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2016 DIGILAW 441 (ORI)

Judhistir Sahu v. Jubaraj Sahu

2016-06-21

D.DASH

body2016
JUDGMENT : 1. The appellants in this appeal assail the common judgment and decree passed by the learned Addl. District Judge, Bargarh in T.A. No. 31 of 1998 and T.A. No. 22 of 1998 confirming the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Bargarh in T.S. No. 3 of 1992 decreeing the suit in part declaring the sale deed in respect of property described in schedule ‘A’ of the plaint as void, confirming the possession of the respondent nos. 1 to 3, the plaintiffs over the same and directing them to refund the consideration money involved under said transaction to the appellant-defendants. The suit in respect of schedule ‘B’ property having been dismissed, prayers on that scores have been declined to be granted. It may be stated here that original defendant no.1 who was the appellant no.1 having died during this appeal, his legal representatives are now on record as appellant nos. 1(a) to 1 (c). The appellant-defendants thus being aggrieved by the said decree in part when had filed the first appeal i.e. T.A. No. 31 of 1988; the respondent nos. 1 to 3-plaintiffs had also filed the appeal i.e. T.A. No. 22 of 1998. Be that as it may, this second appeal has been filed by the aggrieved defendant nos. 1 and 2 and as submitted at the Bar, the plaintiffs have not filed any second appeal as against the part dismissal of their suit relating to the refusal of the reliefs in respect of schedule ‘B’ property. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. The plaintiff nos. 1 and 2 are the sons of defendant no. 4 and plaintiff no. 3 is their mother whereas the defendant no. 5 and 6 are the parents of defendant no. 7. It is their case that the properties described in schedules ‘A’ and ‘B’ are their joint family property. It is alleged that the defendant nos. 4 and 5 illegally without any consideration have transferred those lands to defendant nos. 1 to 3. These sales are also challenged as void being in violation of the provisions of section 34 of the Odisha Consolidation and Prevention of Fragmentation of Land Act, 1972 (in short hereinafter called as the OCH & PFL Act). 4. 4 and 5 illegally without any consideration have transferred those lands to defendant nos. 1 to 3. These sales are also challenged as void being in violation of the provisions of section 34 of the Odisha Consolidation and Prevention of Fragmentation of Land Act, 1972 (in short hereinafter called as the OCH & PFL Act). 4. The defendant no. 7 has challenged the validity of the sales as without legal necessity. The defendant no. 3 has stated that the sales have been made for payment of joint family debts and in order to meet other legal necessity as well as for the benefit of the joint family. The defendant no. 3 thus prayed to dismiss the suit. 5. The trial court on such rival pleadings framed six issues. Taking up issue nos. 2 and 3 as regards the validity of the sales made by defendant nos. 4 and 5 to defendant nos. 1 to 3 vide registered sale deeds dtd. 27.9.91 which have been admitted in evidence and marked as Ext.A and Ext. B, the certified copies of which are Exts. 1 and 2; particularly in view of challenge as regards the sale as without consideration and lack of legal necessity as asserted by the plaintiffs, the answers on evaluation of evidence have been recorded against the plaintiffs that the sales are not liable to be declared void and inoperative on those grounds which have not been proved in the case. With the above, the trial court having set at rest the dispute as raised by the plaintiffs in respect of schedule ‘B’ land which are non-consolidable, it has next gone to address another important issue i.e. issue no. 4. This issue raises the question as to if in the case, in respect of land in schedule ‘A’ which are consolidable, the sale is void for want of required permission under section 34 (3) of the OCH & PFL Act. The finding has been that its void and thus the consequential conclusion has been recorded that the title over schedule ‘A’ land has not passed under the sale deed to the hands of the vendees and they have thus derived no such right, title and interest over the land under schedule ‘B’ on account of that sale deed which is not even worth the paper written on. In view of above, the trial court decreed the suit in part only in respect of schedule ‘A’ land as aforementioned. 6. The lower appellate court being moved both by the plaintiffs and the defendant nos. 1 to 3 in two separate appeals as stated above, has finally confirmed the judgment and decree as passed by the trial court having affirmed the findings of the trial court as above. 