Orissa High Court
Afr Panchu Das vs Bhaskar Swain & Others on 22 November, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 369 of 2014
[In the matter of an appeal under Section 100 of the Code
of Civil Procedure, 1908.
---------------
AFR Panchu Das ...... Appellant
-Versus-
Bhaskar Swain & others ...... Respondents
Advocate(s) appeared in this case :-
_________________________________________________________
For Appellant : Mr. Prafulla Kumar Rath Sr. Adv.
With M/s. R.N. Parija, A.K. Rout,
S.K. Pattnaik, A. Behera &
P.K. Sahoo, Advocate
For Respondents: Mr. S. Das, Advocate
[ For R.1]
_______________________________________________________
CORAM
JUSTICE SASHIKANTA MISHRA
JUDGMENT
nd
22 November, 2024
SASHIKANTA MISHRA, J. This is a defendant's appeal against a
confirming judgment. The judgment dated 24.04.2014
followed by decree passed by the 2nd Addl. District Judge,
Puri in RFA No. 6 of 2010 is under challenge, whereby the
judgment dated 30.11.2009 followed by decree passed by
Civil Judge (Sr. Division), Puri in Civil Suit No.273 of 2002
was confirmed.
2. For convenience, the parties are referred to as
per their respective status before the trial Court.
3. The suit was filed by the plaintiff for a decree of
specific performance of contract or in the alternative,
refund of advance money. The plaintiff's case is that the
suit property belongs to Bhramar Das (deceased-defendant
No.1) and his co-sharers, which fell to the share of
Bhramar Das in an amicable partition. Said Bhramar Das
wanted to sell the property for his personal reasons and
accordingly executed an agreement for sale on 28.02.2008
for a total consideration of ₹17,000/-, out of which he
received ₹15,000/-. It was agreed that the sale deed would
be executed by him after making necessary correction in
the Record of Right (ROR) with regard to his caste, which
was wrongly described as 'Bauri', which is a scheduled
caste, even though he is 'Buna', which is a non-scheduled
caste. It was further provided that the balance
consideration of ₹2,000/- would be paid by the plaintiff on
the date of execution of the sale deed and in case the
vendor fails to perform his duties the advance money shall
be returned with interest @12%. It was further stated that
the plaintiff was ready and willing to perform his part of the
contract and to pay the balance consideration money but
despite repeated approaches, Bhramar Das took no steps
to execute the sale deed. Hence, the suit.
4. Bhramar Das having died during pendency of
the suit, his legal heirs were substituted. They filed their
written statement jointly refuting the plaint averments and
by asserting that Bhramar Das had taken a loan of
₹12,000/-, though it was mentioned as ₹17,000/- in the
agreement with the excess amount being towards his
possible litigation expenses. Further, Bhramar Das was not
the sole owner of the property and that they are Harijans
and landless persons. After repayment of the loan dues
with interest @ 12%, the document was to be returned but
the plaintiff wanted to grab the valuable properties by
coming out with a false case.
5. Basing on the rival pleadings, the trial Court
framed the following issued for determination.
―1. Whether the suit is maintainable?
2. Whether the plaintiff has any cause of action to
file the suit?
3. Whether the deceased-defendant No.1, Bhramar
Das made an agreement with the plaintiff on
dtd.28.2.2001 to sell the suit land for a
consideration of Rs.17,000/- and received part
consideration of Rs.15,000/- ?
