Ratan vs Kriparam

THE appellants [hereinafter referred to as ""the defendants""] have filed this appeal being aggrieved by judgment and decree dated 30.10.1999

passed in Civil Suit No.16-A/1999 by First Additional District Judge, Ujjain by which the suit filed by the Respondents [hereinafter referred to as

the plaintiffs""] has been decreed in respect of specific performance of contract.

The defendants being the owner of land Survey No.319 area 9 hectares 051 Aare situated at Village Kharsod Khurd, Tehsil Badnagar, District

Ujjain [hereinafter referred to as ""the suit land""] had agreed to sell the same to the plaintiffs by written agreement dated 14.05.1980 in total

consideration of Rs.34,000-00. As an advance Rs.16,000-00 was paid to the defendants and Rs.5,000-00 in addition received for re-payment of

the Bank loan and land revenue. As per agreement, remaining amount of Rs.13,000-00 was agreed to be paid after obtaining necessary sanction

from the Collector under Section 165 (6) of the M. P. Land Revenue Code, 1959 [in brief ""the Code of 1959""]. The defendants had obtained the

said permission from the Collector on 07.03.1981. The plaintiffs were always ready and willing to pay the remaining amount of sale consideration

for execution of the sale-deed and for which they served a notice dated 14.05.1980 to the defendants. Despite receipt of the said notice, the

defendants did not execute the sale-deed, hence the plaintiffs filed the suit for specific performance of contract.

By way of written-statement, the defendant has denied the execution of the agreement for the sale of the suit land. He submitted that the plaintiff

was engaged in the business of money lending and he obtained his thumb impression on blank paper and got prepared the agreement to sell. The

defendant belongs to the tribal community which is a weaker section of the society, therefore, they are protected under the Madhya Pradesh

Samaj Ke Kamjor Vargon Ke Krishi Bhumi-Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha

Mukti Adhiniyam, 1976. Therefore, the Civil Court is not having jurisdiction to decide the civil suit. By way of special pleading, the defendant

further pleaded that in fact an agreement to sell electrical motor; pump; starter and pipe fittings was executed between them in sale of Rs.39,300-

00 and Rs.5,000-00 was given and balance amount was agreed to be paid in one month with the condition that if the amount is not paid, the deal

would be cancelled.

On the basis of the pleadings between the parties, the Trial Court framed 12 issued for adjudication.

In support of the plaint, the plaintiff examined Kriparam as PW-1; Aaramsingh Pandya as PW-2 and Mangilal as PW-3. The plaintiff got

exhibited agreement to sell dated 14.05.1980 as Ex.P/1; Receipt issued by Sahkari Bhumi Vikas Bank, Ujjain as Ex.P/2; statement of loan

account and receipt of payment of Rs.1,300-00 as Ex.P/3; order of Additional Collector dated 07.03.1981 under Section 165 (5) of the Code of

1959 as Ex.P/4; legal notice as Ex.P/5; acknowledgment receipt as Ex.P/6 and agreement for sale of electrical pump, fan, starter as Ex.P/7.

In support of the written-statement the defendants examined Ratan as DW-1 and Badrilal as DW-2 and got exhibited notice dated 01.05.1981

as Ex.D/1; receipt and acknowledgment receipt as Exs.D/2 and D/3.

Vide order dated 05.05.1984, the First Additional District Judge, Ujjain has dismissed the suit for specific performance of agreement dated

14.05.1980 while deciding the Issue No.8 as preliminary issue. The learned District Judge has held that by virtue of Section 170-B of the Code of

1959, the disputed agreement to sell is illegal and is not effective and no decree can be passed. The plaintiffs filed First Appeal No.46 of 1984

being dissatisfied by the aforesaid dismissal of the suit.

Vide judgment dated 23.08.1995 the High Court had set-aside the judgment and decree and remanded the case to the Trial Court to decide the

suit on all the issues.

After remand, the learned Trial Court decreed the suit vide judgment and decree dated 30.10.1999 on all the issues.

Being dissatisfied with the aforesaid judgment and decree, the defendants filed the present appeal before this Court.

The defendants have assailed the judgment and decree on the ground that the learned Trial Court while passing the judgment and decree has

committed error of law as well as on facts. The findings are perverse on all issues. The decree ought not to have passed by virtue of Section 170-B

of the Code of 1959. No enquiry has been conducted under Section 170-B of the Code of 1959 by the Competent Authority as the defendants

belonges to the Bhil community. The Collector while passing the order under Section 165 (c) of the Code of 1959 did not considere the

compliance of Section 170-B of the Code of 1959, therefore, the judgment and decree is bad-in-law. The plaintiffs were never ready and willing

to get the agreement to sell executed. Even otherwise the agreement to sell was not for sale of the suit land and the forgery has been committed by

the plaintiffs by preparing the agreement to sell. Hence, the judgment and decree is liable to be set-aside.

