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2012 DIGILAW 1598 (RAJ)

Adu Ram v. Sahab Ram

2012-07-20

BAJRANG LAL SHARMA

body2012
SHARMA, M.—This revision petition has been filed by the petitioners under Section 230 of the Rajasthan Tenancy Act, 1955 (hereinafter referred as the Act) being aggrieved by the order passed by the Revenue Appellate Authority/Sriganganagar on 3.5.2012 in appeal on 69/2012. 2. The brief facts of the case in hand are that the non-petitioners No. 1 to 6 filed a regular suit under Sections 88, 188 of the Act against the petitioners in the Court of Sub-Divisional Officer, Karanpur. Along with the regular suit an application for temporary injunction under Section 212 of the Act was also filed by the non-petitioners. The Trial Court issued temporary injunction on 29.7.2005 and restrained the petitioners to maintain status quo pertaining to record of the disputed land. The petitioners filed first appeal in the Court of Revenue Appellate Authority, Shri Ganganager being dissatisfied by the order of the Trial Court. And the Appellate Court passed an ad interim order staying the order dated 29.7.2005 passed by the Trial Court. In the meanwhile, the non-petitioners No. 1 to 6 also filed a separate application before the Revenue appellate Authority, Sriganganagar requesting him for maintenance of status quo of record and possession on the disputed land. The learned Appellate Court accepted the application filed by the non-petitioners No. 1 to 6 on 3.5.2012 and passed the impugned order. The order passed by the Revenue Appellate Authority, Sriganganagar has been assailed in this revision petition before this Court. 3. Heard the learned counsel for the parties on admission of the revision petition. 4. Learned counsel for the petitioner contended that the petitioners are the members of the Schedule Castes and the land in dispute is in their khatedari. Therefore, any such sale or transfer of the disputed land in favour of the non-petitioners No. 1 to 6, who are not the members of the Scheduled Caste, is not legally enforceable under Section 42 of the Act. Moreover, such an alienation is against the public policy of the State. He further argued that the learned Appellate Court did not consider the requisite ingredients before issuing the temporary injunction like prima facie case, balance of convenience and irreparable loss. Moreover, such an alienation is against the public policy of the State. He further argued that the learned Appellate Court did not consider the requisite ingredients before issuing the temporary injunction like prima facie case, balance of convenience and irreparable loss. The non-petitioners do not have a prima facie case in their favour nor the balance of convenience is with them and in such a case no irreparable loss can be incurred to them because the disputed land belongs to the petitioners who are from the weaker sections of the society and who have been provided legal protection under the law. He also argued that this Court is fully empowered under Section 221 of this Act to correct the material irregularities committed by the subordinate Revenue Courts and such an illegal and perverse impugned order deserves to be set aside in order to protect the legal rights of the petitioners. He finally urged that the order passed by the Appellate Court is a non-speaking and arbitrary order which requires to be quashed in revisional jurisdiction of this Court. He took support from the citations referred in RRD 1992 - 201, 1994 RBJ 50, 2009 RBJ 396, 2009 RRT 576, 1990 RRD 212, 2003(2) RRT 780 and 2008 RRT 1197. 5. Learned counsel for the non-petitioners contended that the order passed by the Appellate Court is a legally sustainable order as the disputed land was sold by the father of the petitioners on 27.6.1960 through a registered sale deed and possession was handed over at the time of execution of the sale-deed. The petitioners also field a suit for ejectment against the non-petitioners which was dismissed on 18.3.1995. In relation to the disputed land the State Government also filed a case under Section 175 of the Act which was also dismissed on 10.7.1975. He submitted that Section 42 of the Act was amended on 1.5.1964, therefore, the sale deed executed in this case is not void and the non-petitioners are in continuous possession of the disputed land and the limitation for restoration of possession has elapsed. In an application under Section 212 of the Act for temporary injunction, the Trial Court issued status quo order and the Appellate Court has also passed the same order to maintain status quo relating to the record of the disputed land. In an application under Section 212 of the Act for temporary injunction, the Trial Court issued status quo order and the Appellate Court has also passed the same order to maintain status quo relating to the record of the disputed land. The learned counsel also submitted that the revision is not maintainable as it is directed from the interim order. He further submitted that while executing the sale deed on 27.6.1960 the petitioners handed over the possession of the disputed land to the non-petitioners and the non-petitioners are in continuous physical possession of the disputed land for the last 50 years. Therefore, the orders passed by both the lower Courts are just and reasonable orders which do not warrant any interference from this Court. He also cited 2011 RRT 109, 2008 RBJ 686, 1985 RRD 98, 2007 RBJ 696 in support of his arguments. 6. I gave serious consideration to the contentions raised by both the learned counsels of the rival parties and I also perused the available record and the rulings referred by both the learned counsels. 7. This is an undisputed fact in this case that the disputed land was sold by Shri Fattu father of the petitioners (a member of the Scheduled Caste) to Shri Balu (a non Scheduled Caste person) by a registered sale deed dated 27.6.1960. This is also an admitted position that proceeding under Section 175 of the Act was initiated by the State Government against the petitioners and non-petitioners which was dismissed on 10.7.1975. The petitioners also filed ejectment application under Section 183(B) of the Act against the non-petitioners which was also dismissed on 18.3.1995. 