Orissa High Court
Afr Rama Chandra Pradhan & Others vs Dinabndhu Pradhan & Others on 19 July, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
RSA No. 74 of 2003
[In the matter of an appeal under Section 100 of the Code
of Civil Procedure, 1908.
---------------
AFR Rama Chandra Pradhan & others ..... Appellants
-Versus-
Dinabndhu Pradhan & others ..... Respondents
Advocate(s) appeared in this case :-
_________________________________________________________
For Appellants : M/s. S.K. Dash, S.K. Mishra,
B. Mohapatra, S.K. Dash & A.
Dhalasamant, Advocates
For Respondents: M/s. N.C. Pati, S. Mishra, S.K. Bal,
A. Das, N. Singh & M.R. Dash,
Advocates.
__________________________________________________________
CORAM
JUSTICE SASHIKANTA MISHRA
JUDGMENT
19th July, 2024 SASHIKANTA MISHRA, J. The defendants are the appellants against a confirming judgment. Impugned in this appeal is the judgment dated 16.01.2003 followed by decree passed by learned District Judge, Puri in Title Appeal No. 90 of 1999, whereby the judgment dated 09.09.1999 followed by Page 1 of 12 decree passed by the Civil Judge (Jr. Division), Puri in Title Suit No. 74/1996 was confirmed.
2. For convenience, the parties are referred to as per their respective status in the trial Court.
3. The suit in question was filed by the plaintiff, Dinabandhu Pradhan for declaration of the registered sale deed executed by defendant Nos.2 to 4 in favour of the defendant No.1 as void, confirmation of possession and title of the plaintiff over the suit land with permanent injunction against defendant No.1 from interfering in his possession and for direction to defendant Nos. 2 to 4 to transfer their interest over the suit land in favour of the plaintiff by way of sale.
4. The plaintiff's case in brief is that Khata No. 84, Plot No. 522 measuring an area of Ac. 0.64 dec. of village Narapur forms a compact Chaka bearing consolidation Chaka No.154 being jointly recorded in his name and the deceased mother of defendant Nos.2 to 5 in the consolidation ROR. The shares of the plaintiff and defendant Nos. 2 to 5 have been noted in the ROR. The Page 2 of 12 recorded owners were in joint possession of the land and after death of the co-owner, the plaintiff continued to possess the entire suit land. He also gave 1/3rd share of the usufructs to defendant Nos.2 to 5. After conclusion of the consolidation operation, defendant Nos.2 to 4 surreptitiously sold a portion of the land, which is described in the schedule to the plaint, to defendant No.1 without informing the plaintiff and without seeking necessary permission, thereby creating a fragment. As such, the provision under Section 34 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (in short, 'OCH & PFL Act') was violated. Nevertheless, possession was never delivered to defendant No.1, who taking advantage of the void sale, wanted to disposes the plaintiff. Hence, the suit.
5. Defendant Nos.1 to 4 filed a joint written statement contesting the suit. Defendant No.5 was set ex- parte. It was admitted that the plaintiff was in possession of the suit Chaka and also that they had sold a portion thereof to defendant No.1. It is however, their case that Page 3 of 12 they first offered to sell the land to plaintiff but he refused and suggested to sell the same to defendant No.1. Accordingly, defendant No.1 being approached by defendant Nos.2 to 4, he agreed and thereafter the sale deed was executed in his favour and in presence of the plaintiff. As such, it is pleaded that the sale is legal and binding on the parties.
6. Basing on the rival pleadings, the trial Court framed the following issues:
1. Is the suit maintainable?
2. Whether the sale deed executed by defendant Nos. 2 to 4 in favour of defendant No.1 is void?
3. Has the plaintiff any cause of action to file the suit?
4. What other relief the plaintiff is entitled to?
7. After holding the suit to be maintainable, the trial Court took up Issue No.2 for consideration. On the admitted facts, the trial Court found that the sale of Ac.0.15 1/3rd dec. of land from the Chaka creates a fragment and is therefore, in violation of Section 34 of the OCH & PFL Act, the land being an agricultural land. In view of the specific provision under Section 35 OCH & PFL Page 4 of 12 Act, the sale was held to be void and so was the sale deed. The other issues were accordingly answered in favour of the plaintiff and the suit was decreed in part by declaring the registered sale deed as void and restraining defendant No.1 from entering upon the suit land and interfering with the possession of the plaintiff.
