Orissa High Court
Motor Ransingh & Others vs Hara Patra & Others on 24 June, 2024
IN THE HIGH COURT OF ORISSA AT CUTTACK
SA No.355 of 1997
(In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908)
Motor Ransingh & Others .... Appellants
-versus-
Hara Patra & Others .... Respondents
Appeared in this case by Hybrid Arrangement
(Virtual/Physical Mode):
For Appellant - Mr. D.P. Mohanty, Advocate
appearing on behalf of
Mr. B.H. Mohanty, Advocate .
For Respondents - None
CORAM:
MR. JUSTICE A.C.BEHERA
Date of Hearing :18.06.2024:: Date of Order :24.06.2024
A.C. Behera, J. This 2nd Appeal has been preferred against the confirming
Judgment.
2. The appellants of this 2nd Appeal were the plaintiffs before the
Trial Court in the suit vide T.S. No.24 of 1988 and they were the
appellants before the First Appellate Court in the 1st Appeal vide T.A.
No.23 of 1991.
The predecessor of the respondents of this 2nd Appeal i.e. Bakuli
Patra was the sole defendant before the Trial Court in the suit vide T.S.
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No.24 of 1988 and he was the original respondent before the First
Appellate Court in the 1st Appeal vide T.A. No.23 of 1991. When during
the pendency of the 1st Appeal, the said sole respondent i.e. Bakuli Patra
expired, then, his LRs were substituted as respondent Nos.1(a) to 1(j) in
that 1st Appeal vide T.A. No.23 of 1991 and the said respondent Nos.1(a)
to 1(j) of the 1st Appeal are the respondents in this 2nd Appeal.
3. The suit of the plaintiffs (appellants in this 2 nd Appeal) vide T.S.
No.24 of 1988 against the predecessor of the respondents i.e. against the
defendant (Bakuli Patra) was a suit for specific performance of contract.
The case of the plaintiffs before the Trial Court vide T.S. No.24 of
1988 against the defendant (Bakuli Patra) as per their pleadings was that,
the plaintiffs belong to Scheduled Tribe community, but the defendant
belong to Scheduled Caste community. The plaintiffs are 5 brothers being
the 5 sons of Kanduru Ransingh.
The defendant (Bakuli Patra) was the exclusive owner of the suit
properties. In order to sell the suit properties to the plaintiff No.1 (Motor
Ransingh), he defendant (Bakuli Patra) executed an agreement for sale on
31.03.1971 in favour of the plaintiff No.1 and received consideration
amount of Rs.1100/- from the plaintiff No.1 and delivered the possession
of the suit properties to the plaintiff No.1 with the conditions that, he
(defendant, Bakuli Patra) shall execute and register the sale deed in
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respect of the suit properties in favour of the plaintiff No.1 after obtaining
permission for sale of the same from the Competent Revenue Authorities
as per Orissa Land Reforms Act, 1960. Thereafter, the defendant Bakuli
Patra applied before the Sub-Divisional Officer, Keonjhar for granting
permission under Section 22 of the OLR Act, 1960 in order to sell the suit
properties to the plaintiff No.1 and obtained permission from the SDO,
Keonjhar under Section 22 of the OLR Act, 1960 for selling the suit
properties in favour of the plaintiff No.1, as he (defendant, Bakuli Patra)
is a person of Scheduled Caste Community and the plaintiff No.1 is a
person of non-Scheduled Caste community, but in spite of receiving the
permission for selling the suit properties in favour of the plaintiff No.1,
the defendant did not execute and register the sale deed in respect of the
suit properties in favour of the plaintiff No.1 in compliance with the
conditions indicated in the agreement to sell dated 31.03.1971. For which,
the plaintiff No.1 requested the defendant time and again for executing
and registering the sale deed in respect of the suit properties in his favour
in pursuance to the written agreement dated 31.03.1971 executed by the
defendant in his favour, but he defendant (Bakuli Patra) avoided to
execute and register the sale deed in respect of the suit properties in
favour of the plaintiff No.1. For which, the plaintiff No.1 issued a notice
through his Advocate on dated 20.05.1988 to the defendant requesting
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him to execute and register the sale deed in respect of the suit properties
in his favour in compliance with the conditions indicated in the
agreement dated 31.03.1971, but, the defendant replied such notice dated
20.05.1988 of the plaintiff No.1 disputing the execution of the so-called
agreement to sell dated 31.03.1971. For which, without getting any way,
the plaintiffs being 5 brothers approached the Civil Court by filing the
suit vide T.S. No.24 of 1988 against the defendant praying for the decree
of specific performance of contract on the basis of agreement to sell dated
31.03.1971 directing the defendant to execute and register the sale deed
in respect of the suit properties in favour of the plaintiffs.