4. Whether the legal heirs of the deceased-
defendant No.1, Bhramar Das are liable to sell the
suit property in favour of the plaintiff and
alternatively to return the earnest money of
Rs.15,000/-with interest @12% ?‖
5. To what other reliefs is the plaintiff entitled to?
6. Taking up Issue No.3 for consideration at the
outset, the trial Court found that the document as such
was not denied but was explained as a deed of security
against loan of ₹12,000/-. Basing on the other oral
evidence, the trial Court negatived the plea of defendants to
hold that the deceased- Bhramar Das had executed the
agreement for sale of the suit property for consideration of
₹17,000/-, out of which he received ₹15,000/- on the date
of agreement. On Issue No.4, the trial Court, relying upon
some judgments of the Supreme Court held that the Civil
Court has no jurisdiction to give a declaration if a caste is a
scheduled caste or not. On such basis it was held that
Bhramar Das was 'Buna' by caste, whereas the copy of the
Presidential Notification mentions 'Buna Bauri' as a
scheduled caste. 'Buna' is neither a scheduled caste nor a
scheduled tribe and therefore, the agreement executed by
Bhramar Das was a legally enforceable agreement, which
his legal heirs were obliged to comply. On the above
findings rendered in respect of the main issues, the
remaining issues were answered accordingly and the suit
was decreed by directing the defendants to execute the
registered sale deed in respect of the suit property in favour
of the plaintiff on receipt of the balance consideration of
₹2,000/-.
7. Being aggrieved, the defendant carried the
matter in appeal, which was heard and disposed of by the
2nd Addl. District Judge, Puri. The appellate Court took
note of the agreement marked Ext.1 and held that the
vendor knew that he belonged to 'Buna' caste, which is a
non-scheduled caste though wrongly his caste was
mentioned as 'Bauri' in the ROR. As such, Ext.1 was held
to be a genuine document capable of transferring title from
the vendor to the vendee subject to compliance of the
conditions mentioned therein. It was further held that if
the defendants failed to correct the ROR they are supposed
to return the money with interest @ 12%, which is a default
clause. On such findings, the first appellate Court
dismissed the appeal confirming thereby the judgment of
the trial Court.
8. Being further aggrieved, the defendants have
preferred the present appeal, which was admitted on the
following substantial question of law:
―Whether the contract is enforceable, which itself
provides refund of advance money as an adequate
relief as provided under section 14(1)(a) of Specific
Relief Act?‖
The following substantial question of law was also framed
at the time of hearing:
―There being no pleading in the plaint that the
consolidated R.O.R. is corrected, whether the
contract is enforceable before any such correction
in view of the provision under Section 32 of Indian
Contract Act.‖
9. Heard Mr. P.K. Rath, learned Senior Counsel
appearing along with Mr. A. Behera, learned counsel for
the appellant. There was no appearance from the side of
the plaintiff-respondents despite repeated calls. However, a
written note of submissions was filed after closure of
arguments on behalf of the respondent which was taken on
record and also considered.
10. Mr. Rath, learned Senior Counsel would argue
that both the Courts below failed to appreciate the fact that
the suit itself was not maintainable because of non-
enforceability of the contract. Mr. Rath has referred to
Section 14 of the Specific Relief Act (unamended) to submit
that the contract in question having provided for payment
of compensation in the event of its non-performance makes
it unenforceable. He further argues that even otherwise,
the ROR shows that the deceased- Bhramar Das belonged
to the 'Bauri Buna' caste, which is a scheduled caste and
therefore, he not having obtained permission under Section
22 of the OLR Act for sale of the property, the contract
becomes void ab initio.
11. In the written note filed on behalf of the
respondent it has been stated that the caste of Bhramar
Das was wrongly mentioned as 'Bauri' in the ROR, even
though he belongs to the 'Buna' caste. In another ROR,
copy of which is enclosed to the written note, the caste of
Bhramar Das has been mentioned as 'Buna'. The list of
Scheduled Caste in Odisha as per the Gazette Notification
mentions 'Bauri', 'Buna Bauri' and 'Dasia Bauri' as
Scheduled Castes at serial No.10 but there is no mention of
caste 'Buna' as such. It is therefore, contended that there
cannot be different depiction of the caste of a person in
different documents. In the suit property ROR (Ext.4), the
caste is wrongly mentioned as 'Bauri' whereas in
consolidation ROR (Ext.6), it is mentioned as 'Buna'. Since
Bhramar Das identified himself in the agreement vide Ext.1
as 'Buna', he must be treated as a Buna caste person,
which is a non-Scheduled Caste.
