Jharkhand High Court
Nayak Lalan Rai vs Yogendra Mahto on 6 July, 2018
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
S.A. No.165 of 2015
Nayak Lalan Rai ...... Appellant
Versus
1. Yogendra Mahto
2. Phulo Devi
3. Ashok Kumar Mahto
4. Kashi Ram Mahto
5. Leela Devi
6. Deepak Kumar Mahto
7. Sandeep Kumar Mahto
8. Anil Kumar Mahto
9. Soni Kumari ...... Respondents
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Lakhan Kr. Sahay, Advocate
For the Respondents :
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11/Dated: 06/07/2018
Heard learned counsel for the appellant.
The appellant is plaintiff.
Plaintiff has filed a suit for specific performance of contract on the ground that there was an agreement dated 31.08.1987 with the defendant for sale of 11 decimals and 108 Sq. fts of land pertaining to Revisional Survey Plot No. 1822 under Khata No. 153 of village Booty, P.S. Sadar, District-Ranchi for consideration amount of Rs. 25000/- out of which Rs.5000/- has been paid to them as advance on the same date and defendant agreed to execute the sale deed on getting the required permission under Land Ceiling Act although later on it was discovered that no such permission was required.
The Trial Court has framed six issues which are quoted hereinbelow:-
i. Is the suit of the plaintiff maintainable againt the defendant no.1 & 2 including the defendant no.3 ? ii. Has the plaintiff got any cause of action as alleged against these defendants?
iii. Whether the suit is maintainable for non-joinder of necessary parties namely Ram Kishore Mahto and Kashinath Mahto both sons of Bikhan Mahto, PS:
Sadar, District: Ranchi?
iv. Whether so called agreement executed and obtained by the plaintiff by playing fraud, misrepresentation and coercion?
v. Whether the plaintiff has constructed any house over 4 decimals of land?-2-
vi. To what relief/s the plaintiff is entitled to against these defendants No.1 & 2?
All the issues were settled in favour of the plaintiff and accordingly suit has been decreed.
Being aggrieved, defendant has filed an appeal being Title Appeal No.12 of 2013. The Appellate Court has framed two points for consideration which are quoted hereinbelow:-
(a) Whether the agreement to sell dated 31.08.1987 between the plaintiff and original defendants 1 & 2 is a valid and legal agreement, which can be enforced by specific performance of it?
(b) Whether the court below has committed any wrong either of fact or of law in decreeing the suit for specific performance of said contract for sale/agreement to sale?
Plaintiff has described himself in plaint as Nayak Lalan Rai son of Sri Mahendra Rai by caste Brahmin by faith Hindu, resident of village-Rajpura, PS-Arwal, District-Gaya. Thus, it is admitted position that the plaintiff is Brahmin by Caste and resident of District-Gaya not Ranchi.
The present case is transfer of land belonging to the backward class to a non backward class.
Section 46 of the C.N.T. Act, which is relevant provision, is quoted hereunder:
"46. Restrictions on transfer of their rights by raiyats. - (1) No transfer by a raiyat of his right in his holding or any portion thereof -
(a) by mortgage or lease for any period expressed or implied which exceeds or might in any possible event exceed five years, or
(b) by sale, gift or any other contract or agreement,shall be valid to any extent :
Provided that a raiyat may enter into a 'bhugut bundha' mortgage of his holding or any portion thereof for any period not exceeding seven years or if the mortgagee be a society registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (B.& O. Act VI of 1935) for any period not exceeding fifteen years :
Provided further that -
(a) an occupancy-raiyat who is a member of the Scheduled Tribes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale, exchange, gift or will to another person who is a member of the Scheduled Tribes and who is a resident within the local limits of the area of the police-station within which the holding is situate;-3-
(b) an occupancy-raiyat who is a member of the Scheduled Castes or Backward Classes may transfer with the previous sanction of the Deputy Commissioner his right in his holding or a portion of his holding by sale exchange, gift, will or lease to another person who is a member of the Scheduled Castes or, as the case may be, Backward Classes and who is a resident within the local limits of the district within which the holding is situate.
(c) any occupancy-raiyat may, transfer his right in his holding or any portion thereof to a society or bank registered or deemed to be registered under the Bihar and Orissa Co-operative Societies Act, 1935 (Bihar and Orissa Act VI of 1935), or to the State Bank of India or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970) or to a company or a corporation owned by, or in which less than fifty-one per cent of the share capital is held by the State Government or the Central Government or partly by the State Government, and partly by the Central Government, and which has been set up with a view to provide agricultural credit to cultivators; and
(d) any occupancy-raiyat who is not a member of the Scheduled Tribes, Scheduled Castes or backward classes, may, transfer his right in his holding or any portion thereof by sale, exchange gift, will, mortgage or otherwise to any other person. (2) A transfer by a raiyat of his right in his holding or any portion thereof under sub-section (1) shall be binding on the landlord. (3) No transfer in contravention of sub-section (1) shall be registered or shall be in any way recognised as valid by any Court, whatever in exercise of civil, criminal or revenue jurisdiction.
[(3A) Notwithstanding anything contained in any other law for the time being in force, the Deputy Commissioner shall be a necessary party in all suits of a civil nature relating to any holding or portion thereof in which one of the parties to the suit is a member of the Scheduled Tribes and the other party is not a member of the Scheduled Tribes.] (4) At any time within three years after the expiration of the period for which a raiyat has, under clause (a) of sub-section (1) transferred his right in his holding or any portion thereof, the Deputy Commissioner shall on the application of the raiyat put the raiyat into possession of such holding or portion in the prescribed manner.
