Kamleshwari Prasad Yadav @ Kamleshwari Yadav vs State of Bihar and Others

S.S. Sandhawalia, C.J.—Whether the Board of Revenue is the final Court of fact in the proceedings before it under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, has emerged to be the significant question in this appeal under Clause 10 of the Letters Patent. Equally, the significant connected question is that, if it be so, can the Writ Court enter the controversial thicket of facts and itself appraise the evidence to reverse the clear out findings of fact arrived at by the Board?

The facts are not in serious dispute. Kamleshwari Prasad Yadav alias Kamleshwari Yadav, appellant, had instituted the proceedings u/s 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter called the ''Act'') claiming to pre-empt the land sold by virtue of the registered sale deed dated 8th of September, 1976 executed by Shri Kapindra Narain Singh, respondent No. 6, in favor of Shrimati Rama Devi, respondent (since deceased). The claim was rested on being the boundary raiyat of the land transferred by virtue of the sale deed. The appellant had attached the certified copy of the sale deed as also of the chalan for the requisite deposit of Rs. 3,300/- only being 10 per cent of the total sale amount, with his petition. In defense the case set up on behalf of the said respondent Raraa Devi was that despite the execution of the sale deed which was admitted, Kapindra Naiain Singh was her benamidar, and the transaction, in fact, was only a deed of relinquishment.

The Land Reforms Deputy Collector, by his detailed order (annexure 1 to the writ petition) considered the record, documents, affidavits, etc, before him and on an appraisal thereof concluded that the transfer was not a benami one and the transaction was one of sale and the appellant being an adjacent raiyat of the land in question was entitled to pre-empt the same.

Against the said order, Rama Devi, respondent, appealed. Before the Additional Collector, on behalf of Rama Devi, curiously, an altogether different stand was sought to be taken, namely, that for all purposes she was the real owner and the impugned sale is, in fact, an exchange in the form of a sale deed. The Additional Collector, however, without adverting to the basic question of the nature of the sale deed and the right of the appellant to pre-empt the same, went off on a tangent to hold that the right of pre-emption had been made available with a view to prevent the fragmentation of the holdings and because allowing the claim to pre-empt might involve fragmentation, it was not just and equitable to allow the pre-emption in favor of the appellant (respondent before him). On this tenuous ground, the considered order of the Deputy Collector, Land Reforms, was set aside and the appeal was allowed. The matter was thereafter carried in revision before the Board of Revenue The learned Additional Member adverted to the core of the matter and after appraising the document, the earlier relevant revenue records and the rent receipts, etc., and equally to the factum of the alleged adverse possession of the land in dispute, gave seven clear cut reasons for holding that the transaction, on the face of the document, was in fact a sale deed and further there was no evidence whatsoever to show to the contrary that it was not a sale deed. Consequently, the order of the learned Additional Collector was set aside and that of the Land Reforms Deputy Collector restored.

The original respondent No. 5, Rama Devi, then preferred the writ petition giving rise to the present letters patent appeal. The learned single Judge himself came to the conclusion that it was not disputed that the tenor of the document in question was of a deed of sale and further that all the ingredients of benami had not been established on the record. He thereafter adverted to another aspect of the matter which, he himself observed, had not been canvassed before him, namely, the larger objects of the rule of pre-emption. Thereafter he proceeded to advert to the entries in the survey records pertaining to the alleged adverse possession and the fact that these entries were on the verge of clothing respondent Rama Devi with the right of adverse possession because of the alleged passage of nearly eleven years. He further opined that the period of limitation, which had been put in Section 16(3) for making applications, namely, three months from the date of application was not in keeping with the present situation. He held that these three circumstances were quite sufficient to defeat the claim of pre-emption of the appellant. Consequently the writ petition was allowed and the order of the Board of Revenue was set aside and that of the Additional Collector restored instead.

In assailing the judgment under appeal, Mr. Thakur Prasad, with his usual lucidity, contended that on an in-depth appraisal of evidence, the revenue record and the surrounding circumstances, the Board of Revenue bad arrived at seven clear cut findings of fact to conclude that the document was a deed of sale. It was rightly pointed out that the present case cannot be labeled as a case of no evidence and the learned single Judge had not even remotely held it to be so. Equally it was highlighted that the Board of Revenue had, in sum, affirmed the trial Court, namely, the Land Reforms Deputy Collector, which, in its turn, had come to its conclusions on the basis of the appraisal of evidence in considerable detail. It was then pointed out that the learned single Judge had himself concluded that the ingredients of a benami transaction were not satisfied in the context of the transaction and the document. Yet he chose to appraise evidence and construed the document afresh for holding so. On the aforesaid considerations, the learned Counsel for the appellant contended forcefully that the learned single Judge could not convert himself into either a trial Court or a Court of first appeal to appreciate evidence and reverse the considered and concurrent findings of fact arrived at by the Board of Revenue in affirming the order of the Land Reforms Deputy Collector.

