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2016 DIGILAW 889 (ORI)

Bachha Rout v. State of Orissa

2016-10-03

D.DASH

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JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Jagatsinghpur in R.F.A. No. 22 of 2007 confirming the judgment and decree passed by the learned Civil Judge (Jr. Division), Kujanga in C.S. No. 78 of 2004. The appellant as the plaintiff had filed the suit for declaration of his right, title, interest and possession over the suit land with further prayer to declare the order dated 30.10.1998 passed by the Collector, Jagatsinghpur in Consolidation Misc. Case No. 02 of 1997 as illegal and not binding on him. The suit having been dismissed, as unsuccessful plaintiff, he had carried an appeal under section 96 of the Code of Civil Procedure. That appeal having also been dismissed, therefore, the move is before this Court by filing the second appeal under section 100 of the Code. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiff’s case is that the suit land under Khata no. 129, Chaka No. 117, plot no. 132 measuring Ac. 0.83 decimals which is a part of the total land extending to Ac. 1.66 decimals in mouza Baidigadi stood jointly recorded in the name of Laxmi Gochhayat and Kalyani Gochhayat as per the Consolidation Record of Right published on 20.04.1983. It is the case that Laxmi Gochhayat died leaving behind her son and daughters arraigned as defendant no. 3 to 5. It is stated that, the plaintiff being the sister’s son of defendant no. 6 was treated by her as her foster son. The defendant no. 6 sold the suit land in favour of the plaintiff after obtaining necessary permission from the Tahasildar as required under section 34(3) of the OCH & PFL Act 1972 (hereinafter for short, called as ‘the Act’). The defendant no. 6 for the purpose then executed a registered sale-deed on 30.10.1989 on receipt of valuable consideration followed by delivery of possession to the knowledge of the defendants and all other concerned. Pursuant to the said purchase, the plaintiff claims to have mutated the suit land in his favour in Mutation Case No. 2125 of 1995 and thus as its owner is in possession of the same. After sometime the Collector, Jagatsinghpur in Consolidation Misc. Pursuant to the said purchase, the plaintiff claims to have mutated the suit land in his favour in Mutation Case No. 2125 of 1995 and thus as its owner is in possession of the same. After sometime the Collector, Jagatsinghpur in Consolidation Misc. Case No. 02 of 1997 initiated at the behest of Laxmi Gochhayat, the predecessor-in-interest of defendant no. 3 to 5, the co-tenant in respect of the land under Khata no. 129 declared, the sale-deed standing in favour of the plaintiff as void with further direction for eviction. It is, thus urged that such order is illegal and has been passed in violation of principles natural justice, equity and fair play, especially when there has been no challenge by defendant no. 6, the executants of the said sale-deed. In view of said order as the defendant no. 3 to 5 threatened the plaintiff to dispossess him from suit land, the present suit has been filed. 4. The defendant no. 3 to 5 (6) contested the suit by filing joint written statement. It is their case that it was not legally permissible for the vendor of the plaintiff i.e., defendant no. 6 to alienate the suit land to the plaintiff since that is a portion of chaka land thus causing fragmentation of chaka that too without any specific permission by competent authority being given on that score as mandated under Act. It is also stated that the sale-deed therefore has rightly been declared void by the Collector, Jagatsinghpur in Misc. Case No. 02 of 1997. This permission is said to have been given by the Tahasildar as projected by the plaintiff in support of his purchase has been attacked as nonest in the eye of law. It is also said that the plaintiff has fraudulently snatched away said sale deed in respect of the part of the suit chaka by causing its fragmentation without any consideration being paid to the so called executant. The mutation order pursuant to the said sale-deed thus has also been challenged to be having no legal backing and force. So, the sale-deed as also the mutation order are not binding on defendant no. 3 to 5. 5. Faced with the above rival pleadings, the trial court framed nine issues. Going to answer important issues which are issue no. The mutation order pursuant to the said sale-deed thus has also been challenged to be having no legal backing and force. So, the sale-deed as also the mutation order are not binding on defendant no. 3 to 5. 5. Faced with the above rival pleadings, the trial court framed nine issues. Going to answer important issues which are issue no. 3, 4, and 5 concerning the validity of the permission said to have been given in Consolidation Misc. Case No. 53 of 1989 as projected by the plaintiff in support of his purchase by registered sale-deed dated 20.04.1983; the validity of the order passed by the Collector, Jagatsinghpur in Misc. Case no. 02 of 1997 and consequently the entitlement of the reliefs as claimed by the plaintiff, the trial court has answered all those against the plaintiff by going to hold that by virtue of said sale-deed dated 20.04.1983 vide Ext. 1, the plaintiff has not been clothed with the title in respect of land covered under the said sale-deed which is the suit land. In the said exercise, the order of permission said to have been given by the Tahasildar in Consolidation Misc. Case No. 53 of 1989 has been found to be nonest in the eye of law while holding the order of the Collector in Consolidation Misc. Case No. 02 of 1997 as valid. The order of the Collector, declaring the sale-deed standing in favour of the plaintiff to be void thus has been upheld. These answers have ultimately led the trial court to non-suite the plaintiff. The lower appellate court being moved by the unsuccessful plaintiff as is seen has rightly taken up the exercise of sustainability of the above findings of the trial court. On analysis of evidence on record in the backdrop of the rival pleadings and legal provision, the findings have remained the same as recorded by the trial court. In this way, the plaintiff having been non-suited by both the courts below has now knocked the door of this Court with the second appeal. 6. Learned counsel for the appellant submits that the defendant no. 3 to 5 having not challenged the order of permission granted by the Tahasildar in Consolidation Misc. In this way, the plaintiff having been non-suited by both the courts below has now knocked the door of this Court with the second appeal. 