Smt. Martha (Dead ) Throug Lrs vs Harila (Dead ) Through Lrs
2021 Latest Caselaw 278 Chatt

                                  1

                                                                  NAFR
        HIGH COURT OF CHHATTISGARH AT BILASPUR
                 Second Appeal No. 986 of 1996


1. Smt. Martha W/o Jaimangal (died) through LRs. :­

  A. Pawal Toppo, s/o Late Jaimangal, Aged about 50
  years.

  B. Saihun Toppo (died) through Lrs. :­

     (I). Jewal Toppo S/o Late Saihun Toppo, Aged
  about     35     years,     Occupation         Agriculture,     R/o
  Village      Amera,      P.S.    &    Post   Sankargarh,     Tahsil
  Sankargarh,             Distt.          Balrampur­Ramanujganj,
  Chhattisgarh.

  C. Jaidan Toppo, S/o Late Jaimangal, Aged about
  44 years.

  D. Jyoti Prakash Toppo (died) through Lrs. :­

        (I).     Nilima    Toppo       Wd/o    Late   Jyoti   Prakash
  Toppo, Aged about 55 years.

        (ii). Jaideep Toppo S/o Late Jyoti Prakash
  Toppo, Aged about 32 years.

         (iii). Purnima Toppo D/o Late Jyoti Prakash
  Toppo, Aged about 26 years.

   All at present R/o C/o Poulus Minj, House No.
  569     Jasmani       Niwas,         Shyam    Nagar,   Aagarkhar,
  Jamnipali, Korba, Distt. Korba, Chhattisgarh.

  E. Gamalious Toppo S/o Late Jaimangal, Aged about
  40 years.

  All R/o        Village    Amera,       P.S. and     Post    and Up­
  tahsil Sankargarh, Tahsil Samri, Distt. Surguja,
  Chhattisgarh.
                                2

2. Jaimangal S/o Sukra (died and deleted).

                                    ­­­Appellants/Plaintiffs

                           Versus

1. Harila S/o Nanu (died) through Lrs. :­

  A. Dunchi, S/o Sukhana Nageshiya, Aged about 32
  years.

  B. Bhukhana S/o Sukhana Nageshiya, Aged about 29
  years.

  C.    Soma   S/o   Sukhana       Nageshiya,   Aged   about   26
  years.

  D. Katku S/o Sukhana Nageshiya, Aged about 23
  years.

  All R/o Village Mahangai Pat Thana Sanna, Tahsil
  Bagicha, Distt. Jashpur, Chhattisgarh.

2. Ramyad S/o Late Diya Mahto (died) through Lrs. :­

  A. Chandravati W/o Ramyad, Aged about 50 years.

  B. Anuj S/o Late Ramyad, Aged about 20 years.

  Both are R/o Village Kharkona, P.O. Shankargarh,
  Tahsil Kusmi, Distt. Surguja, Chhattisgarh.

3. Sakindar S/o Late Laxman, Aged about 25 years,
  R/o    Village      Semra,       Tahsil   Bagicha,     Distt.
  Raigarh, M.P.

4. Jitni Bai D/o Late Diya Mahto (died) th. LRs. :­

  A. Arjun S/o Late Gati, Aged about 35 years, R/o
  Village Semra, Post Khani, P.S. Bagicha, Distt.
  Jashpur, Chhattisgarh.

  B. Rupni D/o Late Gati, Aged about 33 years, R/o
  Village Semra, Post Khani, P.S. Bagicha, Distt.
  Jashpur, Chhattisgarh.
                                    3

    C. Tarni D/o Late Gati, Aged about 38 years, R/o
    Village Semra, Post Khani, P.S. Bagicha, Distt.
    Jashpur, Chhattisgarh.

  5. Nanki Bai D/o Late Diya Mahto (died) th. Lrs. :­

    A.   Dev   Lalan      S/o    Late   Ishwar,      Aged    about   31
    years, Village Dhori, P.S. and Post Dhurki and
    Distt. Garhwaha, Jharkhand.

