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High Court Of Orissa
B. N. DASH
SADHU MEHER - Appellant
Versus
RAJKUMAR PATEL - Respondent
Second Appeal 259 Of 1991
Decided On : 07/30/1993
TRANSFER OF PROPERTY ACT, 1882 - SECTION 53A - ORISSA LAND REFORMS ACT, 1960 - SECTION 22 - TENANCY ACT, 1920 - SECTION 12, 105 - SALE OF LAND BY SCHEDULED TRIBE MEMBER - VALIDITY - PROTECTION UNDER SECTION 53A OF TRANSFER OF PROPERTY ACT - JURISDICTION OF CIVIL COURT - BAR UNDER SECTION 105 OF TENANCY ACT.
Fact of the Case:
Plaintiff purchased land from a member of a Scheduled Tribe, who later executed a fresh sale deed after obtaining permission under Section 22 of the Orissa Land Reforms Act, 1960. Defendant claimed possession of the suit land based on an unregistered sale deed and possession prior to plaintiff's purchase. The trial court decreed the suit, but the appellate court reversed the decision, holding that the defendant was protected under Section 53A of the Transfer of Property Act.
Finding of the Court:
The High Court held that the defendant was not entitled to protection under Section 53A of the Transfer of Property Act because his possession was based on a void transaction. The Court also held that the plaintiff's suit was barred by Section 105 of the Tenancy Act, which ousts the jurisdiction of civil courts in matters that can be decided by revenue officers. The Court noted that the Deputy Commissioner had the power to declare the transfer to the defendant void and evict him from the land.
Issues: 1. Whether the defendant was entitled to protection under Section 53A of the Transfer of Property Act based on an unregistered sale deed and possession prior to the plaintiff's purchase. 2. Whether the plaintiff's suit was barred by Section 105 of the Tenancy Act, which ousts the jurisdiction of civil courts in matters that can be decided by revenue officers.
Ratio Decidendi: 1. The Court held that the defendant was not entitled to protection under Section 53A of the Transfer of Property Act because his possession was based on a void transaction. The Court relied on precedents holding that the doctrine of part performance of contract enshrined in Section 53A cannot be applied where the flaw in the transaction is not a mere defect of form or absence of formality, but where the transaction is void ab initio. 2. The Court held that the plaintiff's suit was barred by Section 105 of the Tenancy Act because the Deputy Commissioner had the power to declare the transfer to the defendant void and evict him from the land. The Court noted that the plaintiff's prayer for declaration of title and recovery of possession could have been granted by the Deputy Commissioner, and therefore, the civil court lacked jurisdiction.
Final Decision: The High Court dismissed the plaintiff's appeal and confirmed the judgment and decree of the appellate court, holding that the suit was barred by Section 105 of the Tenancy Act.
B. N. DASH, J.
( 1 ) THIS is the plaintiff's appeal against the reversing decree of the learned. Subordinate Judge, Bargarh in a suit for declaration of his title to and recovery of possession of Ac. O. 03 decimals of land, appertaining to plot No. 768 under Khunti No. 1 of village Dahits in the district of Sambalpur.
( 2 ) UNDISPUTEDLY, the entire suit plot No. , 768 measuring an area of Ac. 0. 50 decimals belonged to one Akshaya Kumar Muchu who belonged to Scheduled Tribe. The plaintiff's case was that he purchased Ac. 2. 72 decimals of land from Akshaya Kumar Muchu by two registered sale deeds, one dated 12-1-1968 (Ext. 4) covering an area of Ac. 1. 03 decimals and the other dated 13-2-1968 (Ext. 5) covering an area of Ac. 1. 59 decimals including the entire suit plot No. 768. Akshaya Kumar Muchu, being, of Scheduled Tribe the sale deeds were not valid for want of necessary permission under S. 22 of the Orissa Land Reforms Act, 1960 (hereinafter to be referred to as 'the Act') which was in force in the area at that time. Therefore, in order to regularise the transactions Akshaya Kumar Muchu applied for and obtained necessary permission under S. 22 of the Act from the competent authority, as per Ext. 3 and thereafter he executed a fresh registered sale deed on 19-1-1971 (Ext. 2) covering the entire area under Exts. 4 and 5. After execution of Exts. 4 and 5 the plaintiff possessed the lands conveyed thereunder but the defendant having raised dispute with regard to the suit land, a proceeding under S. 145, Cr. P. C. was started and the same having ended in favour of the defendant, as per Ext. 7, the suit was filed for the aforestated reliefs.
( 3 ) THE defendant denied the title and possession of the plaintiff over the suit land. According to him, the plaintiff actually purchased Ac. 0. 47 decimals out of the suit plot No. 768 and not the whole of it. He asserted that on 3-5-1963 Akshaya Kumar Muchu had orally sold the suit land to him for a consideration of Rs. 80/- by delivery of possession and in evidence thereof he had executed a plain paper sale deed in his favour on that day (Ext. D ). At any rate, on 13-2-1968 the plaintiff agreed to transfer the suit land to the defendant and for that purpose the plaintiff purchased the stamp papers, Ext. 8. It was, thus, claimed that the defendant was protected from eviction under S. 53a of the Transfer of Property Act, 1882 (hereinafter to be referred to as 'the T. P. Act' ).
( 4 ) THE trial court decreed the suit with the findings :- (I) that the defendant's purchase was hit by S. 22 of the Act and S. 46 of the C. P. Tenancy Act for want of necessary permission of the competent authorities; (ii) that the defendant was not in possession of the suit land prior to the plaintiff's purchase; (iii) that the purchase by the plaintiff was valid and ever since the date of purchase he was in possession of the suit land; (iv) that there was no agreement by the plaintiff to convey the suit land in favour of the defendant; and (v) that the defendant is not entitled to protection under S. 53a of the T. P. Act.
( 5 ) THE appellate Court allowed the appeal dismissing the plaintiff's suit with the findings :- (I) that the sale in favour of the defendant being dated 3-5-1963 and the relevant provision of the Act i. e. , S. 22 without any retrospective operation having come into force with effect from 1-10-1965, the finding of the trial Court that the sale in favour of the defendant was hit for want of necessary permission from the competent authority under the said section is not supportable; (II) that the finding of the trial Court that the sale transaction in favour of the defendant is void for want of necessary permission of the Deputy Commissioner under S. 46 of the C. P. Tenancy Act is also not sustainable because under S. 95 of the C. P. Tenancy Act, the Civil Court has no jurisdiction to hold such transaction as void; (III) that the defendant's purchase was to the knowledge of the plaintif
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