Madhya Pradesh High Court
Rishikesh Ahiwasi vs Dhansingh Lodhi on 6 January, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 6 th OF JANUARY, 2023
MISC. PETITION No. 624 of 2018
BETWEEN:-
RISHIKESH AHIWASI S/O SHRI HARISHANKAR
AHIWASI, AGED ABOUT 45 YEARS, OCCUPATION:
CULTIVATOR BELKHEDA, TEH. SHAHPURA, (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI ASHOK TIWARI - ADVOCATE)
AND
1. DHANSINGH LODHI S/O SHRI TEKSINGH LODHI,
AGED ABOUT 30 YEARS, OCCUPATION:
CULTIVATOR BELKHEDA, TEH. SHAHPURA,
(MADHYA PRADESH)
2. GOVIND JAISWAL S/O LATE SHYAMLAL, AGED
ABOUT 54 YEARS, OCCUPATION: CULTIVATOR
BELKHEDA TAHSIL SHAHPURA (MADHYA
PRADESH)
3. GORELAL VISHWAKARMA S/O MANNU LAL,
AGED ABOUT 31 YEARS, OCCUPATION:
CULTIVATOR BELKHEDA TAHSIL SHAHPURA
(MADHYA PRADESH)
4. SMT JYOTI JAIN W/O ARVIND JAIN, AGED ABOUT
38 YEARS, OCCUPATION: CULTIVATOR
BELKHEDA TAHSIL SHAHPURA (MADHYA
PRADESH)
5. ANIL JAIN S/O LAKHMICHAND JAIN, AGED
ABOUT 40 YEARS, OCCUPATION: CULTIVATOR
BELKHEDA TAHSIL SHAHPURA (MADHYA
PRADESH)
6. PAWAN MAHLONIYA S/O HARINARAYAN
MAHLONIYA, AGED ABOUT 45 YEARS,
OCCUPATION: CULTIVATOR BELKHEDA TAHSIL
Signature Not Verified
Signed by: HEMANT SARAF
Signing time: 13-01-2023
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2
SHAHPURA (MADHYA PRADESH)
7. MANOJ SONI S/O RAMNATH SONI, AGED ABOUT
38 YEARS, OCCUPATION: CULTIVATOR
BELKHEDA TAHSIL SHAHPURA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI ANIL KHARE - SENIOR ADVOCATE WITH SHRI SAHIL SHARMA -
ADVOCATE)
(STATE BY SHRI SACHIN JAIN - PANEL LAWYER)
This petition coming on for admission this day, th e court passed the
following:
ORDER
This petition under Article 227 of the Constitution of India has been filed
against the order dated 16.01.2018 passed by the Collector, District Jabalpur in
Case No.01/Appeal/2016-2017 by which the order dated 05.09.2017 passed by
t h e SDO (Revenue), Patan, District Jabalpur in Revenue Case No.187/B-
121/2015-16 has been set aside.
Facts necessary for disposal of present petition in short, are that the
petitioner filed an application under Section 5 of The M.P. Samaj Ke Kamjor
Vargon Ke Krishi Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane
Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (in short
"˜Adhiniyam of 1976") on the ground that the petitioner is a holder of
agricultural land as defined under Section 2(c) of the Adhiniyam of 1976. The
father of the petitioner was an old and infirm person and was hospitalized in the
Mahakaushal Hospital on 27.05.2014 to 05.06.2014 and the petitioner was busy
in treatment of his father. Taking advantage of the condition of the petitioner
and by putting unnecessary mental and physical pressure on the petitioner, the
respondent No.5 got a power of attorney executed from the petitioner on
12.05.2014 and thereafter on the basis of the said power of attorney, the
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respondent No.1 executed a registered sale deed dated 08.12.2014 in his own
favour, which was without any consideration and the amount of Rs.14,87,000/-
as mentioned in the sale deed was falsely shown. It was pleaded that the
petitioner had never handed over possession of the property in dispute to the
respondent No.1 nor any consideration amount has been received by the
petitioner or his family members. The power of attorney as well as the
registered sale deed dated 08.12.2014 is a prohibited transaction of loan as
defined under Section 2(f) of Adhiniyam of 1976. In fact, that the respondent
No.1 had pursued the petitioner to execute a power of attorney by way of
security to loan and accordingly an agreement of reconveyance dated
11.02.2015 was also executed by the respondent No.1 in favour of the
petitioner. As per agreement dated 11.02.2015, the respondent No.1 received an
amount of Rs.5,00,000/- from the petitioner. On 24.11.2014 i.e. before the
execution of registered sale dated 08.12.2014, the respondent No.1 had also
given in writing that in case if the petitioner refunds the loan amount of
Rs.5,93,000/- within a period of six months then the respondent No.1 would
not get the sale deed executed. Earlier also the petitioner had taken loan from
the respondent No.1 to meet out the domestic expenses as well as to meet out
the medical expenses and accordingly a registered power of attorney was also
got executed on 27.11.2013. Earlier also in the year 2012, the respondent No.1
had executed an agreement by way of security of loan.
