Orissa High Court
Bimbadhara Pradhan vs Bhramarabar Mohanty And Another on 18 December, 2017
Author: A.K.Rath
Bench: A.K.Rath
HIGH COURT OF ORISSA: CUTTACK
SA No.199 of 2000
From the judgment and decree dated 10.3.2000 and 30.3.2000 respectively
passed by Sri B.K. Dash, learned 1st Addl. Civil Judge (Senior Division),
Cuttack in T.A No.33 of 1997 confirming the judgment and decree dated
22.3.1997and 8.4.1997 respectively passed by Ms. Namita Das, learned Civil Judge (Junior Division), 2nd Court, Cuttack in T.S. No.161 of 1993.
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Bimbadhara Pradhan .... Appellant
Versus
Bhramarabar Mohanty & another .... Respondents
For Appellant ... Mrs. Padmaja Pattnaik, Adv.
For Respondents ... None
JUDGMENT
PRESENT:
THE HONOURABLE DR. JUSTICE A.K.RATH
Date of hearing: 06.12.2017 : Date of judgment: 18.12.2017
Dr. A.K.Rath, J Defendant no.1 is the appellant against a confirming judgment.
2. Plaintiff-respondent no.1 instituted the suit for permanent injunction. The case of the plaintiff was that the suit schedule property is a joint family property of the plaintiff and the defendant no.2. The suit property was recorded in their names in the consolidation ROR. The same had not been partitioned by metes and bounds. Defendant no.1 managed to obtain the sale deed from defendant no.2. The sale is in contravention of the Orissa 2 Consolidation of Holdings and Prevention of Fragmentation of Land Act ('OCH & PFL Act') and as such void.
3. Defendant no.1 filed a written statement. It was pleaded that there was an amicable partition of the suit property between the plaintiff and defendant no.2 after publication of the consolidation ROR. Defendant no.2 was in possession of Ac.0.173 dec. out of Ac.0.346 dec. of land. Defendant no.2 transferred his land in favour of defendant no.1 by means of a registered sale deed dated 08.10.1993 for a valid consideration. Notification under Sec. 41 of the OCH & PFL Act had not been issued on the date of execution of the registered sale deed. Therefore, the provision of Sec.32 and 34 of the OCH & PFL Act shall not come into play. The suit property is more than one acre of land and as such, the same cannot be termed as 'fragment'.
4. On the inter se pleadings of the parties, learned trial court has framed eight issues. Both the parties led evidence, oral and documentary, in support of their cases. Learned trial court came to hold that Ext.1 is valid, but then defendant no.1 is not in possession of the suit property. Held so, it decreed the suit. Feeling aggrieved defendant no.1 filed Title Appeal No.33 of 1997 before the learned District Judge, which was transferred to the court of the learned 1st Addl. Civil Judge (Senior Division), Cuttack. The appeal was dismissed.
5. The second appeal was admitted on the substantial questions of law enumerated in Ground Nos.15,16,17 and 18 of the appeal memo. The same are -
"15. Whether in view of contradictory pleading between plaintiff and defendant no.1 on the question of partition the finding of the court below that the sale of the suit land in favour of appellant is invalid because there has been no partition cannot be sustained in law without framing an issue on the question of partition of the land jointly 3 purchased by appellant and respondent and without a finding on such issue ?
16. Whether the omission on the part of the court below to consider order of mutation court Ext.B mutating appellant's name in respect of suit land after accepting oral partition between Respondent No.2 (Defendant No.2) and the appellant (Defendant No.1) is an error of law on account of which the impugned judgment is liable to be set aside particularly when the question of partition is the most important question which arises for consideration in the suit out of which this appeal arises ?
17. Whether in view of contradictory pleading of the parties with regard to title and possession over the suit land a simple suit for permanent injunction without seeking a relief of declaration of title and confirmation of possession is maintainable ?
18. Whether in view of the provision contained under Sec.44 of T.P Act to the effect that when out of two or more co-sharers owning joint property one co-sharer transfer his undivided share in the said property to an outsider and that the said outside purchaser has a right of joint possession along with other co-sharers, the plaintiff can institute the present suit to permanently injunct the appellant (defendant no.1) from going upon suit land when in law he is entitled to joint possession with the plaintiff ?"
6. Heard Mrs. Padmaja Pattnaik, learned counsel on behalf of Mr. Sabita Ranjan Pattnaik, learned counsel for the appellant. None appeared for the respondents.
7. Learned counsel for the appellant submitted that defendant no.1 is an adjacent plot owner. Defendant no.2 alienated more than one acre of land in favour of defendant no.1. The same cannot be construed as 'fragment'. She further submitted that after sale, the suit property was mutated in the name of defendant no.1. Thus simple suit for permanent injunction without consequential relief is not maintainable. She further contended that the finding of the courts below that there was no partition is not sustainable in law in absence of any issue to that regard. She relied on the decisions in the case of Gurunath Manohar Pavaskar & others v. Nagesh Siddappa Navalgund & others, AIR 2008 SC 901, Shib Nath Paul v.
4Jaharlal Paul and others, AIR 1982 Calcutta 143, Maharu and others v. Dhansai and others, AIR 1992 MP 220 and Bachha Rout v. State of Orissa and others, 2016 (II) OLR 1119.
8. Before adverting to the contentions raised by the learned counsel for the appellant, it will necessary to set out some of the provisions of the OCH & PFL Act. The same are quoted below:
"2. Definitions - xxx xxx xxx
(m) "fragment" means a compact parcel of agricultural land held by a land-owner by himself or jointly with others comprising an area which is less than -
(i) one acre in the district of Cuttack, Puri, Balasore and Ganjam and in the Anandpur subdivision in the district of Keonjhar, and
(ii) two acres in the other areas of the State;
xxx xxx xxx
34. Prevention of fragmentation - (1) No agricultural 1and in the locality shal1 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 (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.
