Rang Nath Sahu (Dead) Through Lrs vs Chamru Alias Ram Narayan (Died) ...
2022 Latest Caselaw 3126 Chatt

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                                                                    NAFR
       HIGH COURT OF CHHATTISGARH, BILASPUR
                                      Reserved on 9-3-2022
                                     Delivered on 29-4-2022

                         SA No. 415 of 2004


 Rang Nath Sahu (Dead) Through LRs., As Per Hon'ble Court Order Dt.
  02-12-2021.
  1.1 - Smt. Pili Bai W/o Late Rang Nath Sahu, Aged About 77 Years R/o
  Village Madhuwa, Tehsil Janjgir, District Janjgir - Champa Chhattisgarh.,
  District           :       Janjgir-Champa,           Chhattisgarh
  1.2 - Rewti Raman S/o Rang Nath Sahu Aged About 54 Years R/o
  Village Madhuwa, Tehsil Janjgir, District Janjgir - Champa Chhattisgarh.,
  District           :       Janjgir-Champa,           Chhattisgarh
  1.3 - Girdharilal S/o Rang Nasth Sahu Aged About 47 Years R/o Village
  Madhuwa, Tehsil Janjgir, District Janjgir - Champa Chhattisgarh.,
  District : Janjgir-Champa, Chhattisgarh
                                                             ---- Appellant
                               Versus
1. Chamru Alias Ram Narayan (Died) Through Lrs. Nill
   1.1 - (A) Ram Bai Khairwar W/o Late Chamru @ Ram Narayan Aged
   About 52 Years R/o Village Madhuwa, Tehsil Janjgir, District Janjgir-
   Champa                               (C.G.)
   1.2 - (B) Sunil Khairwar S/o Late Chamru @ Ram Narayan Aged About
   27 Years R/o Village Madhuwa, Tehsil Janjgir, District Janjgir-Champa
   (C.G.)
   1.3 - (C) Anil Khairwar S/o Chamru @ Ram Narayan Aged About 25
   Years R/o Village Madhuwa, Tehsil Janjgir, District Janjgir-Champa
   (C.G.)
   1.4 - (D) Sushil Khairwar S/o Late Chamru @ Ram Narayan Aged About
   23 Years R/o Village Madhuwa, Tehsil Janjgir, District Janjgir-Champa
   (C.G.)
   1.5 - (E) Anjulata D/o Late Chamru @ Ram Narayan Aged About 19
   Years R/o Village Madhuwa, Tehsil Janjgir, District Janjgir-Champa
   (C.G.)
2. Duklu Alias Jai Narayan, S/o Shri Gopal Khairwar, Aged About 31 Years
   R/o Village Madhuwa, Tehsil Janjgir, District Janjgir - Champa
   Chhattisgarh., District : Janjgir-Champa, Chhattisgarh
3. Sukanya Bai, D/o Shri Gopal Khairwar, Aged About 26 Years R/o Village
   Madhuwa, Tehsil Janjgir, District Janjgir - Champa Chhattisgarh.
4. Deleted (Smt. Dasiya Bai) As Per Hon'ble Court Order Dated 14-02-2022
5. State Of Chhattisgarh Through The Collector, Janjgir - Champa, At
   Janjgir.
                                                        ---- Respondents
                                                                                     Page 2 of 8

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For Appellant                    :       Mr. Somnath Verma, Advocate.
For respondents No.              :       Mr. Tarkeshwar Nande and Mr.
No.1(1) to 1(5) and              :       Slurabh Sharma, Advocates.
R/2 and R/3
For State                        :       Mr. Avinash K. Mishra, GA along
                                         with Mr. Sanjeev Kumar Agrawal,
                                         PL.

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Hon'ble Shri Justice Narendra Kumar Vyas CAV JUDGMENT

1. The appellant/plaintiff has filed the Second Appeal under Section 100 of the Code of Civil Procedure, 1908 being aggrieved by the judgment and decree dated 8-4-2004 passed by learned Fourth Additional District Judge (Fast Track Court), Janjgir in Civil District Bilaspur, in Civil Appeal No.5- A/2003, affirming the judgment and decree dated 4-7-2000 passed by the First Civil Judge, Class-2, Janjgir, in Civil Suit No. 199-A/1994 whereby the suit filed by the appellant has been dismissed.

2. The brief facts as reflected from the records are that the plaintiff has filed a civil suit before learned First Civil Judge, Class-II, Janjgir-Champa for declaration and injunction mainly contending that the plaintiff's suit property is situated at Madhuwa, Tehsil Janjgir, District Janjgir-Champa, bearing Khasra No. 31/1 area 0.70 decimal. He has purchased the suit property from Jhuru s/o Baiga Khairwar @ Rs.445/- through registered sale deed on 29-1-1960 and after purchase of suit property, possession has also been given to them and their names have also been recorded in the revenue records. The suit was partitioned between their three brothers and they are residing separately in the portion which they have received in partition. Jhuru from whom he has purchased the suit property, has son namely Gopal and he also expired and defendants No. 1 to 4 are his legal representatives. It has been further contended that the provision has been inserted in Section 170-B of the Land Revenue Code, 1959 (for short, "the Code"), according to which any property which has been purchased by non-tribal cannot be purchased without permission of the Collector, otherwise, the whole transaction will become void and property

will be returned back to the said tribal. After implementation of the said provision, the village Patwari sent a report to the Sub Divisional Officer, Janjgir, which was registered as Revenue Case No. 138-A/23, 84-85, but no one on behalf of the purchaser was residing in the village, therefore, no order was passed and the proceedings were closed on 21-03-1986. Again village Patwari sent a report to Sub Divisional Officer, Janjgir- Champa which is registered as Revenue Case No. 8-A/23, 92-93 wherein the Sub Divisional Officer vide its order dated 25-9-1994 has declared the transaction to be null and void as no permission from the Collector has been sought by the seller before purchasing of the suit property, as such, the sale is void and possession of the property was also given to Gopal. It is pertinent to mention here that in the whole proceeding, Gopal has not appeared as he already expired.

3. Learned counsel for the plaintiff would submit that "Khairwar" community has been declared as Scheduled Tribe by erstwhile Government of Madhya Pradesh vide notification dated 25-11-1960, same was published in Government Gazette on 2-12-1960 whereas the sale transaction was done on 29-1-1960, therefore, the order passed by the Sub Divisional Officer that the sale transaction was void, is incorrect. The plaintiff and his brother had sown seeds in the field in the year 1994 and in the garb of illegal order passed by the Sub Divisional Officer the defendants have made an attempt to cut the attending crop which has adversely affected the interest of the plaintiff, therefore, they have filed a suit for declaration and injunction.

4. The defendants have not filed their written statement, therefore, they were proceeded ex parte. The learned trial court vide its judgment and decree dated 4-7-2000 has recorded its finding that since the permission of the Collector has not been obtained, therefore, as per provisions of Section 170-B of the Land Revenue Code, 1959, sale deed is null and void, as such, they are not entitled to get permanent injunction and dismissed the suit.

5. Against that, the appellant has preferred an appeal under Section 96 of the CPC before the learned 4 th Additional District Judge (FTC) which was registered as Civil Appeal No. 5-A/2003 and learned 4 th Additional District Judge recorded its finding considering the provisions of Section 170-B of the Code 1959 and further considering that after enforcement of Code 1959 on 2-10-1959 before execution of sale-deed, no permission from the

Collector was sought, therefore, transaction is illegal as any transaction against the property of the Scheduled Tribe without permission of the Collector is void, the land will be vested against the name of Tribal only. Therefore, learned first appellate court considering this legal position has dismissed the appeal. Against that, the appellant has preferred the second appeal before this court.

6. I have heard learned counsel for the appellant and perused the records of both the courts below.

7. Learned counsel for the appellants would submit that "Khairwar"

community has been inserted in the list of Scheduled Tribe on 25.11.1960 after execution of sale-deed, therefore, the sale-deed which has been executed on 29-1-1960 cannot be held to be null and void. The learned trial court has committed illegality in applying the provisions retrospectively, as such, the judgment and decree passed by the trial court and affirmed by the first appellate court deserves to be set aside. He would further submit that since the learned court below has committed illegality in applying the provisions retrospectively, therefore, the substantial question of law exits in this appeal and the appeal has to be admitted by this Court.

8. Per contra, learned counsel for the State would submit that the learned court below has applied the provisions of law correctly, as such, no substantial question of law is required to be answered by this Court and the appeal deserves to be dismissed at admission stage itself.

9. To examine the issue raised in this case, it is necessary for this court to consider the provisions of Section 170-B of the Land Revenue Code 1959 which is extracted below:

"170-B. Reversion of land of members o f aboriginal tribe which was transferred by fraud.-- (1) Every person who on the date of commencement of the Madhya Pradesh Land Revenue Cod e (Amendment), 1 980 (herein after referred to as the Amendment A ct of 1980) is in possession of agricultural land which belonged to a member of a tribe which has been declared to be an aboriginal tribe under sub

-section (6) of Section 165 between the period commencing on the 2 nd October,1959 and ending on the date of the commencement of Amendment Act, 1980 shall, within two

years of such commencement, notify to the Sub-Divisional Officer in such form and in such manner as may be prescribed, all the information as to how he has come in possession of such land.

(2) If any person fail s t o notify the information as required by sub-section (1) within the period specified therein it shall be presumed that such person has been in possession of the agricultural l an d without any l awful authority an d the agricultural land shall, on the expiration of the period aforesaid revert to the person to whom it originally belonged and if that person be dead, to his legal heirs.

(2-A) If a Gram Sabha in the Scheduled area referred to in clause (1) of Article 244 of the Constitution finds that any person, other than a member of an aboriginal tribe, is in possession of any land of a bhumiswami belonging to an ab-original tribe, without any lawful authority, it shall restore the possession of such land to that person to whom it origin ally belonged and if that person is dead to his legal heirs Provided that if te Gram Sabha fails to restore the possession of such land, it shall refer the matter to the Sub - Divisional Officer, who shall restore the possession of such land within three months from the date o f receipt of the reference.

