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1989 DIGILAW 236 (GAU)

Salam Kishorchandra Singh v. Tekhellambam Nipamacha Singh

1989-12-06

Y.IBOTOMBI SINGH

body1989
This case illustrates the proverbial thorny path of a civil dispute which the parties have to pursue for a considerable length of time. At least, ten winters must have passed since the plaintiff instituted the suit seeking his reliefs. 2. This is a second appeal by the plaintiff against the judgment and decree dated 31.3.82 passed by the learned Additional District Judge, Manipur in Civil Appeal nj. 17/81/11/82 whereby he reversed the decree and judgment of the learned Munsiff, Bishenpur dated 31.7.82 passed in his Original Suit No. 13/1975/3/78 declaring the title and ownership of the plaintiff over the suit land, etc. 3. The plaintiff' appellant instituted a suit, being O. S. No. 13/75 in the Court of the Munsiff, Bisheapur against the defendant for declaration of his title to the suit Und, and for recovery of possession of the suit land by evicting the defendant and also for recovery of 12 pots of paddy or its equivalent value at the rate of Rs. 25/- per Sangbai for the year 1974 and future mesne-profit at the same rate since the institution of the suit till the delivery of possession of the suit land. The suit was decreed by the learned Munsiff granting all the reliefs as claimed by the plaintiff. However, by his order dated 31st March, 1982 passed in the said Civil Appeal, the learned Additional District Judge reversed the said decree of the learned Munsiff and the plaintiff's suit was dismissed. It is against this judgment and decree of the learned Additional District Judge that the present second appeal has been preferred. 4. The plaintiff instituted the suit on the footing that he purchased the suit land from the defendant with delivery of possession for Rs. 1500/- under a registered sale-deed dated 24.4.68 After the 88id purchase, the defendant became a tenant of the plaintiff in respect of the suit land on payment of rent at the rate of 12 pots of paddy in the month of 'Poinu' in every year. The plaintiff collected the rent in terms of money at the rate of Rs. 15/- per Saagbai from the year 1968 to 1973. The plaintiff collected the rent in terms of money at the rate of Rs. 15/- per Saagbai from the year 1968 to 1973. Some time in the month of August or September, 1974, the plaintiff made an application in the Court of Sub-Deputy Collector, Bishenpur for mutation of his name in respect of the suit land but the learned Sub-Deputy Collector rejected the application on the objection made by the defendant by his order dated 26.5.75 in Mutation Case No.470/ SDC/ Bishenpur ( L )74 of 1974. The demand of the plaintiff for payment of rent for the month of 'Poinu', 1974 was also refused and his subsequent demand for payment was of no avail. Thus, the plaintiff's title to the suit land became clouded. 5. The defendant resisted the suit by denying the alleged sale transaction between him and the plaintiff and also by asserting as an alternative plea-(1) that he would be left with a fragment of the agricultural land measuring 25 acres after the alleged transfer of the suit land by sale and as such the alleged transfer was violative of the provisions of section 152 (1) of the Manipur Land Revenue and Land Reforms Act, in short, the 'Act', and (ii) that with his alleged purchase of the suit land the plaintiff who has owned many parts of the agricultural land would hold agricultural lands in excess of family holding and as such the transaction contravened the provisions of section 153(3) of the Act. Consequently, the transfer was void as hit by section 154 of the Act and the plaintiff, therefore, could not acquire the right over and title to the suit land. 6. Shri I. Brojsnder Singh, learned counsel for the appellant has challenged the impugned judgment and decree on two grounds. Firstly, he maintains that the finding of the learned Additional District Judge that the sale is void under section 154 for contraven­tion of section 152 (1) of the Act is an error of law. Secondly, he submits that the finding of the learned Additional District Judge that declaration of the defendant in Form 52 under Rule 205 of the Manipur Land Reforms Rules, 1961, in short, the 'Rules' under Ext A/2 and Ext. A/3 accompanying the sale deed Ext. Secondly, he submits that the finding of the learned Additional District Judge that declaration of the defendant in Form 52 under Rule 205 of the Manipur Land Reforms Rules, 1961, in short, the 'Rules' under Ext A/2 and Ext. A/3 accompanying the sale deed Ext. A/1 does not operate as estoppel under section 115, Evidence Act is unwarranted inasmuch as it is not supported by the facts and materials of the case. 7. I now take up the first point for consideration. There is no dispute that the defendant had only 2.34 acres before the said sale transaction and that after the said transaction only a piece of land measuring 20 acre was left as the holding of the defendant. Shri Brojendro Singh, learned counsel for the plaintiff appellant with all his usual frankness has conceded at the bar on this point. His only grievance is that sub-section 1 of section 152 of the Act is not applicable in the present case inasmuch as the original holding of the defendant being only 2,34 acres is itself a fragment. According to the learned counsel when a fragment of a fragment is sold, sub­section (1) is not applicable. Shri Ktmol Singh, on the otherhand, vehemently urges that the transfer of a fragment of a fragment is barred by sub-section (1). Before considering the points raised by learned counsel of both the parties, during the course of their arguments, I consider it necessary to set out the relevant provisions of law bearing on those points. 8. Chapter XII of the Act deals with prevention of fragmentation of holdings. Section 151 states that ''holding" means the aggregate area of land held by a person as a land owner. Clause (h) of that section provides that 'fragment' means a holding less than one hectare in area. 9. Section 152 relates to the restriction on transfer. Clause (I) of that section provides as follows :- "No portion of a holding shall be transferred by way of sale, exchange, gift, bequest or mortgage with possession, so as to create a fragment;.........” 