Rajasthan High Court - Jaipur
Banwari Lal vs Anand & Ors on 3 May, 2012
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH O R D E R S.B. Civil Revision Petition No.138/2009 Banwari Lal Vs. Anand and others Date of Order : 03.05.2012 PRESENT HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr. Hansraj Kuldeep for the petitioner.
Mr. Satish Khandal for the non-petitioners.
REPORTABLE Heard learned counsel for the parties.
2. The defendant-petitioner has preferred this civil revision petition under Section 115 of the Code of Civil Procedure against the impugned order dated 17.3.2009 passed by Additional District Judge Kotputli (District Jaipur) in Civil Suit No.45/2007 whereby the learned Court below has dismissed the application under Order 7 Rule 11 CPC filed by the petitioner.
3. Brief relevant facts for the disposal of this revision petition are that the plaintiff-non-petitioners filed a suit for specific performance of contract and permanent injunction against the defendant-petitioner on 1.10.2007 in the Court below with the averment that the petitioner agreed to sell 0.10 hectare land out of an agriculture land of his khatedari comprising in Khasra No.1080 in lieu of sale consideration of Rs.50,000/- and in this regard an agreement to sell was also executed on 10.5.2002. It was also averred that the entire amount of sale consideration was paid to the petitioner on the same day and physical possession was also handed over to the non-petitioners. It was further submitted that the petitioner undertook and made a promise that he will get the agriculture land so sold converted for non agriculture use and after that he will either get a 'Patta' issued or execute a registered sale deed in favour of the non-petitioners. As the petitioner failed to execute the registered sale deed as well as get the requisite 'Patta' issued in favour of non-petitioners despite several demands made and notice issued by the non-petitioners, present suit was filed with the prayer that a decree for specific performance may be passed to the effect that the petitioner after getting the land converted for non agriculture purpose either execute a registered sale deed or get a 'Patta' issued in favour of the non-petitioners. It was also prayed that a decree for permanent injunction may be passed restraining the petitioner not to further sale or otherwise transfer the land in question to any other person in any manner and be restrained to interfere in the peaceful possession and occupation of the non-petitioners in the land in question. The petitioner filed written statement on 15.7.2008 and therein the material averments made in the plaint were denied and it was specifically contended that the alleged agreement to sell is in violation of Section 42 of the Rajasthan Tenancy Act (hereinafter to be referred as 'the Act') as a person of scheduled caste category cannot transfer agriculture land of his khatedari to a person who is not a member of that category. On 6.10.2007 an application under Order 7 Rule 11 CPC was filed by the petitioner and it was averred and prayed therein that the agreement to sell, on the basis of which the present suit for specific performance of contract has been filed, is against the provisions of Section 42 (b) of the Act as it provides that a person of scheduled caste category cannot transfer agriculture land to a person not belonging to that category and, therefore, the agreement is ab-intio void and inenforceable under Section 23 of the Contract Act. It was prayed that the suit be dismissed on that account only. Reply to the application was filed by the non-petitioners on 11.10.2007 and it was submitted that the land in question was agreed to be sold by the petitioner to the non-petitioners with an undertaking and condition that the same will be first converted for non agriculture purposes and thereafter either a registered sale deed will be executed or he will get a 'Patta' issued in favour of the non-petitioners and, therefore, it cannot be said that the agreement to sell is against the provisions of Section 42 (b) of the Act. It was also averred that as in the light of the undertaking and promise made by the petitioner, the land in question is required to be converted for non agriculture use first, the prohibition imposed by Section 42 (b) of the Act is not applicable. It was further averred that at present the land in question is not being used for agriculture purposes and it was purchased with an undertaking that it will be used for residential purpose and infact it has been converted for non agriculture purpose at the site. Learned Court below after hearing both the parties dismissed the application filed by the petitioner. It was reasoned by the Court below that as the petitioner undertook in the agreement dated 10.5.2002 itself that the land in question will be sold only after getting it converted for non agriculture purpose, the prohibition contained in Section 42 (b) of the Act is not applicable at this stage of the proceedings and it being a mixed question of law and fact can be decided only after recording the evidence of both the parties. Feeling aggrieved, the defendant-petitioner is before this Court by way of this civil revision petition.
