Jagat Narajn, J. - (1.) THIS second appeal against an appellate decree of Civil Judge Bundi has been referred to a division bench by a learned single judge. It arises out of a suit for possession over agricultural land brought by Musha and Gulab appellants against Ramzani and Smt. Batul widow of Manna in respect of some agricultural land situated in village Jamitpura which was formerly part of the erstwhile State of Dudni. The suit was dismissed by both the courts below.
(2.) THE relevant facts for purposes of the present appeal are these. On 18th May 1945 Gulab transferred his Khatedari rights in 2.1/2 bighas of land in favour of Manna husband of Smt. Batul by means of an unregistered sale-deed for Rs. 100/-without obtaining the previous sanction of the Revenue Commissioner as required by sec. 20 of the Bundi State Tenancy Act. On the same day Gulab transferred his Khatedari rights in 3.1/2 bighas of land in favour of Ramzani by means of another unregistered sale-deed for Rs. 100/- without obtaining the previous sanction of the Revenue Commissioner. Possession over the land was transferred to Ramzani and Manna under the sale-deeds and they continued to remain in possession. On 19.9.50 the present suit for possession was instituted by Musha and Gulab in respect of the land inter alia on the ground that the transfers were null and void in view of sec. 20 of the Bundi State Tenancy Act as the permission of the Revenue Commissioner had not been obtained as required by the then existing law. THE lower courts however held that the plaintiffs were not entitled to possession. Firstly it was observed that the plaintiffs had neither alleged nor proved any fact or circumstance of the nature mentioned in sec. 20 of the Bundi State Tenancy Act which would have disentitled the plaintiffs from receiving the sanction of the Revenue Commissioner to the transfers and that being so the question of obtaining previous sanction was a mere matter of formality and the defect of want of such sanction was cured under sec. 53A of the Transfer of Property Act. Secondly it was observed that in any case the parties were in pari delicto and the plaintiffs were not entitled to get any relief at the hands of the court. We have heard the learned counsel for the parties and we are satisfied that the suit was wrongly dismissed. Sec. 20 of the Bundi State Tenancy Act runs as follows - "20. Any transfer of a holding of a Khatedar or a part thereof made without the previous sanction of the Revenue Commissioner as required by the foregoing sec. 19 shall be deemed to be null and void; and, notwithstanding anything contained in the Registration Act for the time being in force, no officer empowered to register documents shall admit to registration any such documents". Sec. 20 clearly lays down that any transfer of a holding of a Khatedar made without the previous; sanction of the Revenue Commissioner shall be null and void. It is the Revenue Commissioner alone who can grant such sanction. It is a matter which is in his discretion. That discretion is no doubt to be exercised judicially and in the light of the provisions of sec. 20. It is not open to the civil court to consider whether there was any fact or circumstance warranting refusal of sanction on the part of the Revenue Commissioner in the light of the provisions of sec. 20 and to hold in the absence of such fact or circumstance that the grant of sanction was a mere matter of formality. In the absence of such sanction the transfers in favour of Manna and Ramzani were null and void and did not pass any title to them. Under the provisions of sec. 21 the transferees will be deemed to be in possession as trespassers. The defect is not curable under sec. 53A of the Transfer of Property Act The words "the transfer has not been completed in the manner prescribed therefor by the law lor the time being in force" refer to a mere formality prescribed by law. Coming now to the second ground on which the suit was dismissed the lower courts were in error in holding that the parties were in pari delicto. The parties no doubt entered into an illegal contract and as it was per se illegal it does not matter whether one or both knew that it was so. For in such cases the rule that ignorance of law does not ex use applies. Ordinarily where parties enter into a contract which is per se illegal neither party can claim any right or remedy whatsoever. The money paid or property transferred under the contract is in general irrecoverable. The transferee is in a fortunate position and he can successfully plead that the contract is illegal It is not for his sake however that the objection is allowed; but it is founded on the principles of public policy which will not assist a plaintiff who has