Basudev Das & Another vs Ganeswar Mallik
2021 Latest Caselaw 9171 Ori

                  HIGH COURT OF ORISSA : CUTTACK
                            RSA NOs.34 & 35 OF 2021

     From the judgment and decrees passed by the learned Addl. District
     Judge, Salipur in RFA No.08 of 2020 and RFA No. 09 of 2020 arising out
     of Civil Suit No.731 of 2016 in the Court of learned Senior Civil Judge,
     Salipur.

     In RSA Nos. 34 & 35 of 2021
          Basudev Das & Another                    :::            Appellants
                                       -versus-

          Ganeswar Mallik                          :::          Respondent

Appeared in this case by Video Conferencing Mode:

           For Appellants         -    M/s. Bhaskar Chandra Panda,
                                       S. Mishra, J.N. Panda, K. Rout,
                                       Advocates. (In both RSAs).
           For the Respondent -        M/s. Ashok Ku. Rout,
                                       B.N. Behera, H.P. Mohanty,
                                       P.K. Sethi, K.K. Dash, Advocates,
                                       (In both RSAs).
     CORAM:
     MR. JUSTICE D.DASH

DATE OF HEARING :: 09.08.2021 & JUDGMENT :: 02.09.2021

D.Dash, J. Since both the Appeals arise out of a common judgment followed

by the decrees passed by the learned Addl. District Judge, Salipur in

RFA No.08 of 2020 and RFA No. 09 of 2020; those had been heard

together for their disposal by common judgment.

The Respondent as the Plaintiff had filed Civil Suit No.731 of

2016 in the Court of learned Senior Civil Judge, Salipur. He has claimed

a declaration in respect of his right, title, interest and possession over the

suit land with further prayer of injunction. The Defendants entering {{ 2 }}

appearance while filing the written statement had raised counter claim

seeking declaration of their right, title, interest and possession over the

suit land being the lawful purchasers vide valid sale-deed bearing

No.578 dated 28.02.1983. The Trial Court having dismissed the suit;

decreed the counter claim.

The unsuccessful Plaintiff being aggrieved filed two Appeals

under Section-96 of the Code of Civil Procedure (in short hereinafter

called as 'the Code') which stood numbered as RFA No.08 of 2020 and

RFA No.09 of 2020. In these two Appeals, the Plaintiff challenged the

dismissal of his suit in not granting any relief as prayed for by him as

well as the decree passed in the counter claim lodged by the Defendants

in declaring their right, title, interest and possession over the suit land

and granting other ancillary reliefs.

Learned Additional District Judge, Salipur, by the common

judgment and decrees while setting aside the judgment and decrees

passed by the Trial Court has reversed the result of the suit and the

Counter Claim i.e. the suit has been decreed and the Counter Claim has

been dismissed.

The Defendants thus being unsuccessful in the First Appeal have

filed the present Appeal under Section-100 of the Code.

{{ 3 }}

2. For the sake of convenience, in order to avoid confusion and bring

in clarity, the parties hereinafter have been referred to, as they have been

arraigned in the Trial Court.

3. The Plaintiff's case is that he is member of Scheduled Caste

Community. The suit land under Khata No.26, Plot No.248, measuring

Ac.0.0280 decimals in mouza Kusundaspur is his ancestral property. It

stood recorded in the name of his father Adikanda Mallick in the record

of right published in the consolidation operation. On the death of

Adikanda, the Plaintiff became the owner and possessed the suit land. He

was staying at the place of work which is away from the native village. It

is stated that all of a sudden Defendant No.1 started putting up some

construction over the suit land and on being asked, he raised his claim

over the same as the purchaser from Adikanda, the father of the Plaintiff

by registered sale-deed No.578 dated 28.02.1983. The Plaintiff's request

to the Defendant No.1 not to go for any construction over the suit land

was not paid any heed to. When the Defendant No.1 fast proceeded with

the construction work, the Plaintiff initiated a proceeding under Section-

144 of the Code of Civil Procedure vide Crl. Misc. Case No.88 of 2016.

