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2011 Supreme(Ori) 95
2011 (II) OLR — 96
SANJU PANDA, J.
O.J.C. No. 13331 of 2000
In the matter of an application under Article 227 of the Constitution of India.
Panika Bhoi...Petitioner
Versus
Kunu Bariha & others...Opp. Parties
Decided on 9th March, 2011.
1
For Petitioner:M/s. N.C.Pati, A.K. Mohapatra, S. Mishra, S. Tripathy, N. Singh & A.K. Panda
For Opp. Party No. 1:M/s. Ajodhya Ranjan Dash & S.K. Nanda
Headnote:1. BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988 - Benami Transactions were the recognised species of legal transactions pertaining to immovable properties and the said transactions were recognised prior to coming into operation of the Act - Act, 1988 is prospective and nobody can take a plea of benami transaction after coming into operation of the said Act.
It was a legal right of a party to contend in those days that even though the transfer of the property had been effected in the name of a Benamidar for a party from whom the consideration had moved, the party was the real owner. Hence, the Benamidar was bound to restore such property to the real owner. If the Benamidar took up a different attitude then the law provided, a substantive right accrued to the party to come to the Court for getting appropriate declaration and relief of possession on that ground. However, after coming into operation of the Benami Transactions (Prohibition) Act in the year 1998, such transactions are prohibited. The Act No.45 of 1988 in its preamble states that it is an Act to prohibit benami transactions and the right to recover property held benami and for matters connected therewith or incidental thereto. (Paras - 11 to 13)
2. BENAMI - Transactions - Burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so - Burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that Act - The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through - Question as to what his intention has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc. (Para - 14)
3. SALE - Benami - Whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformally applicable in all situations, can be laid down, in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances.
(Para - 15)
4. TRANSFER OF PROPERTY ACT, 1882 - Sec. 41 - Benamidar is an ostensible owner and if a person purchases from a benamidar without knowing anything about benami transaction after due enquiry and the benamidar has also not disclosed anything, in that case the purchaser is protected for his bona fide as per the section.
(Para - 16)
5. TRANSFER OF PROPERTY ACT, 1882 - Sec. 41, proviso - Transferee must show that after taking reasonable care to ascertain that the transferror had power to make the transfer, he acted in good faith as a bona fide purchaser. (Para - 18)
JUDGMENT
S. PANDA, J. — The petitioner has filed this writ petition challenging the impugned orders in Annexures 4 to 6 passed by opposite parties 5 to 7 respectively under Section 23 of the Orissa Land Reforms Act (in short, “the OLR Act”).
2.The brief facts of the case are that basing on the report of A.D.W.O., Patnagarh, Revenue Misc. Case No.8/6 of 1994 was initiated before the Sub-Collector, Patnagarh under Section 23 of the Act. It was alleged that the disputed land originally belonged to Lochana Bariha, the grand-mother of opposite parties 1 and 2, who is a Scheduled Tribe. She transferred the same in favour of one Rohitaswa Bariha, who also belongs to Scheduled Tribe, by executing a registered sale deed dated 5.2.1974. Rohitaswa Bariha, in his turn, sold the land in question to Panika Bhoi, the present petitioner, by executing two registered sale deeds dated 5.7.1985 and 6.7.1985. However, opposite parties 3 and 4 Kairu Sahu and Rasika Sahu respectively are the real owners of the disputed land. They purchased the property Benami in the name of Rohitaswa Bariha as they do not belong to Scheduled Tribes. As the sale deeds were executed without obtaining permission from the competent authority, they claimed for restoration of the said property. In the said case, they did not implead the present petitioner as a party but subsequently the present petitioner was made a party on an application being filed by him. He filed his show cause. Opposite parties 3 and 4 filed their show cause taking a plea that they had neither purchased the property ever in the name of Rohitaswa Bariha nor had any interest in the disputed land. A false case had been foisted against them due to party-faction in the village. Rohitaswa Bariha had purchased the disputed property and executed the two sale deeds in favour of the present petitioner. The purchaser was in possession of the property in pursuance of the said registered sale deeds. The present petitioner being a third party purchaser filed his show cause stating therein that Lochana Bariha was the real owner of the disputed land and she transferred the property in the name of Rohitaswa Bariha on 5.2.1974. Both the vendor and the purchaser belong to Scheduled Tribe. Subsequently Rohitaswa Bariha transferred the disputed land by two registered sale deeds dated 5.7.1985 and 6.7.1985 in favour of the present petitioner. The present petitioner is also a Scheduled Tribe person. Therefore, prior permission was not necessary and from the date of purchase he is in possession of the property in question.
3.Opposite parties examined six witnesses in support of their claims. The present petitioner also examined six witnesses and filed certain documents i.e. registered sale deeds, current record-of-right which showed that the petitioner was in possession of the disputed land and some affidavits. Rohitaswa Bariha filed an affidavit supporting the case of opposite parties 1 and 2. Subsequently he filed another affidavit supporting the case of the present petitioner. The Sub-Collector, without appreciating the matter in its proper perspective, relying on the affidavit filed by Rohitaswa Bariha passed the impugned order, under Annexure-4 on 27.3.1996 in favour of opposite parties 1 and 2. Against the said order, the petitioner filed OLR Appeal No.6 of 1996 before the Addl. District Magistrate, Bolangir who dismissed the appeal holding that the ROR of the current settlement showed that the name of Rohitaswa Bariha had been recorded in the remarks column as “in illegal possession”. The ROR would have been prepared in his name, had he been the real owner. Challenging the said order, OLR Revision No.21 of 2000 was filed before the Collector, Bolangir. The revisional authority also dismissed the revision holding that Rohitaswa Bariha was the Benamidar and the two contradictory affidavits filed by Rohitaswa Bariha created doubt regarding the proof of transfer of land through execution of a registered sale deed in the na