paid over money or handed over property in pursuance of an illegal or immoral contract to recover it back. There are however some exceptions to the above rule in which parties are deemed not to be in pari delicto. One of these is where contracts or transactions are prohibited by positive statutes for the sake of protecting one set of men to which the plaintiff belongs from another set of men, the one from their situation and condition being liable to be oppressed or imposed upon by the other: there the parties are not in pari delicto and in furtherance of these statutes the person injured, after the transaction is finished and completed, may bring his action and defeat the contract. (See Vol. 8 Halsbury's Laws of England, Simonds Edition, Page 151 and the cases cited under footnote (c) therein. In the present case the prohibition against transfer of Khatedari rights without obtaining the previous sanction of the Revenue Commissioner is clearly intended to prevent the tenant from becoming landless and is therefore for his benefit. The plaintiffs who are Khatedar tenants of the land will therefore be deemed to be not in pari delicto and are entitled to recover possession over the land in suit which was transferred under an illegal contract. The principle noted above was applied in Asaram vs. Ludheshwar (1) which was cited on behalf of the plaintiffs before the learned Civil Judge. In that case an alienation of sir land had been made by adult members of a joint Hindu family in contravention of sec. 49 of the Central Provinces Tenancy Act. It was provided that alienation of sir land shall not be effective unless the sanction of appropriate official had first been obtained. It was held that this provision was for the benefit of land working classes to which the plaintiffs belonged, being intended to prevent them from being driven into the stale of landless proletariat and as such the plaintiffs could not be regarded as being in pun delicto. The possession over the land was restored to the plaintiff. The lower appellate court was in error in regarding that Asaram's case is distinguishable from the present case. Some further contentions were raised on behalf of the respondents. The first was that sec. 63 of the Contract Act is not applicable to a contract which is void ab initio. It was held by the Privy Council in Harnath Kuar vs. Indar Bahadur Singh (2) that sec. 65 applies to agreements which have been void from their inception as well as to contracts which become void subsequent to their making. The next contention was that the present suit was wrongly instituted in the civil court and that the appropriate remedy of the plaintiffs was by means of an application to the Tehsildar under sec. 53 of the Bundi State Land Revenue Act. We have carefully considered the provisions of the Bundi State Land Revenue Act and the Bundi State Tenancy Act and we are of the opinion that sec. 53 of the Bundi State Land Revenue Act applies to cases of trespass over unoccupied land. The remedy of a tenant who has been dispossessed of his holding otherwise than under the orders of a revenue officer or a competent court is provided under sec. 48 of the Bundi State Tenancy Act. He may either make an application to the Tehsildar as provided under sub-sec. (a) or bring a regular suit as provided in sub-sec. (b). A regular suit can only be brought in the civil court since neither the Bundi State Land Revenue Act or the Tenancy Act contain any provision for bringing a regular suit in the revenue court. The present suit was therefore rightly brought in the civil court. Lastly it was contended that the suit is liable to be thrown out as there is a mis-joinder of the plaintiffs and defendants as well as mis-joinder of causes of action. The suit is no doubt defective. Two separate suits should have been brought one by Musha against Ramzani and another by Gulab against Smt. Batul. No prejudice has however resulted in trying the two causes of action together and the defect is therefore curable under sec. 99 of the Code of Civil Procedure. The Privy Council case of Ramdhan Pari vs. Lachmi Narain (3) is authority on the point. In the result we set aside the decree of the lower appellate court and pass a conditional decree. Both the plaintiffs should deposit a sum of Rs. 100/- each in the court of Munsif Bundi within six months of the date of this judgment. If the sums are deposited within the above period the plaintiffs will be entitled to execute the decree for possession. The defendants will be entitled to withdraw the money. If however the above sums are not deposited within the above time the suit shall stand dismissed. 14 In the circumstances of the case we direct that parties shall bear their own costs throughout. ;