4. Having been noticed from the Trial Court in the suit vide T.S.
No.24 of 1988 filed by the plaintiffs, the defendant contested the same
denying all the allegations alleged by the plaintiffs in their plaint against
him (defendant) by taking his pleas/stands inter alia therein that, he
(defendant) is a member of Scheduled Caste Community, but the
plaintiffs belong to Scheduled Tribe community. The so-called agreement
to sell dated 31.03.1971 was executed without permission from the
competent authority under the Orissa Land Reforms Act, 1960, for which,
such agreement dated 31.03.1971 is invalid and void.
The further case of the defendant was that, in order to purchase the
suit properties from him (defendant), the plaintiff No.1 had paid Rs.700/-
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to him with an understanding to sell the suit properties in his favour after
obtaining permission from the competent Revenue Authority as per the
provisions of OLR Act, 1960 and after receiving due (proper)
consideration amount of the same from him (plaintiff No.1). When, after
obtaining permission from the Revenue Authority for selling the suit
properties in favour of the plaintiff No.1, the plaintiffs including the
plaintiff No.1 did not agree to pay the due (proper/adequate)
consideration amount of the suit properties to him (defendant) for
purchasing the same, then, he (defendant) did not sell the suit properties
to the plaintiff No.1. The further case of the defendant was that, he has
never entered into an agreement to sell of the suit properties with the
plaintiff No.1, for which, the suit of the plaintiffs is not maintainable in
view of the bar under law provided in the Orissa Land Reforms Act,
1960. The suit of the plaintiffs is also barred by the law of limitation. For
which, the suit of the plaintiffs is liable to be dismissed against him
(defendant) with cost.
5. Basing upon the aforesaid pleadings and matters in controversies
between the parties, altogether 7 numbers of issues were framed by the
Trial Court in the suit vide T.S. No.24 of 1988 and the said issues are:
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Issues
i. Is the suit maintainable under law?
ii. Is the suit barred by law of limitation?
iii. Is the suit barred for non-joinder of
necessary party?
iv. Is the agreement for sale illegal, void and
not binding on defendant?
v. Are the plaintiffs in possession of the suit
land?
vi. Have the plaintiffs done their part of the
contract?
vii. To what other relief, the plaintiffs are
entitled to?
6. In order to substantiate the aforesaid relief sought for by the
plaintiffs against the defendant, the plaintiffs examined one witness from
their side i.e. plaintiff No.1 as P.W.1 and exhibited series of documents
on their behalf vide Exts.1 to 7.
But the defendant neither examined any witness from his side nor
proved any document on his behalf.
7. After conclusion of hearing of the suit vide T.S. No.24 of 1988 and
on perusal of the materials, documents and evidence available in the
record, the Trial Court dismissed the suit of the plaintiffs vide T.S. No.24
of 1988 against the defendant on contest without cost as per its Judgment
and Decree dated 31.08.1991 and 13.09.1991 respectively answering
issue Nos.2,4,6 & 7 against the plaintiffs and in favour of the defendant
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by giving observations therein that, the agreement to sell dated
31.03.1971 vide Ext.7 executed by the defendant in favour of the plaintiff
No.1 in respect of the suit properties for selling the suit properties is
void, because that agreement vide Ext.7 was executed in contravention of
the provisions of Section 22 of the OLR Act, 1960 without obtaining
necessary permission from the competent Revenue Authorities. Because,
on the basis of that agreement vide Ext.7, possession of the suit properties
was delivered by its owner i.e. defendant (who is a scheduled caste
person) in favour of the plaintiff No.1 (who is a non-scheduled caste
person). For which, the plaintiffs are not entitled for the decree of specific
performance of contract in respect of the suit properties against the
defendant on the basis of that void agreement vide Ext.7.
8. On being dissatisfied with the aforesaid Judgment and Decree of
the dismissal of the suit of the plaintiffs vide T.S. No.24 of 1988 passed
by the Trial Court on dated 31.08.1991 and 13.09.1991 respectively, they
(plaintiffs) challenged the same by preferring the 1 st Appeal vide T.A.
No.23 of 1991 being the appellants against the defendant (Bakuli Patra)
by arraying him as respondent.
