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2003 Supreme(MP) 1007
2005(1) JLJ 231
(SUPREME COURT)
M.B. Shah and Dr. A.R. Lakshmanan, JJ.
Bhavsingh v. Keshar Singh and others
Civil Appeals No. 13382 and 13383 of 1996 : from the order of M.P. High Court passed in M.P. No. 274 of 1987 published in 1994 JLJ 210;
Decided on 10.9.2003.
Sushil Kumar Jain with Ms. Ruchi Kohli for appellant;
Vivek Gambhir for respondent No.1;
S.K. Gambhir for respondent No.2; Ms. Pragati Neekhra and
S.K. Agnihotri for respondents No.3 and 4.
Headnote:(1) Samaj Ke Kamjor Vargon Ke Krishi-Bhumi Dharkon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (M.P.) -- Ss. 6, 7 and 2(f) -- trial and appellate authorities declaring transaction as prohibited -- full inquiry made under S. 6 by the Sub-Divisional Officer -- duly confirmed in appeal -- order cannot be challenged as erroneous on facts.
An application was filed by the appellant claiming relief under section 5 of the Act of 1977 contending that the transfer of the land by a registered sale deed dated 20.7.1960 for a sum of Rs. 2,500/- was a mortgage transaction as the said transfer was for the loan amount. It was his contention that at the time of the said transaction, it was agreed upon by the parties that whenever the appellant repays the amount of Rs. 2,500/-, possession of the land in question would be redelivered to the appellant. It was his case that despite the fact that full amount had been repaid, the respondent has not restored the possession of the land mortgaged by him. That application was allowed by the SDO by order dated 29.1.1982.
Being aggrieved by the said order, the respondents preferred appeal before the Collector, Indore, which was dismissed on 8.12.1982. That order was challenged by filing Misc. Petition No. 724 of 1982 before the High Court of Madhya Pradesh at Indore. The High Court allowed the said petition and set aside the order of the SDO and remanded the matter directing that the case be disposed of on merits after holding fresh enquiry.
[Paras 3 & 4
By the impugned judgment and orders, the High Court allowed the writ petition filed by respondent No.1 (deceased) and his son, respondent No.2, namely, Narendra Kumar and set aside the order dated 11.2.1986 passed by the competent authority, SDO holding that the appellant was entitled to a declaration that the sale transaction in question was prohibited transaction of loan.
[Para 2
Held : The authorities below arrived at the conclusion that during the currency of loan transaction, sale deed was executed by the appellant in favour of respondent No.2. The SDO also arrived at the conclusion that there was a distinct oral understanding that the sale shall not be acted upon if the loan is repaid. For this purpose, the SDO took into consideration that the appellant was indebted for a sum of Rs. 2,000/- and thereafter, he took further loan of Rs. 500/- and for the said amount sale deed was executed. It is stated in the sale deed that the appellant was an agriculturist and the sale consideration was of Rs. 2,500/but it is not mentioned that the amount of Rs. 2,500/- was paid in cash. He arrived at the conclusion that market value of the land at the relevant time was more than Rs. 7,000/-. Admittedly, the appellant belongs to the Bagri community which is a Scheduled Tribe. He was entitled to get the benefit under the Act, if the transfer was for the loan amount with distinct oral understanding as stated above.
Therefore, it cannot be said that the order passed by the SDO which was confirmed in appeal by the Additional Collector was, in any way, erroneous on facts. 1994 JLJ 210 reversed. [Paras 12 & 13
(2) Samaj Ke Kamjor Vargon Ke Krishi-Bhumi Dharkon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron .Se Paritran Tatha Mukti Adhiniyam, 1976 (M.P.) -- preamble and S. 2(f) -- object is to provide further relief to the weaker sections of agriculturists -- prohibited transaction of loan as defined under S. 2(f) includes even outright sale.