4. Assailing the impugned order, learned counsel for the petitioner submitted that it is an admitted fact that the land in question is an agriculture land and till date it has not been converted for non agriculture purpose in accordance with law and it is also an admitted fact that the petitioner is a member of scheduled caste category whereas the non-petitioners are members of general class. It was further submitted that Section 42 (b) of the Act prohibits a transfer of agriculture land belonging to a member of scheduled caste or scheduled tribe to a person not member of such a class and such transfer is void abintio and such transfer cannot be given effect and no right accrues under such transfer to the transferee. It was also submitted that Section 23 of the Contract Act provides that a void and illegal transaction is not enforceable in law and, therefore, the suit even for specific performance of contract can not be maintained on the basis of such agreement to sell. It was also submitted that merely because according to plaint averments and the stipulation made in the agreement to sell the petitioner undertook to get the land converted for non agriculture purpose, the nature of land can not be said to have converted for non agriculture purpose. It was further submitted that the learned Court below has wrongly held that looking to the undertaking given by the petitioner, the objection raised is a mixed question of fact and law requiring recording of evidence of the parties to decide whether the suit is barred by law or not.
In support of his submissions, learned counsel for the petitioner relied upon the cases of Heera Singh vs. State of Rajasthan & Ors. reported in 2007 (3) WLC (Raj.) 560 and Smt.Soni and Ors. vs. The Board of Revenue & Ors. reported in 2008 (5) WLC (Raj) 505.
5. On the other hand, learned counsel for the non-petitioners by supporting the impugned order, submitted that an application filed under Order 7 Rule 11 CPC is to be decided only on the basis of averments made in the plaint and at the most considering the documents filed by the plaintiff alongwith the plaint and if in the present case the averments made in the plaint and terms contained in the agreement to sell dated 10.5.2002 are considered, it is clear that the petitioner undertook and promised that after getting the land in question converted for non agriculture use, he will either execute a registered sale deed or get a 'Patta' issued in favour of the non-petitioners and, therefore, at this stage of the proceedings without recording evidence of the parties, it cannot be said that the land agreed to be sold was an agriculture land and the provisions of Section 42 (b) of the Act have been contravened. According to learned counsel for the non-petitioners the matter could have come within the purview of Section 42 (b) of the Act only when the petitioner would have agreed to sell the land in question as an agriculture land.
6. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law.
7. It is an admitted position that the land in question which has allegedly been agreed to be sold by the petitioner to the non-petitioners by executing the agreement to sell dated 10.5.2002 was at the time of the agreement an agriculture land and it is still an agriculture land as it has not been converted for non agriculture use in accordance with law. I am of the considered view that unless an agriculture land is converted for non agriculture use in accordance with the relevant legal provisions of the Rajasthan Land Revenue Act, it remains and shall also be considered to be an agriculture land despite the fact that at the site it has been converted for non agriculture use. I am also of the considered view that merely because the petitioner undertook and promised that he will get the land in question to be converted for non agriculture purpose and thereafter he will either execute a registered sale deed or get a 'Patta' issued in favour of non-petitioners, in absence of conversion of the same for non agriculture purpose in accordance with law it cannot be said that it has automatically converted for non agriculture purpose and the petitioner infact made an agreement to sell a non agriculture land to the non-petitioners. The fact is that the land in question was and is still an agriculture land and the suit has been filed for specific performance of an agreement to sell an agriculture land standing in the khatedari of the petitioner. Mere construction of a boundary wall or some other construction on an agriculture land without proper permission of a competent authority can not change its real nature. It also appears that the land in question in revenue record still stands as an agriculture land in the name of the petitioner as khatedar tenant. An agriculture land can be used for non-agriculture purpose only in accordance with law. Therefore, the reasoning upon which the learned Court below has dismissed the application filed by the petitioner cannot be held to be legally sustainable.
8. Now the question which remains to be decided is whether an agreement to sell of an agriculture land executed by a member of scheduled caste category in favour of a person not a member of that category is enforceable in law and a suit for specific performance and permanent injunction can be maintained upon such an agreement ?
Section 42 (b) of the Act provides that the sale, gift or bequest by a khatedar tenant shall be void, if such sale, gift or bequest is by a member of scheduled caste in favour of a person who is not a member of scheduled caste, or by a member of scheduled tribe in favour of a person who is not a member of scheduled tribe. Meaning thereby, a member of scheduled caste may transfer his interest in whole or a part of his holding only to the member of the scheduled caste and a member of scheduled tribe may to a member of the scheduled tribe only. The emphasis of Section 42 is to maintain rights of a member of scheduled caste/scheduled tribe in their own category. The transferee should be a member of scheduled caste, if the transferor is from scheduled caste, and same will be the position in the caste of scheduled tribe also. As a matter of fact Section 42 does not permit transfer of interest in a land holding by a member of scheduled caste/scheduled tribe even to a person who is not having any caste. The sole emphasis of the provisions of Section 42 is to protect scheduled castes and scheduled tribes from social injustice and to ensure their economic rights. For this purpose land holding rights of these sections are kept intact in their own category.
