The 2023 Amendment to the OCH & PFL Act validates previously void land transactions for fragmentation, ruling in favor of the appellant's partition claim.

JUDGMENT :

D. DASH, J.

1. The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short ‘the Code’) has assailed the judgment and decree passed by the learned Additional District Judge-cum-Special Judge, CBI Court No.II,, Bhubaneswar in R.F.A. No.23 of 2015.

The present Appellant as the Plaintiff had filed C.S. No.775 of 2013 in the Court of the Civil Judge (Sr. Division), Bhubaneswar for partition and permanent injunction. The suit having been dismissed as the unsuccessful Plaintiff, he had carried the Appeal under section 96 of the Code. The First Appellate Court has also been dismissed the suit. Hence the present Second Appeal is at the instance of the Plaintiff, who has been unsuccessful before both the Courts below.

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. Plaintiff’s case is that the suit land stands recorded in the name of Jhula Dei and his son Bahudi Jena as per the Consolidation Record of Right of the year 1981. It is stated that when they were in possession of the said land, in order to meet their need, they had transferred Ac.1.002 dec. of land to the Plaintiff for agreed valuable consideration of Rs.10,000/- and executed the registered sale deed on 05.10.1988. It is stated that the mother and son (Defendant) pursuant to said sale had delivered the possession of the property to the Plaintiff. The total extent of land was Ac.1.942 dec. and the Plaintiff purchased land measuring Ac.1.002 dec. It is stated that accordingly, the Plaintiff and Defendant were possessing the land and appropriating the usufruct proportionate to their respective entitlement as of the area. Since on 10.05.2013, the Defendant attempted to alienate the suit property to one developer ignoring the interest of the Plaintiff, the Defendant was asked by the Plaintiff to partition the property. That having been denied, the suit has come to be filed.

4. The Defendant in his written statement has submitted that the Registered Sale Deed dated 05.10.1988 standing in the name of the Plaintiff has no legal value and it is void ab initio for the contravention of the provision contained in section 34 and 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short ‘the OCH & PFL Act, 1972’). The Defendant has also denied to have received any consideration for the said sale and to have delivered possession of the property covered under the sale deed to the Plaintiff. The purchase of the Plaintiff is said to be illegal as it has caused fragmentations of Chaka. The Plaintiff having somehow managed to get his name included in the Record of Right, the said order is said to be under challenge in Mutation Appeal.

5. On the above rival pleadings, the Trial Court having framed five issues has taken up the following issue first for decision :-

“Whether the Plaintiff is entitled to a preliminary decree of partition in respect of his purchased Ac.1.002 decimals of land out of the suit property?

It has been said that the transfer being in contravention of section 34 of the OCH & PFL Act, 1972 is void and when under that transaction of sale vide Ext.2, fragmentation of the Chaka has been made leaving only Ac.0.940 decimals in the suit Chaka which contravenes the provision of section 34 of the OCH & PFL Act,1972, the transaction is void on the face of the provision of section 35 read with section 53 of t