Orissa High Court
Afr Panchu Das vs Bhaskar Swain & Others on 22 November, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 369 of 2014
[In the matter of an appeal under Section 100 of the Code
of Civil Procedure, 1908.
---------------
AFR Panchu Das ...... Appellant
-Versus-
Bhaskar Swain & others ...... Respondents
Advocate(s) appeared in this case :-
_________________________________________________________
For Appellant : Mr. Prafulla Kumar Rath Sr. Adv.
With M/s. R.N. Parija, A.K. Rout,
S.K. Pattnaik, A. Behera &
P.K. Sahoo, Advocate
For Respondents: Mr. S. Das, Advocate
[ For R.1]
_______________________________________________________
CORAM
JUSTICE SASHIKANTA MISHRA
JUDGMENT
nd 22 November, 2024 SASHIKANTA MISHRA, J. This is a defendant's appeal against a confirming judgment. The judgment dated 24.04.2014 followed by decree passed by the 2nd Addl. District Judge, Puri in RFA No. 6 of 2010 is under challenge, whereby the Page 1 of 19 judgment dated 30.11.2009 followed by decree passed by Civil Judge (Sr. Division), Puri in Civil Suit No.273 of 2002 was confirmed.
2. For convenience, the parties are referred to as per their respective status before the trial Court.
3. The suit was filed by the plaintiff for a decree of specific performance of contract or in the alternative, refund of advance money. The plaintiff's case is that the suit property belongs to Bhramar Das (deceased-defendant No.1) and his co-sharers, which fell to the share of Bhramar Das in an amicable partition. Said Bhramar Das wanted to sell the property for his personal reasons and accordingly executed an agreement for sale on 28.02.2008 for a total consideration of ₹17,000/-, out of which he received ₹15,000/-. It was agreed that the sale deed would be executed by him after making necessary correction in the Record of Right (ROR) with regard to his caste, which was wrongly described as 'Bauri', which is a scheduled caste, even though he is 'Buna', which is a non-scheduled caste. It was further provided that the balance Page 2 of 19 consideration of ₹2,000/- would be paid by the plaintiff on the date of execution of the sale deed and in case the vendor fails to perform his duties the advance money shall be returned with interest @12%. It was further stated that the plaintiff was ready and willing to perform his part of the contract and to pay the balance consideration money but despite repeated approaches, Bhramar Das took no steps to execute the sale deed. Hence, the suit.
4. Bhramar Das having died during pendency of the suit, his legal heirs were substituted. They filed their written statement jointly refuting the plaint averments and by asserting that Bhramar Das had taken a loan of ₹12,000/-, though it was mentioned as ₹17,000/- in the agreement with the excess amount being towards his possible litigation expenses. Further, Bhramar Das was not the sole owner of the property and that they are Harijans and landless persons. After repayment of the loan dues with interest @ 12%, the document was to be returned but the plaintiff wanted to grab the valuable properties by coming out with a false case.
Page 3 of 19
5. Basing on the rival pleadings, the trial Court framed the following issued for determination.
―1. Whether the suit is maintainable?
2. Whether the plaintiff has any cause of action to file the suit?
3. Whether the deceased-defendant No.1, Bhramar Das made an agreement with the plaintiff on dtd.28.2.2001 to sell the suit land for a consideration of Rs.17,000/- and received part consideration of Rs.15,000/- ?
4. Whether the legal heirs of the deceased- defendant No.1, Bhramar Das are liable to sell the suit property in favour of the plaintiff and alternatively to return the earnest money of Rs.15,000/-with interest @12% ?‖
5. To what other reliefs is the plaintiff entitled to?
6. Taking up Issue No.3 for consideration at the outset, the trial Court found that the document as such was not denied but was explained as a deed of security against loan of ₹12,000/-. Basing on the other oral evidence, the trial Court negatived the plea of defendants to hold that the deceased- Bhramar Das had executed the agreement for sale of the suit property for consideration of ₹17,000/-, out of which he received ₹15,000/- on the date of agreement. On Issue No.4, the trial Court, relying upon some judgments of the Supreme Court held that the Civil Court has no jurisdiction to give a declaration if a caste is a scheduled caste or not. On such basis it was held that Page 4 of 19 Bhramar Das was 'Buna' by caste, whereas the copy of the Presidential Notification mentions 'Buna Bauri' as a scheduled caste. 'Buna' is neither a scheduled caste nor a scheduled tribe and therefore, the agreement executed by Bhramar Das was a legally enforceable agreement, which his legal heirs were obliged to comply. On the above findings rendered in respect of the main issues, the remaining issues were answered accordingly and the suit was decreed by directing the defendants to execute the registered sale deed in respect of the suit property in favour of the plaintiff on receipt of the balance consideration of ₹2,000/-.