10. Clause (3) of the same section further provides as follows :- ''No fragment shall be transferred to a person who does not have some lands under personal cultivation, or to a per­son who holds, or by reason of such transfer shall hold, paid in excess of the ceiling limit." 11. Clause (3) of the same section further provides as follows :- ''No fragment shall be transferred to a person who does not have some lands under personal cultivation, or to a per­son who holds, or by reason of such transfer shall hold, paid in excess of the ceiling limit." 11. Section 153 covers partition of holding. lam not concerned with this section and therefore I have skipped over this section. Section 154 deals with the transfer in contravention of this Chapter It provides as follows ; Clause (1) provides as follows :- " Any transfer or partition of land made in contravention of provisions of this Chapter shall be void." 12. Clause (2) further provides as follows :- " No document of transfer or partition shall be registered unless declaration are made, in such form and manner as may be described, by the parties thereto before the competent registering authority under the Indian Registration Act regarding lands hold by each prior to the transaction and the land which each shall come to hold thereafter." 13. Clause (3) of the same section also provides as follows :-"No registering authority shall register under the Indian Registration Act, 1908, any document of transferor partition of land if, from the declaration made under sub-section 2), it appears that the transaction has been affected in contra­vention of the provisions of this Chapter." 14. Now, from a plain reading of the above provisions in sub­section (1) of section 152 it is crystal clear that it prohibits the transfer of any portion of a holding (whether it be less than a hectare or not) if such a transfer results in the creation or formati­on of a fragment. It is immaterial whether the holding of a portion of which is sold is a fragment or not. All what is mate­rial is whether the result of the transfer is a fragment or not. After all, the intention of the Legislature in making this provision is to discourage fragmentation of holdings upto a certain extent just to avoid the evil of sub-fragmentation of holdings which affect the economy of the country to a large extent. Now, if a fragment is allowed to transfer on the ground as submitted by the learned counsel, it will undoubtedly defeat the purpose for which the provision was made. Now, if a fragment is allowed to transfer on the ground as submitted by the learned counsel, it will undoubtedly defeat the purpose for which the provision was made. The learned counsel has cited a number of decisions made by different High Courts in support of his contention. But 1 do not propose burden to my judgment with those citations as there is no ambiguity in the language of section 152. Hence, I do not find any substance in the above contention of the learned counsel. 15. Having settled on the above points, I now proceed to consider the next point raised by the learned counsel. Now, the question whether the plaintiff was induced to purchase the suit land by a false representation made by the defendant is a question of fact and, therefore, the High Court in exercise of its power under section 100 of the Civil Procedure Code cannot make a fresh appraisal of the evidence and come to a different finding contrary to the finding recorded by the first appellate Court. If any authority is to be cited on this point, we may conveniently rely on the deci­sions made in AIR 1986 SC 1509 . After all, the learned Additional District Judge recorded his finding on that point after consideration of the evidence adduced by both the parties and also by giving cogent reasons. Undoubtedly, the scribe L.Bira Singh (P.W-2) has proved the contents of the declaration Ext.A/2 and Ext.A/3. From a close scrutiny of the declaration Ext.A/2 and Ext. A/3, it is candidly seen that this declaration was given jointly by the plaintiff and the defendant. But as rightly pointed out by the learned Additional District Judge, the declaration were meant for the registering authority, namely the Sub-Registrar who registered the sale-deed Ext.A/1. As can be seen from the above provisions of section 154, the Registrar would not have registered the sale deed without such declaration. Hence, I find it difficult to accept the contention of the learned counsel for the appellant that from the declaration made by the party, it can safely be taken that the plaintiff was induced to purchase the land. After all, the language of section 115, Evidence Act clearly shows that under this Act the person to whom the representation was made, or for whom it was designed can avail himself of it for the purpose of estoppel. After all, the language of section 115, Evidence Act clearly shows that under this Act the person to whom the representation was made, or for whom it was designed can avail himself of it for the purpose of estoppel. There is no dispute that the Sub-Registrar was the person to whom the representation was made by both the parties. Hence, as rightly pointed out by the learned lower Appellate Court, the plaintiff cannot avail of the representation for the purpose of estoppel. Further, in the case of Teyenjam Panchamt Singh vs. Lal shram Petrnklei Singh (Civil Appeal No. 24 of 1971) this Court made a decision that the declaration which was given by both the parties before the Sub-Registrar under section 154 cannot operate as an estoppel against the plaintiff. I do not find any acceptable reason or ground that will prompt me to hold a different view. At any rate, the learned counsel for the appellant cannot convince me by giving cogent reasons that the said decision of this Court suffers from certain infirmity. Hence, the above cont­ention of the learned counsel carries no weight. For these reasons, the appeal has no force and it is, therefore, dismissed. In the circumstance of the case, parties are directed to bear their respective costs throughout.