    B. Lalit Yadav S/o Late Ishwar, Aged about 48
    years,     Village     Dhori,       P.S.   and    Post    Dhurki,
    Distt. Garhwaha (Jharkhand).

    C.   Gangavati     D/o      Late    Ishwar,      Aged    about   46
    years,     Village     Dhori,       P.S.   and    Post    Dhurki,
    Disst. Garhwaha, Jharkhand.

    D.   Indravati     D/o      Late    Ishwar,      Aged    about   45
    years,     Village     Dhori,       P.S.   and    Post    Dhurki,
    Distt. Garhwaha, Jharkhand.

    E. Binda D/o Late Ishwar, Aged about 43 years,
    Village Dhori, P.S. and Post Dhurki and Distt.
    Garhwaha, Jharkhand.

    F. Champa D/o Late Ishwar, Aged about 42 years,
    Village Dhori, P.S. and Post Dhurki and Distt.
    Garwaha, Jharkhand.

  6. State     of   M.P.        through    Collector,        Sarguja,
    Ambikapur.

                                                  ­­­ Respondents

For Appellants :­ Mr. A.K. Prasad, Advocate For Respondents 2(A), 2(B) & 3:­ Mr. Vikash Pandey, Advocate For State :­ Mr. Ravi Bhagat, Dy. G.A.

Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board 14/06/2021

1. This second appeal preferred by the

appellants/plaintiffs (now their Lrs.) was

admitted for hearing on 27/01/1998 by

formulating the following three substantial

question of law :­

were entitled to raise the defence that they had purchased the suit property by sale deed dated 26­3­1957 from the respondent No. 1, Harila, without proving that they have complied with the provisions of Section 170­B of the M.P. Land Revenue Code and obtained a valid order in their favour in accordance with law ?

(ii) Whether the Court below was right in relying the document Ex. D­1 to hold that the respondent No. 1, Harila belonged to Kisan caste in absence of any proof that there was any caste like Kisan in the District Sarguja ?

(iii) Whether the lower appellate Court in absence of any collusion on the part of the respondent No. 1, Harila wrongly held that he did not belong to Nagesia Aboriginal Tribe ?"

[For the sake of convenience, the parties will

hereinafter be referred to as per their status

and ranking given in the plaint before the trial

Court.]

2. The suit property, shown in Schedule 'A'

appended with the plaint, situated at Village

Amera, Tahsil Kusmi, District Sarguja was

originally held by defendant No. 2 namely

Harila. Plaintiff No. 1 claimed that she has

purchased the suit property from Harila by

registered sale deed dated 08/03/1976 (Ex. P/1)

and thereafter came into possession of the said

suit property, whereas original defendant No. 1

namely Deeya Mahto claimed that he has purchased

the suit property from Harila by unregistered

sale deed dated 26/03/1957 (Ex. D/2).

3. It is further case of the plaintiffs that they

were dispossessed from the suit property by

defendant No. 1 - Deeya Mahto pursuant to which

proceedings under Section 145 of CrPC was

initiated in which by order dated 28/01/1979,

the Sub­divisional Magistrate declared the

possession of defendant No. 1 over the suit

property and the revision preferred by the

plaintiffs against that order was also dismissed

which necessitated for the filing of the suit by

the two plaintiffs for declaration of title and

possession stating inter alia that since

defendant No. 2 namely Harila was a member of

aboriginal tribe ('Nageshiya' by caste), he

could not have alienated the suit property in

favour of defendant No. 1 by unregistered sale

deed dated 26/03/1957 (Ex. D/2) and the

transaction is hit by Section 170­B of M.P. Land

Revenue Code, 1959, as such, they are entitled

for decree for declaration of title and

possession over the suit property.

4. Defendant No. 1 - Deeya Mahto filed his written

statement stating inter alia that defendant No.

2 is not 'Nageshiya' by caste and thus, he is

not a member of aboriginal tribe rather he is

'Kisan' by caste which does not come under

aboriginal tribe, therefore, defendant No. 2 has

rightly alienated the suit property in his

favour and plaintiffs being the members of

aboriginal tribe, defendant No. 2 had no right

to alienate the suit property in their favour by

registered sale deed dated 08/03/1976 (Ex. P/1).

