Orissa High Court
Smt. Champabati Khatua & vs Muralidhar Khatua & Others on 11 March, 2024
Author: D.Dash
Bench: D.Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
R.S.A. No.192 of 2022
In the matter of an Appeal under Section 100 of the Code of Civil
Procedure, 1908 assailing the judgment and preliminary decree
dated 25th February, 2021 & 15th March, 2021 respectively passed
by the learned District Judge, Jagatsinghpur in R.F.A. No.59 of
2004 confirming the judgment & preliminary decree dated 29th
November, 2003 & 12th December, 2003 respectively passed by the
learned Civil Judge, Senior Division, Jagatsinghpur in Title Suit
No.200 of 1998.
----
Smt. Champabati Khatua & .... Appellants
Others
-versus-
Muralidhar Khatua & Others .... Respondents
Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode):
For Appellants - M/s.A.P. Bose
For Respondents - M/s.B.K. Bhuyan, S.S. Bhuyan,
S.S. Mohapatra & S.S. Sahoo,
(Advocates),
CORAM:
MR. JUSTICE D.DASH
Date of Hearing : 04.03.2024 : Date of Judgment: 11.03.2024
D.Dash,J. The Appellants, by filing this Appeal under Section 100 of the Code of Civil Procedure, 1908 (for short, 'the Code'), have assailed the judgment and preliminary decree dated 25th Page 1 of 15 RSA No.192 of 2022 {{ 2 }} February, 2021 & 15th March, 2021 respectively passed by the learned District Judge, Jagatsinghpur in R.F.A. No.59 of 2004.
The Respondent No.1, as the sole Plaintiff, had filed Title Suit No.200 of 1998 in the Court of the learned Civil Judge, Senior Division, Jagatsinghpur. The suit is for partition. The Trial Court decreed the suit preliminarily entitling the Respondent No.1 (Plaintiff) to 1/20th share over Schedule-B property and 1/5th share over Schedule-C property. The predecessor-in-interest of these Appellants, namely, Prahallad Khatua & Balakrushna Khatua as well as two others, i.e., Bhagaban Khatua & Jagabandhu Khatua, who had been arraigned as Defendant Nos.1, 2, 5 & 6 in the suit, carried the Appeal under Section 96 of the Code.
The Appeal has been dismissed. Hence, the present Second Appeal is at the instance of these Appellants, who have suffered from the judgments and preliminary decrees passed by both the Trial Court as well as the First Appellate Court.
2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the Suit.
3. Plaintiff's Case:-
One Gopi Khatua was the common ancestor of the parties. He had two sons, namely, Sudhir Khatua & Dhadi Khatua. Sudhir died leaving behind his two sons, i.e., Dinabandhu Khatua Page 2 of 15 RSA No.192 of 2022 {{ 3 }} & Krupa Khatua. Dinabandhu died leaving behind his six sons, namely, Narayan, Karuni, Mohani, Madan, Siba & Magu. Prahallad (Defendant No.1) and Bulu @ Balakrushna are the two sons of Narayan. Karuni adopted Balakrushna is the adopted son of Karuni. Mohani adopted Murali (Plaintiff).
It is stated that Madan died leaving behind his son, namely, Bholi, who died issueless. Accordingly, the branch of Bholi became extinct. Siba died leaving behind Golekha Khatua (Defendant No.3). Magu died leaving behind his two sons, i.e., Tahali (Defendant No.4) and Murali. Murali went on adoption to Mohani as his adopted son. Tahali (Defendant No.4) thus remained as the only successor of Magu. The second son of Sudhir, namely, Kurpa was survived by his sons, namely, Bhagab (Defendant No.5) and Jagabandhu (Defendant No.6).
Dhadi Khatua died leaving behind his three sons, i.e., Gani, Binod and Dhani. Defendant Nos.7, 8, 9 & 10 are the four sons of Gani. The second son of Dhadi, i.e., Binod died leaving behind his three sons, i.e., Radhu, Bandhu and Jadu. Radhu was survived by his son Musei (Defendant No.11) and Bandhu was survived by his two sons, namely, Sarat (Defendant No.12) and Bharat (Defendant No.13). Jadu died leaving behind his only son Paina (Defendant No.14). Dhani died leaving behind his son Nobei whose branch is extinct.