8. This Court is aware that there is explicit statutory prohibition provided under Section 42(B) of the Act wherein the land belonging to Scheduled Caste and Scheduled Tribe cannot be transferred or alienated in any form to a person who is not a member of Scheduled Caste or Scheduled Tribe. In this case the petitioners are Meghvanshi by cast that comes under Scheduled Caste in this State and the non-petitioners who bought the land after paying a valuable consideration in 1960 they are from Jat community (not member of the Scheduled Caste). In this case the petitioners are Meghvanshi by cast that comes under Scheduled Caste in this State and the non-petitioners who bought the land after paying a valuable consideration in 1960 they are from Jat community (not member of the Scheduled Caste). The provision of Section 42 of the Act is as under:- General restrictions on sale gift & bequest- The sale, gift or bequest by a khatedar tenants of his interest in the whole or part of his holding shall be void, if (a) deleted (b) such sale, gift or bequest is by a number of Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe. (bb) such sale, gift or bequest, notwithstanding anything contained in Clause (b), is by a member of Saharia Scheduled Tribe in favour of a person who is not a member of the said Saharia Tribe. 9. The bare perusal of the above provision of law makes it clear that there is absolute bar on transfer of land in order to provide statutory protection to the weaker sections of the society. This is also undisputed that such transactions have been made void with effect from 1.5.1964. But ordinary statutory bar existed even prior to the date of sale deed executed in this case. The impugned sale deed has been executed on 27.6.1960 in favour of the non Scheduled Caste person by the khatedars of the disputed land who were from Scheduled Caste community. Therefore, it is unequivocally clear that the sale of disputed land is hit by Section 42 of the Act. Hon'ble Rajasthan High Court in its D.B. decision (Ram Chandra vs. Om Prakash: 1979 RRD 208) has observed that a contract entered into between the parties which is forbidden by law is void under Section 23 of the Contract Act. It will be pertinent to cite the relevant extract of the judgment for ready reference: The sale in question is, therefore, in contravention of the proviso to Section 42, which categorically forbids the sale by a member of the Scheduled Caste of Scheduled Tribe in favour of persons who are not members of that class. It will be pertinent to cite the relevant extract of the judgment for ready reference: The sale in question is, therefore, in contravention of the proviso to Section 42, which categorically forbids the sale by a member of the Scheduled Caste of Scheduled Tribe in favour of persons who are not members of that class. The sale in question is, therefore, forbidden by law within the meaning of Section 23 of the Indian Contract Act. It is well settled that where a contract, which a party seeks to enforce, is expressly or by implication forbidden by any law, no Court will lend its assistance to give it effect. In this connection we may refer to Whiteman vs. Sadler (1910 A.C. 514, 626); Dip Narain vs. Nagesher (28 ALJ 45 FB); Andeerson vs. Daniel (1924) 1 KB 138; 93 LJ KB 97): Hosthy vs. Westby (2 Dr. & W 520); Hormasji vs. Pestanji (13 B 422): and Munshi vs. C. Board (1942 O 99); which lend support to our view. In view of the above discussion we are definitely of the opinion that the contract of sale or a sale made by a Scheduled Caste or Scheduled Tribe persons in favour of persons not belonging to that class, is void and not enforceable in law. The sale in question has, therefore, rightly been held to be void by the Board of Revenue. 10. In the judgment mentioned hereinabove, the Hon'ble High Court has explicitly observed that any sale made by the member of the Scheduled Caste/ Scheduled Tribe to the non-member of that respective community is against the public policy of the State and as per Section 223 of Indian Contract Act such sale contract is void. In the case under reference the sale deed was executed when Section 42 provided the simple statutory bar and it did not have the word `void' before May 1, 1964. Therefore, in light of the Hon'ble High Court's judgment, this Court is of the opinion that the sale deed executed on 27.6.1960 in this case is void 11. In the instant case there are two legal issues before this Court. (i) Whether temporary injunction or any legal protection can be granted to the non-petitioners wherein their possession is on the basis of a sale deed which is patently illegal and against the public policy of the State ? In the instant case there are two legal issues before this Court. (i) Whether temporary injunction or any legal protection can be granted to the non-petitioners wherein their possession is on the basis of a sale deed which is patently illegal and against the public policy of the State ? (ii) where final relief in a suit can be granted, whether temporary relief can be granted? 12. Regarding first legal issue, the non-petitioners are in possession of the disputed land on the basis of sale deed executed in favour of their father on 27.6.1960. As per the provisions of Section 42 of the Act, on the day of execution of the sale deed, there was an absolute prohibition on transfer of land by a Scheduled Caste person to a non Scheduled Caste person. This Court is of the considered view that this sale deed is illegal and against the public policy of the state, therefore, the possession of the non-petitioners on the basis of such a document is that of a trespasser. Such possession is not a permissive possession (Smt. Kesar Bai vs. Ram Gopal 1984 RRD 821 LB). In this case possession of the trespasser cannot be protected by the Court as his possession is that of a trespasser and against the public policy of the State. If this Court extends protection to the non-petitioners, it will frustrate the provisions of law and public policy. Such a transaction of sale can be termed as fraudulent as it is in utter violation of the legal provisions enshrined in the special statute regulating the tenancies of agricultural holdings in the State. 