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1994 (0) MPLJ 268
R.D. Shukla, V Gyani J.
Kesharsingh And Anr.
vs
Bhavsingh And Ors.
Decided on : 11 September, 1993
M. P. SAMAJ KE KAMJOR VARGON KI KRISHI BHUMI DHARAKON KA UDHAR DENE WALON KE BHUMI HADAPANE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM, 1976 - SECTION 2(C), 4, 5 - SALE DEED - INTERPRETATION - APPLICABILITY - RES JUDICATA - NATURAL JUSTICE - CROSS-EXAMINATION - BURDEN OF PROOF - LIMITATION.
Fact of the Case:
Petitioners challenged the orders of the Sub-Divisional Officer (SDO) and the Collector setting aside the sale of land in their favor and directing the delivery of possession to the vendee. The vendee had filed an application under Section 5 of the M. P. Samaj Ke Kamjor Vargon Ki Krishi Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (the Act), claiming that the sale transaction was actually a loan transaction and the land was mortgaged.
Finding of the Court:
The court found that the sale transaction took place in 1960, nearly eleven years before the appointed day under the Act. The court held that the burden of proving that the transaction of loan subsisted up to the appointed day lay on the vendee, and that in the absence of any clear and cogent evidence to that effect, the transaction could not be reopened after a lapse of nearly 21 years.
Issues: 1. Whether the sale transaction in 1960 amounted to a prohibited transaction of loan under the Act. 2. Whether the SDO and the Collector followed the directions of the High Court in conducting the enquiry under Section 5 of the Act. 3. Whether the vendee filed the application in the prescribed form and whether the SDO had jurisdiction to proceed in the matter. 4. Whether the vendee was allowed to cross-examine the witnesses examined earlier. 5. Whether the principle of res judicata applied in the case, given the earlier finding of the Debt Relief Court that the transaction was a sale and not a loan.
Ratio Decidendi: 1. The court held that the sale transaction did not come within the definition of a prohibited transaction of loan under the Act, as it took place before the appointed day and there was no evidence that the loan transaction subsisted up to that day. 2. The court found that the SDO and the Collector did not follow the directions of the High Court in conducting the enquiry, as they did not allow the petitioners to cross-examine the witnesses produced by the vendee. 3. The court held that the vendee did not file the application in the prescribed form as per Rule 3 of Section 5 of the Act, but that this irregularity would not vitiate the order. 4. The court held that the vendee was not allowed to cross-examine the witnesses examined earlier, which amounted to a denial of natural justice. 5. The court held that the principle of res judicata applied in the case, as there had been an earlier enquiry into the matter by the Debt Relief Court and the decision thereon had taken final shape against the vendee.
Final Decision: The court quashed the orders of the SDO and the Collector setting aside the sale of land and directing the delivery of possession to the vendee. The court restored the possession of the land to the petitioners.
R.D. Shukla, J.
1. The petitioners challenge the order of Sub- Divisional Officer (Annexure 'D') and the Appellate order of Collector (Annexure 'C') whereby the sale of land bearing Survey No. 1187 area 9.7 acres of village Kanadia for a sum of Rs. 2500/- in favour of the petitioner has been set aside with the further direction of delivery of possession to respondent No. 1, the vendee of the land.
2. This case has a checkered history. The petitioners, as claimed by them purchased land vide registered sale-deed dated 27-6-1960 (Annexure 'A'). The petitioner was in possession of the disputed land.
3. The respondent No. 1 filed an application before the Debt Relief Court which was registered as case No. 283/75-76 with the assertions that the transaction of sale (Annexure 'A') was in fact transaction of loan and the land was mortgaged. Learned Debt Relief Court vide order dated 9-1- 1978 found that the transaction was not of loan or mortgage but the sale of land outright. Respondent No. 1 filed Revision against the said order before the Additional Collector, Indore vide case No. 63/Revision/77-78 and the same was also dismissed vide order dated 17-7-1978 (Annexure 'B').
4. Respondent thereafter filed an application dated 31-8-1981 under Section 5 of the M. P. Samaj Ke Kamjor Vargon Ki Krishi Bhumi Dharakon Ka Udhar Dene walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (hereinafter referred to as 'the Act'). It was registered as case No. ,2- A/70/81-82. The petitioners were proceeded ex parte. Learned S.D.O. vide order dated 29- 1-1982 directed the petitioner to handover the possession. The petitioner preferred* an appeal before the Collector which was registered as case No. 23/Appeal/81-82. The same was dismissed vide order dated 8-12- 1982.
5. Petitioners aggrieved by this order filed M. P. No. 724/82 before this court. The same was allowed vide order dated 26-10- 1983 and the S.D.O. was directed to afford opportunity to the petitioners to contest the said application. The petitioners after making their appearance before the Sub-Divisional Officer filed their reply and the S.D.O. ultimately allowed the application of respondent vide order dated 11-2-1986 and directed delivery of possession treating the transaction as transaction of loan (Annexure 'D').
6. The petitioners wanted to file the appeal before the Collector but the same was not entertained unless the possession of land was delivered. The petitioner, therefore, filed second petition before this court which was registered as M. P. No. 343/86. This court stayed the order of S.D.O. dated 11-2-1986 (Annexure'E').
7. The petitioners again filed appeal before the Collector which was transferred to Additional Collector and registered as Appeal No. 14/appeal/85-86. However, the Additional Collector refused to decide the appeal so long the petition was pending in the High Court. As such, the petitioners withdrew the petition with the permission of this court and after obtaining a direction that the stay against the order of S.D.O. shall continue till the disposal of the appeal.
8. The Additional Collector dismissed the appeal vide order dated 27-2-1987 (Annexure 'G')
9. The petitioners challenge both these orders (Annexure 'D' and 'G') on the following grounds :-
(a) That the S.D.O. and the Collector did not follow the directions made by this court in the petition (M. P. 724/87) whereby an enquiry under Section 5 of the Act was directed to be made. As such the proceedings are vitiated and are illegal.
(b) That application in Form No. 1 as per Rule 3 of Section 5 of the Act was not filed. Hence the S.D.O. has no jurisdiction for proceeding in the matter.
(c) That there was no enquiry as to whether the respondents belong to weaker section and hold 8 hectares of unirrigated or 4 hectares of irrigated land.
(d) That the petitioners were not allowed to cross-examine the witnesses examined earlier i.e. before remand of the file.
(e) That in view of the finding
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