As per agreement dated 25.05.2012, it was mentioned that out of total
amount of Rs.10,00,000/-, an advance of Rs.8,00,000/- has been paid and
thereafter in another agreement, which was executed after four months, the
outstanding amount was shown as Rs.3,64,000/-. Thereafter, another agreement
dated 27.09.2013 was executed. On 27.11.2013 also a power of attorney was
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obtained from the petitioner. Thereafter on 12.05.2014 another agreement was
executed in which the loan amount was shown to be Rs.9,90,300/- and it was
also mentioned that after one year the said amount would be Rs.15,84,480/-
after including the interest at the rate of 5%. On the basis of the said power of
attorney, the disputed registered sale deed has been executed by the respondent
No.1 in his own favour. Another agreement was executed on 19.08.2014, which
was valid up to 18.08.2015. Again on 24.11.2014 another document was
executed. It was claimed by the petitioner that the respondent No.1 has already
recovered a huge amount in access of the loan given by him. It was further
claimed by that the respondent No.1 has divided the land in dispute in small
plots and has sold the same at the rate of Rs.400/- sq. ft. and the consideration
amount mentioned in the sale of those plots has not been received by the
petitioner. It was pleaded that the market value of the property, which is a
subject matter of registered sale deed dated 8.12.2014 was Rs.400/- per sq.ft.
and the consideration amount, which was mentioned in the sale deed dated
08.12.2014 is much less than the market value. The respondent No.1 has
forcibly taken possession of a part of the land in dispute in the month of
January, 2016. It was further pleaded that the petitioner has already refunded
Rs.14,50,000/- to the respondent No.1 and the respondent No.1 has also given
the receipt of acknowledgement and, accordingly, it was prayed that the power
of attorney dated 12.05.2014 by which the respondent No. 1 got himself
appointed as power of attorney on behalf of the petitioner is bad and is void
and, consequently, the registered sale deed dated 08.12.2014 executed by the
respondent No. 1 in his own favour as well as the subsequent sale deeds dated
08.05.2015, 08.05.2015, 22.05.2015, 22.05.2015 20.5.2015 and 22.5.2015
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executed in favour of respondents No. 2 to 7 respectively are null and void and
bad and, accordingly, it was prayed that the possession of Khasra No.425/1D
area 0.80 hectares be given to the respondent No.1.
The respondent No.2 filed his reply and denied the allegations made in
the application. It was further pleaded that the petitioner is a member of a rich
family and lot of lands were received him in partition from his father and the
same have been sold.
The respondent No.1 also filed his reply and denied the averments made
in the application and it was claimed that Harishankar had received property in
dispute in partition from his father. Thereafter Harishankar partitioned the land
and gave the same to his son Rishikesh (petitioner) and Rishikesh was the
owner and in possession of the same.
Accordingly, the petitioner/Rishikesh had a right and title to alienate the
said property and the name of Rishikesh was also mutated in the revenue
records. Since the petitioner was the owner of the land in dispute, therefore he
had mortgaged the said land with the Oriental Bank of Commerce, Prem Nagar
with due information to Hari Shankar. Thereafter, the petitioner redeemed the
mortgage after taking loan from the respondent No.1. The respondent No.1 had
also alienated Khasra No.425/1/D2 to Surendra Singh, Awadh Singh by
registered sale deed dated 07.06.2011, which was in the knowledge of the father
of the petitioner but, the father of the petitioner had never raised any objection.
Earlier, the petitioner had entered into an agreement to sell the land in dispute to
the respondent No.1 for a consideration amount of Rs.18,00,000/- and received
an amount of Rs.15,50,640/- by way of advance and it was agreed that the
remaining amount shall be paid by 26.11.2013 and the sale deed would be
executed. Since, the petitioner did not execute the sale deed, therefore, he
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executed a power of attorney in favour of the respondent No.1 and thereafter
also executed a sale deed in favour of the respondent No.1. On the basis of the
disputed sale deed dated 08.12.2014, the name of the respondent No.1 has been
recorded in the revenue records and Rin Pustika has also been issued and from
thereafter the respondent No.1 is in possession of the same. The respondent
No.1 is also carrying on the agricultural activities and is taking crop from the
land in dispute. The mutation proceedings were never objected either by the
petitioner or his father. It is true that the respondent No.1 has alienated some
part of the land in dispute by dividing it into plots but the said sale deeds to
different persons was also in the knowledge of father of the petitioner. The
petitioner was not in possession of the land in dispute and even today he is not
in possession of the same. The land in dispute was initially received by his
father in a partition and thereafter the said land was given to the petitioner by his
father and accordingly, the petitioner has every right to alienate the property.