7. This appeal has been admitted on the following substantial questions of law:- “i) Whether in view of the specific averment made in the written statement that such sale of schedule-A land with the permission as required under section 34 of sub-Section (3) of the Act and when that very fact finds mention in clear terms in the sale deed concerning schedule ‘A’ land, the finding of the courts below that such sale is void being in contravention of the provision of section 34 of the Act is wholly erroneous more particularly when the plaintiffs have failed to prove that such mention as regards permission in the sale deed is factually false? ii) Whether in view of the provision of section 35 (1) of the OCH & PFL Act, the Civil Court has no jurisdiction to hold the sale deed in respect of schedule ‘A’ land as void being in contravention of the provision of section 34 of the Act and whether the jurisdiction is barred under section 51 of the Act? iii) Whether the finding of the courts below that by such sale in respect of schedule ‘A’ land there has been fragmentation, is the outcome of misreading and misconstruction of the provisions of law as contained in the OCH & PFL Act governing the subject?” 8. Learned counsel for the appellant at the outset submits for taking up the exercise of answering the first substantial question of law, as according to him in case of its answer in the affirmative and in favour of the appellant, the fate of the appeal would stand decided and there may not arise further necessity to delve into the other two questions which in that event would merely stand as of academic interest and importance. Learned counsel for the respondent no. 1 to 3 has no disagreement for proceeding with the exercise as above suggested. 9. Learned counsel for the respondent no. 1 to 3 has no disagreement for proceeding with the exercise as above suggested. 9. On merit pointing to the first substantial question of law, learned counsel for the appellants submits that in the written statement at para-2 it has been clearly averred that in Permission Case No. 40 of 1991, for said sale of schedule ‘A’ land prior permission had been taken. Next the relevant document (Ext.A) finds clear mention of the fact that permission as required under section 34 (2) of the OCH & PFL Act had been obtained as per the order dtd. 2.4.1991 in Permission Case No. 40 of 1991 and that also to have been duly communicated under memos. So according him, the courts below in view of challenge to the sale of schedule ‘A’ land made by the plaintiffs ought to have called upon them to prove in the negative that no permission as required under the OCH & PFL Act had been taken by leading evidence to discharge the onus which stood shifted to them upon proof of Ext.A by the contesting defendants. He contends that no evidence having been tendered by the plaintiffs, the courts below have fallen in grave error in factually holding that no permission from competent authority was taken for the sale of consolidable land under Ext.A. According to him above finding of fact is perverse as is seen with out even going through the relevant averment in the written statement and not giving a reading to Ext. A, the concerned sale deed and with out even being alive to all those facts as proved which do not find place in the discussion made in the judgments rendered by the courts below. 10. Learned counsel for the respondent nos. 1 to 3 contends that the challenge to the sale deed (Ext.A) being based on the ground of lack of permission of the competent authority as required under section 34 (2) of the OCH & PFL Act and that its void on that ground of violation of the statutory provision, the defendant nos. 10. Learned counsel for the respondent nos. 1 to 3 contends that the challenge to the sale deed (Ext.A) being based on the ground of lack of permission of the competent authority as required under section 34 (2) of the OCH & PFL Act and that its void on that ground of violation of the statutory provision, the defendant nos. 1 to 3 are under the legal obligation to discharge the burden of proof of said fact of grant of permission and they cannot be relieved of said legal obligation by merely advancing an averment in the written statement to that effect coupled with the recitals in that light in the document in question. Thus in the absence of proof of the very document in that connection and throwing light on that, his contention remains that the findings of the courts below cannot at all be termed as perverse so as to be held liable to be set aside. 11. The provision of sub-section 1 of section 34 of the OCH & PFL Act creates a bar for transfer or partition of the agricultural land in a locality so as to create a fragment. Next sub-section 2 of said section permits such transfer of fragment only to a land owner of contiguous chaka. However, sub-section 1 of section 35 of the OCH & PFL Act declares such transfer of fragment to a person other than the land owner of a contiguous chaka or partition creating fragment in contravention of the provision of Section 34 of the Act as void. As per provision of sub-Section 3 of section 34 of the Act such transfer of fragment or partition creating fragment is permissible only when the same is with the prior permission of the competent authority. Thus a bare reading of the above statutory provisions clearly leads to conclude that an owner of a chaka land is prohibited to transfer the fragment of it or to partition creating fragment to another, save and except to the contiguous chaka owner and in c se of any