5. Defendant No. 2 filed his separate written

statement and supported the plaint averments

made by the plaintiffs.

6. Learned trial Court, upon appreciation of oral

and documentary evidence on record, dismissed

the suit by its judgment and decree dated

30/07/1992 finding no merit and on appeal being

preferred by the plaintiffs, learned first

appellate Court affirmed the judgment and decree

of the trial Court and by its impugned judgment

and decree dated 24/09/1996 dismissed the appeal

against which this second appeal has been

preferred by the plaintiffs under Section 100 of

CPC wherein three substantial questions of law

have been formulated and set out in the opening

paragraph of this judgment.

7. Mr. A.K. Prasad, learned counsel for the

appellants/LRs. of plaintiffs, would vehemently

submit that defendant No. 2 Harila was a member

of aboriginal tribe ('Nageshiya' by caste) and

therefore, he could not have alienated the suit

property in favour of defendant No. 1 Deeya

Mahto by unregistered sale deed dated 26/03/1957

(Ex. D/2) which is absolutely in violation of

Section 165(6)/170­B of Land Revenue Code. He

would also submit that both the Courts below are

Harila belonged to 'Kisan' caste and thus, he

was not a member of aboriginal tribe, as such,

the finding recorded by both the Courts below in

this regard deserves to be set aside and decree

for declaration of title and possession over the

suit property be granted in favour of the

plaintiffs.

8. Mr. Vikash Pandey, learned counsel for

respondents No. 2(A), 2(B) and 3/LRs. Of

original defendant No. 1 Deeya Mahto, would

submit that both the Courts below are absolutely

justified in dismissing the suit of the

Harila was not a member of aboriginal tribe and

as such, the provisions of Section 165(6)/170­B

of the Land Revenue Code are not attracted and

the instant appeal is liable to be dismissed.

9. None appeared on behalf of LRs of defendant No.

2 Harila, though served.

10. I have heard learned counsel for the parties,

considered their rival submissions made herein­

above and went through the records with utmost

circumspection.

11. Since all the three substantial questions of law

are related to each other, being in relation

with applicability of Section 170­B of the Land

Revenue Code in the transaction dated 26/03/1957

(Ex. D/2) by which sale deed was executed by

defendant No. 2 Harila in favour of defendant

No. 1 Deeya Mahto, all of them are being

considered and decided together.

12. The suit property was admittedly held by

original defendant No. 2 Harila who died during

the pendency of this second appeal. Firstly, he

sold the suit property to defendant No. 1 Deeya

Mahto by unregistered sale deed dated 26/03/1957

(Ex. D/2) and thereafter, he sold the suit

property to the plaintiffs by registered sale

deed dated 08/03/1976 (Ex. P/1) and since, in

under Section 145 of CrPC, defendant No. 1 was

found in possession of the suit property by the

S.D.M. which was also affirmed by the revisional

Court, it necessitated for the filing of the

suit by the plaintiffs for declaration of title

and possession over the suit property.

13. While dismissing the suit of the plaintiffs,

both the Courts below have held that defendant

No. 2 Harila was not the member of the

aboriginal tribe and did not belong to

'Nageshiya' caste rather he was 'Kisan' by

caste, therefore, provisions of Section

165(6)/170­B of the Land Revenue Code are not

attracted.

14. It is important to notice that plaintiffs' main

case is that the alienation of the suit property

dated 26/03/1957 (Ex. D/2) made by defendant No.

2 Harila in favour of defendant No. 1 Deeya

Mahto is hit by Section 165(6)/170­B of the Land

Revenue Code. Admittedly and undisputedly, the

transaction was entered into between defendant

No. 2 Harila and defendant No. 1 Deeya Mahto on

26/03/1957 (Ex. D/2), that is, prior to coming

into force of the M.P. Land Revenue Code, 1959

with effect from 02/10/1959.

