Back
HIGH COURT OF ORISSA
Ray, C. J. And Narasimham, J.
DAKE BAGARTI - Appellant
Versus
MUKUNDA KHAMARI - Respondent
Second Appeal 52 Of 1949
Decided On : OCTOBER 12, 1950
OCCUPANCY HOLDING - TRANSFER - VALIDITY - SONEPUR STATE CODE, VOL. II, THE BHUMI BIDHI (CORRECTED UP TO AUGUST, 1939) - SECTIONS 22 AND 23 - INTERPRETATION - EFFECT OF NON-COMPLIANCE WITH FORMALITIES - DISTINCTION BETWEEN CURABLE AND INCURABLE DEFECTS - APPLICABILITY OF SCHEDULE 0, ADMINISTRATION OF ORISSA STATES ORDER, 1948 - RETROSPECTIVE OPERATION - CONSTRUCTION OF CLAUSE (3) OF SCHEDULE 2 OF THE ORDER.
Fact of the Case:
Plaintiff purchased certain lands from Defendant 1, who later transferred the same lands to Defendant 2. Plaintiff filed a suit for recovery of possession of the lands, claiming title under the sale deed. Defendant 2 contested the suit, alleging that Defendant 1 and his son had surrendered the suit lands to the Lambardar Gountia, who in turn had settled the lands with Defendant 2.
Finding of the Court:
The trial court dismissed the plaintiff's suit, but the lower appellate court reversed the trial court's decree and decreed the suit in favor of the plaintiff. The court found that the sale deed in favor of the plaintiff was valid and binding, and that the subsequent surrender and settlement of the lands to Defendant 2 were无效.
Issues: 1. Whether the sale deed in favor of the plaintiff was valid and binding, despite the absence of the Gountia's signature or consent. 2. Whether the subsequent surrender and settlement of the lands to Defendant 2 were valid and effective. 3. Whether the provisions of Schedule 0, Administration of Orissa States Order, 1948, applied to the case and rendered the occupancy holding freely transferable.
Ratio Decidendi: 1. The court held that the sale deed in favor of the plaintiff was valid and binding, even though it did not contain the signature or consent of the Gountia. The court interpreted Sections 22 and 23 of the Sonepur State Code, Vol. II, The Bhumi Bidhi (Corrected up to August, 1939) to mean that the absence of the Gountia's consent was a curable defect, which could be remedied by obtaining the Gountia's consent or a certificate from the Revenue Department. 2. The court held that the subsequent surrender and settlement of the lands to Defendant 2 were无效, as the Gountia could not avoid the transaction by accepting a surrender from the occupancy tenant and entering upon the land. The court held that the Gountia could only avoid the transaction by instituting a suit or by obtaining a declaration from the Revenue Department that the transaction was voidable. 3. The court held that the provisions of Schedule 0, Administration of Orissa States Order, 1948, applied to the case and rendered the occupancy holding freely transferable. The court interpreted the Order to mean that the laws in force prior to the commencement of the Order, including the Sonepur State Code, Vol. II, The Bhumi Bidhi (Corrected up to August, 1939), continued to remain in force subject to the variations introduced by the Order. The court held that the Order modified the Sonepur State Code to the extent that it allowed occupancy holdings to be freely transferred, subject to certain restrictions.
Final Decision: The court dismissed the appeal and decreed the suit in favor of the plaintiff, with costs throughout.
RAY, C. J.
( 1 ) THIS is an appeal by defendant 2 in a suit for recovery of possession of certain lands appertaining to raiyati holding No. 70 of mouza Sahala, described in all material details in a schedule attached to the plaint.
( 2 ) DEFENDANT 1 was the owner of the said lands. He transferred them on 23 41941 by a sale deed to the plaintiff for consideration. The plaintiff stepped into possession of the said lands along with other lands similarly sold to him by defendant 1 aforesaid. Defendant 1 later gave the same lands to defendant 2 who has since taken possession thereof and inspite of repeated demands did not give it up. The suit was contested by both defendants 1 and 2. The present contest mainly centres round the priority of title of either the plaintiff or defendant 2. Defendant 2's case is that defendant 1 and his son surrendered the suit lands to Lambardar Gountia on 30. 5-1941 who, in his turn, on 31-51941 for consideration settled the suit lands and other lands with this defendant and that ever since, he has been in possession of the same. The trial Court had dismissed the plaintiff's suit. The learned lower appellate Court reversed the trial Court's decree and decreed the suit granting him reliefs of declaration of title and restoration of possession. The alleged deed of surrender is Ex. a and the deed of settlement for the raiyati patta in favour of defendant 2 is Ex. B. The dispute, whether the suit lands form the subject-matter of transfer in the sale deed Ex. 1, has been at rest in the learned lower appellate Court who finds : "in these circumstances, there cannot be any manner of doubt that suit lands which are known as Pankel At as also as Mahul At had been sold by defendant 1 to plaintiff under Ex. 1, the sale deed. " the contention relating to this has not been reiterated before us in the second appeal.
( 3 ) THE fact that the plaintiff got possession in pursuance of the sale deed in his favour, has also been set at rest and has not been agitated at the bar. The learned lower appellate Court observes: "i find therefore that plaintiff purchased the suit lands and other lands from defendant 1 under Ex. 1, the sale deed and was in possession of the suit lands for about a year and subsequently he was dispossessed from the same by defendant 2. "
( 4 ) THE next question that remains to be determined is whether the sale performed by execution and delivery of ex. 1 for consideration accompanied with making over possession to the plaintiff, is binding against the contesting defendants. Admittedly, at the time of this transaction, the law governing was the Rules known as "sonepur State Code, vol.. The Bhumi bidbi", (corrected up to August, 1939 ). The relevant rules or paras, are 22 and 23. According to r. 22 (b), an occupancy tenant may transfer his holding by a written deed of conveyance to a person who is his next heir according to law. If, however, any transfer, either of the whole ox part of his holding, by sale or mortgage, be made for reasonable cause by the occupancy tenant, it shall have to be done by executing a regular deed of conveyance on a properly stamped paper. The deed aforesaid shall not be valid in law if in addition to at least two witnesses to the deed the Gountia does not sign his name by way of giving his consent to the transaction. No transfer by way of gift or dowry is allowed to be made by the occupancy tenant. Note- (l) The reasonable cause mentioned in the section denotes-need for paying off rightfully incurred debts for reasonable expenditure for household management and for expenses necessary to conduct agricultural operations. Note- (2) The occupancy tenant desiring to part with a portion of his holding by sale ok desiring to mortgage a portion of his holding shall have to obtain the sanction of the Ruler through the Revenue Department that the holding may be subdivided with separate survey numbers as desired by the tenant. Note- (3) If the holder of the village declines to sign
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
