The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK SA No.355 of 1997 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Motor Ransingh & Others …. Appellants Hara Patra & Others …. Respondents -versus- Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode): For Appellant - Mr. D.P. Mohanty, Advocate appearing on behalf of Mr. B.H. Mohanty, Advocate . For Respondents - None CORAM: MR. JUSTICE A.C.BEHERA Date of Hearing :18.06.2024:: Date of Order :24.06.2024 A.C. Behera, J. This 2nd Appeal has been preferred against the confirming Judgment. 2. The appellants of this 2nd Appeal were the plaintiffs before the Trial Court in the suit vide T.S. No.24 of 1988 and they were the appellants before the First Appellate Court in the 1st Appeal vide T.A. No.23 of 1991. The predecessor of the respondents of this 2nd Appeal i.e. Bakuli
Legal Reasoning
Patra was the sole defendant before the Trial Court in the suit vide T.S. Page 1 of 14 S.A No.355 of 1997 {{ 2 }} No.24 of 1988 and he was the original respondent before the First Appellate Court in the 1st Appeal vide T.A. No.23 of 1991. When during the pendency of the 1st Appeal, the said sole respondent i.e. Bakuli Patra expired, then, his LRs were substituted as respondent Nos.1(a) to 1(j) in that 1st Appeal vide T.A. No.23 of 1991 and the said respondent Nos.1(a) to 1(j) of the 1st Appeal are the respondents in this 2nd Appeal. 3. The suit of the plaintiffs (appellants in this 2nd Appeal) vide T.S. No.24 of 1988 against the predecessor of the respondents i.e. against the defendant (Bakuli Patra) was a suit for specific performance of contract. The case of the plaintiffs before the Trial Court vide T.S. No.24 of 1988 against the defendant (Bakuli Patra) as per their pleadings was that, the plaintiffs belong to Scheduled Tribe community, but the defendant belong to Scheduled Caste community. The plaintiffs are 5 brothers being the 5 sons of Kanduru Ransingh. The defendant (Bakuli Patra) was the exclusive owner of the suit properties. In order to sell the suit properties to the plaintiff No.1 (Motor Ransingh), he defendant (Bakuli Patra) executed an agreement for sale on 31.03.1971 in favour of the plaintiff No.1 and received consideration amount of Rs.1100/- from the plaintiff No.1 and delivered the possession of the suit properties to the plaintiff No.1 with the conditions that, he (defendant, Bakuli Patra) shall execute and register the sale deed in S.A No.355 of 1997 Page 2 of 14 {{ 3 }} respect of the suit properties in favour of the plaintiff No.1 after obtaining permission for sale of the same from the Competent Revenue Authorities as per Orissa Land Reforms Act, 1960. Thereafter, the defendant Bakuli Patra applied before the Sub-Divisional Officer, Keonjhar for granting permission under Section 22 of the OLR Act, 1960 in order to sell the suit properties to the plaintiff No.1 and obtained permission from the SDO, Keonjhar under Section 22 of the OLR Act, 1960 for selling the suit properties in favour of the plaintiff No.1, as he (defendant, Bakuli Patra) is a person of Scheduled Caste Community and the plaintiff No.1 is a person of non-Scheduled Caste community, but in spite of receiving the permission for selling the suit properties in favour of the plaintiff No.1, the defendant did not execute and register the sale deed in respect of the suit properties in favour of the plaintiff No.1 in compliance with the conditions indicated in the agreement to sell dated 31.03.1971. For which, the plaintiff No.1 requested the defendant time and again for executing and registering the sale deed in respect of the suit properties in his favour in pursuance to the written agreement dated 31.03.1971 executed by the defendant in his favour, but he defendant (Bakuli Patra) avoided to execute and register the sale deed in respect of the suit properties in favour of the plaintiff No.1. For which, the plaintiff No.1 issued a notice through his Advocate on dated 20.05.1988 to the defendant requesting S.A No.355 of 1997 Page 3 of 14 {{ 4 }} him to execute and register the sale deed in respect of the suit properties in his favour in compliance with the conditions indicated in the agreement dated 31.03.1971, but, the defendant replied such notice dated 20.05.1988 of the plaintiff No.1 disputing the execution of the so-called agreement to sell dated 31.03.1971. For which, without getting any way, the plaintiffs being 5 brothers approached the Civil Court by filing the suit vide T.S. No.24 of 1988 against the defendant praying for the decree of specific performance of contract on the basis of agreement to sell dated 31.03.1971 directing the defendant to execute and register the sale deed in respect of the suit properties in favour of the plaintiffs. 