6. Learned counsel for the appellant submits that the defendant no. 3 to 5 having not challenged the order of permission granted by the Tahasildar in Consolidation Misc. Case No. 53 of 1989 in the forum as prescribed under the provision of section 34(3)-(a) of the Act, the learned Collector, Jagatsinghpur had no jurisdiction to ignore the same while deciding the proceeding under section 35 of the Act as it is also not within scope of the said proceeding to negate the earlier order of permission. Thus, he contends that so long as that order of permission granted in Consolidation Misc. Case No. 53 of 1989 is not set aside in accordance with law, the same stands valid for which the sale-deed standing in favour of the plaintiff, Ext. 1 could not have been declared void by the learned Collector in proceeding under section 35 of the Act. Therefore, it is his contention that the plaintiff ought to have been granted with the relief of declaration of right, title and interest in respect of his purchased land i.e., suit land. These according to him are the substantial questions of law which surface in this case for their certification for the purpose of admission of this appeal. 7. In order to appreciate the contention as above, the LCR has been called for and perused. The order of the Collector, Jagatsinghpur (Ext. 5) passed under section 35 of the Act declaring the sale-deed Ext. 1 said to have been executed by defendant no. 6 in favour of plaintiff as void has been admitted in evidence and marked as Ext. 1. The declaration has been made as it reveals from the said deed as to non-contravention of provisions of section 34 of the Act. The Collector, Jagatsinghpur having duly noticed the parties including the plaintiff, has found the earlier order of Tahasildar in Consolidation Misc. Case No. 53 of 1989 to have been passed without even serving any notice upon the other recorded tenant i.e., Laxmi Gochhayat who is none other than the applicant before the Collector. Therefore, the permission granted by Tahasildar has been held to be nonest in the eye of law. 8. Case No. 53 of 1989 to have been passed without even serving any notice upon the other recorded tenant i.e., Laxmi Gochhayat who is none other than the applicant before the Collector. Therefore, the permission granted by Tahasildar has been held to be nonest in the eye of law. 8. The prohibition contained in sub-section 1 of section 34 of the Act is that no agricultural land in the locality shall be transferred or partitioned so as to create a fragment. The agricultural land has been defined in section 2(b) of the Act which means land held or occupied for agriculture or for purposes connected with the agriculture and includes the house or similar structure standing over such land ancillary to agriculture as also trees, wells and other improvements existing on such land. The other prohibition is contained in section 34(2) of the Act with which we are concerned in the present case. It is said that no fragment shall be transferred except to an owner of the contiguous chaka. There remains a proviso to it which has no relation to the present case and therefore needs no mention. The definition of ‘fragment’ is contained in section 3(m) of the Act which means a compact parcel of agricultural land held a land owner by himself or jointly with others comprising an area which is less than one acre in the district of Cuttack, Puri, Balasore, Ganjam and in Anandapur sub-division in the district of Keonjhar and less than two acres in other areas of the State. Since this land is situated in the undivided district of Cuttack which was then at the time of commencement of the Act as on 10.08.1973, the fragment can be taken as a compact parcel of agriculture land held by the land owner himself or jointly with others comprising an area which is less than 1 acre. Here the area sold is Ac. 0.83 decimals and the balance remaining is Ac. 0.38 decimals. So, the fragment is created by such sale. Here the area sold is Ac. 0.83 decimals and the balance remaining is Ac. 0.38 decimals. So, the fragment is created by such sale. Sub-section 3 of the section 34 provides that when the person intending to transfer fragment is unable to do so owing to the restrictions imposed under sub-section -2, he may apply to the Tahasildar of the locality who shall determine the market value of fragment and sale it through an auction among the land owners of contiguous chakas at the value not less than the market value so determined. As per sub-section-4 of said section when the fragment is not sold in course of the auction it may be transferred to the State Government who shall on payment of market value so determined under sub-section -3 purchase the same and there upon the fragment shall vest in the State free from all encumbrances. 9. Here, it is not the case of the plaintiff that defendant no. 6 having intended to sale the fragment had asked the other co-tenant i.e., Laxmi or even to any other contiguous chaka owners to purchase and because of their non-response had sought for permission. The Tahasildar as is seen from the order of the Collector has abruptly with utter disregard to the provision of law as discussed above and even not serving a notice upon the co-tenant i.e., Laxmi has passed the order granting permission throwing the provisions of the rules 32, 33 and 34 to the wind. In view of such non-compliance of mandatory provisions of law and flagrant violation of the rule of natural justice, the learned Collector, Jagatsinghpur has very rightly ignored the said order of Tahasildar passed in Consolidation Misc. Case No. 53 of 1989 and thus is right in declaring the sale-deed to be void being in contravention of the section 34 of the Act. The permission under the circumstances as projected by the plaintiff in support of his purchase is no permission in the eye of law and as such is nonest. So, its invalidity can be set up in any proceeding and at any stage even in co-lateral proceedings. The permission under the circumstances as projected by the plaintiff in support of his purchase is no permission in the eye of law and as such is nonest. So, its invalidity can be set up in any proceeding and at any stage even in co-lateral proceedings. The Collector, Jagatsinghpur, therefore, did commit no mistake in proceeding to dispose of the petition filed by Laxmi Gochhayat in finally declaring the sale-deed standing in favour of the plaintiff as void being un-fettered by the order of the Tahasildar even though it had not been called in question in accordance with the provision of section 34 (3-a) of the Act by filing appeal before the Sub-Divisional Officer within a period of sixty days. In view of aforesaid discussions and reasons, the submission of the learned counsel for the appellant stands repelled. The appeal thus does not merit admission. 10. Resultantly, the appeal stands dismissed. No order as to cost.