8. The defendants carried the matter in appeal to the District Court. Learned District Judge also held that the transfer was in contravention of Section 34 of the OCH & PFL Act. It was further held that the defendant No.1 was not in possession over the suit land and therefore, the Civil Court had jurisdiction to deal with the matter. It was also held that Section 53 of OCH & PFL Act has an overriding effect on Section 44 of the Transfer of Property Act and therefore, the so called refusal of the plaintiff to purchase the land offered for sale by the co-owners is of no consequence. On such finding, the appeal was dismissed.
9. Being further aggrieved, the defendants preferred this second appeal, which has been admitted on the following substantial questions of law: Page 5 of 12
"(i)Whether the permission U/s.34 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Lands Act, 1972 was necessary before registration of the deed of conveyance in favour of the appellants?
(ii) Whether the civil Court has jurisdiction to entertain the suit of this nature, as presumably it is barred U/s. 51 (2) of the Act?"
Be it noted that law having undergone a change during pendency of this appeal, the following additional substantial questions of law was framed.
"Whether the provision under Section 36-A of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Lands (Amendment) Act, 2023 would apply to the present proceedings?
10. Heard Mr. S.K. Dash, learned counsel appearing for the appellants and Mr. Budhiram Das, learned counsel appearing for the plaintiff-respondents.
11. Mr. Dash would contend that law having undergone a substantial change in the meantime he would confine his arguments only to such extent as it would suffice to decide the lis. In this context, Mr. Dash has referred to Section 36-A of the Amendment Act to submit that all transfers of agricultural land creating fragmentation prior to coming into force of the said Page 6 of 12 amending Act have been validated save and except those in which eviction has been ordered by the Collector under Sub-Section (2) of Section 35 of the Principal Act. He further submits that in the instant case admittedly no order of eviction has been passed by the Collector. Therefore, the sale transaction, which was declared void by both the courts below has, by operation of law become automatically validated and therefore, the suit of the plaintiff has to be dismissed.
12. Mr. Budhiram Das on the other hand would argue that the amended provision can only have a prospective operation. He however, fairly concedes that the amending provision is a validating provision of all transactions taking place prior to its coming into force.
13. In view of the subsequent development, this Court is of the view that the additional substantial question of law famed at the time of hearing of this appeal alone needs determination. In this context, it is seen that the admitted position of the parties is that a registered sale deed was executed bearing No.340 dated 19.02.1996 by Page 7 of 12 defendant Nos. 2 to 4 in favour of defendant No.1 for transfer of land measuring Ac.0.15 1/3rd dec. It is not in dispute that said portion of land is part of consolidated Chaka measuring 0.64 dec. under Khata No. 84 and Plot No. 522. It would now be apposite to refer to the relevant statutory provision. Chapter-V, as it stood prior to amendment relates to prevention of fragmentation and contains Sections 33, 34 and 35, which are quoted hereinbelow.
"33. This Chapter shall apply to an area in respect of which a notification under section 41 has been issued.
34. (1) No agricultural land in a locality-shall be - transferred or partitioned so as to create a fragment.
(2) No fragment shall be transferred except to a-
land-owner of a contiguous Chaka:
Provided 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 or 2 of 1934 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.
(3) 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 prescribed manner to the Tahasildar of the locality for this purpose whereupon the Tahasildar shall, as far as practicable within Page 8 of 12 forty-five days from 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.
(4) When the fragment is not sold 'in course of the auction, it may be transferred to the State Government and the State Government, shall, on payment of the market value determined under sub section (3), purchase the same and thereupon: the fragment shall vest in the State Government free from all encumbrances. (5), Nothing in sub-sections (1) and (2) shall apply to a transfer of any land for such public purposes as may be specified by notification in this behalf by the State: Government.