In order to meet the somewhat irresistible argument raised on behalf of the appellant, Mr. Balabhadra Prasad Singh, the learned Counsel for the respondents, had attempted a flanking movement. He contended that the Board of Revenue was not a Court of fact and exercised merely revisional jurisdiction and therefore had erred in reversing the appellate order of the Additional Collector. It was suggested that the powers of the Board of Revenue being revisional conformed in character to those of the High Court u/s 115 of the Code of Civil Procedure. Considering the significance of the issue, we had even granted time to the learned Counsel for the parties to address us on this significant point whether the Board of Revenue could be or was a Court of fact and, consequently, the final one in this field.

Now, a plain reading of Section 32 of the Act would itself indicate that the stand of the respondents is untenable, This provision gives the widest power to the Board to confirm, modify or set aside the appellate order of the Collector. In this context, it is crystal clear that the Board is at the apex of the hierarchy over the Land Reforms Deputy Collector and the Collector under this Act. Now, once there is a power of the widest amplitude without qualification vested in the Board to either confirm or modify or totally set aside the order of the appellate Court, it is patent that it was more than fully authorised to go into the facts and review the findings of fact of the authorities below. This power is indeed conferred by Section 32 on the Board without limitation and in the language of the widest amplitude. What further calls for notice in Section 32 is the fact that the provision mandates that a revision shall lie to the Board of Revenue from any appellate order passed by a Collector, thus giving a vested right to the litigant to approach the Board. It is not merely a revisional power to call for the records but a vested right of the litigant to resort to it as well. Again Sub-section (2) expressly provides for a hearing to the parties for the purposes of revision. Of equal significance is the tact that Sub-section (3) empowers the Board to call from the Collector any document or record obviously for its own appraisal thereof.

The widest power of the Board of Revenue u/s 32 of the Act may be well contrasted with other provisions where a revisional Court is constricted in the exercise of its jurisdiction and may, perhaps, be inhibited from entering the issues of fact. This indeed may be highlighted by juxtaposing Section 32 of the Act with the well-known provisions of Section 115 of the Code of Civil Procedure:

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Section 32 of the Act Section 115 of CPC.

32 Revision to the Board of 115. Revision,--(I) The High Revenue--(I) A revision shall lie to Court may call over the record of any the Board of Revenue from any case which has been decided by any appellate order passed by a Collector Court subordinate to such High or a Commissioner within thirty days Court and in which no appeal )lies of such order. there to, and if such subordinate Court appears-- (2) When a reference is made to the Board of Revenue under (a) to have exercised a jursdic- Section 38 or a revision is filed tion not vested in it by law, or under Sub-section (1) of this section, (b) to have failed to exercise a the Board may, after hearing the jurisdiction so vested, parties, confirm, modify or set aside (c) to have acted in the exercise the order. of its jurisdiction illegally or with the (3) The Board of Revenue may material irregularity, of its own motion or on an application made to it, call for from the the High Court may make such Collector any document or record In order in the case as it thinks fit: connection with any enquiry conduct- ted by the Collector or may direct Provided that the High Court the Collector to institute, for the pur shall not, under the section, vary or poses of this section, an enquiry and reverse "any order made, or any to submit his findings to the Board." order deciding an issue, in the course of a suit or other proceeding, except where- (a) the order, if it had been made in favor of the party applying for revision, would nave finally dis- posed of the suit or other proceeding. or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. (2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. ___________________________________________________________________________________

I believe the matter is so manifest that no elaboration seems to be needed for noticing the radical difference betwixt the revisional power conferred under the two sections, It would necessarily follow that the Board is, therefore, not a Court merely to correct the errors of lack of jurisdiction or failure to exercise jurisdiction or material irregularity but instead is a forum of unlimited appeal. Nor does Section 32 employ the other well-known limitations in the revisional jurisdiction which are with regard to only legality or propriety of the orders of the Courts below as is the case u/s 397 of the Code of Criminal Procedure. Our attention was also drawn to Section 8 of the Bihar and Orissa Excise Act and Section 62 of the Public Demands Recovery Act which again, though labeled as revisions, give unlimited powers to the authority to revise without limitation.

To lend precedential sanctity to his argument, Mr. Thakur Prasad Tightly relied on Sri Raja Laxmi Dyeing Works and Ors. v. Rangaswamy Chettiar (1980) 4 S.C.C. 289. Therein their Lordships had left the matter in no doubt by highlighting that the true character of the revisional power can only be discovered with reference to the language employed by the Statute. It was observed as follows:

"''Appeal'' and ''revision'' are expressions of common usage in Indian statute and the distinction between ''appellate jurisdiction'' and ''revisional jurisdiction'' is well known though not well defined. Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. Ordinarily, again, revisional jurisdiction is analogous to a power of superintendence and may sometimes be exercised even without its being invoked by a party. The extent "of revisional jurisdiction is defined by the statute conferring such jurisdiction. The conferment of revisional jurisdiction is generally for the purpose of keeping tribunals subordinate to the revising tribunal within the bounds of their authority to make them act according to law, according to the procedure established by law and according to well defined principles of justice. Revisional jurisdiction as ordinarily understood with reference to our statutes is always included in appellate jurisdiction but not vice versa. These are general observations. The question of the extent of appellate or revisional jurisdiction has to be considered in each case with reference to the language employed by the statute.

