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Madhya Pradesh High Court · body

2017 DIGILAW 238 (MP)

SHAHEED KHAN v. HARNAM SINGH

2017-02-14

SANJAY YADAV

body2017
ORDER : 1. The matter is posted for consideration of I.A. No. 1540/2017 an application for grant of interim relief. Be it noted that the interim relief which was granted earlier was vacated on 6.1.2017 as the petitioner had remained absent and was not coming forward to address the matter on admission nor had chosen to file reply to I.A. No. 344/2016 an application for vacating the stay filed way back on 4.11.2016, despite repeated opportunity. Be that as it may. Since the pleadings are complete and the matter is repeatedly posted for hearing on admission, it is taken up for hearing by declining the adjournment sought. 2. Petitioner takes exception to order dated 5.10.2015 passed by the Collector District Sagar whereby, he reversed the order dated 30.5.2014 passed by the Sub Divisional Officer, Khurai District Sagar, whereby in a proceedings brought under the provisions of The Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam 1976, (for short Adhiniyam 1976) he declared the sale deed dated 23.12.2003 and 7.11.2006 as null and void. 3. That a land bearing Khasra No.5 admeasuring 1.25 hectares is jointly recorded in the name of Shahid Khan, Mumtaz Khan, Islam Khan all sons of Hayat Khan and Smt. Ulfat W/o Hayat Khan in the Revenue Records. 4. On 23.12.2003, Shahid Khan, Islam Khan and Smt. Ulfat Begum sold 3/4 of their share i.e, 0.93, hectare in favour of Harnam Singh, respondent no.1 vide registered sale deed. Later on Shahid Khan vide sale deed dated 7.11.2006 sold the remaining part , i.e, 0.33 of said Khasra in favour of Harnam Singh. Though the said portion could be of Mumtaz Khan. However, since Mumtaz Khan has not come forward against said transaction of 0.33 hectare, it is presumed that Shahid Khan had the Authority to sell the said portion also. 5. It is pertinent to note at this stage that none of the sale deed contained a recital that the same is conditional sale in lieu of any loan transaction. Nor any material has been commended at to establish that a separate agreement has been entered into between the said sellers, i.e, petitioner and the purchaser, i.e, respondent no.1 that the transaction is in lieu of the loan advanced. 6. Nor any material has been commended at to establish that a separate agreement has been entered into between the said sellers, i.e, petitioner and the purchaser, i.e, respondent no.1 that the transaction is in lieu of the loan advanced. 6. Later on, on the basis certain transaction which took place between the petitioner on 1/1/2004, 14.6.2004 and 7.11.2006, petitioner filed an application before the Sub Divisional Officer under Section 5 of the Adhiniyam 1976 in the year 2011 and sought cancellation of the sale deeds that since the transaction is in lieu of the loan advanced the same being prohibited transaction as the petitioner were holders of land in the weaker sections. 7. Respondents denied the contention that the transfer of land vide impugned sale deed was in lieu of loan advanced. It was contended that respective share holders of the property transferred their share at two different part of time for valuable consideration. It was contended that being the owner of the land in question he granted the same on lease to the petitioners for the period of one year from 1.5.2010 as per term of Ikrarnama. It was stated that since the petitioner did not abide by the term of lease the petitioner paid certain cash amount and to avoid its compliance, petitioner took a plea that the sale was in lieu of loan advanced which has been returned. 