JUDGMENT 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 17.09.1962. 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 rigorous 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. 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 rigour 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 Benarni 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. On recording the evidence being tendered by the parties, finally the Sub-Collector held the initial transaction to be Benarni 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 O.J.C. 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. 4. (A)Learned counsel for the petitioner submits that the authorities below have exercised the jurisdiction illegally and with material irregularities. According to her, the authorities have committed gross error of law in not taking into consideration the sale deeds along with the recitals. According to her, the provision of Section 91 of the Evidence Act stands on the way for the admissibility of any other evidence when the parties have reduced the term of the contract in writing in respect of disposition of property. So, when the term of the documents are clear and unambiguous showing the clear intention behind such transaction, the authorities below ought not to have ignored those and rather ought to have accepted the same. She in course of said submission has referred to the decision in the case of Biswanath Nanda vrs. Madhu Sethi, 71(1991) CLT 479 and Jadumani Girl & another vrs. Bhama Bewa and others, 84 (1997) CLT 213. (B)It is next submitted that such validity of the sale deed can only be questioned in the Civil Court as the documents are not void abinitio. Madhu Sethi, 71(1991) CLT 479 and Jadumani Girl & another vrs. Bhama Bewa and others, 84 (1997) CLT 213. (B)It is next submitted that such validity of the sale deed can only be questioned in the Civil Court as the documents are not void abinitio. Thus, it is urged that the question of Benami transaction when raised, falls beyond the jurisdiction of the authorities created under Regulation-II of 1956. (C)Lastly going to the merit, she has contended that the evidence on record have not been properly examined and the authorities having gone for proper appreciation of evidence, ought to have found that the burden of proof resting upon the opposite parties 3 and 4 to establish that the transactions are Benami have not been so discharged. In this connection, she has also highlighted the aspects required to be proved for holding the transactions as Benami in further urging that those have not been proved in the case. In order to provide further strength to the submission, following decisions have been cited. (i) Thakur Bhim• Singh (dead) by L.Rs. & another Vrs. Thakur Kan Singh, (1980) 3 SCC 72 , (ii) V.Shankaranarayana Rao (dead) by LRs. & others Vrs. Leelavathy (dead) by LRs and others, 2007 (II) CLR (SC) 543. (iii) Nava Naik Vrs. Smt. Karmi Bewa and three others, 2004 (Il) OLR 435. 5. Learned counsel for the opposite parties 3 and 4 refutes the above submission with vehemence. According to him, the authorities under the Regulation-II of 1956 in seisin of the proceeding as in the present case have the jurisdiction to decide the transaction to be a Benami or not and that has been concluded by this Court on the earlier occasion and said position has also been settled since long by catena of decisions of this Court. It is his next contention that Section 91 as well as 92 of the Evidence Act do not stand as the bar for leading evidence on the score that the nature of transaction that the parties had intended to enter into and that which has come into existence is different. He further contends that in this case both the authorities being alive to the settled position of law as to what items of the evidence are required to be proved to establish that the transactions are Benami have affirmatively held so. He further contends that in this case both the authorities being alive to the settled position of law as to what items of the evidence are required to be proved to establish that the transactions are Benami have affirmatively held so. Therefore, it is said that it has been rightly held that the lands were simply shown to have been purchased in favour of Lasa and Samai so as to facilitate the subsequent transfer in favour of the petitioner in getting permission which could not have been possible in case of transfer at the instance of the father of the opposite party no.3, in favour of the petitioner, who is not a member of Schedule Tribe community. 6.Section 3 of Regulation II of 1956 placing a non-obstante Clause provides that any transfer of immovable property as defined in Regulation II (e) by the member of Schedule Tribe except by way of mortgage executed in favour of a Public Financial Institution for securing a loan granted by such institution for any agricultural purpose shall be absolutely null and void and of no force and effect whatsoever unless the transaction is made in favour of an another member of a Scheduled Tribe. It also contains the Proviso and Explanations and we are here concerned with Explanation 1 (b) which reads that a transfer of immovable property shall include a transfer of immovable property to a person belonging to a Scheduled Tribe for consideration paid or provided by another person not belonging to any such Tribe. Sub-Section (2) of Section 3 of Regulation II of 1956 envisages that where the transfer of immovable property is made in contravention of Sub-section (1), the competent authority may of an application of anyone interested therein or on information received from the Gram Panchayat or on his own motion and after giving the parties opportunities of being heard, order rejectment against any person in possession of property claiming under the transfer and proceed for restoration of possession of such property to the transferor or his heirs. It contains the proviso that in case restoration of possession of immovable property is not possible to be made in favour of the transferor or his heirs or being not reasonably practicable, the competent authority recording his reasons thereof subject to the control of the State Government shall settle the said property with another member of the Scheduled Tribe or in the absence of any such member with any other in accordance with the provisions contained in Orissa Government Land Settlement Act, 1962. 