From preamble of the Act, it is amply clear that the object of the Act is to provide further relief to the weaker sections of the people/agriculturists from agricultural indebtedness by nullifying the land-grabbing designs resorted to by the moneylenders while and after extending credit to them. Section 2(f) defines the phrase "prohibited transaction of loan" and inter alia declares that a transaction of outright sale of land would also be covered by the phrase "prohibited transaction of loan" if there was a distinct oral understanding that the sale shall not be acted upon if the loan is repaid. 1994 JLJ 210 reversed. [Para 9
(3) Samaj Ke Kamjor Vargon Ke Krishi-Bhumi Dharkon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (M.P.) -- Ss. 3 and 7 -M.P. Anusuchit fan fati Rini Sahayata Adhiniyam, 1967 -- Ss. 8(3), 8(4), 14(1) and 14(4) -- provision of two Acts operate in different fields -- order in one Act -- does not operate as res judicata in another Act, 1994 JLJ 210 reversed. [Paras 17 & 18
(4) Civil P.C., 1908 -- S. 11 -- two Acts operating in different fields -- order under one does not operate as res judicata under the other Act. [Paras 17 & 18
(5) Constitution of India -- Art; 136 -- point not raised in Court below -- cannot be raised before Supreme Court. [Para 19
(6) Civil P .C., 1908 -- O. 22 Rr. 4(3) and 11 -- parties between whom transaction took place present -- other heirs need not be made parties -- when estate is represented by party on record -- no question of abatement arises. [Para 20
¼1½ lekt ds detksj oxksZa ds Ñf"k&Hkwfe /kkjdksa dk m/kkj nsus&okyksa ds Hkwfe gM+ius laca/kh dqpØksa ls ifj=k.k rFkk eqfDr vf/kfu;e] 1976 ¼e-iz-½ && /kkjk 6] 7 rFkk 2 ¼p½ && fopkj.k rFkk vihy izkf/kdkfj;ksa }kjk laO;ogkj izfrf"kf) ?kksf"kr && mi[kaM vf/kdkjh }kjk /kkjk 6 ds v/khu iw.kZ tk¡p dh xbZ && vihy esa lE;d~:is.k iq"V && vkns‘k ij rF;kRed xyrh ds vk/kkj ij vk{ksi ugha fd;k tk ldrkA
vihykFkhZ }kjk lu~ 1977 ds vf/kfu;e dh /kkjk 5 ds v/khu vuqrks"k dk nkok djrs gq, vkosnu bl ladFku ds lkFk Qkby fd;k x;k fd #- 2]500@& dh jkf‘k ds fy, jftLVªhd`r foØ; foys[k fnukad 20-7-1960 }kjk Hkwfe dk varj.k ca/kd laO;ogkj Fkk D;ksafd mDr varj.k _.k dh jde ds fy, FkkA mldk ladFku Fkk fd mDer laO;ogkj ds le;] i{kdkjksa ds e/; djkj gqvk Fkk fd tc Hkh vihykFkhZ #- 2]500@& dh jkf‘k lanÙk djsxk] iz‘uxr Hkwfe dk dCtk vihykFkhZ dks iqu% ifjnÙk dj fn;k tk,xkA mldk i{kdFku Fkk fd bl rF; fd ckotwn fd laiw.kZ jde lanÙk dj nh xbZ gS] izR;FkhZ us mlds }kjk ca/kd j[kh xbZ Hkwfe dk dCtk izR;kofrZr ugha fd;k gSA og vkosnu mi[kaM vf/kdkjh us vkns‘k fnukad 29-1-1982 }kjk eatwj dj fy;kA
