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2019 DIGILAW 556 (ORI)

Muchiram @ Mochiram Barik v. Sundarmani Bag

2019-09-04

A.K.RATH

body2019
JUDGMENT : A.K. Rath, J. This is a plaintiff's appeal against the reversing judgment in a suit for specific performance of contract. 2. Case of the plaintiff is that the defendant was the owner of the suit plot. To press the legal necessity, the defendant executed an agreement on 9.4.1986 in his favour to sell the land for consideration of Rs.7500/- and received Rs.5500/- towards part consideration. It was agreed that the balance consideration amount of Rs.2000/- shall be paid at the time of registration of the sale deed. The defendant is a scheduled caste person. He filed an application before the Sub-Divisional Officer, Sambalpur to alienate the land. He did not take any steps, for which the case was dropped. The defendant sent a legal notice on 5.6.1989 to him stating that he has returned the advance consideration amount of Rs.5500/- to him. The notice is false. He is ready and willing to perform his part of contract and called upon the defendant to sell the land. With this factual scenario, he instituted the suit. 3. The defendant filed written statement denying the assertions made in the plaint. The case of the defendant is that the plaintiff approached him to sell the land. There was a residential house over the land. He agreed to sell the land for a consideration of Rs.7500/-. The valuation of the residential house was Rs.30,000/-. In order to get permission from the Revenue Officer, the plaintiff got an agreement to sell the land for a consideration of Rs.7,500/- and took his signature in the deed. The plaintiff paid an amount of Rs.5,500/- to him in advance. The plaintiff had to pay Rs.2,000/- for the land and Rs.30,000/- for the house. The question of sale of house was not incorporated in the deed of agreement, lest the Revenue Officer might not accord permission to sell the land along with the house. There was an understanding between the parties that after the permission is accorded, the plaintiff shall purchase the land together with the house from him on payment of balance amount of Rs.32,000/-. He filed an application before the Sub-Divisional Officer, Sambalpur for obtaining permission to sell the land. But the same was rejected. The S.D.O. directed the plaintiff to pay the reasonable market price of Rs.3000/- for decimal. The plaintiff refused the same. 4. He filed an application before the Sub-Divisional Officer, Sambalpur for obtaining permission to sell the land. But the same was rejected. The S.D.O. directed the plaintiff to pay the reasonable market price of Rs.3000/- for decimal. The plaintiff refused the same. 4. On the interse pleadings of the parties, learned trial court struck eleven issues. Both parties led evidence, oral and documentary. Learned trial court decreed the suit holding that the agreement to sell, Ext.1, is valid. Accordingly, it directed the defendant to sell the suit land by executing a register sale deed after obtaining necessary permission from the Revenue Officer and Consolidation Officer. It directed the defendant to present necessary application to accord permission before the concerned Revenue Officer and Consolidation Officer within one month. Assailing the judgment and decree, the defendant filed appeal before learned District Judge, Sambalpur, which was subsequently transferred to the court of learned Addl. District Judge, Sambalpur and renumbered as T.A. No.21/4 of 1991-93. Learned lower appellate court allowed the appeal and directed the defendant to refund Rs.5,000/- with interest @9% per annum to the plaintiff from the date of filing of the suit till the date of realization. 5. This appeal was admitted on the substantial questions of law enumerated in ground nos.2 and 3 of the appeal memo. The same are: "2. For that the learned lower appellate court has absolutely erred in law and should have held on the findings that the plaintiff had always been ready and willing to perform his part of contract and it was the defendant who will-fully refused to perform his part of contract and the court has got to enforce the terms of the contract and enjoined upon the defendant to make the necessary applications to the concerned authorities for permission. 3. For that the learned lower appellate court has absolutely erred in law in holding that it is immaterial even if the defendant did not take necessary interest in obtaining the permission and should have confirmed the judgment of learned trial court directing the defendant to apply for necessary permission for sale of the suit land to the plaintiff." 6. Heard Dr. Sujata Dash, learned Advocate for the appellant. None appeared for the respondent. 7. The plaintiff has filed an application under Order 41 Rule 27 CPC being Misc. Heard Dr. Sujata Dash, learned Advocate for the appellant. None appeared for the respondent. 7. The plaintiff has filed an application under Order 41 Rule 27 CPC being Misc. Case No.221 of 1994 to admit the certified copy of the order-sheet in OLR Case No.29/87 as well as the application filed by the defendant under Se.22 of the OLR Act in the said case as additional evidence. 8. Dr. Dash, learned Advocate for the appellant submitted that the defendant was the owner of the suit plot. He had executed the agreement to sell, Ext.1, in favour of the plaintiff to sell the land for a consideration of Rs.7,500/- and received Rs.5,500/- towards part consideration. The defendant is a scheduled caste person. He took Rs.200/- from the plaintiff to file an application under Sec.22 of the OLR Act before the S.D.O., Sambalpur. On the application of the defendant, OLR Case No.29/87 was registered. The petition was dismissed for non-prosecution. The assertion of the plaintiff is that the application for permission to sell the land was rejected is not correct. The order passed by the S.D.O. in OLR Case No.29/87 is necessary to pronounce the judgment. In view of the same, the application for additional evidence may be allowed. She further submitted that the restriction under Sec.22(4) of the OLR Act has been made for protecting the scheduled caste. Under Sec.4(2) of the OCH & PFL Act, no sale deed can be registered in respect of consolidation chaka, unless the sale deed is accompanied by certified copy of the order passed by the competent authority. The court has jurisdiction to sell the property belonging to a scheduled caste under Sec.22(3) of the OLR Act and accord permission. She further submitted