8. Sub Divisional Officer after considering the claim and the denial and the evidence led by respective parties held that the applicant/petitioner are the holder of agricultural land in the weaker section of the people and that the transaction was a prohibited transaction of loan. Accordingly, declared the sale deeds dated 7.11.2006 and 23.12.2003 as null and void. 9. In an Appeal under Section 8 of Adhiniyam 1976, the Appellate Authority on the same set of facts and evidence concluded contrary to the view taken by Sub Divisional Officer holding that the transaction was not a prohibited transaction of loan. It found that none of the ingredients required transaction to hold that a transaction is prohibited transaction of loan were available in respect of the transaction in question. It found that none of the ingredients required transaction to hold that a transaction is prohibited transaction of loan were available in respect of the transaction in question. The Appellate Authority held: **izdj.k esa layXu [kljk ikaplkyk udy ds vuqlkj [k0ua0 5 jdok 1-25 gs0 'kghn [kak] bLyke [kka] eqerkt [kka mYQr ckbZ ds uke ij ntZ gSA izdj.k esa izLrqr fodz; i= fnuakd 23-12-2003 dks iz'uk/khu Hkwfe [k0ua0 5 jdok 1-25 gs0 esa ls 0-93 gs0 'kghn [kka] bLyke [kka firk g;kr [kka] mYQr csok g;kr [kka us fgLlk 3@4 dk fodz; fd;k x;k gSA rFkk eqerkt [kka ds fgLls dh Hkwfe 'ks"k cph 'ks"k Hkwfe [k0ua0 5@1 jdok 0-33 gs0 dk fodz; izfrvihykFkhZ dzekadand 01 kghn [kka }kjk fnukad 07-11-2006 dks iqu% fd;k x;k gSA tcfd ;g Hkwfe [kkrsnkj eqerkt [kka ds fgLls dh 'ks"k FkhA izdj.k esa dh xbZ foospuk ls eSa bl fu"d"kZ ij igqapk gwa fd izdj.k esa izLrqr [kljk ikaplkyk ds vuqlkj Hkwfe [k0ua0 5 jdok 1-25 gs0 [kkrsnkj 'kfgn [kka] eqerkt [kka] bLyke [kka firk g;kr [kka ,oa mYQr csok g;kr [kka ds uke ij ntZ gSA mDr Hkwfe [kkrsnkj 'kghn [kka] bLyke [kka] Jherh mYQr csok g;kr [kka }kjk [k0ua0 5 jdok 1-25 gs0 esa ls vij 3@4 fgLlk jdok 0-93 gs0 dzsrk gjuke flag firk f[kyku flag jktiwr fuoklh yyksbZ dks fnuakd 23-12-2003 dks fodz; fd;k x;k gS] cSukek esa ;g mYys[k fd;k x;k fd mRrj esa eqerkt [kka dh cph tehu gS] Li"V gS fd fnuakd 23-12-2003 dks vkosndx.k vius fgLls dh iwjh Hkwfe fodz; dj pqds Fks] mDr Hkwfe ij mudk dksbZ gDd o fgLlk 'ks"k ugha cpk FkkA fnuakd 07-11-2006 dks 'kghn [kka }kjk Hkwfe [k0ua0 5@1 jdok 0-33 gs0 dk cSukek gjuke flag dks fd;k x;k] og vkonsdx.k dh Hkwfe ugha Fkh] vkosndx.k }kjk vius vkosnu i= esa izfrfl) laO;ogkj dh rkjh[k fnuakd 01-01-2004] 14-06-2004] 07-11-2006 n'kkZbZ xbZ gSA tcfd ,d cSukek fnuakd 23-12-2003 dks fd;k x;k gS] vkosndx.k }kjk vius vkosnu ds leZFku esa dtZ laca/kh dksbZ nLrkost is'k ugha fd;s vkSj u gh [kkrsnkj bLyke [kka] mYQr dh lk{; vafdr djkbZ xbZA nksuksa csukekvksa ij dzsrk ds ukekUrj.k ds laca/k esa viuh dksbZ vkifRr is'k ugha dh vkSj Hkh ,sls rF; gS ftUgsa vkosnd.k }kjk Nqik;k x;k gSA vuqfoHkkxh; vf/kdkjh [kqjbZ }kjk izdj.k esa izLrqr tokc ,oa yh xbZ lk{; ,oa rdksZ ds vk/kkj ij gh viuk vkyksPp vkns'k ikfjr fd;k gSA vihykFkhZ ,oa izfrvihykFkhZ ds e/; gqvk laO;gkj okLro esa m/kkj dk laO;gkj gS bl bl laca/k esa muds }kjk izdj.k esa izLrqr cSukek fnuakd 23-12-2003 ,oa 07-11-2006 ds laca/k esa viuh dksbZ foospuk u dj ldk Lor% dk dksbZ fu"d"kZ ugha fudkyk x;k gS] rFkk gYdk iVokjh ds izfrosnu dks ekU; dj Hkh _qfV dh gSA v/khuLFk U;k;ky; dk izdj.k izFke n`"V~;k e0iz0 lekt ds detksj oxksZ dh d`f"k Hkwfe /kkjdksa dk m/kkj nsus okyksa ds Hkwfe gMius laca/kh dqpdzksa ls ifj=k.k rFkk eqfDr vf/ku;e 1976 dh ifjf/k esa ugh ik;k tkrk gSA vr% vihykFkhZ dh vihy Lohdkj dh tkdj v/khuLFk U;k;ky; vuqfoHkkxh; vf/kdkjh [kqjbZ dk vkyksP; vkns'k fnuakd 30-05-2014 _qfV iw.kZ gksus ls fujLr fd;k tkrk gSA vkns'k dh izfr lfgr v/khuLFk U;k;ky; dk vfHkys[k okfil fd;k tkosA** 10. Question which crops up for consideration is whether the transaction in question was a prohibited transaction of loan. 11. Section 2 (f) of the Adhiniyam, 1976 defines the prohibited transaction of loan to mean: (f) "prohibited transaction of loan" means a transaction in which a lender of money advances loan to a holder of agricultural land against security of his interest in land, whether at the time of advancing the loan or at any time thereafter during the currency of the loan in any of the following modes, namely : (i) agreement to