35.(1) A. transfer or partition in contravention of the provisions of section 34 shall be void. (2), A person occupying, or in possession of any
34. land by virtue of a transfer or partition which is void under the provisions of this Act, may be summarily evicted by, the Collector."
14. Thus, as the law stood then, ordinarily no transfer could be allowed if it created a fragment, the exceptions being as provided under sub-Sections (2) and (3) of Section 34. It is not in dispute that the conditions laid down under Sub-Sections (2) and Sub-Sections (3) are not fulfilled. Thus, ordinarily, the sale transaction would have been void.
15. However, the OCH & PFL Act underwent an amendment in the year 2023 in the form of the Odisha Page 9 of 12 Consolidation of Holdings and Prevention of Fragmentation of Land (Amendment) Act, 2023 (in short 'Amendment Act, 2003'). A new Section being Section 36-A was inserted and the entire Chapter-V was omitted. Section 36-A reads as follows:
"36A. Any transfer or partition of agricultural land in a locality creating fragmentation made under the Principal Act before the commencement of the Odisha Consolidation of Holdings and Prevention of Fragmentation of Land ( Amendment) Act , 2023, shall be treated as valid:
Provided that cases where any eviction has been made by the Collector under sub- section (2) of Section 35 of the Principal Act as omitted in this Act shall not be reopened."
16. A bare reading of the amended provision quoted above would make it clear that the bar for transfer or partition of agricultural land creating fragmentation as provided under Sub-Section(1) of the erstwhile Section 34 has been taken away. The legislature in its wisdom deemed it proper to lift the bar by omitting the entire chapter-V. Further, all such sale transactions that have not culminated in passing of an order of eviction by the Collector in respect of the transferred land prior to coming Page 10 of 12 into force of the amended provision, have been validated. The amended provision has not been qualified or restricted in any other manner.
17. Now the question arises whether the change of law could be applied to the pending proceedings. Admittedly, the suit was filed in the year 1996 and decreed in September, 1999. The first appeal was preferred in the year 1999 and allowed in January, 2003. The amendment was effected on 28.12.2023, i.e. after a long gap of more than 20 years from the date of filing of the suit. The question of retrospective operation of the amended provision would not arise for discussion in view of the very nature of the amended provision. To amplify, the amended provision itself is enacted to cover all cases of transfer and partition taking place prior to coming into its force save and except those in which an order of eviction has already been passed. Obviously, the legislature did not deem it proper to reopen such cases. But in all those cases, where order of eviction has not yet been passed, the provision seeks to validate the same in one go.
Page 11 of 12
18. This change in law has undoubtedly created a peculiar situation inasmuch as the impugned judgment cannot be said to be wrongly passed in view of the law prevailing then, but law has changed as narrated before and that too in such manner that the same has to be taken note of in the pending proceeding.
19. Similar view has been taken by a coordinate Bench of this Court in the cases of Benudhar Swain vs. Bahudi Jena (RSA No. 289 of 2016 decided on 15.02.2024) and Umakanta Pradhan vs. Rabi Narayan Pradhan (RSA No. 7 of 2024, decided on 08.02.2024).
20. For the foregoing reasons therefore, this Court holds that in view of the provision under Section 36-A of Amendment Act, the RSD executed by defendant Nos.2 to 4 in favour of defendant No.1 is valid. Accordingly, the impugned judgment and decree are set aside. The suit of the plaintiff is dismissed.
................................
Sashikanta Mishra, Judge Signature Not Verified Orissa High Court, Cuttack Digitally Signed The 19th July, 2024/ A.K. Rana, P.A. Signed by: AJAYA KUMAR RANA Designation: PERSONAL ASSISTANT Reason: Authentication Location: High Court of Orissa, Cuttack Date: 22-Jul-2024 12:32:51 Page 12 of 12