7.With these provisions holding the field, the first submission of the learned counsel for the petitioner needs to be addressed. The case set up by the opposite parties 3 and 4 is that the transactions of sale of land as shown to have been made by the father of the opposite party no.3 in the name of Lasa and Samai are Benami. They claim that those were not actually purchased by Lasa and Samai and those were not purchased for their benefit and they were just named purchasers on the deed when the actual beneficiary remained behind the smoke screen and they are the petitioner and his father. So it is stated that since the permission would not have been granted for sale of land by the father of the opposite party no.3 in favour of a member not belonging to the Scheduled Tribe community as the parameters for the same were not getting satisfied, such devices were invented, taking the advantage of the provision of law that no permission is necessary in case of sale of immovable property by a member of the Scheduled Tribe to another member of the said Tribe. So those transactions were just to avoid the rigours of law but in reality for all purposes by those transaction, the petitioner was the real purchaser, when the apparent purchasers were Lasa and Samai. 8.Law is fairly well settled that the authorities under the regulation are having the jurisdiction to decide a case of Benami transaction. So those transactions were just to avoid the rigours of law but in reality for all purposes by those transaction, the petitioner was the real purchaser, when the apparent purchasers were Lasa and Samai. 8.Law is fairly well settled that the authorities under the regulation are having the jurisdiction to decide a case of Benami transaction. In fact, if it is said for a moment that they have no jurisdiction, then the mischief sought to be curbed and the object behind the legislation i.e. safe guarding interest of the members of the Scheduled Tribe particularly in Scheduled areas from being swindled, deprived of their immovable property loosing their livelihood and life support for ever and becoming crippled in all fronts of life and pushed to abject poverty as sought to be achieved by such legislation in exercise of power conferred upon the Governor under Article 244(1) of the Constitution of India read with Clause 5(2)(a) of Part B of the Fifth Schedule, in my considered view would remain a distant dream. When it is referred as to the declaration of sale deed void, it has to be taken that any transfer made to avoid such rigours of law as condition precedent to such transfer in a circuitous manner can also be so decided by the competent authority. Law prescribes as to under what circumstances and upon satisfaction of which aspects, the permission for sale of immovable property of a member of Scheduled Tribe in favour of a person not belonging to the said Tribe would be granted. So in a given case when such permission would not be available as those hurdles remain uncrossed in the facts and circumstances, then in order to fulfill the mischievous goal of circumventing the provisions of law, first the transaction would be made in favour of a member of said Tribe in whose case permission would be granted for sale to a member not belonging to the said Tribe, and then the authority’s hand if is said to be tied down, the entire provisions relating to prohibition and restriction on the transfer of land by or among members of Scheduled Tribes in Scheduled areas would stand meaningless for being allowed to be observed more in breach than compliance. In fact, the explanation 1 (b) to Section 3 (1) of the said Regulation duly takes care of that and thus clothes the jurisdiction upon the competent authority to so find for consequential action. Acceptance of said submission would thus frustrate the very objective and would encourage the mischief to circumvent the legal provision especially meant to protect the interest of members of Scheduled Tribe Community in respect of their immovable property. Thus I am afraid to accept the submission of learned counsel for the petitioner as regards the lack of jurisdiction and the same is whittled down. Also this Court in a number of cases have decided in favour of exercise of the jurisdiction in case of allegation of Benami Transaction by the competent authority under the Regulation - II of 1956 and also under OLR Act. Its too well settled a position. Moreover, so far as this case is concerned that has already stood concluded in OJC 502 of 1991. When the matter has been remanded to the appellate authority, it has been directed that the authority would only decide the correctness and acceptability of the plea of Benami by these Opp. Party No. 3 and 4 as controverted by the petitioner. In view of all these discussions, the submission appears as just like the case of a drawing man catching straw and without any avail. 9.The next contention is with regard to provision of Sections 91 and 92 of the Evidence Act to be standing as the bar. In fact, I am not able to find any reason as to how in a case of Benanti transaction such submission would help. I am afraid that as per the submission of the learned counsel for the petitioner, the bar if would stand, the entire concept of Benami transaction has to be held to be non-cognizable. Moreover, I feel that the submission is the outcome of either misreading of provisions of Section 91 and 92 of the Evidence Act or in a half hearted manner by having a glance at their headings that too unmindfully. These provisions refer to the bar of leading evidence as regards the terms of the contract reduced into writing. We are here concerned with the situation as to who is the real purchaser not even about the nature. These provisions refer to the bar of leading evidence as regards the terms of the contract reduced into writing. We are here concerned with the situation as to who is the real purchaser not even about the nature. A cumulative reading of the cited decisions as indicated in sub para 1 of para 4 as above would go to show the laid down position that when a dispute arises as regards the nature of transaction, such as whether the deed in question is a deed of mortgage