12. Before proceeding to decide the substantial
questions of law framed, it would be apposite to examine
the agreement for sale itself, marked Ext.1, which is
available in the LCR. Perusal of Ext.1 reveals that the same
was executed by Bhramar Das in favour of Bhaskar Swain
on 28.02.2001. After mentioning the particulars of land
proposed to be sold, it is specifically mentioned that in the
suit property ROR, the caste of the proposed vendor is
mentioned as 'Bauri' instead of 'Buna' and that the same
being an impediment for sale of the property, the proposed
vendor shall get the ROR rectified and thereafter execute
the sale deed and then receive the balance consideration of
₹2,000/-. In case the rectification of caste is unable to be
done then the proposed vendor would refund the amount of
₹15,000/- along with interest to the proposed vendee.
13. Keeping the above in perspective, it would now
be proper to consider the merits of the contentions raised.
14. There is no dispute that the suit property ROR
(Ext.4) in respect of the suit land mentions the caste of
Bhramar Das as 'Bauri'. On the other hand, the
consolidation ROR, marked Ext.6 mentions his caste as
'Buna' along with others. This, by itself raises a doubt as
regards the actual caste of Bhramar Das. If, according to
him his caste is 'Buna' not 'Bauri', he ought to have
approached the competent authority to effect necessary
correction in the record of rights. Such an exercise not
having been done and on the face of conflicting depictions
of his caste in different documents, it cannot be
conclusively held that he is not a scheduled caste person.
This is being said for all the more reason that the statute
places a bar on sale of immovable property by a scheduled
caste person to a non-scheduled caste person without
permission of the competent authority under the Odisha
Land Reforms Act. There is no dispute that 'Bauri' is a
scheduled caste. It has not been disputed that the
proposed vendee i.e., the plaintiff belongs to a non-
scheduled caste. Section 22 of the OLR Act places
restriction on the sale of immovable property by a member
of the scheduled caste (and scheduled tribe) in favour of
non-scheduled caste (and scheduled tribe) persons without
obtaining permission of the competent authority. The
provision is as follows:
"22. Restriction on alienation of land by
Scheduled Tribes.
(1)[Any transfer] [Substituted vide Orissa Act No.
13 of 1965.] of holding or part thereof by a raiyat,
belonging to a Scheduled Tribe shall be void except
where it is in favour of
-(a)a person belonging to a Scheduled Tribe; or
(b)a person not belonging to a Scheduled Tribe
when such transfer is made with the previous
permission in writing of the Revenue Officer:
Provided that in case of a transfer by sale, the
Revenue Officer shall not grant such permission
unless he is satisfied that a purchaser belonging to
a Scheduled Tribe willing to pay the market price
for the land is not available, and in case of a gift
unless he is satisfied about the bona fides thereof.
(2)The State Government may, having regard to the
law and custom applicable to any area prior to the
date of commencement of this Act by notification,
direct that the restrictions provided in Sub-section
(1) shall not apply to lands situated in such area or
belonging to any particular tribe throughout the
State or in any part of it.
(3)Except with the written permission of the
Revenue Officer, no such holding shall be sold in
execution of a decree to any person not belonging
to a Scheduled Tribe.
(4)Notwithstanding anything contained in any
other law for the time being in force, where any
document required to be registered under the
provisions of Clause (a) to Clause (e) of Sub-section
(1) of Section 17 of the Registration Act, 1908, (16
of 1908) purports to effect transfer of a holding or
part thereof by a raiyat belonging to a Scheduled
Tribe, in favour of a person not belonging to a
Scheduled Tribe, no Registering Officer appointed
under that Act shall register any such documents,
unless such documents is accompanied by the
written permission of the Revenue Officer for such
transfer.