Page 3 of 15 RSA No.192 of 2022
{{ 4 }} It is stated by the Plaintiff that the suit properties are the ancestral properties of the parties in which two branches, i.e., the branch of Sudhir and Dhadi had ½ share each. Accordingly, it is stated that Dinabandhu and Kurpa, being the successors of the branch of Sudhir, had 1/4th share each; three sons of Dhadi, namely, Gani, Binod & Dhani, being the successors of Dhadi have 1/6th share each over Schedule-B land. The properties in Schedule- C are stated to have been purchased by six sons of Dinabandhu out of their own income and accordingly, those six sons of Dinabandhu possessed the same jointly in which other Defendants, i.e., the sons of Dinabandhu had no interest or possession. As the branch of one son of Dinabandhu, i.e., branch of Madan has been extinct, the other persons of the branch of five sons of Dinabandhu after the extinction of the branch of Madan, the Plaintiff and Defendant Nos.1 to 4 had 1/5th share each over Schedule-C properties and the final consolidation record of right in respect of Schedule-C properties has been prepared in the name of the Plaintiff and Defendant Nos.1 to 4 jointly.
It is further stated in the Sabik Settlement of the year 1931, Schedule-B properties covered under C.S. Khata No.78 stood recorded jointly in the names of all the branches. After the death of Nobei Khatua, his widow, i.e., Biki Khatua married to Sindhu Khatua and transferred all the properties succeeded by her from Dhani Khatua in favour of Sindhu Khatua and that in the Page 4 of 15 RSA No.192 of 2022 {{ 5 }} Consolidation Operation on the basis of sale made by her in favour of Sindhu Khatua, separate record of right in respect of Ac.1.69 decimals of land has been prepared in the name of Sindhu Khatua under separate record of right in respect of Ac.1.69 decimals. The name of Sindhu Khatua is stated to have been wrongly recorded in the record with others in respect of Schedule-B properties. Accordingly, it is stated that Dinabandhu and Kurpa had 1/4th share over Scheule-B property. On Dinabadhu's death, his six sons, namely, Narayana, Karuni, Mohani, Madan, Siba & Magu are entitled to 1/6th share each over Schedule-B property and as the son of Dinabandhu, i.e., Madan died issueless, the Plaintiff and Defendant Nos.1 to 4 have 1/20 th share each over Schedule-B property and they have 1/5th share each over Schedule-C properties. The properties under Schedule- B & C have not been partitioned.
4. The Defendant Nos. 1, 2, 5 & 6, in the written statement, besides raising objections on technical grounds, stated that the suit is barred under section 4(4) and Section 51 Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, 'the OCH & PFL Act, 1972'). They have stated that the Consolidation Case bearing 1386 of 1987 is subjudice before the Consolidation Authorities. It is further stated that the properties in Schedule-C had never been purchased by six sons of Dinabandhu from out of their own income and after Page 5 of 15 RSA No.192 of 2022 {{ 6 }} their death, Plaintiff and Defendant Nos.1 to 4 are possessing the same jointly in which other Defendants are having no share and out of which, the Plaintiff has got 1/5th share, which has not been partitioned and that during Consolidation Operation, the said land has been recorded in the name of the Plaintiff and Defendant Nos.1 to 4 in which the Plaintiff has 1/5th share and that the said land has also not been partitioned. It is stated that the suit land shown in Schedule-B of the plaint is not the joint family property.
5. The Trial Court, on the above rival pleadings, has framed as many as four issues. Upon examination of the evidence both oral and document and their evaluation, all the issues were answered in favour of the Plaintiff. The Trial Court decreed the suit preliminarily for partition holding the Plaintiff's entitlement to 1/20th share from Schedule-B property, 1/5th share out of Schedule-C property.
6. The First Appellate Court, being moved by the aggrieved Defendants, the following order has been passed:-
" ORDER:-
The appeal be and the same filed by the appellants is hereby dismissed on contest against the respondents, but under the circumstances without costs.
On being agreed fully with the final findings given by the learned Court below in the impugned judgment and decree, the suit be and the same vide T.S. No.200/1998 filed by the Plaintiff is decreed preliminarily Page 6 of 15 RSA No.192 of 2022 {{ 7 }} for partition on contest against the defendants, but under the circumstances without costs.
Out of the 'B' scheduled suit properties, the plaintiff, defendant no.1, defendant no.2, defendant no.3 and defendant no.4 each are entitled to 1/20th share, the defendant nos.5 & 6 each are entitled to get 1/8th share, the successors of the branch of Dhadi Khatua, i.e., Defendant Nos.7 to 14 are jointly entitled to get ½ share subject to the adjustment of the sales made by the parties from their respective shares.