Since, the property was received by the father of the petitioner in a partition and
he is still alive, therefore, the other legal representatives of Hari Shankar have no
right or title during the lifetime of Hari Shankar. It was further pleaded that the
petitioner is not a holder of agricultural land as defined under Section 2(c) of
Adhiniyam of 1976, as he was having 35 acres of land which has been sold by
him and at present he is the owner and in possession of 10 acres of land. Thus,
it was prayed that since the petitioner is having 10 acres of land, therefore, he
cannot be termed as a holder of agricultural land.
The SDO, Patan, District Jabalpur by order dated 05.09.2017 passed in
the Case No.187/B-121/2015-16 allowed the application and held that on the
basis of power of attorney obtained from the petitioner, the respondent No.1
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executed a sale deed in his own favour on 08.12.2014 and the said transaction
was prohibited transaction of loan and accordingly it was held that the
registered sale deed dated 08.12.2014 executed in favour of the respondent
No.1 is null and void. As a consequence, all other sale deeds executed by
respondent No.1 in favour of respondents No.2 to 7 also stand vitiated and
accordingly it was directed that the status which was prevailing prior to
08.12.2014 be restored back.
Being aggrieved by the order passed by the SDO, the respondent
preferred an appeal which has been allowed by the Collector by order dated
16.01.2018 passed in Case No.01/Appeal/2016-17 mainly on the ground that
before deciding the matter on merits the SDO has not conducted any enquiry as
to whether the petitioner is holder of agricultural land as defined under Section
2(c) of Adhiniyam, 1976 or not. It was also held that in case if the petitioner is
of the view that he is a victim of a fraud then he can file a civil suit before a civil
Court of competent jurisdiction. The presence of the petitioner in the mutation
proceedings as well as the execution of power of attorney, the agreement to
extend the period of power of attorney, the sale deed makes the claim of the
petitioner doubtful. Accordingly, the order passed by the SDO was set aside.
Challenging the order passed by the Collector, Jabalpur, it is submitted
by the counsel for the petitioner that the petitioner is the holder of agricultural
land having less than 8/4 hectares of unirrigated/irrigated land as defined under
Section 2(c) of Adhiniyam of 1976. The sale dated 08.12.2014 is a prohibited
transaction of loan. The respondent No.1 on the strength of power of attorney,
executed a sale deed in his own favour without there being any consideration
amount.
Per contra, the counsel for the respondent No.1 has supported the
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findings recorded by the Collector, Jabalpur. Counsel for the respondent has
relied upon the judgment passed by the Co-ordinate Bench of this Court in the
c as e Vir Singh v. Collector, Sagar and others decided on 11.04.2005 in
M.P.No.3029/1990 to show that unless and until the applicant specifically
discloses in his application that he is a holder of land having less than 8 hectares
of unirrigated land or 4 hectares of irrigated land, the application itself was not
maintainable.
Heard the learned counsel for the parties.
The Collector, Jabalpur, while allowing the appeal did not consider as to
whether the respondent No.1, on the strength of power of attorney purportedly
executed by the petitioner can execute a registered sale deed in his own favour
or not. Copy of the registered sale deed is placed on record from which it is
clear that the respondent No.1 has signed the said sale deed as seller on behalf
of the petitioner as his power of attorney and has sold the same to himself.
Thus, in the capacity of a power of attorney, the respondent No.1 has sold the
land belonging to the petitioner by executing a sale deed in his favour.
Counsel for the respondent No.1 could not justify the transaction which
was done by the respondent No.1 by executing a sale deed in his own favour.
However, it is submitted by the counsel for the respondent that since the
petitioner is not the holder of agricultural land and no enquiry was conducted by
the SDO, therefore, the Collector, Jabalpur did not commit any mistake by
allowing the application.
Considered the submission.
Holder of agricultural land has been defined under Section 2(c) of
Adhiniyam, 1976 which reads as under:-
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"2(c) "holder of agricultural land" in the weaker sections of the
people means a holder of land used for purposes of Agriculture not
exceeding eight hectares of unirrigated land or four hectares of
irrigated land within the State whether as a Bhumiswami or an
occupancy tenant or a Government lessee either in any one or all of
the capacities together within the meaning of the Code.
Explanation :- One hectare of irrigated land shall be equal to
two hectares of unirrigated land and vice versa."
This Court has gone through the application filed by the petitioner under
Section 5 of Adhiniyam of 1976. It is true that in the application the petitioner
has nowhere mentioned that he is the holder of agricultural land. However, in the
present case, the respondent No.1 by filing his reply to the writ petition has
himself claimed that the petitioner is holding 3.38 acres of land.
