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1978 DIGILAW 156 (PAT)

Kuteshwar Choubey v. State Of Bihar

1978-07-19

NAGENDRA PRASAD SINGH, VISHWANATH MISHRA

body1978
Judgment Vishwanath Misbra, J. 1. This writ petition has been filed for issuance of a writ of certiorari quashing the order passed by the Member Board of Revenue in case No.264 of 1972 on 3.9.1974 a case under section 16 (3) of the Bihar Land reforms (Fixation of Ceiling Area and acquisition of Surplus Land) Act, 1961 (hereinafter called "the Act" ). 2. The land in question having an area of 30 and odd acres is situate in village Majhigawan. Admittedly the petitioner Kuteshwar Choubey and respondents 6 and 7. Rama Choubev and Khushi Chouhey respectively, were co-sharers of the land, the share of the petitioner therein being half, and the other half belonging to the two respondents named above. On 26 3 1966 respondents 6 and 7 (Rama Choubev and Khushi Choubev) sold their half share in the aforesaid plots to respondents 8 and 9 (Sumitra Devi and Kaushalya Devi respectively)for a sum of Rs.16000. The sale deed though executed on 26.3.1966 was actually registered under sections 60 and 61 of the Registration Act on 20.6.1966. Before the actual registration, however, respondents 8 and 9 sold the land to one ganesh Choubev son of respondent no.9 for a sum of Rs.25000 on 25.4.1966. This sale deed was actually registered on 23.7 1965 under the provision of sections 60 and 61 of the Registration Act Possession is also said to have been delivered to Ganesh Choubev on the basis of the sale-deed. Ganesh Choubey, however, is notia party to this writ petition. Admittedly, Sumitra Devi is issuless. 3. The petitioner Kuleslwar Choubey being a co-sharer of the land wanted to purchase the land himself and so on 28.4.1966 i. e. a little more than a month after the land had been sold to respondent nos.8 and 9, and three days after the sale by respondents 8 and 9, to Ganesh Choubey, filed a petition under section 16 (3) of the Act. Cognizance of that petition was taken by the Subdivisional officer, Garhwa on 1,7.1966. In the sale deed Ganesh Choubey is also shown as a tenant of the adjoining land. The proceeding was contested in the court of the Subdivisional Officer in the ground that the sale deed in favour of Ganesh choubey was a sham and farzi transaction. Cognizance of that petition was taken by the Subdivisional officer, Garhwa on 1,7.1966. In the sale deed Ganesh Choubey is also shown as a tenant of the adjoining land. The proceeding was contested in the court of the Subdivisional Officer in the ground that the sale deed in favour of Ganesh choubey was a sham and farzi transaction. As I have said above Ganesh Choubey had not been made a party to the proceeding, and so the learned Subdivisional officer dismissed the application. The order of the learned Subdivisional Officer is Annexure 3 to the writ petition. An appeal was preferred by Kuteshwar choubey against the above order before the Additional Collector under section 30 of the Act. The Additional Collector found the sale deed in favour of Ganesh choubey to be a sham transaction and hence he held that Ganesh Choubey was not a necessary party to the proceeding. He, therefore, set aside the order of the subdivisional Officer and allowed the prayer for pre-emption to Kuteshwar choubey. He also fixed a date for execution of a sale deed in favour of the petitioner by Sumitra Devi and Kaushalya Devi. The order of Additional collector is Annexure 2 to the writ petition. Sumitra Devi and Kaushalya Devi preferred a revision against the above order before the Commissioner which was rejected on 11.7.1972 because he had no revisional powers. Thereupon a revision was filed by Sumitra Devi and Kaushalava Devi before the Board of Revenue which was disposed of on 3.9.1974. The learned Additional Member found that ganesh Choubey had become the owner of the disputed land prior to the filing of the pre-emption application before the Collector and so there could be no question of allowing the claim of pre-emption against the petitioners there (Sumitra Devi and Kaushalya Devi), the learned Additional Member, Board of revenue, thus, allowed the revision and set aside the order of the Additional collector. The resolution of the Board of Revenue is Annexure 1 to the writ petition and against that order Kuteshwar Choubey has preferred this writ petition. 4. The resolution of the Board of Revenue is Annexure 1 to the writ petition and against that order Kuteshwar Choubey has preferred this writ petition. 