13. As far as the second issue is concerned this Court is of the view that the possession of the non-petitioner is that of a trespasser since the day of execution of sale deed. This is an established legal position that tenancy rights on the basis of even adverse possession, can not be conferred in those cases where there is explicit prohibition under law (RBJ 1994 page 50). An illegal and void sale deed does not confer any right or title in favour of the buyer. In such cases even the buyer is not entitled for refund of consideration money (1982 RLR 537). An illegal and void sale deed does not confer any right or title in favour of the buyer. In such cases even the buyer is not entitled for refund of consideration money (1982 RLR 537). Therefore in such a case where khatedari rights cannot be given on the land held by a Scheduled Caste tenant t a non Scheduled Caste person on the basis of long possession or adverse possession or illegal registered sale-deed temporary injunction cannot be granted in favour of such adverse possessors. 14. This is also pertinent to mention here that Hon'ble High Court in case of Khuman Mal vs. Bheru (1994 RBJ 50) has observed that Section 42 of the Rajasthan Tenancy Act, 1955 prohibits transfer of land by khatedar tenant belonging to Scheduled Caste to a person who did not being to Scheduled Caste and the prohibition under this Section is absolute. Therefore, when the sale of land held by a member of Scheduled Caste cannot be transferred by way of sale, gift, or bequest or even by decree of a competent Court, the same cannot be allowed to be entered in the name of persons who are seeking khatedari rights on the basis of possession which even according to them they got in pursuance of sale, mutation of which has already been cancelled long back on 22.4.1971 being contrary to provisions of law. More so, Section 88 of the Act under which the present suit has been filed clearly envisages that under the adverse possession the trespasser acquires khatedari rights provided that the acquisition of khatedari is not specifically prohibited by law, which means that if a person claiming to have acquired khatedari rights by adverse possession was put in or had obtained possession of the land in contravention of any persons of law prohibiting or invalidating the transaction which has occasioned such adverse possession or if any such provision of any state was thereby circumvented, will not be entitled to acquire khatedari right unless he shows that right by way of adverse possession is justified and not otherwise prohibited in law. 15. The Court cannot help such buyers whose sale deed is illegal, void and against the public policy. In considered opinion of this Court the temporary injunction cannot be granted where the provisions of law are openly flouted. 15. The Court cannot help such buyers whose sale deed is illegal, void and against the public policy. In considered opinion of this Court the temporary injunction cannot be granted where the provisions of law are openly flouted. The irregularity and manifest violations of law cannot be allowed to perpetuate in protection of the Court orders. The jurisdiction and process of the Courts can only be used in implementing the law and not in violating the statutory bar. In this case the non-petitioners are all out to protect their illegal possession by any means. This Court is amazed that even after the absolute statutory prohibition in the law the non-petitioners could manage to retain their illegal possession for last 50 years. 16. This Court is of the considered view that when a sale executed about the disputed land is illegal, void and against the public policy of the State, no khatedari rights can be conferred on the buyer on the basis of such a sale document. In such an established legal possession, it will not be proper to granted temporary injunction in favour of the non-petitioners/plaintiffs because the main suit can never succeed being against the manifest provisions of law. In such a case the impugned orders granting temporary injunction and providing legal protection to such buyers, whose sale deed is patently illegal, fraudulent and against the public policy of the State, are not legally sustainable. Such orders are legally infirm and bad. In view of this Court, there is material and manifest irregularity and misuse of jurisdiction in the impugned orders, therefore this Court finds it appropriate to invoke its revision jurisdiction in this case. 17. As discussed above this Court is of the firm view that the impugned orders passed by the Appellate Court and the trial Court are against the basic provisions of law and hence are quashed. The revision petition filed by the petitioners is accepted and the impugned orders are set aside. This is also made clear that observations made hereinabove, in any manner, will not adversely affect the merits of the original suit filed by the non-petitioners before the trial Court. 18. The revision petition filed by the petitioners is accepted and the impugned orders are set aside. This is also made clear that observations made hereinabove, in any manner, will not adversely affect the merits of the original suit filed by the non-petitioners before the trial Court. 18. This Court also finds it appropriate to send a copy of this judgment to the principal secretary, Department of Revenue, Government of Rajasthan to bring it to the notice of the Government that there is an evident contradiction in provisions made in Section 42(b) of the Rajasthan Tenancy Act and the period of limitation provided for items related to Section 183(B) and 175 and the Third Scheduled. When Section 42(b) of the Act makes such transfers void there is no relevant of existing limitation provided in the schedule appended to the Act. The Government may consider to bring suitable changes in the Act of consistency and harmony in the provisions given in the law. 10. Pronounced in open Court.