with conditional sale or sale out and out etc. and if the Court finds the recitals to have been made in the sale deed to be clear and unambiguous, the Court must give legal effect to it and if its not so, then it is permissible for the Court to look into the surrounding circumstances to determine the real intention of the parties. In fact the submission in this regard at the very first blush though appears to be attractive; the same with a second’s thinking gets pushed to say that the same arises out of sheer confusion so as to be projected as the ground in the present case. It is not the case here that the nature of transaction is in dispute. In case of Banarni transaction, scope is to find out as to whether a person in whose name the immovable property have been purchased is the real purchaser so as to derive the benefit of the transaction or it was so purchased by somebody else in such names as alleged in this case intending to benefit himself instead of benefiting those shown purchasers. Thus the submission is found to be misconceived. 10.Now, comes the question as to whether the authorities below have committed error of law or have exercised their jurisdiction illegally and with material irregularity in holding the transactions as Benami. It may be stated first that the both the original as well as the appellate authority have rendered concurrent finding favouring Benami transactions on evaluation of evidence and viewing the other attending circumstances. At this stage, it may also be stated that Section 7-C of the Regulation II of 1956 provides that in these cases, the burden lies on the transferee to prove that his possession of the immovable property is in accordance with the provisions of the Regulation. At this stage, it may also be stated that Section 7-C of the Regulation II of 1956 provides that in these cases, the burden lies on the transferee to prove that his possession of the immovable property is in accordance with the provisions of the Regulation. So here the evidence of petitioner and his witnesses if are found to be simply in terms of denial of such factum of Benanti transactions, then it would not suffice the purpose of shifting the onus to the opposite party no. 3 and 4 to establish Benami transaction by adducing acceptable evidence. So for the purpose, in addition to that, there must be positive evidence from the side of petitioner that the first purchasers being capable had paid the consideration, delivered with possession, remained in possession and enjoyment besides the reasons to go for said purchase and as of necessity at last to have sold on receipt of consideration. Evidence on these scores have not at all been led by the petitioner in clear terms. So the statutory burden upon the petitioner stands un-discharged which itself is enough to allow the prayers of the opposite party nos. 3 and 4. The petitioner and his witnesses have simply stated that the petitioner is the subsequent purchaser with due permission and the same thus do not suffice the purpose of discharging the burden resting on him to prove his possession to be lawful. In such state of affair, the evidence of Lasa Majhi’s brother is very important when he says that they had no capacity to purchase any land. They came to know about it later and Lasa did not possess the land. The disputed land here measures M 19-17-4-0 Gandas in three mouzas which is of quite considerable extent. So those persons to go for purchasing the same at a time and starting to enjoy is also very hard to believe in the absence of evidence as regards their financial capacity and their background especially about the extent of their landed property prior to purchase etc. Both the authorities have come to conclude that consideration for such transaction of huge extent of land was not paid by the Lasa and Samai and they never possessed and it is this petitioner and his father who remained in physical possession since beginning. Both the authorities have come to conclude that consideration for such transaction of huge extent of land was not paid by the Lasa and Samai and they never possessed and it is this petitioner and his father who remained in physical possession since beginning. The factum of purchase of huge extent of land and then resale after two years in the absence of any further evidence is not getting explained and also does not stand to any reasons which are acceptable. For the above discussion and the facts and circumstances of the cited case as indicated in sub-para 2 of para 4, being also distinguishable, those do not come to the aid of the case of the• petitioner. The authorities below have gone for elaborate discussion of evidence and viewing strong circumstances have held the transactions vide RSD No. 6041 dated 13.12.1960 and 6042 dated 13.12.1960 as well as other subsequent transactions on the basis of those to be Benami transactions and accordingly have held those void. Nothing is shown that the authorities have omitted to take into account some material evidence or give due weightage to some available material evidence and had those been taken into consideration, the finding ought to have been against the case of Benami transactions. Furthermore, it is seen that neither conjectures nor surmises have played any role in the matter of rendering the finding and influencing the same. The findings on those scores are rather found to be the outcome of just and proper appreciation of evidence. In view of above, this Court finds no infirmity or illegality giving rise to any justification to turn the finding on that score of Benami transactions, upside down. 11.For the aforesaid discussions and reasons, the writ application is dismissed with cost assessed at Rs.1,000/- (Rupees one thousand only). Viewing this long drawn legal battle stretching over a period of about 39 years, it is felt proper in the interest of justice to direct the Sub-Collector, Baripada to complete the entire exercise of restoration of possession of the disputed land as per the order and in accordance with law within a period of three months from the date of the communication of the order or production of certified copy of the same whichever is earlier. The Registry is directed to communicate the order to the authorities below at the earliest. Application dismissed with cost.