In the case of Balu Vs. Birda reported in 1982 RLW 391 it has been held by a learned Single Bench of this High Court that even a compromise by way of which an agriculture land belonging to a scheduled caste or scheduled tribe is transferred to a person who is not a member of such class is hit by the provisions of Section 42 and such transfer by way of compromise is void. According to learned Single Bench the word transfer includes all direct and indirect methods.
In the case Ramchandra Vs. Om Prakash reported in 1978 RLW 442, the learned Division Bench of this High Court has held that the sale in contravention of the provisions to Section 42 of the Act which categorically forbids the sale by a member of the scheduled caste or scheduled tribe in favour of person who is not member of that class is forbidden by law within the meaning of Section 23 of the Indian Contract Act and it is well settled that where a contract, which a party seeks to enforce, expressly or by implication is forbidden by any law, no Court will lend its assistance to give it effect.
In the case of Chhail Singh Vs. State of Rajasthan reported in 2008 WLC (Raj.) UC 733 it has been held that even if a transfer of an agriculture land belonging to a member of scheduled caste/scheduled tribe comes about in favour of a person, not a member of such category, consequent upon a decree passed by a competent court whether exparte, or by contest, by compromise or fraudulent, is also hit by the prohibition enacted by Section 42 of the Act, and consequently void ab-initio and invalid and no khatedari rights can be conferred on the decree-holder on the basis of such decree.
In the caste of V.A. Freindship Solar Park Pvt. Ltd. Vs. State of Rajasthan reported in 2012 (1) WLC (Raj.) 216 Hon'ble Division Bench of this High Court has held that even transfer of land in favour of a juristic person like a company is void if it is made in contravention of Section 42 (b) of the Act.
In the case of Amrendra Pratap Singh Vs. Tej Bahadur reported in AIR 2004 (SC) 3782 Hon'ble Supreme Court has held in an immovable property belonging to a tribal, title could not be acquired by invoking the doctrine of adverse possession by a non-tribal.
In the case of State of Rajasthan Vs. Uka & others reported in 2010 (4) WLC (Raj.) 1 Hon'ble Full Bench of this High Court has held that agriculture land belonging to a member of scheduled caste/scheduled tribe and mortgaged to a Land Development Bank cannot be sold to a person who is not a member of such class even to recover the amount of loan outstanding against such member as such sale would contravene the provisions of Section 42 (b) of the Act.
It is thus, clear that any kind of transfer of an agriculture land belonging to a member of scheduled caste/scheduled tribe to a person who is not a member of such category is void ab-initio and such transaction is forbidden by law and it cannot be enforced in a Court of law.
In the caste of Smt.Mayawanti Vs. Smt. Kaushalya Devi reported in JT 1990 (3) SC 205 Hon'ble Supreme Court has held that :
In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered of the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation.
Thus, it is clear that even for a suit for specific performance to be maintained it is essential that the contract or agreement, upon which the suit is based, should be valid and enforceable in law and if it suffers from some defect which makes it invalid or enforceable, the suit cannot be maintained.
In the present case, the agreement to sell dated 10.5.2002 said to be executed by the petitioner a member of scheduled caste, in favour of the non-petitioners members of general class, is void and forbidden by law being made in contravention of Section 42 (b) of the Act and provisions of Section 23 of the Indian Contract Act, even a suit for specific performance cannot be maintained upon it. The learned Court below without considering the matter in a right perspective has dismissed the application filed by the petitioner under Order 7 Rule 11 CPC only by finding that the question raised is a mixed question of fact and law which can be decided only after recording the evidence of the parties. Order 7 Rule 11 CPC provides that if from the averments made in the plaint the suit appears to be barred by law, the plaint would be liable to be rejected. The net result of the above discussion is that the revision petition is liable to be allowed and as a consequence of that the application filed under Order 7 Rule 11 CPC is also liable to be allowed and the plaint filed by the non-petitioners is required to be rejected.
Consequently, the revision petition is allowed and the impugned order 27.3.2009 is set aside and by allowing the application filed under Order 7 Rule 11 CPC, the plaint filed by the plaintiff-non-petitioners in Civil Suit No.45/2007 pending in the Court of Additional District Judge Kotputli (District Jaipur) is rejected.
(PRASHANT KUMAR AGARWAL), J teekam All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary