All these 13 writ applications have been heard one after another and are being disposed of by a common judgment as the points involved in all of them are identical or similar.

2. Proceedings under section 5 (i) (iii) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Lands) Act, 1961, hereinafter referred to as 'the Act' was started against a number of persons giving rise to 46 proceedings, the Sub-divisional Officer who decided the proceedings held that all the 46 transactions were liable to be annulled. In appeal, four of these appeals were allowed and there was modification in relation to one proceeding. In revision, the Additional Member, Board of Revenue interfered in four cases and directed remand in those cases. So far as the petitioners are concerned, they were unsuccessful throughout. Hence, these writ applications challenging the orders contained in Annexures 1, 2 and 3.

3. Section 5 (i) (iii) of 'the Act' authorises annulment of transfers made after 22.2.1959 in the circumstances mentioned in the said provisions. The authorities who had to deal with those cases of annulment were of the view that the transfers in question were farzi or made with the intention of defeating the provisions of 'the Act'. In arriving at this finding reliance was placed on certain circumstances. It was also held that the transferees were not in possession of the lands but it was the transferors who were in possession.

4. Learned counsel contended that none of the circumstances that have been taken into consideration either individually or collectively lead to the conclusion that the transactions were either farzi or made with the intention of defeating the provisions of 'the Act' Learned counsel for the petitioners advanced argument to show as to why the circumstances should not be taken into consideration.

5. In our view it is not necessary to express any opinion in relation to other circumstances as one of the major factor indeed the most important consideration which has weighed with the authorities is their conclusion that even after the transfer the petitioners were not in possession of the transferred lands.

6. Learned counsel contended that this finding was not sustainable in law. Learned counsel pointed out that after the transfers, the transferees had been mutated in the revenue records. This was done after an enquiry in relation to the factum of possession as required under the Khash Mahal Manual. The transferees have all along been paying rent to State and the State has been accepting rent from them as raiyats. In recent survey also they say, the petitioners have been entered as raiyats. Other circumstances were also relied upon in relation to the contention that the petitioners were in possession.

7. We find that the authorities below have determined the question of possession only on the basis of the report of the Circle Officer, Barari and not on the basis of any evidence that was led on behalf of the state. Such reports cannot take place of the evidence that has to be adduced in the proceedings itself. The report is not even a statutory report. It amounts only to an assertion on behalf of the State. What is stated in the report, however has to be proved, if the same is not accepted by the other side, by adducing evidence which may be acceptable to the authorities concerned. Indeed in most of the cases question of possession will have special importance. In these writ applications we do not propose to decide the question of possession as evidence has not been led by either side and the report, as already indicated, cannot be the basis of decision. Indeed there was some material in favour of the petitioners in the rent receipts granted by the State. But when the question of possession was in issue, the said question, in the circumstances of these cases, could not be decided on the said material alone. The proper procedure should have been to permit the State as' also the petitioners t