15. This Court, in the matter of Yadram (dead)

through Lrs. Smt. Yamuna Bai & Ors. V. State of

Chhattisgarh & Ors.1, has considered the issue

as to whether the provisions of the Land Revenue

Code would be attracted if the alienation is

made prior to the date of coming into force of

the Land Revenue Code. In paragraph 1 of the

judgment, the following question of law was

framed by the Division Bench :­

" Whether the provision of Section 170­B of the Chhattisgarh Land Revenue Code, 1959 inserted vide M.P. Amendment Act No. 15 of 1980 with effect from 24­12­1980, are applicable in respect of transactions prior to commencement of Chhattisgarh Land Revenue Code, 1959, involving transfer / acquisition of right by a non­tribal over 1 2015(5) CGLJ 402 (DB)

a land which, before such acquisition of title or interest or transfer, belonged to a member of tribe who has been declared to be aboriginal tribe under sub section (6) of Setion 165 of the C.G. Land Revenue Code, 1959 ?"

16. Thereafter, their Lordships answered the

question in paragraph 17 of the judgment and

held that the provisions of the Code would not

apply if a transaction took place prior to

02/10/1959 i.e. coming into force of the Land

Revenue Code, which states as under :­

"17. In the present case, law is amended with limited retrospective effect. Plain reading of Section 170­B of the Code as amended coverst the transaction made between 2­10­1959 till 24­10­1980 and not the transaction made prior to 2­10­1959. The language of Section 170­B of the Code is plain and unambigous and it is not permissible to deploy rules of interpretation to attribute any other meaning to the words used by the legislature, that those which naturally flow from it. If the plain words of Section 170­B of the Code are interpreted in such a way as to assign its meaning other than what is written in it, that is, if the Section is read to apply to transactions done prior to 2­10­1959 despite specific situation in the Section that it will apply to transactions done on and after 2­10­1959, then such an interpretation will create new obligations and duties disturbing the vested rights which, normally, should not be done by resorting to interpretation. Therefore, on the face of the plain and unambigous wordings of Section 170­B of the Code, we are unable to subscribe to any view other than the one that it is restricted in its application to the transactions done between 2­10­1959 and 24­10­1980 only. "

17. In the instant case, admittedly, the transaction

was entered into between defendant No. 2 Harila

and defendant No. 1 Deeya Mahto on 26/03/1957

(Ex. D/2), that is, prior to coming into force

of the M.P. Land Revenue Code, 1959 with effect

from 02/10/1959, therefore, as per the decision

rendered by this Court in Yadram (supra), the

provision of Section 170­B of the Land Revenue

Code would not be applicable herein. As such,

the finding recorded by both the Courts below

that defendant No. 2 Harila did not belong to

'Nageshiya' caste and thus he is not a member of

aboriginal tribe rather he belonged to 'Kisan'

caste, so the provisions of Section 165(6)/170­B

of the M.P. Land Revenue Code, 1959 would not be

applicable to him, is duly established and the

provisions of Section 170­B of the Code would

not be applicable on the pure legal ground that

the transaction dated 26/03/1957 (Ex. D/2)

entered between defendant No. 1 and defendant

No. 2 took place prior to 02/10/1959 i.e. the

date of commencement of the M.P. Land Revenue

Code, 1959. Thus, the alienation of the suit

property made by defendant No. 2 Harila in

favour of defendant No. 1 Deeya Mahto on

26/03/1957 (Ex. D/2) is not hit by Section

165(6)/170­B of the Land Revenue Code, 1959.

18. Accordingly, the substantial questions of law

are inevitably answered in favour of the

defendants and against the plaintiffs. It is

held that the provisions of Section 165(6)/170­B

would not be applicable in the present case and

therefore, no exception can be taken to the

finding recorded by both the Courts below. As a

fallout and consequence of the aforesaid legal

discussion, I do not find any perversity or

illegality in the finding recorded by both the

Courts below while dismissing the suit of the

plaintiffs.

19. The second appeal, being devoid of merits,

deserves to be and is accordingly dismissed and

all the pending applications including the

application under Section 100(5) of CPC stands

disposed of. No cost(s).

20. Decree be drawn­up accordingly.

Sd/­ (Sanjay K. Agrawal) Judge

Harneet