P.K. Tare, J.

This is a revision by the defendants against the order, dated 11-10-1971, passed by the Second Civil Judge, Class II, Balaghat, in Civil Suit No. 30-A of 1971, deciding two preliminary issues as follows:

Finding

(1)

Whether the agreement to sell by Budha, an aboriginal tribe, is void?

No.

(b)

If yes, whether the suit is not maintainable

The suit is maintainable

The respondents filed a suit for a permanent injunction alleging that one Budha had agreed to sell his agricultural lands and in pursuance of the agreement, he had placed the plaintiffs in possession. As the defendants threatened dispossession, the respondents claimed a permanent injunction.

On behalf of the petitioners it was asserted that the defendants' predecessor, Budha, was a member of the aboriginal tribe and any agreement of sale entered into by him without the permission of the Collector would be void, as per section 165(6) of the M.P. Land Revenue Code, 1959. Therefore, according to the petitioners, the respondents got no right, whatsoever, as the agreement of sale was a nullity, which could not be enforced in a Court of law on the basis of which the respondents were not entitled to any relief or any assistance from the Court, whatsoever.

Thereupon, the learned trial Judge framed some issues, out of which two questions were tried as preliminary issues. The learned Judge answered them in favour of the plaintiff-respondents.

It is true that section 165(6) of the M.P. Land Revenue Code, 1959, lays down that when a member of an aboriginal tribe wants to sell his land to a person who does not belong to an aboriginal tribe, permission of a Revenue Officer, not below the rank of a Collector, is necessary. It only implies that without such permission no transfer can be said to be valid. This question was considered by A.P. Sen J., in Soma v. Beerchand 1970 MPLJ 66 (S.A. No. 556 of 1965, decided on the 27th March 1970.) also head noted by the Madhya Pradesh Law Journal as Sen J., relied on the pronouncement of their Lordships of the Privy Council in Babu Raja Mohan Manucha v. Babu Manzoor Ahmad Khan AIR 1943 PC 29. I may observe that if an agreement is entered into by a member of an aboriginal tribe for selling the agricultural lands to a person who is not a member of the aboriginal tribe, the obtaining of permission of a Collector is a condition precedent and if the condition precedent is not fulfilled, the transaction, in my opinion, would be void and I am in agreement with the view expressed by A.P. Sen J., in the said case that such a transfer will be a nullity.

The learned counsel for the respondents, however, invited attention to the pronouncement of their Lordships of the Supreme Court in Mrs. Chandnee Widyavati Madden v. Dr. C.L. Katial AIR 1964 SC 978 and invoked the doctrine of part performance as per section 53A of the Transfer of Property Act. I may observe that although it may be open to a person to invoke the doctrine of part performance in respect of transactions which are invalid on account of want of registration, the doctrine is not available where a transaction is void or a nullity. From this point of view there can be no doubt that the respondents cannot rely on section 53A of the Transfer of Property Act, in their favour to justify their possession. If their possession be wholly illegal, no Court of law can assist them by granting an injunction in their favour. From this point of view there can be no doubt that the respondents' suit as framed is not tenable in law. On the other hand it is open to them to frame their suit in such a manner where the Court would be able to give them relief. As was the situation in the Privy Council case of Babu Raja Mohan Manucha v. Babu Manzoor Ahmad Khan, (supra), it is open to the respondents to claim refund of consideration by relying on section 65 of the Indian Contract Act and to mould their relief accordingly.

The learned counsel for the respondents invited attention to the pronouncement of their Lords