his wife. In such a situation, it would be presumed that the purchase was made by the wife herself, as the theory of advancement is not applicable in India. Regarding respondent No. 2 Sukhdeo Mishra it was stated that he does not hold any land on the boundary and there is concurrent finding of fact of the revenue authori- ties in this regard and this Court, in this writ jurisdiction, should not ordinarily disturb such a finding of fact. In my opinion, there is substance in the submis sions made by the learned counsel for the appellants.

(3.) It would be relevant to point out here that the learned single Judge has not gone into the question as to whether respondent No. 1 was a Benamidar of her husband. Indeed, there is nothing in the decision to indicate that respondent No. 1 had made out a case that she was the Benamidar of her husband or that the husband was the real purchaser. The learned Judge seems to have refused the claim of the pre-emptors on the sole ground that the husband of respondent No. 1 was the owner of the adjoining lands on two sides of the land in question, and as such the ground of pre-emption advanced by the pre-emptors was neutra lised. With great respect to the learned single Judge, the claim of a pre-emptor cannot be refused, simply because the husband of the transferee of the sale deed was the owner of adjoining land, as the wife has a separate identity of her own and the property standing in her name shall be deemed to be her own property, and as such the husband cannot be presumed to be the real owner of the land, unless a case of Benami purchase is made out and established. This aspect of the matter was considered by a Full Bench of this Court in the case'of Ramjiwan Singh and others v. The State of Bihar and others, (AIR 1970 Patna 253). The following observations of Hon'ble U. N. Sinha, J. (as he then was) with whom Hon'ble the Chief Justice and Hon'ble S. N. P. Singh, J. (as he then was) agreed, make the position clear :-