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vfHkfu/kkZfjr % fupys izkf/kdkjh bl fu"d"kZ ij igq¡ps fd _.k laO;ogkj ds pkyw jgus ds nkSjku] vihykFkhZ }kjk izR;FkhZ Ø- 2 ds i{k esa foØ; foys[k fu"ikfnr fd;k x;k FkkA mi[kaM vf/kdkjh bl fu"d"kZ ij igq¡pk fd ;g lqLi"V ekSf[kd ‘krZ Fkh fd ;fn _.k izfrlanÙk dj fn;k tkrk gS rc foØ; dk ikyu ugha fd;k tk,xkA bl iz;kstukFkZ mi[kaM vf/kdkjh us bl ij fopkj fd;k Fkk fd vihykFkhZ #- 2]000@& dh jkf‘k dk _.kh Fkk rFkk rRi‘pkr~ mlus #- 500@& dk vkSj _.k fy;k vkSj mDr jde ds fy, foØ; foys[k fu"ikfnr fd;k x;k FkkA foØ; foys[k esa dfFkr gS fd vihykFkhZ d`"kd gS rFkk foØ; dk izfrQy #- 2]500@& gS ijarq ;g mYys[k ugha gS fd # 2]500@& dh jde udn lanÙk dh xbZA og bl fu"d"kZ ij igq¡pk fd lqlaxr le; Hkwfe dk cktkj ewY; #- 7]000@& ls vf/kd FkkA Lohd`rr%] vihykFkhZ ckxM+h laiznk; dk gS tks vuqlwfpr tutkfr gSA ;fn varj.k] mi;qZDrkuqlkj lqLi"V ekSf[kd ‘krZ ds lkFk] _.k dh jde ds fy, Fkk rc og vf/kfu;e ds v/khu Qk;nk izkIr djus dk gdnkj FkkA
vr% ;g ugha dgk tk ldrk fd mi[kaM vf/kdkjh }kjk ikfjr vkns‘k] ftls vihy esa vij dysDVj }kjk iq"V fd;k x;k Fkk] fdlh Hkh izdkj rF;ksa ds vk/kkj ij xyr FkkA 1994 ts ,y ts 210 myVk x;kA
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vf/kfu;e dh mn~nsf‘kdk ls i;kZIr% Li"V gS fd vf/kfu;e dk mn~ns‘; yksxks@d`"kdksa ds detksj oxksZa ds d`f"k&/kkjdksa dks m/kkj nsrs le; rFkk mlds i‘pkr~ /ku m/kkj nsus okyksa }kjk iz;qDr&dqpØ foQy dj ds mUgs d`"kd _.kxzLrrk ls eqfDr fnykus dh O;oLFkk djuk gSA /kkjk 2¼p½ esa okD;ka‘k **m/kkj dk izfrf"k) laO;ogkj** ifjHkkf"kr fd;k x;k gS rFkk vU; ckrksa ds lkFk ?kksf"kr fd;k x;k gS fd Hkwfe ds iw.kZ foØ; dk laO;ogkj Hkh okD;ka‘k **m/kkj dk izfrf"k) laO;ogkj** }kjk vkPNkfnr gksxk ;fn lqLi"V ekSf[kd ‘krZ gks fd _.k izfrlanÙk fd, tkus ij foØ; dk ikyu ugha fd;k tk,xkA 1994 ts ,y ts 210 myVk x;kA ¿ iSjk 9À
¼3½ lekt ds detksj oxksZa ds Ñf"k&Hkwfe /kkjdksa dk m/kkj nsus&okyksa ds Hkwfe gM+ius laca/kh dqpØksa ls ifj=k.k rFkk eqfDr vf/kfu;e] 1976 ¼e-iz-½ && /kkjk 6] 7 && e-iz- vuqlwfpr tutkfr _.kh lgk;rk vf/kfu;e] 1967 && /kkjk 8¼3½] 8¼4½] 14¼1½ rFkk 14¼4½ && nksuksa vf/kfu;e ds mica/k fHké {ks=ksa ls izofrZr gksrs gS && ,d vf/kfu;e ds v/khu vkns‘k && nwljs vf/kfu;e esa iwoZ U;k; dh Hkk¡fr izofrZr ugha gksrkA 1994 ts ,y tsa 210 myVk x;kA ¿ iSjk 17 ,oa 18À
¼4½ flfoy izfØ;k lafgrk] 1908 && /kkjk 11 && fHké {ks=ksa esa izofrZr nks vf/kfu;e && ,d ds v/khu vkns‘k] vU; vf/kfu;e ds v/khu iwoZ U;k; dh Hkk¡fr izofrZr ugha gksrkA ¿ iSjk 17 ,oa 18À
¼5½ Hkkjr dk lafo/kku && vuq- 136 && fupys U;k;ky; esa ugha mBk;k x;k fcanq && mPpre U;k;ky; ds le{k ugha mBk;k tk ldrkA ¿ iSjk 19À
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Shah, J. -- 1. These appeals are filed against the judgment and order dated 11.9.1993 and the order dated 21.3.1994 passed by the High Court of Madhya Pradesh, Jabalpur Bench at Indore, in MP No. 274 of 1987 and in review petition bearing MCC No. 550 of 1993.