The Plaintiff then applied and obtained the certified copy of the sale-

deed in question which was projected by the Defendants as the source of

derivation of the title in respect of the suit land unto themselves. The

copy was received by him on 02.07.2016. It finds mention as to {{ 4 }}

permission for such sale under section-22 of the Orissa Land Reforms

Act (OLR Act) as to have been obtained from the Competent Authority

in Misc. Case No.468 of 1982 and the order to that effect been passed on

25.02.1983. On enquiry, the Plaintiff ascertained that his father had

never applied for such permission under Section-22 of the OLR Act and

that application giving rise to the Misc. Case No.488 of 1982 had been

filed by one Krushna Chandra Sethi and not his father, Adikanda.

It is next stated that sale-deed dated 28.02.1983 has never been

acted upon. The Plaintiff claimed to have been the owner in possession

of the said land and as such paying land revenue. As for the illegal act of

the Defendants, clouds came to be cast upon his title over the suit land;

he filed the Suit.

4. The Defendants in the written statement containing the counter-

claim have averred that the original owner Adikanda with a view to

transfer the land measuring Ac.0.060 decimals out of Ac.0.0280

decimals from the land in Plot No.248 as required under the law had

made the application for grant of permission before the Sub-Collector,

Cuttack on 11.12.1980. The Sub-Collector after enquiry as contemplated

finally on 31.10.1981 granted permission by passing appropriate order to

that effect. Intimation was given to the Registering Officer, Mahanga as

well as said Adikanda. This Adikanda is also stated to have obtained

permission from the Consolidation Officer, Mahanga in Misc.Case {{ 5 }}

No.794 dated 23.02.1983 to transfer the suit land measuring Ac.0.04

decimals out of Suit Plot No.248 in favour of the Defendants. That

permission was also communicated to the Sub-Registrar and Assistant

Consolidation Officer, Palli Sahi. Permissions being obtained, Adikanda

transferred the suit land to the Defendants by registered sale-deed

No.578 dated 28.02.1983 for consideration of Rs.500/-. Vendor,

Adikanda had also delivered the possession of the suit land whereafter

the Defendants put up thatched house consisting of three rooms. It is also

stated that as the house was damaged, the Defendants were putting up

permanent constructions which has progressed up to the lintel level.

Explaining the non-indication of their names in respect of the suit land in

the record of right published in the Consolidation Operation, they have

said that it was for their absence during the period and as such inaction.

The Plaintiff's written statement to the counter claim is the reiteration of

the facts pleaded in the plaint.

5. The Trial Court on the above rival pleadings, framed in total nine

issues. Answering the important issue as to the validity of the Registered

Sale-Deed dated 28.02.1983, Ext.A, the Trial Court has touched upon the

factum of grant of prior permission, if any, as required in view of the

mandatory provision contained in section-22 of the OLR Act with the

consequence declared thereunder. Upon discussion of evidence on record

on the base of the rival pleadings on that score, keeping in view the {{ 6 }}

settled law that in the absence of the permission, the transaction is void

as also the burden of proof in that regard lies on the plaintiff to lead

satisfactory evidence so as to shift the onus to the Defendant; the

conclusions are as the followings:-

      (a)   xxxx         xxxx          xxxx         xxxx             xxxx
            xxxx         xxxx          xxxx         xxxx             xxxx

Hence as discussed above, it is found that the father of the Plaintiff had intended to sale the suit land to the Defendants and accordingly necessary permission u/s.22 of the OLR Act and u/s.4(2) of the OCH & PFL Act have been obtained from the concerned authority in furtherance of the same to sale the suit property to the Defendants.