(5)The provisions contained in Sub-section (1) to (4)
shall apply mutatis mutandis, to the transfer of a
holding or part thereof a raiyat belonging to the
Scheduled Caste.
(6)Nothing in this section shall apply -
(a)to any sale in execution of a money decree
passed, or to any transfer by way of mortgage
executed, in favour of any Scheduled Bank or in
favour of any Bank to which the Orissa Co-
operative Society Act, 1962 (2 of 1963) applies; and
(b)to any transfer by a member of a Scheduled
Tribe within a scheduled area.‖
15. There is nothing on record nor it is the case of
the any of the parties that any permission was sought for
or obtained from the competent authority for sale of the
property. The recitals of the agreement do not whisper a
word in this regard. Therefore, the proposed sale, if allowed
would be contrary to law. To such extent therefore, the
contract (agreement) vide Ext.1 involves an unlawful
consideration. Section 23 of the Contract Act reads as
follows:
―23. What considerations and objects are
lawful, and what not.--The consideration or
object of an agreement is lawful, unless--
it is forbidden by law ; or
is of such a nature that if permitted, it would defeat
the provisions of any law; or is fraudulent ; or
involves or implies injury to the person or property
of another; or
the Court regards it as immoral, or opposed to
public policy.
In each of these cases, the consideration or
object of an agreement is said to be unlawful.
Every agreement of which the object or
consideration is unlawful is void.‖
16. It is evident that the consideration or object of
an agreement is lawful, unless it is forbidden by law; or is
of such a nature that, if permitted, it would defeat the
provisions of any law. From what has been stated before,
the contract per se, runs contrary to the provisions of
Section 22 of the OLR Act and hence, cannot be treated as
valid. It is well settled that where the Act prohibits transfer
by an allottee of land belonging to a Scheduled Caste to a
non-Scheduled Caste, such sale besides being forbidden by
law is also contrary to Public Policy. Reference may be had
in this regard to the following judgments of the Supreme
Court in the case of Papaiab v State of Karnataka1,:
RChandevarappa v. State of Karnataka2,: Murlidhar
Dayandes Kesekar v. Vishwanath Pandu Barde3.
17. It is needless to mention that enforceability of a
contract depends on its validity. In the judgment of the
1 AIR 1997 SC 2676
2 (1995) 6 SCC 309
3 1995) Supp (2) SCC 349
Supreme Court rendered in the case of U.N. Krishnamurty
vs. A.M. Krishnamurty4, , it was held as follows:
32. In a suit for specific performance of a contract,
the Court is required to pose unto itself the
following questions, namely:
32.1. Whether there is a valid agreement of sale
binding on both the vendor and the vendee.
32.2. Whether the plaintiff has all along been and
still is ready and willing to perform his part of the
contract as envisaged under Section 16(c) of the
Specific Relief Act, 1963.
18. So essentially, finding of the Court as to validity
of the contract is sine qua non before directing it to be
specifically enforced. In the instant case there is nothing in
the recitals to show that any permission under Section 22
of the OLR Act had been obtained from the competent
authority for sale of the land.
19. The defendants have taken a plea that the caste
of the proposed vendor was wrongly mentioned as 'Bauri'
instead of 'Buna' and that he would get the same rectified.
What steps were taken in such respect is not forthcoming
from the evidence. In any event, in the absence of any
cogent evidence to show that the caste of Bhramar Das was
not 'Bauri' but 'Buna', the mention of the caste in the ROR
4 (2023) 11 SCC 775
cannot be brushed aside lightly, there being a presumption
of correctness attached to it. To amplify, an entry in the
ROR cannot simply be described as wrong without
adducing acceptable rebuttal evidence to show the
contrary. Thus, as things stood on the date of agreement,
the caste of the proposed vendor was 'Bauri' and not
'Buna'. If such is the case, then both the Courts below
appear to have fallen into error in trying to draw inference
regarding the caste of Bhramar Das and by holding him to
be a non-scheduled caste person. It is reiterated that as
long as the entry in the ROR stands, it cannot be
conclusively held that he belonged to the 'Buna' and not
'Bauri' caste. Therefore, the reasoning that as 'Buna' is not
included within the scheduled caste notification, the
agreement executed by Bhramar Das is legally enforceable,
is fundamentally wrong.