2. By the impugned judgment and orders, the High Court allowed the writ petition filed by respondent No. 1 (deceased) and his son, respondent No.2, namely, Narendra Kumar and set aside the order dated 11.2.1986 passed by the competent authority, SDO holding that the appellant was entitled to a declaration that the sale transaction in question was prohibited transaction of loan as contemplated under section 2(f) of the Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi-Bhumidharakon Ka Udhar Dene-walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (M.P. Act 3 of 1977) (hereinafter referred to as "the Act of 1977") and was null and void under section 7(2) of the Act. The order for handing over possession of the land in question admeasuring 9.71 acres situated in Village Kanadia to the appellant Bhavsingh, son of Bheraji was also set aside.
3. The aforesaid order was passed on an application filed by the appellant claiming relief under section 5 of the Act of 1977 contending that the transfer of the land by a registered sale deed dated 20.7.1960 for a sum of Rs. 2,500/- was a mortgage transaction as the said transfer was for the loan amount. It was his contention that at the time of the said transaction, it was agreed upon by the parties that whenever the appellant repays the amount of Rs. 2,5001-, possession of the land in question would be redelivered to the appellant. It was his case that despite the fact that full amount had been repaid, the respondent has not restored the possession of the land mortgaged by him. That application was allowed by the SDO by order dated 29.1.1982.
4. Being aggrieved by the said order, the respondents preferred appeal before the Collector, Indore, which was dismissed on 8.12.1982. That order was challenged by filing Misc. Petition No. 724 of 1982 before the High Court of Madhya Pradesh at Indore. The High Court allowed the said petition and set aside the order of the SDO and remanded the matter directing that the case be disposed of on merits after holding fresh enquiry.
5. During the fresh enquiry, as stated in the order, witnesses were examined on behalf of the parties and written arguments were also submitted before the SDO. After considering the written submission made by the parties and appreciating the evidence which was led before him, the SDO rejected the contention that the present proceedings were barred by the principles of res judicata on the ground that in the previous proceedings initiated by the appellant under the provisions of the M.P. Anusuchit Jan Jati Rini Sahayata Adhiniyam, 1967 (hereinafter referred to as "the Debt Relief Act''), it was held that the transfer deed was not a mortgage and was not covered by the Debt Relief Act. The contention that the application was time-barred was rejected taking into consideration relevant facts. No contention was raised that proper opportunity of leading evidence or cross-examining the witnesses was not given. The SDO further held that there was a money-lending transaction between the appellant and the deceased respondent and that the aforesaid instrument was executed as a sale deed but the deceased respondent No. 1 had assured the appellant that after the amount of loan is repaid, the land in question would be restored to him. He considered the evidence on record indicating that the appellant was to repay a sum of Rs. 2,000 on account of the debt incurred by him from the respondent but because there was an emergent need, he further took a loan' of Rs. 500. Thus, the appellant owed a total sum of Rs.2,500/-, upon which the respondent was charging interest @ 1.5% per month. He also arrived at the conclusion that the market value of the land at the relevan
