Research › Search › Judgment

Orissa High Court · body

2008 DIGILAW 214 (ORI)

Sk. Gokha,Sk. Samiruddin v. Brajamohan Kabi

2008-03-13

A.S.NAIDU

body2008
JUDGMENT A.S. NAIDU, J. — All these Writ applications have been filed challenging a common order dated 26th December, 1995 (Annexure-3 in each case) passed by the Joint Commissioner, Con¬solidation, Orissa, Cuttack in Consolidation Revision No.877 of 1992/630 of 1994 filed under Section 36(1) of the Orissa Consoli¬dation of Holdings and Prevention of Fragmentation of Land Act, 1972 (hereinafter referred to as ‘the Consolidation Act’) revers¬ing the orders passed by the appellate authority. 2. The dispute in the present case is confined to Ac.0.20 decimals of land appertaining to L.R. Plot No.99 and L.R. Khata No.230 of Mouza Merdha under Jajpur Tahsil in the district of Jajpur. The said land along with other lands were admittedly species of a joint family property and was a part and parcel of an intermediary estate. In a partition suit, i.e. T.S. No.32 of 1999, the said joint family property was partitioned among the co-sharer intermediaries and Ac.1.02 dec. of land was allotted in favour of Achyutananda Kabi who was one of the intermediaries. The present opposite parties 1 and 2 happen to be the son and widow respectively of said Achyutananda Kabi. According to the petitioners, Achyutananda during his lifetime had executed a permanent Lease Deed on 24.6.1949 in favour of Sk. Gokha, the predecessor in interest of the present petitioners. In consonance with the said Lease Deed, Sk. Gokha, it was alleged, was possess¬ing the land on the date of vesting thereof in the State. It was asserted that on 11.7.1960 Achyutananda had filed a Misc. Case under Sections 6 and 7 of the Orissa Estates Abolition Act for settlement of the disputed land in his favour which was regis¬tered as OEA Case No.3390 of 1964-65. Thereafter on 4.4.1967 by two registered sale deeds Achyutananda had transferred Ac.0.74 dec. of land in favour of Sk.Gokha and Sk. Samiruddin. While matter stood thus on 28th April, 1968 Achyutananda died. After his death on 11.7.1968 the lands were settled in favour of Achyu¬tananda in consonance with order passed in the OEA Case. When the Mouza in which the lands situated was brought under Consolidation operation, four Objection Cases were filed by Sk. Gokha before the concerned Consolidation Officer which were registered as Case Nos.879 to 882 of 1989 with a prayer to record the lands in his favour. When the Mouza in which the lands situated was brought under Consolidation operation, four Objection Cases were filed by Sk. Gokha before the concerned Consolidation Officer which were registered as Case Nos.879 to 882 of 1989 with a prayer to record the lands in his favour. The Consolidation Officer dismissed all the Objection Cases holding that the lands belonged to an intermediary estate. The estate having vested by the date of alienation made by, Achyutananda, the ex intermediary, who had no interest after vesting, the objectors did not acquire any title to the land. 3. Being aggrieved, the present petitioners preferred four Appeal Cases before the Deputy Director of Consolidation. Before the said appellate authority, the petitioners contended that as the lands had been subsequently settled in favour of Achyutananda in consonance with the provisions of Section 43 of the Transfer of Property Act, the alienation made by Achyutananda in favour of Sk.Gokha would confer valid title on Sk.Gokha. The appellate authority having accepted the said contention allowed the Appeal Cases. 4. Being aggrieved by the said appellate order, present opposite parties 1 and 2, the L.Rs. and successors of Achyutanan¬da Kabi preferred four Revision Cases before the Commissioner of Consolidation which were ultimately heard and disposed of by the Joint Commissioner. The said revisional authority however did not accept the reasonings given by the appellate authority. According to the revisional authority Section 43 of the Transfer of Proper¬ty Act had absolutely no application to the cases and by virtue of the said Section no title had been acquired by Achyutananda, more so the order of settlement in consonance with the OEA Act was passed after the death of Achyutananda. Thus the same was a nullity, having passed in favour of a dead person, and allowed all the Revision Cases. The said order of the revisional authori¬ty is challenged in these Writ applications. As the facts and points of law raised in all the Writ applications are same, those were heard together. 5. Mr. K.N. Jena, learned counsel for the petitioners, strenuously urged before this Court that Section 43 of the Trans¬fer of Property Act protects a purchaser for value and a trans¬feree is entitled to the benefit of the said Section. As the facts and points of law raised in all the Writ applications are same, those were heard together. 5. Mr. K.N. Jena, learned counsel for the petitioners, strenuously urged before this Court that Section 43 of the Trans¬fer of Property Act protects a purchaser for value and a trans¬feree is entitled to the benefit of the said Section. According to him, the lands having been settled in favour of Achyutananda in consonance with the OEA Act, the alienations made by him before such settlement but after vesting of the intermediary estate in the State would confer title on the alienees in conso¬nance with the provisions of Section 43 of the Transfer of Property Act. 6. There is no dispute with regard to the legal proposi¬tion. Section 43 of the Transfer of Property Act stipulates that where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and transfers certain property for consideration, such transfer, shall, at the option of the transferee, operate on any interest which the transferror may acquire in such property at any time during which the transfer subsists. 