20. As has already been heed hereinbefore, in view of
the provision under Section 23 of the Contract Act, the
agreement for proposed transfer being contrary to law
cannot be specifically enforced. Now, what would be the
effect of such finding with regard to enforceability of the
contract. Section 24 of the Contact Act being relevant, is
quoted herein below:
―24.Agreements void, if considerations and
objects unlawful in part.--If any part of a single
consideration for one or more objects, or any one or
any part of any one of several considerations for a
single object, is unlawful, the agreement is void.‖
Thus, the general principle is, if the object or consideration
of the Contract is unlawful, then the contract as a whole
becomes void. But it has been held that if several distinct
promises are made with one and the same lawful
consideration, and one or more of them are such as the law
will not enforce, that will not of itself prevent the rest from
being enforceable. Reference in this regard may be had to
the judgment of the Supreme Court in the case of Central
Inland Water Transport Corpn. v. Brojo Nath Ganguly5.
21. It has also been held that the entire agreement
will become void if a part of the consideration is unlawful,
and the unlawful part cannot be severed from the legal part
of the agreement. Further, if the transfer is valid, dehors an
illegal agreement, although arising out of it and the void
part can be separated from the valid part, the latter does
not become invalid and severing the agreements would not
amount to rewriting the contract. This was held by the
Supreme Court in the case of BOI Finance Ltd. v.
Custodian6,
22. Thus, the legal position that emerges is, a
contract, one of the considerations of which is unlawful,
cannot generally be enforced but if it contains a valid
consideration also and the same can be severed from the
void one, the latter can be enforced.
23. Coming to the facts of the present case, the
contract between the parties was for sale of the suit
property for a consideration of ₹17,000/-, out of which the
vendor had received ₹15,000/- on the date of agreement. It
was agreed that the sale deed would be executed by the
vendor after making necessary correction in the record of
right with regard to his caste and the balance consideration
of ₹2,000/- would be paid by the vendee on the date of
5 (1986) 3 SCC 156
6 (1997) 10 SCC 488
execution of the sale deed. This part of the contract being
unlawful, has to be treated as void and therefore, not
enforceable but then the contract also provides that if the
vendor fails to perform his duties, the advance money shall
be returned with interest @12%. This part can easily be
severed from the void part without making out a new
contract whatsoever. Moreover, the payment of
consideration of ₹15,000/- with further agreement to repay
the same with 12% interest is admitted by both parties.
24. In such view of the matter, while holding that the
main relief claimed, i.e., for direction to execute the sale
deed cannot be specifically enforced, this Court holds that
the alternative relief claimed i.e., for recovery of the
consideration amount paid with interest can be granted.
25. From what has been narrated hereinbefore, it is
evident that both the Courts below have committed
manifest error in treating the contract between the plaintiff
and the defendant as valid and specifically enforceable.
26. In view of the position of law discussed above, it
is evident that the findings of both the Courts below cannot
be sustained.
27. In the result, the appeal is allowed in part. The
impugned judgment passed by the First Appellate Court
and the Trial Court is hereby modified in the following
manner:
―The suit is decreed in part. The relief
claimed for decree of specific performance of
contract is refused. The relief claimed for passing
a money decree directing the defendant to refund
the advance consideration money of ₹15,000/-
with interest @ 12% per annum from the date of
execution of the agreement i.e., 28.02.2001 till
actual payment is hereby allowed.‖
28. The parties shall bear their own costs.
................................
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack
The 22nd November, 2024/ A.K. Rana, P.A.
Designation: PERSONAL ASSISTANT
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 25-Nov-2024 12:09:10