4. Having been noticed from the Trial Court in the suit vide T.S. No.24 of 1988 filed by the plaintiffs, the defendant contested the same denying all the allegations alleged by the plaintiffs in their plaint against him (defendant) by taking his pleas/stands inter alia therein that, he (defendant) is a member of Scheduled Caste Community, but the plaintiffs belong to Scheduled Tribe community. The so-called agreement to sell dated 31.03.1971 was executed without permission from the competent authority under the Orissa Land Reforms Act, 1960, for which, such agreement dated 31.03.1971 is invalid and void. The further case of the defendant was that, in order to purchase the suit properties from him (defendant), the plaintiff No.1 had paid Rs.700/- S.A No.355 of 1997 Page 4 of 14 {{ 5 }} to him with an understanding to sell the suit properties in his favour after obtaining permission from the competent Revenue Authority as per the provisions of OLR Act, 1960 and after receiving due (proper) consideration amount of the same from him (plaintiff No.1). When, after obtaining permission from the Revenue Authority for selling the suit properties in favour of the plaintiff No.1, the plaintiffs including the plaintiff No.1 did not agree to pay the due (proper/adequate) consideration amount of the suit properties to him (defendant) for purchasing the same, then, he (defendant) did not sell the suit properties to the plaintiff No.1. The further case of the defendant was that, he has never entered into an agreement to sell of the suit properties with the plaintiff No.1, for which, the suit of the plaintiffs is not maintainable in view of the bar under law provided in the Orissa Land Reforms Act, 1960. The suit of the plaintiffs is also barred by the law of limitation. For which, the suit of the plaintiffs is liable to be dismissed against him (defendant) with cost. 5. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether 7 numbers of issues were framed by the Trial Court in the suit vide T.S. No.24 of 1988 and the said issues are: S.A No.355 of 1997 Page 5 of 14 {{ 6 }} Issues i. Is the suit maintainable under law? ii. Is the suit barred by law of limitation? iii. Is the suit barred for non-joinder of necessary party? iv. Is the agreement for sale illegal, void and not binding on defendant? v. Are the plaintiffs in possession of the suit land? vi. Have the plaintiffs done their part of the contract? vii. To what other relief, the plaintiffs are entitled to? 6. In order to substantiate the aforesaid relief sought for by the plaintiffs against the defendant, the plaintiffs examined one witness from their side i.e. plaintiff No.1 as P.W.1 and exhibited series of documents on their behalf vide Exts.1 to 7. But the defendant neither examined any witness from his side nor proved any document on his behalf. 7. After conclusion of hearing of the suit vide T.S. No.24 of 1988 and on perusal of the materials, documents and evidence available in the record, the Trial Court dismissed the suit of the plaintiffs vide T.S. No.24 of 1988 against the defendant on contest without cost as per its Judgment and Decree dated 31.08.1991 and 13.09.1991 respectively answering issue Nos.2,4,6 & 7 against the plaintiffs and in favour of the defendant S.A No.355 of 1997 Page 6 of 14 {{ 7 }} by giving observations therein that, the agreement to sell dated 31.03.1971 vide Ext.7 executed by the defendant in favour of the plaintiff No.1 in respect of the suit properties for selling the suit properties is void, because that agreement vide Ext.7 was executed in contravention of the provisions of Section 22 of the OLR Act, 1960 without obtaining necessary permission from the competent Revenue Authorities. Because, on the basis of that agreement vide Ext.7, possession of the suit properties was delivered by its owner i.e. defendant (who is a scheduled caste person) in favour of the plaintiff No.1 (who is a non-scheduled caste person). For which, the plaintiffs are not entitled for the decree of specific performance of contract in respect of the suit properties against the defendant on the basis of that void agreement vide Ext.7. 