Learned Senior Counsel appearing for the Respondents has argued in support of the judgment and decree and submitted that the learned Trial

Court has rightly given findings on all the issues on the basis of material evidence available on record and not committed any error of law.

The defendants are owner of various lands and out of which they agreed to sell the suit land to the plaintiffs by agreement dated 14.05.1980.

In the said agreement the defendants have disclosed that they belong to the Bhil community and they would obtain permission from the Collector

under Section 165 (6) of the Code of 1959 for which they have already filed an application and after obtaining such permission, they will execute

the sale-deed within a period of one year to the plaintiffs. After the aforesaid agreement, the plaintiff deposited Rs.900-00 before the Bank vide

Ex.P/2 and thereafter Rx.1,300-00 vide Ex.P/3 in order to re-pay the loan of the defendants. Thereafter vide order dated 07.03.1981 (Ex.P/4)

the Additional Collector has granted the permission to sell the suit land in total sale consideration of Rs.34,000-00. After submitting the application

by the defendants, the Collector has directed Tehsildar, Badnagar to conduct an equiry and submit a report. The Tehsildar while conducting the

enquiry recorded the statements of plaintiff and the defendants who had deposed that agreement to sell was executed between them and the

Tehsildar vide his report has recommended for grant of sanction. After obtaining such report, the Additional Collector has recorded the finding in

respect of the price of the land at the relevant time; intention of the parties to sell the land and held that it is valid transaction. The aforesaid order of

the District Magistrate has not been challenged by the defendants so far, hence the same has attained finality. After obtaining such permission, the

plaintiffs served legal notice to the defendants for execution of the sale-deed and failing which he would be free to file a civil suit before the Court

(Ex.P/5). In support of his claim, the plaintiff examined himself and PW-2 and PW-3. PW-2 Aaramsingh Pandya who deposed in support of the

plaintiffs that an agreement to sell was executed in his presence. The advance amount was given to the defendants and he has signed the agreement

along with another witness Mansingh and he identified his signatures as well as signatures of Mansingh. The plaintiff examined Mangilal (PW-3),

employee of Bhumi Vikas Bank, who stated that the plaintiff had deposited an amount of Rs.3,500-00 in order to re-pay the loan of defendants

and the remaining amount was waved by the Bank.

The defendants in his cross-examination admitted his signatures over Ex.P/1 and also admitted that he had not paid the loan amount, therefore,

there was a debt over him. He also deposed that Rs.900-00 and Rs.1,300-00 were deposited by the plaintiff on his behalf. Therefore, the

defendants failed to brought any material on record that he gave the land to the plaintiff for cultivation (Adhabatai) for the period of one year.

Therefore, the learned Trial Court has rightly recorded the finding in favour of the plaintiffs in respect of execution of agreement to sell; payment of

advance money and handing over possession. The learned Trial Court has also rightly recorded the finding that the defendants have obtained the

permission under Section 165 of the Code of 1959 and the plaintiff has paid the loan amount of the defendants to the Bank in order to execute the

sale-deed. The plaintiff was always ready and willing to get the sale-deed executed and performed his part as mentioned in the agreement.

Therefore, the aforesaid findings are hereby upheld.

The appellants/defendants have assailed the order mainly on the ground that the provisions of Section 170-B of the Code of 1959 has not

been complied with, therefore, the agreement to sell is illegal and cannot be performed by way of decree. As per Section 170-B of the Code of

1959, every person who on the date of commencement of the Madhya Pradesh Land Revenue Code (Amendment) Act, 1980 is in possession of

agricultural land which belonged to a member of a tribe from the period 2nd October, 1959 to 24.10.1980 shall within two years from

23.10.1981 notify to the Sub Divisional Officer in such form and in such manner as may be prescribed and if person fails to notify the information

as required within the aforesaid period, it shall be presumed that such person has been in possession of the agricultural land without any lawful

authority and the agricultural land shall, on the expiration of the period aforesaid shall revert back to the person to whom it originally belonged.

Sub-section (3) of Section 170-B of the Code of 1959 prescribed that on receipt of the information under sub-section (1), the Sub Divisional

Officer shall make such enquiry as may be deemed necessary about all such transactions of transfer and if he finds that the member of aboriginal

tribe has been defrauded of his legitimate right, he shall declare the transaction null and void and pass an order reverting the agricultural land. The

contention of learned counsel Shri Shastri for the appellants was that it was the duty of the plaintiffs to inform his possession over the suit land to

the Sub Divisional Officer within a period of two years from 24.10.1980 and since he failed to do so, therefore, the agreement is liable to be

declared illegal and void and the land is liable to be revested to the defendants. In support of his contention, he has placed reliance over the order

passed by this Court in the case of Gopichand v/s State of M.P. [1998 R.N. 103].