7. Being aggrieved, the defendant carried the matter in appeal, which was heard and disposed of by the 2nd Addl. District Judge, Puri. The appellate Court took note of the agreement marked Ext.1 and held that the vendor knew that he belonged to 'Buna' caste, which is a non-scheduled caste though wrongly his caste was mentioned as 'Bauri' in the ROR. As such, Ext.1 was held to be a genuine document capable of transferring title from Page 5 of 19 the vendor to the vendee subject to compliance of the conditions mentioned therein. It was further held that if the defendants failed to correct the ROR they are supposed to return the money with interest @ 12%, which is a default clause. On such findings, the first appellate Court dismissed the appeal confirming thereby the judgment of the trial Court.
8. Being further aggrieved, the defendants have preferred the present appeal, which was admitted on the following substantial question of law:
―Whether the contract is enforceable, which itself provides refund of advance money as an adequate relief as provided under section 14(1)(a) of Specific Relief Act?‖ The following substantial question of law was also framed at the time of hearing:
―There being no pleading in the plaint that the consolidated R.O.R. is corrected, whether the contract is enforceable before any such correction in view of the provision under Section 32 of Indian Contract Act.‖
9. Heard Mr. P.K. Rath, learned Senior Counsel appearing along with Mr. A. Behera, learned counsel for the appellant. There was no appearance from the side of Page 6 of 19 the plaintiff-respondents despite repeated calls. However, a written note of submissions was filed after closure of arguments on behalf of the respondent which was taken on record and also considered.
10. Mr. Rath, learned Senior Counsel would argue that both the Courts below failed to appreciate the fact that the suit itself was not maintainable because of non- enforceability of the contract. Mr. Rath has referred to Section 14 of the Specific Relief Act (unamended) to submit that the contract in question having provided for payment of compensation in the event of its non-performance makes it unenforceable. He further argues that even otherwise, the ROR shows that the deceased- Bhramar Das belonged to the 'Bauri Buna' caste, which is a scheduled caste and therefore, he not having obtained permission under Section 22 of the OLR Act for sale of the property, the contract becomes void ab initio.
11. In the written note filed on behalf of the respondent it has been stated that the caste of Bhramar Das was wrongly mentioned as 'Bauri' in the ROR, even Page 7 of 19 though he belongs to the 'Buna' caste. In another ROR, copy of which is enclosed to the written note, the caste of Bhramar Das has been mentioned as 'Buna'. The list of Scheduled Caste in Odisha as per the Gazette Notification mentions 'Bauri', 'Buna Bauri' and 'Dasia Bauri' as Scheduled Castes at serial No.10 but there is no mention of caste 'Buna' as such. It is therefore, contended that there cannot be different depiction of the caste of a person in different documents. In the suit property ROR (Ext.4), the caste is wrongly mentioned as 'Bauri' whereas in consolidation ROR (Ext.6), it is mentioned as 'Buna'. Since Bhramar Das identified himself in the agreement vide Ext.1 as 'Buna', he must be treated as a Buna caste person, which is a non-Scheduled Caste.
12. Before proceeding to decide the substantial questions of law framed, it would be apposite to examine the agreement for sale itself, marked Ext.1, which is available in the LCR. Perusal of Ext.1 reveals that the same was executed by Bhramar Das in favour of Bhaskar Swain on 28.02.2001. After mentioning the particulars of land Page 8 of 19 proposed to be sold, it is specifically mentioned that in the suit property ROR, the caste of the proposed vendor is mentioned as 'Bauri' instead of 'Buna' and that the same being an impediment for sale of the property, the proposed vendor shall get the ROR rectified and thereafter execute the sale deed and then receive the balance consideration of ₹2,000/-. In case the rectification of caste is unable to be done then the proposed vendor would refund the amount of ₹15,000/- along with interest to the proposed vendee.
13. Keeping the above in perspective, it would now be proper to consider the merits of the contentions raised.
14. There is no dispute that the suit property ROR (Ext.4) in respect of the suit land mentions the caste of Bhramar Das as 'Bauri'. On the other hand, the consolidation ROR, marked Ext.6 mentions his caste as 'Buna' along with others. This, by itself raises a doubt as regards the actual caste of Bhramar Das. If, according to him his caste is 'Buna' not 'Bauri', he ought to have approached the competent authority to effect necessary correction in the record of rights. Such an exercise not Page 9 of 19 having been done and on the face of conflicting depictions of his caste in different documents, it cannot be conclusively held that he is not a scheduled caste person. This is being said for all the more reason that the statute places a bar on sale of immovable property by a scheduled caste person to a non-scheduled caste person without permission of the competent authority under the Odisha Land Reforms Act. There is no dispute that 'Bauri' is a scheduled caste. It has not been disputed that the proposed vendee i.e., the plaintiff belongs to a non- scheduled caste. Section 22 of the OLR Act places restriction on the sale of immovable property by a member of the scheduled caste (and scheduled tribe) in favour of non-scheduled caste (and scheduled tribe) persons without obtaining permission of the competent authority. The provision is as follows:
"22. Restriction on alienation of land by Scheduled Tribes.