      (b)   xxxx         xxxx          xxxx         xxxx             xxxx
            xxxx         xxxx          xxxx         xxxx             xxxx

Hence under the circumstances, it is held that the alleged sale deed is properly executed, consideration money was paid at the time of execution and necessary permission u/s.22 of the OLR Act has been obtained from the concerned authority before the sale of the suit land by the vendor i.e. father of the Plaintiff to the Defendants.

Banking upon the above, the Suit having been dismissed; the Trial

Court in the factual settings, finding the counter claim as maintainable

having the cause of action, has decreed the same.

6. The First Appellate Court being moved by the unsuccessful

plaintiff having raised no disagreement with the position that the fate of

Suit and Counter Claim solely depend upon the validity of the sale-deed, {{ 7 }}

Ext.A which has also to be decided keeping in view the factum of due

grant of permission as mandated under section-22 of the OLR Act, has

proceeded to look into the evidence on record in judging the

sustainability of the finding of the Trial Court on that score. Relevant

portion of the judgment containing the discussions leading to the

conclusions arrived at run as under:-

(a) Be that as it may, here it is only concerned is that whether permission u/s. 22 of the OLR Act was obtained or not. The evidence of Defendant No.1 not at all satisfactory with regard to permission u/s. 22 of the OLR Act as per his statement disposed in court in his cross-examination that at the time of execution and registration of the sale deed in respect of his purchased land his vendor handed over the original permission of the consolidation authority to him but had not supplied the OLR permission u/s. 22 as the said permission was filed before the Sub-Registrar at the time of execution of sale deed. He himself contradicts his own version that he does not have any personal knowledge about the permission as reflected in para-27 of his cross- examination. Therefore, the evidence of possession of suit land after its purchase by complying the mandatory provisions of Sec.22 of OLR Act is not acceptable and rather the evidence led by plaintiff with respect of possession of suit land and not obtaining permission by his father for transfer of suit land is more probable for acceptance. From all these I can come to the conclusion that the validity of the sale deed depends upon the permission {{ 8 }}

u/s. 22 of OLR Act. In view of that matter the onus shifting to Defendant to be discharged as regards the permission was obtained by Adikanda Mallick (father of the Plaintiff) at the time of registration of sale deed in the present case he has utterly failed to do so.

(b) From these above propositions of law, it is always the duty of the Court to find out the true intent and purpose of a particular legislation by pressing into use. Therefore, in view of the above, the permission obtained in provisions contained in Sec.4(2) of OCH & PFL Act, 1972 is meaningless when the mandatory provisions of U/s.22 of OLR Act has not been complied.

7. The Appeals have been admitted on the following substantial

questions of law:-

A. Whether the First Appellate Court, in view of the evidence on record, ought to have construed the permission granted for sale of the land under Ext.B to be the permission for the purpose of the sale as made vide Ext.A and accordingly, ought not to have decreed the suit filed by the Respondent as Plaintiff in dismissing the counter claim advanced by the Appellants (Defendants)? and B. Whether even upon construction of Ext.B in support of the sale made under Ext.A, it can be so held to be valid in the eye of law so as to sustain the transaction carried under Ext.A in conferring title with respect to the land in question in favour of the vendor/s therein?

8. Mr. B.C. Panda, learned counsel for the Appellants submitted that

the learned lower Appellate Court has committed grave error in its {{ 9 }}

approach in judging sustainability of the finding of the Trial Court and

has unjustifiably turned down the well reasoned finding of the trial Court

based upon sound appreciation of evidence that the sale-deed in question

had been duly executed by Adikanda on 28.02.1983 which has been duly

registered on payment of valuable consideration followed by delivery of

possession being backed by a valid and due permission as required under

Section-22 of the OLR Act which has been subsequently permitted as

required under Section4(2) of the Orissa Consolidation of Holding and

Prevention of Fragmentation of laws Act (OCH & PFL Act) by the

Competent Authority. He further submitted that the First Appellate Court

in disturbing such a finding on the validity of the sale-deed as recorded

by the Trial Court has completely thrown the available legal presumption

as to due execution, payment of consideration, registration and

observance of all such legal formalities thereupon to the winds, perhaps,

forgetting for a moment that the sale-deed in question is a registered one.