The respondent No.1 has filed his reply to the petition. Along with the
reply the respondent No.1 has filed Khasra Panchshala of the year 2007-08 to
2010-11 to show that Harishankar was the Bhumi Swami of Khasra No.425/1-A
and one acre out of the said land was given to the petitioner. The respondent
has also filed a copy of Rin Pustika issued to the petitioner, in which it is shown
that the petitioner is the owner and in possession of Khasra No.379, area 2.30
acres, Khasra No.381/1 area 0.08 acres and Khasra No.425/1K area 1.00 acres
in all 3.38 acres. Thus, it is clear that even according to the respondent No.1,
the petitioner is the owner and in the possession of 3.38 acres of land only.
Although, it is not clear as to whether the land owned by the petitioner is
irrigated or unirrigated but even assuming that the petitioner is holding 3.38
acres of irrigated land, still it would be less than 4 hectares of irrigated land as
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required under Section 2(c) of Adhiniyam of 1976. It is the case of respondent
No.1 that he had advanced loan to the petitioner who is a holder of agricultural
land. By referring to reply filed by the respondent No.1 to the application filed
by the petitioner before the SDO, it was submitted by the counsel for the
respondent No.1 that the respondent No.1 had specifically taken an objection
that the petitioner is not a holder of agricultural land and he was having 35 acres
of land and at present he is in possession of 10 acres of land.
When the counsel for the petitioner was directed to point out the details
of 10 acres of land held by the petitioner, then it was fairly conceded that the
family members of the petitioner jointly hold 10 acres of land. Further, counsel
for the petitioner is not in a position to clarify as to whether the said land held
by the family members of petitioner is irrigated or unirrigated. Merely because
the family of the petitioner jointly holds 10 acres of land would not take the
petitioner out of the purview of "holder of agricultural land" because there is
nothing in Section 2(c) of Adhiniyam of 1976 to show that the holder of land
means a person who is jointly in possession of less than 4 hectares of irrigated
land or 8 hectares of unirrigated land along with his family. Thus, the land, if
any, held by the family members of the holder of agricultural land cannot be
included for ascertaining as to whether the person/applicant is a holder of
agricultural land or not.
Section 2 (f) of Adhiniyam of 1976 reads as under:-
(f) "prohibited transaction of loan" means a transaction in which a lender
of money advances loan to a holder of agricultural land against security of his
interest in land, whether at the time of advancing the loan or at any time
thereafter during the currency of the loan in any of the following modes, namely
:-
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(i) agreement to sell land with or without delivery of
possession;
(ii) outright sale of land with or without delivery of possession
accompanied by separate agreement to re-sell it;
(iii) outright sale of land with or without delivery of possession
with a distinct oral understanding that the sale shall not be acted upon
if the loan is re-paid;
(iv) outright sale of land with or without delivery of possession
with a condition incorporated in the sale deed to re-sell it on re-
payment of the loan;
(v) transaction in any modes other than those specified in
clauses (i) to (iv) affecting interest in land including a fraudulent
transaction or a transaction designed to defeat the provisions of any
law regulating money lending or interest, for the time being in force,
and includes all those transactions in which a lender of money
has after the appointed day but on or before the date of publication
of this Act in the Gazette, obtained possession of land of the holder
o f agricultural land through Court or by force or otherwise or
obtained a decree for such possession towards satisfaction of loan;
It is also the case of the petitioner that as agreed upon by the parties, an
agreement of reconveyance was also executed. Under these circumstances, this
Court is of the considered opinion that the petitioner has successfully proved
that the power of attorney obtained from the petitioner and the execution of the
sale deed dated 08.12.2014 by the respondent No.1 in his own favour on the
strength of power of attorney purportedly executed by the petitioner would
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certainly come within the definition of prohibited transaction of loan.
Under these circumstances, in view of admission made by the respondent
himself that the petitioner is not holding 4 hectares of irrigated land or 8 hectares
of unirrigated land and, on the contrary, it is the claim of the respondent No.1
that the petitioner is holding 3.38 acres of land, this Court is of the considered
opinion that not only the transaction in question was a prohibited transaction of
loan but the petitioner is also a holder of agricultural land as defined under
Section 2(c) of Adhiniyam,1976.
Considering the totality of the facts and circumstances of the case, this
Court is of the considered opinion that the Collector, Jabalpur committed a
material illegality by setting aside the order passed by SDO, Patan, District
Jabalpur in Case No.01/Appeal/2016-17.
As consequence thereof, the order dated 16.01.2018 passed by the
Collector, Jabalpur in Case no.01/Appeal/2016-17 is hereby quashed. The
order passed by the SDO in Case No.187/B-121/2015-16 on 05.09.2017 is
hereby restored.
The petition succeeds and is hereby allowed.
(G.S. AHLUWALIA)
JUDGE
HS
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