4. The main contention of the petitioner here is that the sale deed in favour of Ganesh Chubey was a farzi transaction and, therefore, it was not at all necessary to implead him as a party to the proceeding and the learned Additional memember allowed the revision wrongly without giving a definite finding regarding the collusive nature or otherwise of his sale deed. 5. Respondents 8 and 9 have filed counter affidavits, their main contention being that before the petition under section 16 (3) of the Act for pre-emption was filed they had actually transferred the land to Ganesh Choubey on 25.4.1966 through a registered sale deed for a sum of Rs 25000 and had actually put him in possession of the land and, therefore, the claim of pre-emption connot lie aaainst them (respondents 8 and 9 ). Their further contention is that in absence of Ganesh Choubey no finding regarding the alleged farzi or sham nature of the transaction can be given. It is also contended that the question of the transaction being farzi had not been pleaded in the original court 6. As has been said above respondents 6 and 7 had sold the disputed lands to respondends 8 and 9 for a sum of Rs 16000 on 26.3.1966. The sale deed was registered on 20-6-1966 but it would take effect from 26 3 1966 itself. The petition for pre-emption was filed by the petitioner on 28.4.1966. About the money deposited there is no dispute here Respondents 8 and 9 had sold the land to Ganesh Choubey on 25.4 1966 itself for a sum of Rs.25000 i. e. three days before the pre-emption petition was filed. The sale deed though registered later took effect from 25.4.1966 itself. In the eye of law, therefore, Ganesh choubey would be taken to have come in possession of the land on 25.4.1966 until and unless the contrary is proved. If this position be accepted then on 28.4.1966 respondents 8 and 9 were not in possession of the land and any claim of pre-emption against them would be futile. 7. Reliance has been placed on the decision in kmt. If this position be accepted then on 28.4.1966 respondents 8 and 9 were not in possession of the land and any claim of pre-emption against them would be futile. 7. Reliance has been placed on the decision in kmt. Sudama Devi and others V/s. Rajendra Singh and others, a case of this Court reported in AIR 1973 patna 199 in which it has been held that section 16 (3) of the Act does not take within its ambit power to make on order of pre-emption against a subsequent transferee on an application filed for pre-emption against first transferee. After making review of quite a good number of cases Justice Untwalia (as he then was says in) paragraph 14 of the report at page 205 as follows :- "here cases have consistently taken the view, to which reference has been made earlier by me, that if a sale deed is executed before the filing of, the suit but is registered later then such a transfer is not pendente lite, the transferee became the owner of the property, in view of the provision of law contained in section 47 of the Registration Act, prior to the filing of the suit". 8 So far as the investigation of the question of fraudulent, farzi or sham nature of the sale-deed in favour of Ganesh Choubey is concerned reliance was pleaced on the authority reported in AIR 1941 PC 93 which has been followed by the Supreme Court in the case of Union of India V/s. M/s. Chaturabai M Patel and Co, ( AIR 1976 SC 712 ) wherein it has been observed as follows:- "it is well-settled that fraud like any other charge of a criminal offence whether made in civil or criminal proceedings, must be established beyond reasonable doubt; per Lord Atkin. In A L. N. Narayanan chettyar V/s. Official Assignee, AIR 1941 PC 93 High Court rangoon. However, suspicious may be the circumstances, however strange the coincidences and however grave the doubts, suspicion alone can never take the place of proof. In Chandradip Singh and another V/s. The Additional Member, Board of Revenue, bihar, Patna and others, ( 1978 BBCJ 34 ) a Division Banch of this Court reiterated that the charges of fraud and collusion must he proved by those who makes them, proved by established facts or inference legitimately drawn from those facts taken together as a whole. In Chandradip Singh and another V/s. The Additional Member, Board of Revenue, bihar, Patna and others, ( 1978 BBCJ 34 ) a Division Banch of this Court reiterated that the charges of fraud and collusion must he proved by those who makes them, proved by established facts or inference legitimately drawn from those facts taken together as a whole. Suspicious, surmises and conjectures arc not permissible to come to such a fiding. " 9. Admittedlv Ganesh Choubey had filed a petition in the Court of Sub-divisional officer itself. He was not made a partv to the proceeding. There is no definite allegation of fraud practised in the execution of the sale-deed. The mere fact that Ganesh Choubey is son of respondent no.9 does not take away the right of Ganesh Choubey to purchase the land. The fact that property purchased for rs.16000 was sold for Rs.25000 only after a month or so of the purchase can at best be a circumstance, which could be considered, if fraud had been pleaded and if Ganesh Tiwary had been made a party. At the time of argument in this Court sri Tarakant Jha, counsel for the petitioner prayed for sending the case back and giving him an opportunity of adding Ganesh Tiwary as a party to the proceeding, but it was too late in the day to make such a prayer. 10. In the result it is clear that there is no merit in this writ petition, and it is accordingly dismissed. In the circumstances of the case there would be no order as to costs. Petition dismissed.