[(4A) (a) The Deputy Commissioner may, of his own motion or on an application filed before him by occupancy-raiyat who is a member of the Scheduled Tribe, for annulling the transfer on the ground that the transfer was made in contravention of clause (a) of the second proviso to sub-section (1), hold an inquiry in the prescribed manner to determine if the transfer has been made, in contravention of clause (a) of the second proviso to sub-section (1):
Provided that no such application be entertained by the Deputy Commissioner unless it is filed by the occupancy-tenant within a period of twelve years from the date of transfer of his holding or any portion thereof:
Provided further that before passing any order under clause (b) or clause (c) of this sub-section, the Deputy Commissioner shall give the parties concerned a reasonable opportunity to be heard in the matter.
(c) If after holding the inquiry referred to in clause (a) of this sub-
section, the Deputy Commissioner finds that there was no -4- contravention of clause (a) of the second proviso to sub-section (1) in making such transfer, he shall reject the application and may award such costs to the transferee to be paid by the transferor as he may in the circumstances of the case deem fit.
(c) If after holding the inquiry referred to in clause (a) of this sub- section, the Deputy Commissioner finds that such transfer was made in contravention of clause (a) of the second proviso to sub- section (1), he shall annul the transfer and eject the transferee from such holding or portion thereof, as the case may be, and put the transferor in possession thereof:
Provided that if the transferee has constructed any building or structure, such holding or portion thereof, the Deputy Commissioner shall, if the transferor is not willing to pay the value of the same, order the transferee to remove the same within a period of six months from the date of the order, or within such extended time not exceeding two years from the date of the order as the Deputy Commissioner may allow failing which the Deputy Commissioner may get such building or structure removed:
Provided further that where the Deputy Commissioner is satisfied that the transferee has constructed a substantial structure or building on such holding or portion thereof before the commencement of the Chotanagpur Tenancy (Amendment) Act, 1969 (President's Act 4 of 1969) he may, notwithstanding any other provisions of this Act, validate such a transfer made in contravention of clause (a) of the second proviso to sub-section (1), if the transferee either makes available to the transferor an alternative holding or portion of a holding, as the case may be, of the equivalent value, in the vicinity or pays adequate compensation to be determined by the Deputy Commissioner for rehabilitation of the transferor.
Explanation.- In this section 'substantial structure or building' means the structure or building of the value exceeding five thousand rupees on the date of holding enquiry, but it does not include such structure or building of any value the material of which cannot be removed without incurring substantial depreciation in its value.
(5) Nothing in this section shall affect the validity of any transfer (not otherwise invalid) of a raiyat's right in his holding or any portion thereof made bonafide before the first day of January 1903 in the Chota Nagpur Division except the district of Manbhum, or before the first day of January, 1909, in the district of Manbhum.
[(6) In this section [and in section 47]-
(a)"Scheduled Castes" means such castes, races or tribes as are specified in Part II of the Schedule to the Constitution (Scheduled Castes) Order,1950 ;
(b)"Scheduled Tribes" means such or tribal communities or parts of or groups within such tribes or tribal communities as are specified in Part II of the Schedule to the Constitution (Scheduled Tribes) Order, 1950 ; and
(c)"backward classes" means such tribes, classes of citizens as may be declared by the State Government, by notification in the Official Gazette, to be socially and educationally backward.] As per section 46 of C.N.T. Act, an occupancy raiyat who is a member of backward class may transfer his land to another backward class, who is the resident within the local limits of the -5- district within which the holding is situated with prior permission of the Deputy Commissioner of the district.
The present case relates to district of Ranchi, and as per requirement of the C.N.T. Act, no prior permission has been taken nor even pleaded. Thus, the agreement to sale by a non backward class community (purchaser) with backward class (seller) is hit by Section 46 of the C.N.T. Act.
Further sub clause 3 of Section 46 of C.N.T. Act clarifies that such transfer even cannot be registered by registering authority and cannot be recognized by any court.
In view of the above discussion, it is evident that the agreement is in contravention of Section 46 of the C.N.T. Act.
The relevant provision of Sections 2(g) and 2(h) of Indian Contract Act are quoted hereunder:
2(g) An agreement not enforceable by law is said to be void;
2(h) An agreement enforceable by law is a contract; Indian Contract Act Section 23, illustration (i) is quoted hereunder:
A's estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited from purchasing the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect, a purchase by the defaulter and would so defeat the object of the law. (i) A's estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited from purchasing the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect, a purchase by the defaulter and would so defeat the object of the law."
(emphasis supplied) From above section, it is clear that an agreement in contravention of law is void agreement and it does not come under the definition of contract.
The alleged agreement dated 31.08.1987 is thus void agreement and does not come under the definition of contract and no relief can be granted to the plaintiff as he has filed suit for performance of void agreement as discussed above.-6-
The appellate court has considered the matter properly and has accordingly reversed the finding, holding that agreement dated 31.08.1987 is void and hit by Section 46 of the C.N.T. Act and as such appellant is not entitled for relief of specific performance of contract.
Section 20 of the Specific Relief Act, 1963, which is relevant, provides that if there is a valid agreement amounting to contract capable of enforcement, even then specific performance can be denied but discretion has to be exercised judiciously.
The judgment of Apex Court in the case of Parakunnan Veetill Joseph's Son Mathew vs Nedumbara Kuruvila's Son And Ors. reported in 1987 SCC 340 from which Para-14 is quoted hereunder:
14. Section 20 of the Specific Relief Act, 1963 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance.
(emphasis supplied) Even, if there is a contract between the parties, the court has to exercise it discretion taking totality of the facts and circumstances.
In the present case as the land is non transferable from backward class to any person outside the class and as such discretion has rightly been exercised by the First Appellate Court by refusing the relief and reversing the decree.
In view of the above discussion, this Court finds no merit in the present appeal, accordingly the same is hereby dismissed.
(Rajesh Kumar, J.) Shahid/ A.F.R.