In the light of the aforesaid enunciation, there is thus no magic in a name and the issue is not to be decided merely by labels. Mere labeling of this power as revisional or appellate is, therefore, not conclusive and what is crucial is the particular language employed by the statute. Applying the above test, there remains no manner of doubt on the wide ranging ambit of Section 32 with regard to the Board''s power and it being the final Court of fact.

Emphasis was then rightly placed on Section 43 of the Act which is in the following terms:

Bar of jurisdiction of Civil Court.--(1) Save and except as provided in this Act no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by "the Board of Revenue, the appellate authority or the Collector.

(2) No order of the Board of Revenue, the appellate authority or the Collector made, under this Act, shall be questioned in any Court.

This again is a pointer to the finality of the finding of the Board. With literality, the matters to be dealt with by the Board of Revenue or its decisions are stamped with finality and have even been taken away from the ambit of any further examination by the Civil Court.

To conclude on this aspect, the answer to the question posed at the very out-set is rendered in the affirmative and it is held that the Board of Revenue is the final Court of fact in the proceedings before it u/s 32 of the Act.

Now, once it is held as above then the rest seems to be somewhat easy sailing for the appellant. The judgment under appeal reveals that a true approach to the concluded findings of fact of the Board was not made therein within the settled constraints of the writ jurisdiction. Indeed, on an in-depth consideration, the Board had arrived at the under mentioned clear cut findings:

(i) That the document on the face of it was a sale deed and the law is that a document is what it says unless there is a good evidence to the contrary.

(ii) That there was not a hint or mention in the sale deed that it was being executed in the benami character of the vendor.

(iii) That it was difficult to imagine why there should have been two btnamidars during the long period of 30 years--from 1942 to 1972.

(iv) That there was no whisper in the original deed of settlement or bazidawa of the year 1959 about the vendee.

(v.) That in the settlement of 1965 the vendee had been shown in adverse possession and if the land belonged to vendee then at least during settlement operations she would have insisted that the real position be recorded.

(vi) That if the intention of the parties was to regularise the situation then there was nothing to prevent Rama Devi from executing a deed of relinquishment.

(vii) That there was no evidence to show that the transaction was not a sale.

The judgment under appeal did not even advert to the aforesaid material aspects, far from rebutting the same. In a way the Writ Court converted itself into a forum, it not of the original trial but in any case one of first appeal. That, in my humble view, is not the province of the write jurisdiction ft has been indeed a somewhat fundamental proposition that the Certiorari Court is not one of fact It suffices to refer to one of the earlier judgments of the Constitution Bench in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, which has not thereafter been deviated from. Vankatarama Ayyar, J., speaking for a Bench of 7 Judges observed:

One consequence of this is that the Court "will not review findings of fact reached by the inferior Court or Tribunal, even if they be erroneous. This on the principle that a Court which has jurisdiction over subject-matter has jurisdiction to decide wrong as well as right, and, when the Legislature does not choose to confer a right of appeal against that decision, it would be defeating its purpose and policy, if a superior Court were to rehear the ease on the evidence, and substitute its own findings in ''certiorari''. These propositions are well settled and are not in dispute.

The aforesaid enunciation has been adhered to unreservedly in Union of India (UOI) Vs. T.R. Varma, , and Syed Yakoob Vs. K.S. Radhakrishnan and Others, . The law on the point has been recently reiterated within this jurisdiction by the Full Bench in Mahanth Dhansukh Giri and Others Vs. State of Bihar and Others, , and again in Smt. Bina Rani Ghosh v. Commissioner, South Chotanagpur Division and Ors. 1985 P.L.J.R. 732 wherein it was observed:

It perhaps deserves reiteration that it is not within the province of the Writ Court to convert itself into a Court of first instance or an appellate forum for appraising and appreciating evidence afresh on findings of fact which stand concluded by forums having jurisdiction over the matter...it seems; "settled beyond cavil that the appreciation of evidence is normally beyond the scope of the Writ Court, and we see no reason herein to depart from the said rule.

Now, applying the hallowed rule aforesaid, to my mind, there appears to be no manner of doubt that the learned single Judge herein had broken the constitutional barriers spelt out above by setting aside the findings of the final Court of fact and substituting them for his own on a re appraisal of evidence and materials. With great respect, the judgment cannot be sustained and is hereby set aside. The appeal is consequently allowed without any order as to cost.

Before parting with this appeal, it is necessary in fairness to Mr. Thakur Prasad to notice his reliance on Martin Cashin and Ors. v. Peter J. Cashin A.I.R 1938 PC 103 at p. 109, by forcefully contending that a benami transaction by its very nature is triangular. There must be three actors therein, namely, the vendor, the vendee and the ostensible owner. He contended that herein the document consists only of two parties and ex facie declares itself to be a sale deed. Therefore, it was legally impermissible to read it as a benami transaction and, indeed, the learned single Judge was himself compelled to find that all the ingredients of a benami transaction were non-existent.

In the light of the view J have already taken above, it becomes unnecessary to launch on a detailed dissertation on the very nature of a benami transaction and its inflexible requirements.

S. Shamsul Hasan, J.

I agree.