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2018 DIGILAW 1667 (ALL)

ADGER GERALD v. KAMATA

2018-07-30

VIJAY LAKSHMI

body2018
JUDGMENT Hon’ble Mrs. Vijay Lakshmi, J.—The present second appeal has been preferred against the judgment and decree dated 16.5.2018, passed by learned Additional District Judge, Jhansi whereby the learned lower appellate Court has dismissed the Civil Appeal No. 89/2016 filed by the plaintiff/appellant against the judgment and decree dated 25.10.2016 passed by Additional Civil Judge, (Senior Division), Court No. 1, Jhansi whereby dismissing the Original Suit No. 364 of 2010, Edgar Jerald v. Kampta Prasad and others, filed by the plaintiff-appellant. 2. The plaintiff-appellant, having lost his case in both the Courts below, is now before this Court by means of this second appeal. 3. Heard learned counsel for the appellant on the point of admission and perused the available record. 4. The brief facts giving rise to this appeal are that the appellant namely Adger Gerald, filed a civil suit against one Kamta, defendant-respondent for specific performance of contract. According to the plaint averments, on 16.3.2010, an agreement to sell his three plots of land i.e. Nos. 351D, 3672G and 4220, measuring 0.522 hectares, in favour of the plaintiff was executed by the defendant Kamta, for a consideration of Rs. 50,000/-, out of which Rs. 10,000/- was paid in advance to the defendant and the remaining Rs. 40,000/- was to be paid at the time of execution of the sale-deed. The defendant-respondent Kamta had given the assurance that he will execute the sale-deed within a period of two months after obtaining the required permission from the Collector. (Kamta being a member of Scheduled Caste and plaintiff being of non scheduled caste, permission was required). According to the plaint averments, the plaintiff was always ready and willing to perform his part of the contract, asking severally the defendant Kamta to receive the remaining Rs. 40,000/- and to get the sale-deed executed, but when Kamta did not execute the sale-deed, despite the issuance of notice to him, the plantiff-appellant was constrained to file a suit for specific performance of contract. 5. During the pendency of the suit, Kamta died, therefore, his wife and two sons were substituted, who filed their written statements in which they denied that Kamta ever executed any agreement to sell their land in favour of the plaintiff-appellant. 6. In the written statement it was stated that the father of the defendants had no other source of livelihood except the disputed plots of agricultural land. 6. In the written statement it was stated that the father of the defendants had no other source of livelihood except the disputed plots of agricultural land. Kamta never entered into any agreement with plaintiff to sell those plots. In fact, Kamta had asked the plaintiff to lend him Rs. 5000/- as loan, on which the plaintiff had asked him to mortgage his land. Kamta, was asked to put his thumb impression on some papers as mortgage deeds, who being an illiterate person, could not read and understand the contents of those papers and put his thumb impression. In the written statement it was also stated that the price of the disputed land was minimum Rs. 5 lakhs at that time, therefore, there was no question to sell it for a consideration of Rs. 50,000/-only. 7. The learned trial Court, on the basis of the pleadings, framed issues, recorded the evidence adduced by both the parties on those issues and found that admittedly defendants were a member of Scheduled Caste (Chamar), which is evident from the Paper No. 73-C in which the caste of defendant No. 1 (deceased) is written in brackets as (Chamar), therefore, even if it is assumed that any such agreement to sale was executed by the deceased Kamta, it will be barred by the provisions of Section 157-AA of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, (hereinafter referred to as the “U.P.Z.A.L.R Act”), therefore, it cannot be enforced and as the defendant No. 1 deceased Kamta had no right to sell his land, the agreement, if any, being in violation of the expressed provisions of law, was a void agreement barred by Section 23 of the Indian Contract Act, 1872. 8. On the aforesaid ground, learned trial Court dismissed the suit filed by the plaintiff-appellant. 9. The learned lower appellate Court after hearing the parties framed following two points for determination: (i) Whether the learned trial Court had erred in holding the suit barred by Section 157-AA of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950? (ii) Whether the learned trial Court had erred in holding the suit as barred by Section 23 of the Indian Contract Act? 10. (ii) Whether the learned trial Court had erred in holding the suit as barred by Section 23 of the Indian Contract Act? 10. Both the points for determination were decided in negative by the learned lower appellate Court and holding that the there is no illegality or irregularity in the judgment passed by the learned trial Court, the appeal filed by the appellant was dismissed by the lower appellate Court. Now, the plaintiff-appellant is before this Court in the second appeal. 