It was submitted that the learned lower Appellate Court has

unnecessarily given much emphasis upon the recitals without embarking

upon the evidence as to the bilateral mistake in putting the year of the

relevant permission case in the sale-deed. According to him, on the face

of the document produced and proved in that behalf, such a silly and

minor mistake in the recitals which never touches the root of the matter

when the fact what is true stands amply proved, ought to be totally {{ 10 }}

ignored. It was submitted that the Trial Court having rightly done so; the

lower Appellate Court has committed grave error. He also submitted that

the sale-deed being of the year, 1983 and the vendor under the sale-deed

having not questioned the same during his lifetime, the same ought to

have been taken as a circumstance as to the acceptance of the said sale-

deed on the part of the Plaintiff and his father. It was submitted that

overwhelming evidence as to the possession of the suit property by the

Plaintiff since the time of his father by putting up construction which

have been touched upon by the Trial Court have been completely

ignored by the First Appellate Court and that when are taken into

account in their proper perspective; the factum of the whole hearted

acceptance of the sale-deed in question from every quarter finds strong

support. He thus submitted that the judgment and decrees passed by

lower Appellate Court are liable to be set aside and the permission under

Ext.B ought to have held to be a valid one so also the sale-deed vide

Ext.A and accordingly, the substantial questions of law according to him,

should find answers against the case of the Plaintiff.

9. Mr. A.K. Rout, learned counsel for the Respondent submitted all

in favour of the findings rendered by the learned First Appellate Court.

According to him, the sale-deed in question has been rightly held as

invalid. It was submitted that the learned lower Appellate Court did

commit no mistake in saying that no right, title and interest in respect of {{ 11 }}

the suit land have passed to be hands of the Plaintiff by virtue of that

document (Ext.A). According to him, the sale-deed Ext.A being not

supported by the permission as mandatorily required under section-22 of

the OLR Act in the particular case i.e. Misc. Case No.488 of 1982 as

finds mention therein; there stands no second answer but to say the said

sale-deed as not even worth the paper written on. According to him, the

document (Ex.A) has to be examined as it is and no extraneous evidence

is permissible to be taken note of for the purpose. In view of all these

above, he argued that the substantial answer to the substantial question of

law have to run in favour of the confirmation of the judgment and

decrees passed by the learned First Appellate Court.

10. Keeping in view the submissions made, the judgments rendered by

the Courts below have been carefully gone through. I have also travelled

through the evidence both oral and documentary as placed by the learned

counsel for the parties.

11. Admittedly, the Plaintiff belongs to the Scheduled Caste

Community and as mandatorily required under Section-22 of the OLR

Act, such transactions of sale of immovable property etc. by a member of

Scheduled Caste in favour of a person not belonging to Scheduled Caste

are required to be with prior permission of the Competent Authority who

under the law is ordained to look into certain relevant aspects so as to

safeguard and protect the interest of the vendor and other members of the {{ 12 }}

said Community. Ultimately, the Authority accords the permission in

case, it lastly finds that no such member of the said Community is

coming forward to purchase the immovable property on payment of the

fair and reasonable sum towards consideration.

It is the settled law that any sale-deed in contravention of the said

provision of the Section-22 of the OLR Act is void and no Court of law

will look into it as a deed of sale so as to construe it in that way without

there being a permission for the transaction. The possession of the

immovable property pursuant to such sale-deed without permission also

remains unlawful where the vendor or his legal representative or even

State Authority have the right to restore in accordance with law through

appropriate action as provided in the OLR Act.