(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 forty-five days from the receipt of the application determined the market value of fragment and sell it through an auction among the landlords of contiguous Chakas at a value not less than the market value so determined.
xxx xxx xxx
53. Transfer made in contravention of the provisions of the Act - A transfer made in contravention of any of the 5 provisions of this Act shall not be valid or recognized, anything contained in any other law for the time being in force notwithstanding.
9. The submission of the learned counsel for the appellant that the suit property is more than one acre of land and as such, the same is not fragment within the meaning and ambit of Sec. 2(m) of the OCH & PFL Act is difficult to fathom. The suit schedule land consists of Ac.0.346 dec. out of which defendant no.2 has alienated Ac.0.173 dec. to defendant no.1, which is less than one acre. Thus it is a fragment within the meaning and ambit of Sec. 2(m) of the OCH & PFL Act.
10. Sub-section (2) of Sec.34 of the OCH & PFL Act mandates that no agricultural land shall be transferred or partitioned so as to create a fragment. Proviso to the said section carves out an exception and postulates that a fragment may be mortgaged or transferred in favour of the State Government, a Co-operative Society, a scheduled bank 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. The Legislature in its wisdom thought it proper to protect the interest of an owner of a chaka incurring loan to press his legal necessity instead of applying permission to the Tahasildar. Sub- section (3) provides that when a person is unable to do so owing to restrictions imposed under Sub-section (2), he may apply to the Tahasildar of the locality in the prescribed manner. Thereafter, the Tahasildar, with the prescribed period as stipulated, shall determine the market value of the fragment and sell it through an auction among the landowners of contiguous Chaka at a value not less than the market value so determined. Had it been the intention of the Legislature that no permission as contemplated in Sub-section (3) is 6 required to transfer a fragment of a chaka, then the words "sell it through an auction among the landowners of contiguous Chakas"
would not have been there in Sub-section (3). On a conjoint reading of sub-sections (2) and (3) of Sec. 34 of the OCH & PFL Act, it is apparent that permission is a sine qua non for transfer of a fragment.
11. This Court in the case of Sutar Chemical Private Limited and another v. Collector, Balasore and others, 119 (2015) CLT 999 held as follows:
"13. Further Sec. 53 of the Act, stipulates that a transfer made in contravention of any of the provisions of this Act shall not be valid or recognized, anything contained in any other law for the time being in force notwithstanding.
14. The object of Sec.53 of the Act is to consolidate and prevent fragmentation of holdings. The intention of the legislature is to encourage the development of agriculture and improve the agricultural products, and one way achieves the object by introducing consolidation schemes. The object of the Act is sought to be achieved by allotting a compact area in lieu of scattered plots, as that would facilitate large-scale cultivation, which will help in economic farming and application of improved implements and methods of farming, which are necessary for development of agriculture and increased agricultural production. Fragmentation of holdings is intended to be avoided, since that will impede the development of agriculture and interfere with increasing of production of food grains. The language employed in Section 34 of the Act is imperative, which provides that no agricultural land in a locality shall be transferred or partitioned so as to create a fragment except to a land owner of a contiguous Chaka. Sub-sec. (3) of Sec.34 of the Act cast a duty on the owner of a Chaka intending to transfer a fragment may apply in prescribed manner to the Tahasildar of the locality for this purpose whereupon the Tahasildar 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. 4 of the said Act provides that when the fragment is not sold in course of the auction, it may be transferred to the State Government and the 7 State Government, shall, on payment of the market value determined under sub-sec. (3), purchase the same and thereupon the fragment shall vest in the State Government free from all encumbrances.
15. On a cumulative analysis of the aforesaid provisions, it is vivid and luminescent that before the owner of a Chaka intends to transfer a fragment of the same, he may apply to the Tahasildar of the locality for the said purpose, otherwise a transfer or partition in contravention of the provisions of Sec. 34 shall be void in view of Sec. 35. Further in view of Sec. 53 of the Act, a transfer made in contravention of any of the provisions of the Act shall not be valid or recognized, anything contained in any other law for the time being in force notwithstanding.
12. On an anatomy of the pleadings and evidence on record, learned appellate court held that the suit schedule land has not been partitioned between the plaintiff and defendant no.2. Admittedly no permission was obtained from the competent authority to alienate the land. The transfer is in contravention of Sec. 34 of the OCH & PFL Act and as such void.
13. In the case of Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884, the apex Court held that no doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mis-trial which vitiates proceedings. The suit could not be dismissed on the narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion.
14. In Anathula Sudhakar v. P. Buchi Reddy (Dead) by Lrs. and others, AIR 2008 SC 2033, the apex court held that where a cloud is raised over plaintiff's title and he does not have possession, 8 a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
15. In view of the same, the simple suit for permanent injunction is maintainable.
16. The decisions cited by the learned counsel for the appellant in the case Maharu, Shib Nath Paul, Bachha Rout and Gurunath Manohar Pavaskar (supra) are distinguishable on facts. In none of the decisions, the provision of OCH & PFL Act was the subject-matter of consideration. The substantial questions of law are answered accordingly.
17. In the wake of the aforesaid, the appeal, sans merit, deserves dismissal. Accordingly, the same is dismissed. There shall be no order as to costs.
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DR. A.K.RATH, J Orissa High Court, Cuttack.
Dated the 18th December, 2017/Pradeep