that the plaintiff is willing to perform his part of contract. Learned trial court decreed the suit. But on untenable and unsupportable grounds, learned lower appellate court has reversed the decree. The court has jurisdiction to sell the property belonging to a scheduled caste under Sec.22(3) of the OLR Act and accord permission. She further submitted that the plaintiff is willing to perform his part of contract. Learned trial court decreed the suit. But on untenable and unsupportable grounds, learned lower appellate court has reversed the decree. She placed reliance on the decision of the apex Court in the case of Dalip Singh vs. State of Uttar Pradesh and others, (2010) 2 SCC 114 and this Court in the cases of Ram Chandra Swain vs. Subdivisional Officer, Sadar, Cuttack and other, (1972) 38 CutLT 980, Petambar Pujari vs. Bhikari Meher and another, (1977) AIR Orissa 16, State Bank of India vs. M/s.Ashok Stores and others, (1982) 53 CutLT 552 and Somanath Sipka vs. State of Orissa and others, (1984) 58 CutLT 306. 9. In Union of India vs. Ibrahim Uddin and another, (2012) 8 SCC 148 , the apex Court held: "36. The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, the provision does not apply, when on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (Vide K. Venkataramiah v. A. Seetharama Reddy, Municipal Corpn. Of Greater Bombay v. Lala Pancham, Soonda Ram v. Rameshwarlal and Syed Abdul Khader v. Rami Reddy). xxx xxx xxx 39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. (Vide K. Venkataramiah v. A. Seetharama Reddy, Municipal Corpn. Of Greater Bombay v. Lala Pancham, Soonda Ram v. Rameshwarlal and Syed Abdul Khader v. Rami Reddy). xxx xxx xxx 39. It is not the business of the appellate court to supplement the evidence adduced by one party or the other in the lower court. Hence, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide State of U.P. v. Manbodhan Lal Srivastava and S. Rajagopal v. C.M. Armugam.)." 10. In M/s.Ashok Stores and others, this Court held: "xxx xxx xxx The Supreme Court in Arjan Singh's case, approved the rule laid down in Kessowji's case, as reiterated in Parsotim's case, and held:- "The true test, therefore, is whether the appellate Court is able to pronounce the judgment on the materials before it without taking into consideration the additional evidence sought to be adduced." 11. In the application for additional evidence, it is stated that the certified copies are public documents and the said documents are necessary to pronounce the judgment. No reason has been assigned as to why the document was not produced at the trial or first appellate court. As held by the apex Court in the case Ibrahim Uddin and another, in the absence of satisfactory reasons for the non-production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this Rule. The plaintiff had ample opportunity to produce the document in the lower court. He failed to do so. Moreover, the documents are not necessary for pronouncing the judgment. 12. The plaintiff had ample opportunity to produce the document in the lower court. He failed to do so. Moreover, the documents are not necessary for pronouncing the judgment. 12. Sec.22(1)(B) of the Orissa Land Reforms Act, 1960 stipulates that any transfer of holding or part thereof by a raiyat, belonging to a scheduled tribe shall be void except where it is in favour of a person not belonging to a scheduled tribe when such transfer is made with the previous permission in writing of the Revenue Officer. Sub-sec.(5) stipulates that the provisions contained in sub-sec.(1) to (4) shall apply mutatis mutandis, to the transfer of a holding or part thereof a raiyat belonging to the scheduled caste. Provision of sec.22(1) is mandatory. 13. Sub-Sec.(1) of Sec.34 of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 provides that no agricultural land in a locality shall be transferred or partitioned so as to create a fragment. Sub-sec.(2) provides that no fragment shall be transferred except to a land-owner of a contiguous Chaka. Proviso to sub-sec.(2) stipulates that a fragment may be mortgaged or transferred in favour of the State Government, a Co-operative Society, a scheduled bank within the meaning of the Reserve Bank of India Act, 1934 (2 of 1934) or such other financial institution as may be notified by the State Government in that behalf as security for the loan advanced by such Government, Society, Bank or institution, as the case may be. Sub-sec.(3) provides that when a person, intending to transfer a fragment, is unable to do so owing to restrictions imposed under sub-section (2), he may apply in the prescribing manner to the Tahasildar of the locality for this purpose whereupon the Tahasildar shall, as far as practicable within forty-five days from the receipt of the application determine the market value of the fragment and sell it through an auction among the land owners of contiguous Chakas at a value not less than the market value so determined. Sub-sec.(1) of Sec.35 provides that a transfer or partition in contravention of the provisions of Sec.34 shall be void. 14. Admittedly, the suit plot is a part of consolidation khata no.145, chaka no.17, plot no.102 of mouza-Lamdumri, P.S.-Hirakud, Dist.-Sambalpur. No permission was accorded by the Revenue Officer under Sec.22 of the Orissa Land Reforms Act. Thus possession of the defendant is illegal. 14. Admittedly, the suit plot is a part of consolidation khata no.145, chaka no.17, plot no.102 of mouza-Lamdumri, P.S.-Hirakud, Dist.-Sambalpur. No permission was accorded by the Revenue Officer under Sec.22 of the Orissa Land Reforms Act. Thus possession of the defendant is illegal. Further, no permission was accorded by the consolidation authority for alienation of a part of chaka. The court cannot direct the consolidation authority to alienate a part of chaka or the Revenue Officer to alienate the land belonging to a scheduled caste in favour of non-scheduled caste. The authorities have been vested with the jurisdiction to accord permission under the respective statutes. As rightly held by learned lower appellate court in the event the specific performance of contract is granted, the same would be inexecutable. Agreement to sell is not enforceable. Learned Munsif dehors its jurisdiction in compelling the Revenue Officer to accord permission. There is no perversity in the said finding. The substantial questions of law are answered accordingly. 15. In wake of aforesaid, the appeal, sans merits, deserves dismissal. Accordingly, the same is dismissed. No costs.