JAGADISH CHINDRA Vs. JAYADEB BEHARA AND ORS.
HIGH COURT OF ORISSA
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Mohapatra, J. -
(1.) THIS is the Plaintiff's Second Appeal against the judgment of Shri S.K. Mitra, Sub -Judge of Balangir Patna dated 8 -2 -49 reversing the judgment of the Munsif Magistrate. The Plaintiff's case is that the disputed lands appertaining to holding No. 165/2 of village Rampur were mortgaged by the Plaintiff's father who had gob the same by partition with his co -sharers excessively in his share, in favour of the grand -father of the Defendants. After the death of the Plaintiff's father in the year 1944, the Plaintiff's approached the Defendants for the purpose of redeeming the mortgage and the Defendants refused the tender for redemption alleging that they had purchased he land from the father of the Plaintiff. Plaintiff's further allegation was that thereafter a Panchayat was convened wherein the alleged transaction of the year 1934 was considered. The Defendants having refused to vacate the lands in dispute, the Plaintiffs have come with this suit for a declaration that the transaction alleged by the Defendants is fraudulent and that the Plaintiff's right had not been effected thereby. The defence is that in fact the disputed land has been purchased by the Defendants for a sum of Rs. 101/ - by virtue of a document dated 6th of April, 1934. It is to be noted here that after the framing of issues when the date was fixed for hearing, the Defendants did not appear to contest and no evidence was adduced on their behalf. It transpires from the judgment of the trial Court that a further opportunity also was given to Defendants to adduce evidence which was not availed of by the Defendants. The trial Court, therefore, on the evidence adduced on behalf of the Plaintiffs, decreed the Plaintiff's suit basing his judgment upon the oral evidence of 5 witnesses examined on behalf of the Plaintiff the Punch report and the Malguzari receipt book which shows that it was the Plaintiffs who were paying rent for the disputed and all along. The trial Court therefore found as a matter of fact that Plaintiffs have been able to prove their possession within 12 years of the suit and that Plaintiff's have title to the property. The lower appellate Court however has reversed the judgment mainly relying upon the provisions of Section 23 of Bhumi -bidhi of Sonepur State. It is to be mentioned here that the Defendants along with their written statement had filed the document of transfer which was the basis of the case. The trial Court construed it as a deed of sale and found that it does not create any interest in favour of the Defendants as it is not registered and as the provisions of the Registration Act are prevalent in the State. The lower appellate Court however finds that the Plaintiff's suit must be governed by the special period of limitation prescribed in Section 23 of the Bhumi -bidhi and as they have not brought the suit within 2 years to avoid the transfer, the Plaintiffs are bound to be non -suited. The relevant portion of Section 23 is as follows:
If the occupancy tenant transfers his holding, violating the provision of law provided in this act, or surrenders his holding to the gauntia without any justifiable cause, the heir or successor of the occupancy tenant or the gauntia in cases other than surrender to him, may avoid the illegal transactions by a suit in the proper Civil Court within two years from the date of the illegal transaction mentioned above.
(2.) TO me it seems clear that this special period of limitation of 2 years is applicable if there is any transfer and the transfer is voidable as contravening the provisional of the Bhumi -bidhi. If on the contrary it is to be deemed that there was no transfer on account of the absence of a registered document as provided in the Registration Act the special period of limitation will have no application. The document was read over to me and it appears to me to be a document of sale as found by the learned trial Court. In some of the passages of the written statement the Defendants have claimed title by virtue of purchase as they made. In this view of the matter therefore when the transaction relied upon by the Defendants has no legal effect on account of non -registration, the Plaintiff's admitted antecedent title cannot pass in favour of the Defendants, The Plaintiffs had attacked the alleged transfer by their father as being invalid for want of legal necessity. As I have indicated above there was no evidence on the side of the Defendants. It was indeed for the Defendants to prove the transaction alleged to be been executed by the father of the Plaintiffs in their favour to be valid as against the son, as being supported by legal necessity. The Defendants having failed to prove legal necessity, the transaction is no binding on the son. Here also the special period of limitation has no application as the absence of legal necessity is not a ground within the meaning of the provisions of the Bhumi -bidhi. On these two grounds therefore I would allow the appeal and set aside the judgment of the lower appellate Court and confirm the judgment and decree of the trial Court be appeal therefore is allowed with costs. Leave to appeal is refused.;
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