S.S.SANDHAWALIA, J.

1. The significant issues that come to the fore in this civil writ jurisdiction case admitted to hearing by the Full Bench may be conveniently formulated in the terms following :

(1) Can the issue of benami ownership be raised and investigated into in the pre-emption proceedings under S.16(3), Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act 1961?

(2) Whether the case of Narendra Kumar Ghose alias Pheli Ghose V/s. Sheodeni Ram (AIR 1972 Pat 1) answering the aforesaid question in the affirmative has been correctly decided?

(3) Whether it is incumbent for the Court for the pre-emptor to implead and bring on the record the real owner of the property sought to be pre-empted (despite the presence of the ostensible owner) in a proceeding under S.16 (3) of the Act aforesaid?

2. The facts are not in serious dispute. By a registered deed executed on the 17th of March, 1979, a plot bearing R. S. P. No. 415 situated in village Chakipur was purchased by Debendra Mehta (petitioner 2) from the respondents (transferees) 5 to 7. It is the claim of the writ petitioners that this purchase was in fact a benami transaction and the real purchaser was Jugal Kishore Singh (petitioner 1) whilst the ostensible purchaser (petitioner 2) was merely his domestic servant and employee. Ganesh Mahto (respondent 4) thereafter preferred on application for preemption of the land in which he obviously impleaded only the registered transferee Debendra Mahto (petitioner 2). In the subsequent proceedings being Ceiling Case Mo. 4 of 1979, Debendra Mahto showed cause and sought to take up the plea that in fact the real purchaser was petitioner 1 Jugal Kishore Singh. It is, however, the admitted position that petitioner 1 was not formally impleaded as a party in the proceeding. After trial the pre-emption application was allowed by the D.C.L.R., Muzaffarpur West, on the 12th of December, 1979. Against the said order an appeal was then preferred by petitioner 2 Devendra Mahto in which the petitioner 1 was merely arrayed as respondent 5. It is common ground that petitioner 1, the alleged real owner, did not himself prefer any appeal against the order aforesaid. The said appeal was, however, allowed by the Additional Collector, Muzaffarpur, on the 29th of March, 1982, whereby he set aside the order of preemption passed by the learned D.C L.R. mainly on the ground that the real owner had not been impleaded as a party and, therefore, remanded the case back to the lower Court for investigating the issue of the benami transaction and, thereafter, to dispose it of in accordance with law. Aggrieved thereby, the pre-emptor (respondent 4) preferred a revision before the Board of Revenue. By the impugned order of the Board it has been held, inter alia, that unless the real purchaser himself volunteers and becomes a party to the proceeding in the pre-emption case, the ostensible owner has to be treated as a real purchaser and neither the pre-emptor nor the Court has any legal obligation to add the real purchaser as a party and consequently the decree or order against the ostensible owner is wholly binding on the real owner as well. The revision was consequently allowed and the appellate order remanding the matter was set aside. Aggrieved thereby the present writ petition has been preferred by both the ostensible and the real owners.

3. When this case came up for admission before my learned brother P. S. Mishra, J., primary reliance was placed on Narendra Kumar Ghoses case (AIR 1972 Pat 1) (supra) for contending that the issue of benami had to be necessarily investigated into. Opining that this approach may in a way be inconsistent with the larger scheme of the Act and might help unscrupulous transferees to exceed the aggregate of the ceiling area through purchases made by ostensible owners the matter was directed to be placed before a Division Bench. In view of the significance of the issue raised the Division Bench admi