sell land with or without delivery of possession; (ii) outright sale of land with or without delivery of possession accompanied by separate agreement to re-sell it; (iii) outright sale of land with or without delivery of possession with a distinct oral understanding that the sale shall not be acted upon if the loan is re-paid; (iv) outright sale of land with or without delivery of possession with a condition incorporated in the sale deed to re-sell it on re-payment of the loan; (v) transaction in any modes other than those specified in clauses (i) to (iv) affecting interest in land including a fraudulent transaction or a transaction designed to defeat the provisions of any law regulating money lending or interest, for the time being in force, and includes all those transactions in which a lender of money has, after the appointed day but on or before the date of publication of this Act in the Gazette, obtained possession of land of the holder of agricultural land through court or by force or otherwise or obtained a decree for such possession towards satisfaction of loan." 12. Thus even if a person is holder of agricultural land in the weaker section [as defined under Section 2(c) of 1976 Adhiniyam] unless the transaction is proved to be through any of the mode stipulated under Section (2) (f) of 1976 Adhiniyam, i.e, (i) agreement to sell land with or without delivery of possession; (ii) outright sale of land with or without delivery of possession accompanied by separate agreement to re-sell it; (iii) outright sale of land with or without delivery of possession with a distinct oral understanding that the sale shall not be acted upon if the loan is re-paid; (iv) outright sale of land with or without delivery of possession with a condition incorporated in the sale deed to re-sell it on re-payment of the loan; (v) transaction in any modes other than those specified in clauses (i) to (iv) affecting interest in land including a fraudulent transaction or a transaction designed to defeat the provisions of any law regulating money lending or interest, for the time being in force, and includes all those transactions in which a lender of money has, after the appointed day but on or before the date of publication of this Act in the Gazette, obtained possession of land of the holder of agricultural land through court or by force or otherwise or obtained a decree for such possession towards satisfaction of loan, it cannot be termed as prohibited transaction. 13. In the present case though it was contended by the petitioner that though there was an out right sale with the delivery of possession with a distinct oral understanding that the sale shall not be acted upon if the loan is repaid. The evidence which the petitioner led was all hearsay and there is no direct evidence as to oral understanding arrived at between the petitioner and respondent and that to a two distinct point of time having gap of three years between the transfers. There is no explanation tendered by the petitioner as to two distinct shares sold differently. And about the lease agreement between the petitioner and respondent. As the respondent being the leas-or having leased out his property with certain share in the produce which if not delivered has to be compensated in terms of money. The money which has been tendered was towards the lease rent in terms of money in lieu of 20 quintals of grain. 14. As the respondent being the leas-or having leased out his property with certain share in the produce which if not delivered has to be compensated in terms of money. The money which has been tendered was towards the lease rent in terms of money in lieu of 20 quintals of grain. 14. In view whereof, the transfer of land vide registered sale deed dated 23/12/2003 and 7/11/2006 is not a prohibited transaction for loan. The conclusion arrived at by the Collector, i.e; Appellate Authority cannot be faulted with. 15. Consequently, petition fails and is dismissed. No costs.