Orissa High Court
Benudhar Swain vs Bahudi Jena on 15 February, 2024
Author: D.Dash
Bench: D.Dash
A.F.R.
HIGH COURT OF ORISSA : CUTTACK
RSA NO.289 of 2016
In the matter of appeal under Section-100 of the Code of
Civil Procedure assailing the judgment and decree passed by the
learned Additional District Judge-cum-Special Judge, CBI Court
No.II, Bhubaneswar in RFA No.23 of 2005 in confirming the
judgment and decree passed by the learned Civil Judge (Senior
Division), Bhubaneswar in C.S. No.775 of 2013.
.........
Benudhar Swain :::: Appellant
-:: VERSUS ::-
Bahudi Jena :::: Respondent
Advocate(s) who appeared in this case by hybrid arrangement (virtual/physical) mode.
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For Appellant ... Mr. S.K. Patnaik
(Advocate)
For Respondent ... M/s. B.K. Biswal &
D.P. Dash, (Advocates)
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CORAM
HON'BLE MR. JUSTICE D.DASH
--------------------------------------------------------------------------------------- Date of Hearing: 22.01.2024 :: Date of Judgment: 15.02.2024
--------------------------------------------------------------------------------------- D.Dash,J. The Appellant, by filing this Appeal, under Section-100 of the Code of Civil Procedure, 1908 (for short, 'the Code') has assailed the judgment and decree passed by the learned Additional District Judge-cum-Special Judge, CBI Court No.II,, Bhubaneswar in R.F.A. No.23 of 2015.
{{ 2 }} The present Appellant as the Plaintiff had filed C.S. No.775 of 2013 in the Court of the Civil Judge (Sr. Division), Bhubaneswar for partition and permanent injunction. The suit having been dismissed as the unsuccessful Plaintiff, he had carried the Appeal under section 96 of the Code. The First Appellate Court has also been dismissed the suit. Hence the present Second Appeal is at the instance of the Plaintiff, who has been unsuccessful before both the Courts below.
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 Trial Court.
3. Plaintiff's case is that the suit land stands recorded in the name of Jhula Dei and his son Bahudi Jena as per the Consolidation Record of Right of the year 1981. It is stated that when they were in possession of the said land, in order to meet their need, they had transferred Ac.1.002 dec. of land to the Plaintiff for agreed valuable consideration of Rs.10,000/- and executed the registered sale deed on 05.10.1988. It is stated that the mother and son (Defendant) pursuant to said sale had delivered the possession of the property to the Plaintiff. The total extent of land was Ac.1.942 dec. and the Plaintiff purchased land measuring Ac.1.002 dec. It is stated that accordingly, the Plaintiff and Defendant were possessing the land and appropriating the usufruct proportionate to their respective entitlement as of the area. Since on 10.05.2013, the Defendant attempted to alienate the Page 2 of 12 {{ 3 }} suit property to one developer ignoring the interest of the Plaintiff, the Defendant was asked by the Plaintiff to partition the property. That having been denied, the suit has come to be filed.
4. The Defendant in his written statement has submitted that the Registered Sale Deed dated 05.10.1988 standing in the name of the Plaintiff has no legal value and it is void ab initio for the contravention of the provision contained in section 34 and 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, 'the OCH & PFL Act, 1972'). The Defendant has also denied to have received any consideration for the said sale and to have delivered possession of the property covered under the sale deed to the Plaintiff. The purchase of the Plaintiff is said to be illegal as it has caused fragmentations of Chaka. The Plaintiff having somehow managed to get his name included in the Record of Right, the said order is said to be under challenge in Mutation Appeal.
5. On the above rival pleadings, the Trial Court having framed five issues has taken up the following issue first for decision :-
"Whether the Plaintiff is entitled to a preliminary decree of partition in respect of his purchased Ac.1.002 decimals of land out of the suit property?
It has been said that the transfer being in contravention of section 34 of the OCH & PFL Act, 1972 is void and when under Page 3 of 12 {{ 4 }} that transaction of sale vide Ext.2, fragmentation of the Chaka has been made leaving only Ac.0.940 decimals in the suit Chaka which contravenes the provision of section 34 of the OCH & PFL Act,1972, the transaction is void on the face of the provision of section 35 read with section 53 of the OCH & PFL Act, 1972. Accordingly, it is stated that the Plaintiff has acquired no title or interest over the land covered under the said registered sale deed and therefore, the suit for partition at his instance is liable to fail. This has lead the Trial Court to dismiss the suit.
The Plaintiff thus being non-suited when had carried the First Appeal, the First Appellate Court has affirmed the said finding of the Trial Court and the judgment and decree passed by the Trail Court stood confirmed.
6. The Appeal has been admitted to answer the following substantial question of law:-
"Whether the ground on which the Courts below have dismissed the suit in holding the sale transaction under the registered sale deed dated 05.10.1988 (Ext.2) as void does no more survive in the eye of law in view of the coming into force of Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 2023 on 29th December, 2023 ?"
7. Mr. S.K. Patnaik, learned counsel for the Appellant submitted that even accepting the finding of both the Courts Page 4 of 12 {{ 5 }} below that the transaction of sale between the parties was void for the contravention of the provision contained in sections 34 and 35 of the OCH & PFL Act, 1972, now in view of the recent amendment by virtue of the OCH & PFL (Amendment) Act, 2023 which has come into force on 29.12.2023, it would not be permissible to say so that said transaction is void for total omission of sections 34 and 35 of the said Act and in view of section 36-A as provided therein. He, therefore, submitted that when the Defendant has not pressed into service his defence as to the invalidity of sale on any other ground by filing Cross Appeal or Cross Objection before the First Appellate Court or before this Court, the suit filed by the Plaintiff is bound to be preliminarily decreed.
8. Mr. D.P. Das, learned counsel for the Respondent submitted that the law which was holding the field on the date of transaction would have the final say in the matter of validity/invalidity of the transaction and the Amendment Act coming into force on 29.12.2023 would not validate the transaction which on the date of said transaction was invalid.
9. Keeping in view the submission made, I have carefully read the judgment passed by the Courts below.
10. In order to address the rival submission and find out the answer to the substantial question of law, it would be profitable to quote the provision contained in section 34 and 35 of the OCH Page 5 of 12 {{ 6 }} & 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 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 Page 6 of 12 {{ 7 }} 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."
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 Page 7 of 12 {{ 8 }} 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."
11. 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 permits such transfer of fragment only to a land owner of contiguous chaka. However, by sub-section 1 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 Page 8 of 12 {{ 9 }} partition creating fragment in contravention of the provision of Section 34 of the Act has 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.
As per sub-section 2 of section 35 of the OCH & PFL Act, 1972, 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.
12. 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. 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 Page 9 of 12 {{ 10 }} amendment would be treated valid, Only the saving is to the closing cases where the eviction had been made by the Collector in sub-section (2) of Section 35 of the OCH & PFL 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. 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 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 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 declared. 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 Page 10 of 12 {{ 11 }} permissible to hold any transfer in contravention of said provisions as those were before the omission as void.
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 Chapter-V containing 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 substantial question of law is answered in favour of the Plaintiff that findings of the Courts below that the sale transaction in favour of the Plaintiff and the Registered Sale deed executed by the Defendant and his mother is void and inoperative for contravention of section 34 and 35 of the OCH & PFL Act, cannot sustain.
13. In the result, the judgments and decrees passed by the Courts below are held liable to be set aside which is hereby done.
14. Accordingly, the Appeal being allowed, the suit is preliminarily decreed for partition of the properties allotting the area of Ac.1.002 dec. in favour of the Plaintiff and rest in favour of the Defendant No.1 and 2 in equal half giving due regard and respect to the possession of the parties in the field and their Page 11 of 12 {{ 12 }} convenience as far as possible and practicable keeping in view the equitable factors.
In the peculiar facts and circumstances, there shall, however, be no order as to cost.
(D. Dash), Judge.
Himansu Signature Not Verified Digitally Signed Signed by: HIMANSU SEKHAR DASH Reason: Authentication Location: OHC Date: 27-Feb-2024 15:26:00 Page 12 of 12