ORDER : Heard Mr. Bhaiya Viswajeet Kumar, counsel appearing on behalf of the petitioner. 2. Heard Mr. Pradip Gangopadhyay, counsel appearing on behalf of the respondent nos. 5 to 8. 3. Heard Mr. Ashish Kumar Thakur, J.C. to S.C. (L&C) appearing on behalf of the respondent nos. 1 to 4. 4. Nobody appears on behalf of the respondent no.9. 5. Counsel for the petitioner submits that the service of notice upon the respondents is complete and inspite of service of notice upon respondent no.9, the respondent no.9 has not appeared in this case. 6. This writ petition has been filed by the petitioner for the following relief’s:- “For quashing the order dated 23.9.2005 as contained in Annexure-8 passed by the Member, Board of Revenue, Jharkhand (respondent no.2) in Land Ceiling Revision No.38/2003 under Section-32 of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 whereby the Revision filed by the respondent nos. 5 to 8 against the appellate order dated 10.5.2003 (Annexure-7) has been allowed. The appellate authority had set aside the order of Land Reforms Deputy Collector (respondent no.4) who had allowed the pre-emption application filed by the respondent nos.5 to 8 under Section 16(3) of the Act.” 7. The facts as submitted by the counsel for the petitioner are as follows:- (a) The husband of the petitioner namely Sitaram Singh by virtue of Registered Deed of sale Bearing Sale Deed No.4346 dated 23.3.2001 had purchased the property of Khata No.-29, Plot No.-422, Area-0.28 Acre bounded by North – Tilak Bhitaria, South – Nehal Bhitaria, West – Gobardhan Ram and East – Budhan Mahto from Respondent No.9 in the name of the petitioner for consideration of Rs.-25,000/- of Village- Khora Ahar, Police Station-Barhi, District- Hazaribag. (b) Respondent nos. 5 to 8 had filed a petition for pre-emption dated 11.6.2001 being Land Ceiling Case No.01/2001 before the Court of Land Reforms Deputy Collector, Barhi under Section-16 (3) of the aforesaid Act wherein the specific case of the respondent no.5 to 8 was that the boundary mentioned in the sale deed is incorrect and claimed that they are the adjoining Raiyat. On the other hand the petitioner claimed that respondent no.5 to 8 were neither the adjoining Raiyats nor were the co-sharers of the vended property. On the other hand the petitioner claimed that respondent no.5 to 8 were neither the adjoining Raiyats nor were the co-sharers of the vended property. (c) A report dated 15.5.2002 was filed by the Circle Officer, Barhi who had shown that the pre-emptors were the adjoining Raiyat towards the north of the vended property although according to the petitioner the northern boundary was plot no.421 belonging to one Binay Kumar Singh descendant of Late Tilak Ram and in support of that petitioner had filed village map, record of Khata No.32 and return of ex-zamindar. The Land Reforms Deputy Collector, himself conducted an inspection on 28.9.2002 and found different boundary but towards the north he again found that pre-emptor was the boundary Raiyat. The petitioner submits that the said enquiry reports were made in absence of the petitioner and otherwise also the two reports were not the same. (d) However vide order dated 17.1.2003 the petition under Section 16(3) of the Act was allowed in favour of the pre-emptors (respondent no.5 to 8) (e) The counsel for the petitioner submits that the boundary as mentioned in the report of the Circle Officer, Barhi and Land Reforms Deputy Collector, Barhi are different and therefore none of them could have been relied upon particularly when none of the reports were prepared in presence of the petitioner or her husband. (f) Against the order dated 17.1.2003, an appeal was filed before the appellate authority and the appeal was allowed vide order dated 10.5.2003. (g) Against this the pre-emptors (respondent nos. 5 to 8) filed revision application before the Member Board of Revenue, Jharkhand and which was decided by the impugned order dated 23.09.2005 and the appellate order was set-aside. (h) Counsel for the petitioner submits that the aforesaid order dated 23.9.2005 is an exparte order so far as the petitioners are concerned and the petitioners could not appear before the said authority for the reasons beyond their control. (i) However, he submitted that the revisional court has not considered the records which were already available and has recorded findings as follows:- “After hearing the petitioners, the State and going through the records it becomes clear that the question of petitioners being Raiyats of