(1)[Any transfer] [Substituted vide Orissa Act No. 13 of 1965.] of holding or part thereof by a raiyat, belonging to a Scheduled Tribe shall be void except where it is in favour of
-(a)a person belonging to a Scheduled Tribe; or Page 10 of 19
(b)a person not belonging to a Scheduled Tribe when such transfer is made with the previous permission in writing of the Revenue Officer:
Provided that in case of a transfer by sale, the Revenue Officer shall not grant such permission unless he is satisfied that a purchaser belonging to a Scheduled Tribe willing to pay the market price for the land is not available, and in case of a gift unless he is satisfied about the bona fides thereof.
(2)The State Government may, having regard to the law and custom applicable to any area prior to the date of commencement of this Act by notification, direct that the restrictions provided in Sub-section (1) shall not apply to lands situated in such area or belonging to any particular tribe throughout the State or in any part of it.
(3)Except with the written permission of the Revenue Officer, no such holding shall be sold in execution of a decree to any person not belonging to a Scheduled Tribe.
(4)Notwithstanding anything contained in any other law for the time being in force, where any document required to be registered under the provisions of Clause (a) to Clause (e) of Sub-section (1) of Section 17 of the Registration Act, 1908, (16 of 1908) purports to effect transfer of a holding or part thereof by a raiyat belonging to a Scheduled Tribe, in favour of a person not belonging to a Scheduled Tribe, no Registering Officer appointed under that Act shall register any such documents, unless such documents is accompanied by the written permission of the Revenue Officer for such transfer.
(5)The provisions contained in Sub-section (1) to (4) shall apply mutatis mutandis, to the transfer of a holding or part thereof a raiyat belonging to the Scheduled Caste.
(6)Nothing in this section shall apply -
(a)to any sale in execution of a money decree passed, or to any transfer by way of mortgage Page 11 of 19 executed, in favour of any Scheduled Bank or in favour of any Bank to which the Orissa Co-
operative Society Act, 1962 (2 of 1963) applies; and
(b)to any transfer by a member of a Scheduled Tribe within a scheduled area.‖
15. There is nothing on record nor it is the case of the any of the parties that any permission was sought for or obtained from the competent authority for sale of the property. The recitals of the agreement do not whisper a word in this regard. Therefore, the proposed sale, if allowed would be contrary to law. To such extent therefore, the contract (agreement) vide Ext.1 involves an unlawful consideration. Section 23 of the Contract Act reads as follows:
―23. What considerations and objects are lawful, and what not.--The consideration or object of an agreement is lawful, unless--
it is forbidden by law ; or is of such a nature that if permitted, it would defeat the provisions of any law; or is fraudulent ; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful.Page 12 of 19
Every agreement of which the object or consideration is unlawful is void.‖
16. It is evident that the consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law. From what has been stated before, the contract per se, runs contrary to the provisions of Section 22 of the OLR Act and hence, cannot be treated as valid. It is well settled that where the Act prohibits transfer by an allottee of land belonging to a Scheduled Caste to a non-Scheduled Caste, such sale besides being forbidden by law is also contrary to Public Policy. Reference may be had in this regard to the following judgments of the Supreme Court in the case of Papaiab v State of Karnataka1,:
RChandevarappa v. State of Karnataka2,: Murlidhar Dayandes Kesekar v. Vishwanath Pandu Barde3.
17. It is needless to mention that enforceability of a contract depends on its validity. In the judgment of the 1 AIR 1997 SC 2676 2 (1995) 6 SCC 309 3 1995) Supp (2) SCC 349 Page 13 of 19 Supreme Court rendered in the case of U.N. Krishnamurty vs. A.M. Krishnamurty4, , it was held as follows:
32. In a suit for specific performance of a contract, the Court is required to pose unto itself the following questions, namely:
32.1. Whether there is a valid agreement of sale binding on both the vendor and the vendee. 32.2. Whether the plaintiff has all along been and still is ready and willing to perform his part of the contract as envisaged under Section 16(c) of the Specific Relief Act, 1963.
18. So essentially, finding of the Court as to validity of the contract is sine qua non before directing it to be specifically enforced. In the instant case there is nothing in the recitals to show that any permission under Section 22 of the OLR Act had been obtained from the competent authority for sale of the land.