8. On being dissatisfied with the aforesaid Judgment and Decree of the dismissal of the suit of the plaintiffs vide T.S. No.24 of 1988 passed by the Trial Court on dated 31.08.1991 and 13.09.1991 respectively, they (plaintiffs) challenged the same by preferring the 1st Appeal vide T.A. No.23 of 1991 being the appellants against the defendant (Bakuli Patra) by arraying him as respondent. When, during the pendency of that 1st Appeal vide T.A. No.23 of 1991, the respondent (defendant, Bakuli Patra) expired, then his LRs S.A No.355 of 1997 Page 7 of 14 {{ 8 }} were substituted as respondent Nos.1(a) to 1(j) in the said 1st Appeal vide T.A. No.23 of 1991 in place of deceased respondent Bakuli Patra. After hearing of that 1st Appeal vide T.A. No.23 of 1991 of the plaintiffs, the 1st Appellate Court also dismissed to that 1st Appeal vide T.A. No.23 of 1991 of the plaintiffs confirming the Judgment and Decree dated 31.08.1991 and 13.09.1991 respectively passed by the Trial Court in T.S. No.24 of 1988 as per its Judgment and Decree dated 30.08.1997 and 12.09.1997 respectively passed in T.A. No.23 of 1991 accepting the findings and observations made by the Trial Court that, the agreement in question vide Ext.7 is void, because as per the contents of Ext.7, delivery of possession of the suit properties was given by the defendant in favour of the plaintiff No.1 without obtaining the required permission from the Revenue Authorities as per Section 22 of the OLR Act, 1960. For which, the plaintiffs are not entitled for the decree of specific performance of contract on the strength of the said void agreement vide Ext.7, which is invalid and non-est in the eye of law. Therefore, the plaintiffs are also not entitled for refunding back any amount paid through the said void agreement vide Ext.7, because, that Ext.7 was executed in contravention of the provisions of the statute i.e. The OLR Act, 1960. 9. On being aggrieved with the aforesaid Judgment and Decree of the dismissal of the 1st Appeal vide T.A. No.23 of 1991 of the plaintiffs S.A No.355 of 1997 Page 8 of 14 {{ 9 }} passed by the 1st Appellate Court, they (plaintiffs) challenged the same by preferring this 2nd Appeal being the appellants against all the respondents of the 1st Appeal by arraying them as respondents. 10. This 2nd Appeal was admitted on formulation of the following substantial question of law i.e. Whether the courts below were correct in taking a view that the transfer within the meaning of Section 22 of the Orissa Land Reforms Act, 1960 includes even the agreement for sale? 11. I have already heard from the learned counsel for the appellants (plaintiffs) only, as none appeared from the side of the respondents to participate in the hearing of the 2nd appeal. 12. It is the own case of the plaintiffs (appellants in this 2nd Appeal) as per their pleadings and evidence in the suit vide T.S. No.24 of 1988 before the Trial Court that, the owner of the suit properties i.e. Bakuli Patra (defendant) is a man of Scheduled Caste Community, but they (plaintiffs) do not belong to Scheduled Caste Community. As such, they (plaintiffs) are the persons of non-Scheduled Caste Community. It is also the own case of the plaintiffs (appellants in this 2nd Appeal) that, the possession of the suit properties was delivered by the defendant in favour of the plaintiff No.1 on the basis of such agreement to sell dated 31.03.1971 vide Ext.7 and the said agreement to sell dated 31.03.1971 S.A No.355 of 1997 Page 9 of 14 {{ 10 }} vide Ext.7 in respect of the suit properties was executed by its owner i.e. defendant in favour of the plaintiff No.1 without obtaining required permission under Section 22 of the OLR Act from the competent Revenue Authority. As per Section 22 (1) to (5) of The OLR Act, 1960, any transfer of holding or part thereof by a Raiyat belonging to the Schedule Caste community in favour of a person belonging to non-Scheduled Caste Community without any permission in writing of the Revenue Officer shall be invalid (void). On that aspect, the propositions of law has already been clarified in the ratio of the following decisions: 76 (1993) CLT 367:Ramnaresh Singh Vs. Padmalochan Jaypuria (dead) & after him Gulapi Devi & Others & 2019 (II) CLR
Legal Reasoning
1178:(Sri) Muchiram Barik Vs. Revenue Officer, Sadar, Sambalpur & Others. Where delivery of possession of land was made upon execution of agreement to sell with a promise to sell after obtaining permission, mere contract for sale on a future date would not be void. When there is transfer of possession on the basis of such a contract, it would require permission of the Revenue Officer under Section 22 of the OLR Act. (Para Nos.14 & 15) 13. When it is the own case of the plaintiffs that, delivery of possession of the suit properties was given by its owner i.e. the defendant to the plaintiff No.1 through the agreement to sell dated 31.03.1971 vide Ext.7 S.A No.355 of 1997 Page 10 of 14 {{ 11 }} with specific conditions therein to sell the suit properties to the plaintiff No.1 after obtaining required permission from the Revenue Authority, then in view of the propositions of law enunciated in the ratio of the above decisions, such agreement