When, during the pendency of that 1st Appeal vide T.A. No.23 of
1991, the respondent (defendant, Bakuli Patra) expired, then his LRs
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were substituted as respondent Nos.1(a) to 1(j) in the said 1st Appeal vide
T.A. No.23 of 1991 in place of deceased respondent Bakuli Patra.
After hearing of that 1st Appeal vide T.A. No.23 of 1991 of the
plaintiffs, the 1st Appellate Court also dismissed to that 1st Appeal vide
T.A. No.23 of 1991 of the plaintiffs confirming the Judgment and Decree
dated 31.08.1991 and 13.09.1991 respectively passed by the Trial Court
in T.S. No.24 of 1988 as per its Judgment and Decree dated 30.08.1997
and 12.09.1997 respectively passed in T.A. No.23 of 1991 accepting the
findings and observations made by the Trial Court that, the agreement in
question vide Ext.7 is void, because as per the contents of Ext.7, delivery
of possession of the suit properties was given by the defendant in favour
of the plaintiff No.1 without obtaining the required permission from the
Revenue Authorities as per Section 22 of the OLR Act, 1960. For which,
the plaintiffs are not entitled for the decree of specific performance of
contract on the strength of the said void agreement vide Ext.7, which is
invalid and non-est in the eye of law. Therefore, the plaintiffs are also not
entitled for refunding back any amount paid through the said void
agreement vide Ext.7, because, that Ext.7 was executed in contravention
of the provisions of the statute i.e. The OLR Act, 1960.
9. On being aggrieved with the aforesaid Judgment and Decree of the
dismissal of the 1st Appeal vide T.A. No.23 of 1991 of the plaintiffs
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passed by the 1st Appellate Court, they (plaintiffs) challenged the same by
preferring this 2nd Appeal being the appellants against all the respondents
of the 1st Appeal by arraying them as respondents.
10. This 2nd Appeal was admitted on formulation of the following
substantial question of law i.e.
Whether the courts below were correct in
taking a view that the transfer within the
meaning of Section 22 of the Orissa Land
Reforms Act, 1960 includes even the
agreement for sale?
11. I have already heard from the learned counsel for the appellants
(plaintiffs) only, as none appeared from the side of the respondents to
participate in the hearing of the 2nd appeal.
12. It is the own case of the plaintiffs (appellants in this 2nd Appeal) as
per their pleadings and evidence in the suit vide T.S. No.24 of 1988
before the Trial Court that, the owner of the suit properties i.e. Bakuli
Patra (defendant) is a man of Scheduled Caste Community, but they
(plaintiffs) do not belong to Scheduled Caste Community. As such, they
(plaintiffs) are the persons of non-Scheduled Caste Community. It is also
the own case of the plaintiffs (appellants in this 2nd Appeal) that, the
possession of the suit properties was delivered by the defendant in favour
of the plaintiff No.1 on the basis of such agreement to sell dated
31.03.1971 vide Ext.7 and the said agreement to sell dated 31.03.1971
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vide Ext.7 in respect of the suit properties was executed by its owner i.e.
defendant in favour of the plaintiff No.1 without obtaining required
permission under Section 22 of the OLR Act from the competent
Revenue Authority.
As per Section 22 (1) to (5) of The OLR Act, 1960, any transfer of
holding or part thereof by a Raiyat belonging to the Schedule Caste
community in favour of a person belonging to non-Scheduled Caste
Community without any permission in writing of the Revenue Officer
shall be invalid (void).
On that aspect, the propositions of law has already been clarified in
the ratio of the following decisions:
76 (1993) CLT 367:Ramnaresh Singh Vs. Padmalochan Jaypuria
(dead) & after him Gulapi Devi & Others & 2019 (II) CLR
1178:(Sri) Muchiram Barik Vs. Revenue Officer, Sadar,
Sambalpur & Others.
Where delivery of possession of land was made upon execution of
agreement to sell with a promise to sell after obtaining permission,
mere contract for sale on a future date would not be void. When there is
transfer of possession on the basis of such a contract, it would require
permission of the Revenue Officer under Section 22 of the OLR Act.