The controversy in the present case centers round the permission

of the Competent Authority for the purpose of sale involving of the suit

land under the Registered Sale-deed, Ext.A. The sale deed being

executed on 28.02.1983 has been registered on that day and it has been

admitted in evidence and marked as Ext.A. The case of the Plaintiff is

that prior to such execution and registration of the sale-deed; permission

had been granted by the Competent Authority in Misc. Case No. 488 of

1980 and the same was duly communicated to the concerned Sub-

Registrar. However, while mentioning said fact; it appears that the

permission case number in the sale-deed, the scribe in stand of writing {{ 13 }}

488 of 1980 has written 488 of 1982 i.e. only the year of the case has

been erroneously put as 1982 instead of 1980, when the number as well

as the date of order remain the same. The document Ext.B i.e. certified

copy of the case record of No.488 of 1980 proved from the side of the

Defendants being gone through, this mentioning of the permission case

number in the sale-deed under Ext.A can be termed to be the scribe's

devil and that is what the trial court has said. The register of institution

of such permission cases indicates that said OLR Case No.488 of 1982

was filed by one Krushna Sethi. However, the certified copy of the

relevant record of shows that Misc. Case No.488 of 1980 had been filed

by Adikanda Sethi, the father of the Plaintiff. Under the circumstance,

the vendor of sale-deed Ext.A does not stand to gain anything by placing

the year of the case as 1982 in place of 1980. Had it been a case that

absolutely without any prior permission being granted in any proceeding

merely a number had been put/written, the Court even though the sale-

deed being a registered one would have no other option but to ignore it,

in holding it to be invalid for any purpose whatsoever. But that is not the

case here.

The sale-deed here is a registered one and as required under the

rules of practice the order of permission being communicated to the

Registering Authority; he having made due verification has to register it.

It may be mentioned here that law requires such a duty to be performed {{ 14 }}

by the Registering Authority and the failure or even any willful conduct

in circumventing the mandatory provision meant to safeguard the rights

of the members of such Community over their immovable property

invites panel action against all concerned. In the obtained facts and

circumstances; legal presumption squarely comes to stand in favour of

the validity of the registered sale-deed (Ext.A) that it has been due

executed by Adikanda on receipt of due agreed consideration followed

by delivery of possession for the property in question and that it was

duly registered by the Registering Authority after all required

verification and observing the legal formalities; most importantly, with

the satisfaction as to grant of permission under the OLR Act also the

permission under the OCH & PFL Act as by then in need since the land

in question was under the consolidation operation.

With a view to verify the validity of the registering the sale-deed

Ext.A that the execution of the sale-deed is in conformity with the said

laws or not; the First Appellate Court on the face of the available

documentary evidence was not at all required to look at the oral evidence

with regard to such permission when under the circumstance no amount

of oral evidence can satisfy the legal requirement and it has to be found

out and so ascertained from the documents. Thus, the reason culled out

by the first Appellate Court that the evidence of Defendant No.1 is not

satisfactory with regard to permission as he has no personal knowledge {{ 15 }}

about the same does not stand to acceptance. Furthermore, the First

Appellate Court has assigned absolutely no reason as to why the

explanation averred by the Defendant and so deposed with regard to the

mistake in putting the year of the permission case in the sale-deed

executed Ext.A not acceptable. The first Appellate Court appears to have

made unnecessary discussion of other evidence in this connection so as

to arrive at a conclusion as to the validity of the permission Ext.B in

deciding the fate of Ext.A. Having said all these above; this Court is

persuaded to accept the submission of the learned Counsel for the

Appellant that the First Appellate Court without any justifiable reason

has disturbed the well reasoned finding of the Trial Court found upon

sound appreciation of evidence on record on the vital issues. The

answers to the substantial questions of law thus are recorded against the

case of the Plaintiff (Respondent) running to non-suit him and in favour

of the Defendants (Appellants) in decreeing their counter claim.

In the wake of aforesaid, the judgment and decrees passed by the

learned First Appellate Court are hereby set aside and those of the Trial

Court stand restored.

12. Resultantly, the Appeals stand allowed. No order as to cost.

.......................

(D. Dash), Judge.

Narayan