to sell vide Ext.7 is invalid, void and non-est in the eye of law. Because, due to transfer of possession of the suit properties on the basis of such agreement to sell vide Ext.7 without obtaining necessary permission from the Revenue Authorities under Section 22 of the OLR Act, the said agreement to sell vide Ext.7 is invalid under law, as, there was transfer of possession of the suit properties by a Scheduled Caste person in favour of a non-Scheduled Caste person. As, the agreement dated 31.03.1971 vide Ext.7 was executed in contravention of the statutory provisions of The OLR Act, 1960 opposing the public policy defeating the provisions of Section 22 of the OLR Act, 1960 offending such statute forbidding the aforesaid statutory provisions of law, then, such agreement in question dated 31.03.1971 vide Ext.7 is not merely void, but, the same was invalid from its nativity i.e. from its inception. For which, no legal relationship had arisen between the parties through such invalid agreement vide Ext.7, as the said agreement vide Ext.7 was executed offending the statute, i.e. OLR Act, 1960. S.A No.355 of 1997 Page 11 of 14 {{ 12 }} 14. The conclusions drawn above finds support from the ratio of the following decisions of the Hon’ble Courts and Apex Court: i. AIR 1994 (Allhabad) 298 (Full Bench):Nutan Kumar and Others Vs. IInd Addl. District Judge, Banda & Others—An agreement offending a statute or public policy or forbidden by law is not merely void, but it is invalid from nativity. It cannot become valid even if the parties thereto agree to it. No legal relations come into being from an agreement offending a Statute or Public Policy. ii. III (2004) Civ.L.T 204 (SC):Jayamma Vs. Maria Bai (Para Nos.22 & 23) dead by proposed LRs & Another—Assignment or transfer made in contravention of statutory provisions: Invalid and opposed to public policy and attract provisions of Section 23, Contract Act, 1872. iii. 2017 (II) OLR 660:Abdul Aziz Vs. Member, Board (Para No.20) of Revenue, Orissa, Cuttack & Others—Any Court or authority which is discharging the public function and in sesin of the matter, can take into consideration this principle of law and simply refuse to act upon such document which is void ab initio. (Para No.12) 15. On application of the propositions of law enunciated in the ratio of the aforesaid decisions of the Hon’ble Courts and Apex Court to the facts and law of this appeal at hand as discussed above, it is held that, the agreement dated 31.03.1971 vide Ext.7 was executed by the owner of the suit properties i.e. defendant (Bakuli Patra) in favour of the plaintiff No.1 Page 12 of 14 S.A No.355 of 1997 {{ 13 }} in contravention of the statutory provisions of the OLR Act, 1960 without obtaining the necessary and mandatory permission under Section 22 of the OLR Act, 1960, for which, such agreement vide Ext.7 was invalid from its nativity. Therefore, the plaintiffs are not entitled under law for the decree of specific performance of contract against the defendant on the basis of such void and invalid agreement vide Ext.7. Therefore, the Trial Court and First Appellate Court are correct in their views that, the agreement to sell in question dated 31.03.1971 vide Ext.7 transferring the possession of the suit properties by the Scheduled caste person i.e. defendant in favour of the non-Scheduled caste person i.e. plaintiff No.1 through that agreement vide Ext.7 is a transfer within the meaning of Section 22 of the OLR Act, 1960. For which, in order to execute that agreement to sell dated 31.03.1971 vide Ext.7 prior permission under Section 22 of the OLR Act, 1960 was mandatory and compulsory and due to lack of such permission, that agreement in question vide Ext.7 was invalid and non-est in the eye of law. For which, the concurrent findings of the Trial Court and First Appellate Court in dismissing the suit for specific performance of contract of the plaintiffs (appellants in this 2nd Appeal), claimed through the invalid agreement vide Ext.7 cannot be held erroneous. Therefore, the question of S.A No.355 of 1997 Page 13 of 14 {{ 14 }} interfering with the same through this 2nd Appeal filed by the appellants (plaintiffs) does not arise. 16. As such, there is no merit in the appeal of the appellants (plaintiffs). The same must fail. 17. In result, the 2nd appeal filed by the appellants (plaintiffs) is dismissed on merit, but without cost. (A.C. Behera), Judge. Orissa High Court, Cuttack. 24.06.2024,//Rati Ranjan Nayak// Senior Stenographer Signature Not Verified Digitally Signed Signed by: RATI RANJAN NAYAK Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack, India Date: 26-Jun-2024 15:11:19 S.A No.355 of 1997 Page 14 of 14