11. Learned counsel for the appellant has challenged the legality and correctness of the orders passed by both the Court’s below on the following grounds: (i) Both the Court’s below have not taken into consideration the evidence available on record and has passed the judgment on the basis of surmises and conjectures. (ii) The learned trial Court has dismissed the suit only on the ground of absence of requisite permission of Collector before entering into the agreement of sale, (the seller being a member of a scheduled caste) without considering that the decree of specific performance by itself does not cause transfer of property, it merely declares the right of the parties, therefore, at the time of passing of decree for specific performance, the permission of the Collector was not required and the same could have been obtained before execution of decree, therefore, the question of permission by the Collector should not be made a ground for dismissing the suit. (iii) The learned trial Court has dismissed the suit in an arbitrary manner without keeping in view the fact that the plaintiff was always ready and willing to perform his part of the contract, but the defendant failed to perform his part, despite repeated requests made by the plaintiff to accept the remaining amount of Rs. 40,000/- and to execute the sale-deed. 12. On the aforesaid ground it has been contended that the suit for specific performance should have been decreed subject to the permission of the Collector, which was not done by both the Courts below. 13. 40,000/- and to execute the sale-deed. 12. On the aforesaid ground it has been contended that the suit for specific performance should have been decreed subject to the permission of the Collector, which was not done by both the Courts below. 13. In the memo of appeal, as many as eight substantial questions of law have been framed by learned counsel for the appellant, but a careful perusal of all those questions indicate that only controversy involved is that whether both the Court’s below were correct and justified in not decreeing the suit in favour of the plaintiff-appellant, holding it to be barred by Section 157-A, 157-AA of the of the U.P.Z.A.L.R Act and Section 23 of the Indian Contract Act ? 14. In order to appreciate the controversy involved in this case, Section 157-A and 157-AA (1) of the of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 are reproduced below: “[157-A Restrictions on transfer of land by members of Scheduled Castes.—(1) Without prejudice to the restriction contained in Sections 153 to 157, no bhumidhar or asami belonging to a Scheduled Caste shall have the right to transfer any land by way of sale, gift, mortgage or lease to a person not belonging to a Scheduled Caste, except with the previous approval of the Collector: Provided that no such approval shall be given by the Collector in case where the land held in Uttar Pradesh by the transferor on the date of application under this section is less than 1.26 hectares or where the area of land so held in Uttar Pradesh by the transferor on the said date is after such transfer, likely to be reduced to less than 1.26 hectares. (2) The Collector shall, on an application made in that behalf in the prescribed manner, make such inquiry as may be prescribed.]” [157-AA. (2) The Collector shall, on an application made in that behalf in the prescribed manner, make such inquiry as may be prescribed.]” [157-AA. Restrictions on transfer by members of Scheduled Castes becoming bhumidhar under Section 131-B—(1) Notwithstanding anything contained in Section 157-A, and without prejudice to the restrictions contained in Sections 153 to 157, no person belonging to a Scheduled Caste having become a bhumidhar with transferable rights under Section 131-B shall have the right to transfer the land by way of sale, gift, mortgage or lease to a person other than a person belonging to a Scheduled Caste and such transfer, if any, shall be in the following order of preference : (a) landless agricultural labourer; (b) marginal farmer; (c) small farmer; and (d) a person other than a person referred to in clauses (a), (b) and (c)” 15. Section 157-AA of the U.P.Z.A.L.R Act, which was brought by amendment in the year 1997 w.e.f. 23.5.1997 and which starts with a non-obstante clause, gives it an overriding effect on Section 157-A and it restricts a person belonging to Scheduled Caste even if he is a Bhumidhar with transferable rights to transfer his land by way of sale, gift, mortgage or lease to a person other than a person belonging to scheduled caste, even with the prior permission of Collector. 16. In the present case, the copy of agreement available on record shows that it has been executed on 16.3.2010. Thus, Section 157-AA of the U.P.Z.A.L.R Act was in force at the time of the agreement, therefore, the plaintiff being not a member of scheduled caste, the defendant Kamta had no right to sell his land to him or to enter into any contract or agreement to sell his land to him. Even if it is assumed that any such agreement for sale was executed between them, such agreement being in clear violation of the law of the land, was void ab-initio in the eyes of law and therefore, barred by Section 23 of the Indian Contract Act. 17. It would not have made any difference even if the Collector had accorded permission, at the time of execution of sale-deed because the permission of the Collector is required only when a member of a Scheduled Caste transfers his land to another member of Scheduled Caste. 17. It would not have made any difference even if the Collector had accorded permission, at the time of execution of sale-deed because the permission of the Collector is required only when a member of a Scheduled Caste transfers his land to another member of Scheduled Caste. Thus, the defendant No. 1 Kamta had no right to transfer his land to a person other than a person of Scheduled Caste at the time when alleged agreement for sale was executed by him in view of the restriction imposed by Section 157-AA of U.P.Z.A.L.R Act. 18. Both the Court’s below have rightly dismissed the suit and the appeal filed by the plaintiff-appellant. There is no need to interfere in the concurrent findings recorded by the learned trial Court. In view of the clear legal position, no arguable substantial questions of law is involved in this appeal. 19. The second appeal is liable to be dismissed at the admission stage itself and is accordingly dismissed.