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2013 DIGILAW 975 (MP)

Ramniwas v. Jagatbahadur Singh

2013-08-20

ALOK ARADHE

body2013
JUDGMENT Alok Aradhe, J.:- This is an appeal by the plaintiff, which was admitted by a Bench of this Court on following substantial questions of law: - (i) Whether the findings arrived by the Courts below that there cannot be a valid alienation of immovable property to a minor, is perverse and unsustainable in law ?” (ii) Whether the findings arrived at by the Courts below that in view of the provisions of section 165(6) and 170-B of the M.P. Land Revenue Code, the plaintiff/appellant did not prescribe title on the disputed land by adverse possession, is also perverse and unsustainable in law?” 2. Facts giving rise to filing of the appeal briefly stated are that one Suryadeen, the erstwhile tenant of land admeasuring 12.51 acres, sold the same orally on 15-6-1957 to the plaintiff for a consideration of 90 and placed him in possession. Thereafter, the name of the plaintiff was recorded in the Khatoni of the year 1958-59 (Ex.P/1) and Khasra Panchshala of the years 1957-58 up to 1986-87 i.e. Ex. P/2 to P/6. The plaintiff became the owner of the suit land on the basis of an oral sale followed by delivery of possession for a consideration of 90 and is in possession of the suit land as owner thereof. However, one Baldev threatened the plaintiff with dispossession some-time in the year 1987. Thereupon, the plaintiff filed the suit seeking the relief of declaration of title and permanent injunction restraining the defendants from interfering with the plaintiff's possession. 3. The defendants No. 1, 3, 4 and 6 i.e. legal representatives of vendor of the plaintiff namely Suryadeen in the joint written statement admitted the claim of the plaintiff. Similarly, defendants No. 2 and 5 also admitted the claim of the plaintiff. The defendant No. 7 on service of summons neither entered appearance nor filed the written statement. Consequently, he was proceeded ex-parte. The plaintiff adduced evidence and examined himself as well as one witness namely Sukhdev Singh Gond. The witnesses of the plaintiff were not cross-examined by the defendants. 4. The trial Court vide judgment and decree dated 19-3-1989 inter-alia held that the purchase dated 15-6-1957 in favour of the plaintiff has not been proved and the plaintiff has not prescribed title by adverse possession. The witnesses of the plaintiff were not cross-examined by the defendants. 4. The trial Court vide judgment and decree dated 19-3-1989 inter-alia held that the purchase dated 15-6-1957 in favour of the plaintiff has not been proved and the plaintiff has not prescribed title by adverse possession. It was further held that in view of section 170-B of the M.P. Land Revenue Code, 1959 (hereinafter referred to as 'the Code'), the sale in favour of the plaintiff is invalid, as he is a non-tribal. The lower Appellate Court vide impugned judgment and decree dated 4-7-1998 inter-alia held that at the time of purchase of the suit land, the plaintiff was minor and, therefore, the purchase is void. It was further held that in view of section 165(6) of the Code and in the absence of permission from the Collector, no alienable interest was transferred to the plaintiff and consequently, he could not be held to have perfected his title by adverse possession. 5. The learned counsel for the appellant Submitted that the Courts grossly erred in holding that the alienation in favour of the plaintiff was void, as at the time of alienation, he was minor. In support of his aforesaid submissions, reference has been made in the cases of Balkrishna v. Lakhu and others, AIR 1922 Nagpur 239 and Subba Reddy v. Gurva Reddy, AIR 1930 Madras 425. It is further submitted that the sale took place in the year 1957 i.e. prior to commencement of the Code and, therefore, the Courts below grossly erred in applying the provisions of section 165(6) and 170-B of the Code to the facts of the case. 6. I have considered the submissions made by learned counsel for the appellant and have perused the records. It is well settled in law that if the finding of fact is perverse or the same has been reached in ignorance of the material available on record or by misreading of the evidence on record, it is open to interference in exercise of power under section 100 of the Code of Civil Procedure. It is well settled in law that if the finding of fact is perverse or the same has been reached in ignorance of the material available on record or by misreading of the evidence on record, it is open to interference in exercise of power under section 100 of the Code of Civil Procedure. [See: Deenanath v. Pooranlal, (2001) 5 SCC 705 , Neelaknatan and others v. Mallika Begum, (2002) 2 SCC 440 , Yadarao Dajiba Shrawane v. Nanilal Harakchand Shah and others, (2002) 6 SCC 404 , Krishna Mohan Kul alias Nani Charan Kul and another v. Pratina Maity and others, (2004) 9 SCC 468, Arumaraj Devadhas v. K. Sundaram Nadar, (2009) 17 SCC 467 ]. It is equally well settled legal proposition that where the other side leads no evidence, very slight evidence is required to discharge the initial burden which lies on the plaintiff. 7. In the instant case, the plaintiff has examined himself as well as the witness Sukhdev Singh Gond, who have stated in their evidence that the suit land was purchased by the plaintiff and he is in possession of the same as owner thereof. In the revenue records namely Ex. P/1 to P/6 for the period from 1957-58 up to 1986-87, the possession of the plaintiff over the suit land is recorded. Therefore their testimony shall be deemed to be admitted [See: Punjabrao v. Dr. D.P. Meshram and others, 1965 MPLJ (S.C.) 257 = AIR 1965 SC 1179 ]. 8. A sale is transfer of ownership for a price, section 54 of the Transfer of Property Act, 1882 (hereinafter in short referred to as “the Act”) provides that in case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by registered instrument or by delivery of property. Section 6(h) of the Act provides that no transfer can be made in so far as it is opposed to the nature of interest affected thereby of for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 or to a person legally disqualified to be transferee. It is essential for valid sale that transferor should be competent to transfer as per section 7 of the Act and the transferee should not be subject to legal disqualification as prescribed under section 6(h) of the Act. It is essential for valid sale that transferor should be competent to transfer as per section 7 of the Act and the transferee should not be subject to legal disqualification as prescribed under section 6(h) of the Act. Thus, any living person can be transferee provided he is not disqualified under section 136 of the Act or under Order 21, Rule 73 of the Code of Civil Procedure, 1973. Thus, from perusal of relevant provisions of the Act, it is evident that there is no provision in the Act which prohibits a minor from being transferee. Thus, a minor is not disqualified to be transferee. [See: Ulfat Rai v. Gauri Shankar, (1911) ILR 33 All. 657, Munia v. Perumal, (1914) ILR 37 Mad. 390, Munni Kunwar v. Madan Gopal, (1916) ILR 39 All. 62, Balkrishna v. Lakhu and others, AIR 1922 Nagpur 239 and Subba Reddy v. Gurva Reddy, AIR 1930 Madras 425.] 9. At the time when the sale took place in favour of the plaintiff, the provisions of the Vindhya Pradesh Land Revenue and Tenancy Act, 1953, were in force, which did not contain any provision restraining alienation by a tribal in favour of the non-tribal. The provisions of the M.P. Land Revenue Code, 1959 do not apply to the facts of the case. For the aforementioned reasons, the substantial questions of law framed by this Court are answered in the affirmative and in favour of the appellant. 10. Accordingly, the judgment and decree passed by the trial Court as well as the lower Appellate Court are hereby set aside. The claim of the plaintiff is decreed with cost. In the result, the appeal is allowed. Appeal allowed.