19. The defendants have taken a plea that the caste of the proposed vendor was wrongly mentioned as 'Bauri' instead of 'Buna' and that he would get the same rectified.
What steps were taken in such respect is not forthcoming from the evidence. In any event, in the absence of any cogent evidence to show that the caste of Bhramar Das was not 'Bauri' but 'Buna', the mention of the caste in the ROR 4 (2023) 11 SCC 775 Page 14 of 19 cannot be brushed aside lightly, there being a presumption of correctness attached to it. To amplify, an entry in the ROR cannot simply be described as wrong without adducing acceptable rebuttal evidence to show the contrary. Thus, as things stood on the date of agreement, the caste of the proposed vendor was 'Bauri' and not 'Buna'. If such is the case, then both the Courts below appear to have fallen into error in trying to draw inference regarding the caste of Bhramar Das and by holding him to be a non-scheduled caste person. It is reiterated that as long as the entry in the ROR stands, it cannot be conclusively held that he belonged to the 'Buna' and not 'Bauri' caste. Therefore, the reasoning that as 'Buna' is not included within the scheduled caste notification, the agreement executed by Bhramar Das is legally enforceable, is fundamentally wrong.
20. As has already been heed hereinbefore, in view of the provision under Section 23 of the Contract Act, the agreement for proposed transfer being contrary to law cannot be specifically enforced. Now, what would be the Page 15 of 19 effect of such finding with regard to enforceability of the contract. Section 24 of the Contact Act being relevant, is quoted herein below:
―24.Agreements void, if considerations and objects unlawful in part.--If any part of a single consideration for one or more objects, or any one or any part of any one of several considerations for a single object, is unlawful, the agreement is void.‖ Thus, the general principle is, if the object or consideration of the Contract is unlawful, then the contract as a whole becomes void. But it has been held that if several distinct promises are made with one and the same lawful consideration, and one or more of them are such as the law will not enforce, that will not of itself prevent the rest from being enforceable. Reference in this regard may be had to the judgment of the Supreme Court in the case of Central Inland Water Transport Corpn. v. Brojo Nath Ganguly5.
21. It has also been held that the entire agreement will become void if a part of the consideration is unlawful, and the unlawful part cannot be severed from the legal part of the agreement. Further, if the transfer is valid, dehors an illegal agreement, although arising out of it and the void Page 16 of 19 part can be separated from the valid part, the latter does not become invalid and severing the agreements would not amount to rewriting the contract. This was held by the Supreme Court in the case of BOI Finance Ltd. v. Custodian6,
22. Thus, the legal position that emerges is, a contract, one of the considerations of which is unlawful, cannot generally be enforced but if it contains a valid consideration also and the same can be severed from the void one, the latter can be enforced.
23. Coming to the facts of the present case, the contract between the parties was for sale of the suit property for a consideration of ₹17,000/-, out of which the vendor had received ₹15,000/- on the date of agreement. It was agreed that the sale deed would be executed by the vendor after making necessary correction in the record of right with regard to his caste and the balance consideration of ₹2,000/- would be paid by the vendee on the date of 5 (1986) 3 SCC 156 6 (1997) 10 SCC 488 Page 17 of 19 execution of the sale deed. This part of the contract being unlawful, has to be treated as void and therefore, not enforceable but then the contract also provides that if the vendor fails to perform his duties, the advance money shall be returned with interest @12%. This part can easily be severed from the void part without making out a new contract whatsoever. Moreover, the payment of consideration of ₹15,000/- with further agreement to repay the same with 12% interest is admitted by both parties.
24. In such view of the matter, while holding that the main relief claimed, i.e., for direction to execute the sale deed cannot be specifically enforced, this Court holds that the alternative relief claimed i.e., for recovery of the consideration amount paid with interest can be granted.
25. From what has been narrated hereinbefore, it is evident that both the Courts below have committed manifest error in treating the contract between the plaintiff and the defendant as valid and specifically enforceable. Page 18 of 19
26. In view of the position of law discussed above, it is evident that the findings of both the Courts below cannot be sustained.
27. In the result, the appeal is allowed in part. The impugned judgment passed by the First Appellate Court and the Trial Court is hereby modified in the following manner:
―The suit is decreed in part. The relief claimed for decree of specific performance of contract is refused. The relief claimed for passing a money decree directing the defendant to refund the advance consideration money of ₹15,000/- with interest @ 12% per annum from the date of execution of the agreement i.e., 28.02.2001 till actual payment is hereby allowed.‖
28. The parties shall bear their own costs.
................................
Sashikanta Mishra, Judge Orissa High Court, Cuttack The 22nd November, 2024/ A.K. Rana, P.A. Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Page 19 of 19 Location: HIGH COURT OF ORISSA, CUTTACK Date: 25-Nov-2024 12:09:10