Out of 'C' scheduled suit properties, the plaintiff, defendant no.1, defendant no.2, defendant no.3 and defendant no.4 entitled to get 1/5th share each.
The parties may amicable effect partition of the suit properties in proportion to their respective shares as indicated above within a period of three months hence subject to the rights and liabilities attached to the terms under the scheme of consolidation in respect of the areas of the suit properties without effecting the intention/preamble of the legislation of OCH & PFL Act, 1972, i.e. prevention of fragmentation in any manner, failing which, any of the partis may apply to the Court for making the decree final.
In the final decree proceeding, the Civil Court Commissioner to be appointed by the Court shall make division of the suit properties amongst the parties by allotting their respective shares in their favour in accordance with the apportionments made above and while so partitioning, he shall respect to the possession and convenience of the parties.
Xx xx xx xx"
7. Mr.A.P. Bose, learned counsel for the Appellants submitted that before the First Appellate Authority, when the Defendants had filed an application under Order 41 Rule 27 of the Code Page 7 of 15 RSA No.192 of 2022 {{ 8 }} seeking leave to adduce additional evidence, i.e., the registered sale deed in support of their case over the Schedule-C property, the First Appellate Court has erred in law by rejecting the same and refusing to grant leave to the Defendants to adduce additional evidence. He further submitted that the Trial Court as well as the First Appellate Authority, in view of the bar contained under sections 34 & 35 of the O.C.H. & P.F.L. Act, ought not to have decreed the suit for partition as the lands are chaka lands. He, therefore, urged for admission of this Appeal to answer the above as the substantial questions of law.
8. Mr.S.S.Mohapatra, learned Counsel, who had entered appearance on behalf of the Respondent No.3, assisting the Court in the matter of hearing on admission, submitted that the Defendants, having filed an application under Order 41 Rule 27 of the Code at a highly belated stage in the Frist Appeal, the First Appellate Court has rightly rejected the same. He further submitted that in view of the recent amendment by virtue of the O.C.H. & P.F.L. (Amendment) Act, 2023, which has come into force on 29.12.2023, the question raised by the learned counsel for the Appellants as to the partibility of the lands, in view of the bar contained in sections 34 & 35 of the O.C.H. & P.F.L. Act pales into insignificance.
Page 8 of 15 RSA No.192 of 2022
{{ 9 }}
9. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below.
10. These Appellants, having filed the First Appeal went on to argue the same and argument, having been closed when the First Appellate Court, had posted the Appeal for judgment, it is only then the application under Order 41 Rule 27 of the Code had been filed. In that view of the matter, the First Appellate Court, having refused to entertain the application, is found to have committed no wrong.
11. Coming to the question of the bar contained in sections 34 & 35 of the O.C.H. & P.F.L. Act, as submitted by the learned counsel for the Appellants to be taken note of in declining to pass the preliminary decree for partition, it would be profitable to quote the provision contained in section 34 and 35 of the OCH & PFL Act, 1972 as those were prior to coming into force of the OCH & PFL (Amendment) Act, 2023.
"34. (I). No agricultural 1and in a locality shall be portioned and 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 of 1934 such Page 9 of 15 RSA No.192 of 2022 {{ 10 }} 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 (21, 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 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 fragmentation 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 al1 encumbrances.
(5)Nothing in sub-sections (1) and (2). shall a& 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 provision of section 34 shall be void (2) A person occupying or in possession of any land by virtue of a transfer or partition which is void under the provisions of this Act, may be summarily evicted by the Collector."
Page 10 of 15 RSA No.192 of 2022
{{ 11 }} When such provision of law was holding the field, recently the provisions of Chapter V of the OCH & PFL Act, 1972 containing section 34 and 35 have been totally omitted by section 2 of the OCH & PFL (Amendment) Act, 2023 and section 36A has been introduced in the statute by section 3 of the said Amendment Act, which have come into force with effect from 29th December, 2023. The said provisions reads as under:-
"In the principal Act, after section 36, the following section shall be inserted, namely:-
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."
12. The provision of sub-section 1 of section 34 of the OCH & PFL Act, 1972 as it was in the statute till 28.12.2023 created the bar.