lands adjoining the disputed land has been settled. (i) However, he submitted that the revisional court has not considered the records which were already available and has recorded findings as follows:- “After hearing the petitioners, the State and going through the records it becomes clear that the question of petitioners being Raiyats of lands adjoining the disputed land has been settled. The site verification carried out by Circle Officer, and the subsequent site inspection conducted by DCLR, Barhi both found the petitioner to be Raiyats of adjoining lands adjoining the disputed land whereas opposite party no.1 was not. The petitioners have also submitted copies of revenue records and rent receipts showing their father as Raiyat of land adjoining the disputed land. They are, however, not co-sharers.” (j) The revisional court on the point raised by the petitioner that the property being the benami property of the husband of the petitioner who was the co-sharer of the adjoining property, the revisional Court rejected this plea by holding that onus to prove that it was the benami property of her husband was not discharged and the petitioner cannot claim the status of the co-sharer of the adjoining property simply on the strength of verbal declaration that the land was in fact purchased in her name by her husband. (k) Thus the revisonal court held that the petitioner is neither the co-sharer of the vended property nor a Raiyat of the adjoining land and that the pre-emptor had succeeded in establishing that they are the Raiyats of the adjoining land. (l) Counsel for the petitioner submits that on the face of the documentary evidences which were available on the record, the inspection carried out by the Circle Officer, Barhi as well as the self inspection by the Deputy Collector, Land Reforms could not be taken into consideration particularly when both the reports were not matching with each other. (m) Counsel for the petitioner also submits that the property was purchased by the petitioner and the petitioner is a part of the family as defined under Section 2 (ee) Bihar Land Reforms (Fixation of Surplus Land) Act 1961 and accordingly the petitioner can certainly claim the status of a co-sharer of the adjoining property being the wife of the co-sharer of the adjoining property. 8. 8. On the other hand counsel appearing for the respondent pre-emptors (respondent nos.5 to 8) submits that the petitioner is neither the co-sharer of the vended property nor the adjoining Raiyat and the respondents herein are the adjoining Raiyat of the vended property and their application under Section 16 (3) of the Act was rightly filed and allowed. The counsel submits that the petitioners were negligent in conducting the case before the revisional authority and the revisional authority has passed the order based on the material available on record and accordingly no interference is called for by this Court. 9. Counsel for the respondent-State on the other hand submits that the impugned order has been rightly passed on the basis of the report of the Circle Officer, Barhi and also the Deputy Collector, Land Reforms and accordingly the writ petition is fit to be rejected. 10. Considering the facts and circumstances of this case and after hearing the counsels for the parties, this Court is inclined to allow the writ petition and the impugned order dated 23.09.2005 passed by Member Board of Revenue, Jharkhand in Land Ceiling Revision Case No.38 of 2003 is hereby set-aside and the matter is remitted to the Land Reforms, Deputy Collector for passing a fresh order after conducting proper enquiry through the Circle Officer, Barhi and Amin on account of following facts and reasons:- (a) From the records of the case this Court finds that the specific case of the pre-emptor was that the pre-emptor is the adjoining Raiyat of the property and the pre-emptor had specifically pleaded that the boundary mentioned in the sale deed is not correct. The pre-emptor had also stated that they are the adjoining Raiyat on the basis of the property belonging to the ancestors. (b) Considering the facts situation inspection was conducted by the Circle Officer, Barhi. The pre-emptor had also stated that they are the adjoining Raiyat on the basis of the property belonging to the ancestors. (b) Considering the facts situation inspection was conducted by the Circle Officer, Barhi. The Circle Officer, Barhi after inspection recorded the boundary as follows:- East 5 – Kaila Ravidas, - Manoj Ram, West – Budhan Mahto, - Ravidas, North – Kishun Mahto (applicant) South – Karu Yadav, (c) Thereafter an on the spot inspection was also conducted by the Land Reforms, Deputy Collector, himself who was also the adjudicating authority who recorded the boundary as follows:- North – Kishun Mahto South – Kishun Mahto West – Budhan Mahto and Ladhi Ravidas East – Kishun Mahto, (d) Accordingly, this Court finds that the boundary recorded by the Circle Officer, Barhi and the boundary recorded by the Land Reforms, Deputy Collector, Barhi do not tally with each other inspite of the fact that toward the north both found that pre-emptors were boundary Raiyat. (e) The Board of Revenue while deciding the case in favour of the pre-emptors held that from the records it becomes clear that the question of petitioners being Raiyat of the adjoining land of the vended property has been settled. Although there was a clear dispute whether the respondent nos.5 to 8 herein were the adjoining Raiyat or not, this issue was to be decided by the revisional authority on the basis of materials on record particularly when the boundaries of the property as reflected in the two inspection reports were not the same although in both the reports the preemptors were shown to be towards northern boundary. Although the petitioner did not appear before the Member Board of Revenue but still it was for the Member Board of Revenue to examine the records and pass the order on the basis of the records. The order passed by the Member Board of Revenue does not reflect the appreciation of the various documents which formed a part of the appellate record and the record of the Land Reforms Deputy Collector. The order passed by the Member Board of Revenue does not reflect the appreciation of the various documents which formed a part of the appellate record and the record of the Land Reforms Deputy Collector. (f) Under the facts and circumstances of this case, this Court is of the considered view that a detailed enquiry regarding the boundary of the vended property has to be carried out in presence of the petitioner as well as the pre-emptors (respondent nos.5 to 8) and for that purpose the Land Reforms Deputy Collector, Barhi shall fix a date and the inspection be carried out by the Circle Officer in presence of the Amin and also in presence of the petitioner as well as respondent nos.5 to 8 herein on a date fixed. For the aforesaid purpose both the petitioners and private respondents herein shall put their signature on the inspection report to record their presence at the time of inspection. (g) The authority will also consider the revenue records which both the parties are claiming that as per the revenue records they are the adjoining Raiyat. (h) Accordingly, Land Reforms Deputy Collector, Barhi will pass a fresh order after hearing the parties and conducting a fresh inspection within a period of three months from the date of receipt of a copy of this order. The petitioner as well as the private respondents are directed to appear before the Land Reforms Deputy Collector, Barhi on 7th of May 2018 so that a date of inspection may be fixed. (i) This Court finds that claim of petitioner that the property is the benami property of her husband has been rightly rejected by the revisional authority as the necessary ingredients for establishing such claim of benami property is absent further the onus to prove such claim is on the person who makes such claim. Merely saying that the property is the benami property of her husband the petitioner is not sufficient unless she states and proves that although the property was purchased in her name but the same was not for her benefit. This is the view taken by Hon’ble the Supreme Court in Nand Kishore Mehra Vs. Sushila Mehra reported in (1995) 4 SCC 572 . This is the view taken by Hon’ble the Supreme Court in Nand Kishore Mehra Vs. Sushila Mehra reported in (1995) 4 SCC 572 . (j) So far as the claim of the petitioner that she is the co-sharer of the adjoining property on the strength of the adjoining property standing in the name of her husband being his wife and hence an adjoining Raiyat is not legally sustainable and hence this contention stands rejected. This court is of the considered view that merely by marriage, a lady does not become the co-sharer of the property of her husband and accordingly the petitioner cannot claim the status of co-sharer of adjoining Raiyat so as to defeat the claim of the private-respondents. 11. The writ petition is hereby disposed with the aforesaid observations and directions. Petition disposed of.