other person, it has to be with the prior permission of the said authority under the Act. 12. In the case in hand, the specific case of the contesting defendants is that the vendors of Ext.A had taken required permission under the OCH & PFL Act. 12. In the case in hand, the specific case of the contesting defendants is that the vendors of Ext.A had taken required permission under the OCH & PFL Act. They have been very specific by giving the case number which again finds mention in the registered sale deed in clear terms with the particular as regards the case number, date of order and the factum of its communication. Although the validity and legal force as well as the effect of the sale deed are attacked on other grounds, nonetheless its execution stands admitted. The courts below have found the sale to have been made for legal necessity. The recitals in the sale deed remain on the score of grant of the permission by the authority under OCH & PFL Act especially in view of the fact that the subject matter falls within the purview of the Act which prescribes prohibition and thus it has to satisfy the conditions laid down in the provision in terms of undertaking by the parties to the transaction for the registering authority to admit it for registration. The vendees namely Baikuntha and Sebaka as also Judhistir and Tapeswar for and on behalf of Ekadanta, are all bound by it. Such undertaking as stands is on the score that there has been no violation of above legal provision and in support of full compliance of the provisions of the said Act at the cost of inviting the attraction of the penal consequences as per law if found to be incorrect. In the event the said undertaking is shown to be in-correct than the vendors as well as vendees squarely stand in the position of violators of the provisions of law and thus remain equally guilty and the doctrine of ‘in peri delicto’ in my considered view very much comes into play where the suitor stands in the disadvantageous position unless he establishes to have done so without the requisite knowledge of said facts which have been so mentioned by way of manipulation or otherwise by the other party/ies or someone at their behest. This being the case before us, the party who challenges the transaction on that ground of non-compliance of the provisions of law in my considered view has to discharge the onous of proof of the factum of said non-compliance which stands shifted to him upon the proof of the execution of that document. This being the case before us, the party who challenges the transaction on that ground of non-compliance of the provisions of law in my considered view has to discharge the onous of proof of the factum of said non-compliance which stands shifted to him upon the proof of the execution of that document. The vendors are required to obtain permission and thus they or anyone claiming through them or those having interest in common with them cannot take the advantage and wriggle out of it by simply alleging non-compliance of the provisions of law especially in the above factual settings as narrated in throwing the burden upon the beneficiary. Since the registering authority has admitted the deed in question for registration basing upon such solemn declaration by the parties, the same binds the challenger very much until duly rebutted. In the instant case the courts below have lost sight of such important facts while going ultimately going to hold the transaction to be void on the ground of absence of permission even though the plaintiffs having the interest as same as the vendees have failed to discharge the onus of proving such recitals in Ext. A to be factually incorrect by leading clear and acceptable evidence. So the finding on this score as recorded by the courts below clearly suffers from the vice of perversity and being a flawed one, thus cannot be allowed to stand. This being the case, for the aforesaid on the above ground alone the finding of the trial court on issue no. 4 as affirmed by the lower appellate court is liable to be set aside and that this court hereby so does. 13. Above being the answer to the first substantial question of law in the affirmative running in favour of the appellants which itself is found to be enough to set aside the judgments and decrees impugned in this appeal and non-suit the plaintiffs, this court feels no further necessity to delve into the other two substantial questions of law which at this stage simply stand as of academic interest. 14. In the upshot of aforesaid discussion and reasons, the appeal is allowed. The suit i.e. T.S. No. 3 of 1992 of the court of Civil Judge (Sr.Divn.), Bargarh thus stands dismissed in its entirety holding the plaintiffs as not entitled to any of the reliefs as prayed for. 14. In the upshot of aforesaid discussion and reasons, the appeal is allowed. The suit i.e. T.S. No. 3 of 1992 of the court of Civil Judge (Sr.Divn.), Bargarh thus stands dismissed in its entirety holding the plaintiffs as not entitled to any of the reliefs as prayed for. In the facts and circumstances, the parties are, however, directed to bear their respective cost of litigation.