(3) On receipt of the information under sub-section (1), the Sub-Divisional Officer sh all make such enquiry as may be deemed necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and pass an order re-vesting the agricultural land in the transferor and, if he is dead, in his legal heirs.

(3) On receipt of the information under sub-section (1) the Sub-Divisional Officer shall make such enquiry as may be necessary about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare the transaction null and void and --

(a) Where n o building or structure has been erect ed on the agricultural land prior to such finding pass an order revesting their agricultural land in the transferer and if he be dead, in his legal heirs,

(b) Where any building or structure has been erect d on the agricultural land prior to such finding, he shall fix the price of such land in accordance with the principles laid down for fixation of price of land n the Land Acquisition Act, 1894 ( No. 1 of 1894) and order the person referred to in sub - section (1) to pay to the transfer or the difference, if any, between the price so fixed and the price actually paid to the transferor:

Provided that where the building or structure has been erect ed after the 1 st day of January, 198 4, the provisions of clause (b) above shall not apply.

Provided further that fixation of price under clause

(b) shall be with reference to the price on the date of registration of the case before the Sub -Divisional Officer"

10. The President of India in exercise of power conferred by Clause (1) of Article 342 of the Constitution of India, after consultation with the Governors and Rajpramukhs of the States concerned has made the orders namely the Constitution (Scheduled Tribes) Order, 1950.

11. The Parliament has enacted Scheduled Castes and Scheduled Tribes Orders (Amendment) 1956 to provide for the inclusion in, and the exclusion from the list of Scheduled Castes and Scheduled Tribes of certain castes and tribes and matters connected therewith. Section 5 of the said Act provides for determination of population of Scheduled Castes and Scheduled Tribes. Section 6 of the said Act provides for commission and Section 7 of the said Act provides for making rules.

12. The Scheduled Castes and Scheduled Tribes (Orders) Act, 1956 provides for the inclusion in, and the exclusion from the list of Scheduled Castes and Scheduled Tribes of certain castes, tribes and matters connected to that and this was enacted by the Parliament in the 7 th year of Republic of India. The Government of India in exercising the power conferred under Scheduled Castes and Scheduled Tribes (Orders) Act, 1956 has issued the list of Scheduled Castes and Scheduled Tribes for

various States as per Schedule-1. In exercise of power conferred under Scheduled Castes and Scheduled Tribes (Orders) Act, 1956, His Excellency, the President of India, has published the list of Scheduled Castes and Scheduled Tribes (Modification) Order 1956 dated 29.10.1956. Schedule-III has been issued which is a list of Scheduled Tribes for various States. In the State of Madhya Pradesh, Khairwar community residing at Districts Bastar, Chindwarea, Mandla, Raigarh, Surguja, Betul, Bilaspur, Khatgora, Tehasil of Bilaspur is included in the list of Scheduled Tribe at serial No.16 of the list, which is extracted below:

"3. In (1) Bastar, Chhindwara, Mandla, Raigarh and Surguja districts, (2) Baihar Tahsil of the Balaghat district, (3) Betul and Bhainsdehi tahsils of the Betul district, (4) Bilaspur and Katghora tahsils of the Bilaspur district (5) Durg and Sanjarim tahsils of the Durg District, (6) Murwarea, Patan and Sihora tahsils of the Jabalpur district (7) Hoshangabad, Narsimhapur and Sohagpur tahsils of the Hoshangabad district, (8) Harsud tahsil of the Nimar district, (9) Bindra-Nawagarh, Dhamtfari and Mahasamund tahsils of the Raipour district.

               xxxxxxx xxxxxxx      xxxxxxx
               13. xxxx xxxx xxxx
               14. xxxx xxxx xxxx
               15. xxxx xxxx xxxx
               16. Khairwar".

13. The aforesaid list was published on 29-10-1956 by the Government of India, whereas in the present case, the sale deed was executed on 29-01-

1960, therefore, the contention of learned counsel for the appellant that as per the Land Revenue Code, 1959, the list has been published after purchase of suit property by him is incorrect submission as "Khairwar" community has already been declared by His Excellency, President of India on 29--10-1956 in the list of Scheduled Tribe, therefore, the finding recorded by learned court below that the suit property belongs to tribal and no permission has been accorded under the Land Revenue Code, as such, the sale transaction between the appellant and father of the defendant is illegal, does not suffer from any infirmity, perversity or illegality which warrants interference by this Court. The learned first

appellate court while dismissing the appeal, has not committed any illegality, as such, no substantial question of law, is required to be answered by this court.

14. Accordingly, the second appeal is dismissed at motion stage itself. No order as to costs.

15. A decree be drawn up accordingly.

Sd/-

(Narendra Kumar Vyas) Judge

Raju