Said provision of sub-section 1 of section 34 of the OCH & PFL Act, 1972 created the bar for transfer of partition of the agricultural land in a locality so as to create a fragment. Next sub- section 2 of said section permitted such transfer of fragment only to a land owner of contiguous chaka. However, by sub-section 1 Page 11 of 15 RSA No.192 of 2022 {{ 12 }} of section 35 of the OCH & PFL Act, 1972 such transfers of fragment to a person other than the land owner of a contiguous chaka or partition creating fragment in contravention of the provision of Section 34 of the Act had been made statutorily void. As per provision of sub-section 3 of section 34 of the Act such transfer of fragment or partition creating fragment was permissible only when the same was with the prior permission of the competent authority.
Sub-section 2 of section 35 of the OCH & PFL Act, 1972 was in order to see that by such transfers or partition, fragmentation land is not done and thus prevented, as by such transfers, the very objective sought to be achieved under the whole scheme of the OCH & PFL Act, 1972 by such arduous exercise at the huge expenses from State exchequer is not frustrated. So, the Collector was given the power to evict said person coming to possess as the violator of law.
13. The position is well known in common law that normal effect of repealing a statute or deleting/omitting a provision is to obliterate it from the statute book as completely as if had never been passed and the statute must be considered as a law never existed. If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omissions find them, and if final reliefs has not been granted before the omission goes into effect, it Page 12 of 15 RSA No.192 of 2022 {{ 13 }} cannot be granted afterwards. Thus, the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceeding, then it can be reasonably inferred that the intention of the legislature is that the pending proceedings shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision.
14. A careful reading of the Amendment Act, 2023 containing three sections would reveal that the Legislature has omitted such provision as to the bar and the ancillary provisions of section 34 and 35 as those were in the OCH & PFL Act, 1972. Thus the fragmentation is no more a contravention to invite invalidity to the transaction and face the eviction from the land in question and so also the partition in contravention to be same is of no fatal consequence. The Legislature's intention thus is clear that prevention of fragmentation is now not at all the focus. It is, therefore, that the provision of section 36-A has been introduced in the statute that all such transfers or partitions of agricultural land in a locality creating fragmentation under the existing law prior to amendment would be treated valid, only the saving is to the closed cases where the eviction had been made by the Collector under sub-section (2) of Section 35 of the OCH & PFL Page 13 of 15 RSA No.192 of 2022 {{ 14 }} Act. The omission of the above provisions contained in the original Act is without any further reservation. The omission of said provision of section 34 and 35 and more so due to introduction of section 36-A thus leads to the interpretation as if the said provisions were never there in the statute The introduced provision under section 36-A is found to be general and sweeping one. Upon reading of the provision, it has to be construed as if to be effective notwithstanding the date of transaction or partition. The Legislature has introduced this provision of section 36-A after omitting the provisions of sections 34 and 35 in the original Act in order to validate all such transactions as also partition, which were otherwise invalid for the contravention of the provisions contained in section 34 and 35 of the OCH & PFL Act, 1972 when those were in force till 28.12.2023. So, by such provision of section 36-A, all such transactions and partitions which were even void for the contravention of section 34 and 35 of the OCH & PFL Act, 1972 when those were in force, are treated as valid and now no more can be so seen and declared as void. This covers all such cases where even the declaration has been made. It only does not put the clock back where by such declaration, eviction has been effected. Therefore, now when we do not find such provisions in the statute, it would not be permissible to hold any transfer or partition in contravention of said provisions as those were before the omission as void. Page 14 of 15 RSA No.192 of 2022
{{ 15 }} It is well neigh the settled position of law that the change in law after the disposal of the original proceedings can be well taken note of in the pending proceeding arising out of the original proceedings. That being so in view of the coming into force of the OCH & PFL (Amendment) Act, 2023 by omission of section 34 and 35 and introduction of section 36A in respect of the provision contained in Chapter-V having the nexus with the provisions and the acts, deeds and effects which had occurred due to operation of those omitted provisions; the submission of the learned counsel for the Appellants on that score has no leg to stand.
15. In the wake of aforesaid discussion, this Court finds that there arises no such substantial question of law for being answered in this Appeal meriting its admission.
16. Resultantly, the Appeal stands dismissed. No order as to cost.
(D. Dash), Judge Basu Signature Not Verified Digitally Signed Signed by: BASUDEV NAYAK Designation: ASST. REGISTRAR-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA : CUTTACK Date: 13-Mar-2024 19:14:56 Page 15 of 15 RSA No.192 of 2022