(Para Nos.14 & 15)
13. When it is the own case of the plaintiffs that, delivery of possession
of the suit properties was given by its owner i.e. the defendant to the
plaintiff No.1 through the agreement to sell dated 31.03.1971 vide Ext.7
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with specific conditions therein to sell the suit properties to the plaintiff
No.1 after obtaining required permission from the Revenue Authority,
then in view of the propositions of law enunciated in the ratio of the
above decisions, such agreement to sell vide Ext.7 is invalid, void and
non-est in the eye of law. Because, due to transfer of possession of the
suit properties on the basis of such agreement to sell vide Ext.7 without
obtaining necessary permission from the Revenue Authorities under
Section 22 of the OLR Act, the said agreement to sell vide Ext.7 is
invalid under law, as, there was transfer of possession of the suit
properties by a Scheduled Caste person in favour of a non-Scheduled
Caste person.
As, the agreement dated 31.03.1971 vide Ext.7 was executed in
contravention of the statutory provisions of The OLR Act, 1960 opposing
the public policy defeating the provisions of Section 22 of the OLR Act,
1960 offending such statute forbidding the aforesaid statutory provisions
of law, then, such agreement in question dated 31.03.1971 vide Ext.7 is
not merely void, but, the same was invalid from its nativity i.e. from its
inception. For which, no legal relationship had arisen between the parties
through such invalid agreement vide Ext.7, as the said agreement vide
Ext.7 was executed offending the statute, i.e. OLR Act, 1960.
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14. The conclusions drawn above finds support from the ratio of the
following decisions of the Hon'ble Courts and Apex Court:
i. AIR 1994 (Allhabad) 298 (Full Bench):Nutan
Kumar and Others Vs. IInd Addl. District Judge,
Banda & Others--An agreement offending a statute
or public policy or forbidden by law is not merely void,
but it is invalid from nativity. It cannot become valid
even if the parties thereto agree to it. No legal relations
come into being from an agreement offending a Statute
or Public Policy.
(Para Nos.22 & 23)
ii. III (2004) Civ.L.T 204 (SC):Jayamma Vs. Maria Bai
dead by proposed LRs & Another--Assignment or
transfer made in contravention of statutory provisions:
Invalid and opposed to public policy and attract
provisions of Section 23, Contract Act, 1872.
(Para No.20)
iii. 2017 (II) OLR 660:Abdul Aziz Vs. Member, Board
of Revenue, Orissa, Cuttack & Others--Any Court
or authority which is discharging the public function
and in sesin of the matter, can take into consideration
this principle of law and simply refuse to act upon such
document which is void ab initio.
(Para No.12)
15. On application of the propositions of law enunciated in the ratio of
the aforesaid decisions of the Hon'ble Courts and Apex Court to the facts
and law of this appeal at hand as discussed above, it is held that, the
agreement dated 31.03.1971 vide Ext.7 was executed by the owner of the
suit properties i.e. defendant (Bakuli Patra) in favour of the plaintiff No.1
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in contravention of the statutory provisions of the OLR Act, 1960 without
obtaining the necessary and mandatory permission under Section 22 of
the OLR Act, 1960, for which, such agreement vide Ext.7 was invalid
from its nativity. Therefore, the plaintiffs are not entitled under law for
the decree of specific performance of contract against the defendant on
the basis of such void and invalid agreement vide Ext.7.
Therefore, the Trial Court and First Appellate Court are correct in
their views that, the agreement to sell in question dated 31.03.1971 vide
Ext.7 transferring the possession of the suit properties by the Scheduled
caste person i.e. defendant in favour of the non-Scheduled caste person
i.e. plaintiff No.1 through that agreement vide Ext.7 is a transfer within
the meaning of Section 22 of the OLR Act, 1960. For which, in order to
execute that agreement to sell dated 31.03.1971 vide Ext.7 prior
permission under Section 22 of the OLR Act, 1960 was mandatory and
compulsory and due to lack of such permission, that agreement in
question vide Ext.7 was invalid and non-est in the eye of law. For which,
the concurrent findings of the Trial Court and First Appellate Court in
dismissing the suit for specific performance of contract of the plaintiffs
(appellants in this 2nd Appeal), claimed through the invalid agreement
vide Ext.7 cannot be held erroneous. Therefore, the question of
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interfering with the same through this 2nd Appeal filed by the appellants
(plaintiffs) does not arise.
16. As such, there is no merit in the appeal of the appellants
(plaintiffs). The same must fail.
17. In result, the 2nd appeal filed by the appellants (plaintiffs) is
dismissed on merit, but without cost.
(A.C. Behera),
Judge.
Orissa High Court, Cuttack.
24.06.2024,//Rati Ranjan Nayak//
Senior Stenographer
Designation: Senior Stenographer
Location: High Court of Orissa, Cuttack, India
Date: 26-Jun-2024 15:11:19