7. As has been held in the case of Trilochan Behera v. Naiko Behera Subhadra and others, reported in AIR 1991 Orissa 80, Section 43 of the Transfer of Property Act clearly emphasizes that where a person erroneously represents that he is authorised to transfer certain immovable property and transfers the same for consideration, but then later on the transferror got title over the land in question, then the transferee who in good faith had paid the consideration without notice of absence of title of the transferror would acquire valid title. In other words, Section 43 protects a purchaser for value who erroneously purchases the property on the basis of representation made by the transferror that he had title if the transferror subsequent to the transfer acquires title to the property sold. In other words, a transferee is only entitled to the benefits of Section 43 if he believes the representation made by the vendor and was not aware of the true interest of the vendor with reference to the property. The same view was also expressed in the case of Banwarilal v. Sukhdhararan Dayal, reported in AIR 1973 SC 814 . 8. The same view was also expressed in the case of Banwarilal v. Sukhdhararan Dayal, reported in AIR 1973 SC 814 . 8. Examining the dispute in the touchstone of the provi¬sion of Section 43 of the Transfer of Property Act, at the very outset this Court finds that there is no averment to the effect that the predecessor of the petitioners, namely, Sk.Gokha, had purchased the lands bona fide that Achyutananda had title over the said lands. That apart, the lands were part and parcel of an intermediary estate. According to the petitioners, on 24th of June, 1949 Achyutananda, an ex intermediary, had executed a registered permanent homestead Lease Deed in respect of Ac.0.45 links of land in favour of Sk. Gokha. Thereafter the property vested in the State by operation of the OEA Act. As stated earli¬er, in the year 1960 said Achyutananda had filed a Misc. Case bearing number 3390 of 1964-65 under Sections 6 and 7 of the OEA Act. The provisions of the said Sections of the OEA Act create an embargo for an ex intermediary to file any petition in respect of any land of which he was not in Khas possession on the date of vesting. According to the petitioners, Achyutananda had executed a permanent Lease Deed in favour of Sk.Gokha in the year 1949, i.e. prior to vesting of the intermediary estate under the provi¬sions of the OEA Act and had handed over possession thereof. Thus the petition filed by Achyutananda under Sections 6 and 7 of the OEA Act was not maintainable he being not in Khas possession of the lands. That apart, it is stated that in the years 1964 and 1967 Ac.0.74 dec. of land was sold by Achyutananda in favour of Sk.Gokha and Sk.Samiruddin. In the years 1964 and 1967, the said estate having vested in the State, Achyutananda had no alienable interest in the land. Thus no title passed to Sk.Gokha or Sk.Samiruddin. Of course there is some force in the submission of Mr. Jena that by virtue of subsequent settlement of the lands in consonance with the OEA Act, Achyutananda had acquired title and in consonance with the provisions of Section 43 of the Transfer of Property Act, the rights of Sk.Gokha and Sk.Samiruddin would be protected. But then this Court finds that during pendency of the OEA Case Achyutananda had died. Jena that by virtue of subsequent settlement of the lands in consonance with the OEA Act, Achyutananda had acquired title and in consonance with the provisions of Section 43 of the Transfer of Property Act, the rights of Sk.Gokha and Sk.Samiruddin would be protected. But then this Court finds that during pendency of the OEA Case Achyutananda had died. Neither it was ever pleaded nor is there any material before this Court to reveal that the L.Rs. of Achyutananda had been substituted in his place. In the absence of substitution the case should have abated, as abatement is an automatic process. Looking into the matter from another angle, it can be safely said that an order passed against or in favour of a dead person is a nullity in the eye of law. 9. Though notice was issued to the contesting opposite parties and the same had been sufficient, no counsel for them was present at the time of hearing. However this Court finds that the revisional authority has not properly dealt with the matter and has not kept the aforesaid settled position of law and facts in mind. The order of the revisional authority, vide Annexure-3, also suffers from infirmities. But then as disputed questions of fact are involved in the matter which need further scrutiny, this Court feels that it would be just and proper to quash impugned order Annexure-3 and remit the matter back to the revisional authority for de novo disposal thereof in the light of the obser¬vations made above. While doing so, this Court disposes of all the four Writ applications. Application disposed of.