The intention behind insertion of Section 170-B in the statute was to conduct an enquiry in respect of the transaction of a land belonging to the

tribe as to whether any fraud has been played with him or not and for which the Sub Divisional Officer has been authorized to conduct such

enquiry.

The purpose of enquiry under sub-sections (1) and (2) of Section 170-B of the Code of 1959 is to examine whether the land has been

transferred by way of registered documents or not, whether the land has been sold on a very concessional rate between the period 02.10.1959 to

24.10.1980. The Sub Divisional Officer is competent to conduct an enquiry in respect of any fraud played with the aboriginal tribe behind the such

transaction of the sale whether the transaction is bona-fide or not ? The land owner belonging to aboriginal tribe and the transaction took place

between the aforesaid period is the scope of enquiry.

In the present case after the aforesaid agreement to sell dated 14.05.1980 was executed prior to 24.10.1980. The defendant had already

applied before the Collector on 07.03.1981 under Section 165 (6) of the Code of 1959 seeking permission to sell the suit land. The Additional

Collector registered the same as Case No.5/A- 21/80-81.

The Additional Collector granted permission vide order dated 07.03.1981 (Ex.P/4). Therefore, the parties had already obtained the

permission from the Collector to sell the land. While granting the permission, the Collector got enquired the elements of fraud, proper valuation of

the land through the Subordinate Revenue Officer. The Tehsildar submitted the report and on the basis of the said report, the Additional Collector

held that the transaction is valid under the law and granted the permission. Therefore, the requirement of Section 170-B of the Code of 1959 has

been fulfilled because the Sub Divisional Officer is also required to record his satisfaction whether the proper consideration was paid or not and the

transaction was not a fraudulent transaction and if these two points are decided, then the Sub Divisional Officer can direct for handing over the

possession. Exactly on these two points the Additional Collector has recorded its satisfaction and granted the permission during that relevant

period. In the case of Makhan Gir Mahant v/s State of M.P. [2012 (2) MPLJ 360], this Court has held that when there was a proper permission

under Section 165 (6) of the Code, the burden heavily lies on the person who alleged the fraud. When the permission has been granted under

Section 165 (6) of the Code, then it was required to establish that the fraud has been taken place. Para 9 of the order is reproduced below :-

Evidently, the transaction effected by sale deed dated 13.1.1966 was after the permission granted by the Collector Chhindwara by order dated

10.1.1966 as is required vide sub-section (6) of Section 165 of Code of 1959. Therefore, what is required to be established under sub-section (3)

of Section 170-B is as to whether Shivlal member of aboriginal tribe was defrauded of his legitimate rights. Sub-section (3) of Section 170-B

stipulates that ""On receipt of the information under subsection (1) the Sub Divisional Officer shall make such enquiry as may be deemed necessary

about all such transactions of transfer and if he finds that the member of aboriginal tribe has been defrauded of his legitimate right he shall declare

the transaction null and void and pass an order revesting the agricultural land in the transferer and, if he is dead, in his legal heirs"".

In the case of Sukra Bai v/s Makhan Gir Mahant [2015 (2) MPLJ 113], the Division Bench of this Court has held that where the land was

transferred by registered instrument and permission of Collector under Section 165 (6) of the Code was also obtained, then the provisions of sub-

sections (1) and (2) of Section 170-B have no application. Para 5 of the order is reproduced below :-

We have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, the sale deed dated

29.3.1966 was executed by Shivlal, predecessor-in-title of the appellant in pursuance of permission which was validly granted by the Collector in

exercise of power under Section 165 (6) of the Code on 13.1.1966. In this context, the learned Single Judge has held that the burden is on the

appellant to prove that permission under Section 165 (6) of the Code was obtained by playing fraud. For the reasons assigned in paragraph 14 of

the impugned order it has rightly been held by learned Single Judge that appellant has failed to discharge the aforesaid burden. The provisions of

subsection (1) and (2) of the section 170-B of the Code, in our considered opinion, apply to the case where the land has not been transferred by

way of registered instrument. In the instant case, the land was not only transferred by registered instrument, but also after obtaining permission

under section 165 (6) of the Code. In any case, provisions of sub-sections (1) and (2) of the section 170-B of the Code have no application to the

facts of the case. It is trite law that in exercise of power under Article 226 of the Constitution of India this Court can issue directions to ensure that

justice is done to the parties. In the facts of the case, learned Single Judge has not committed any error in issuing the impugned directions contained

in paragraph 15 of the impugned order warranting interfering in an intra-Court appeal.

In the present case, the learned Additional District Judge has held that the agreement to sell was executed between the parties; advance

amount was paid and the theory of fraud alleged by the defendants has not been proved by way of evidence. Even this Court has gone through the

evidence and finds that the defendants have failed to discharge the burden to prove any fraud was played with him. Simultaneously the Collector

had also got conducted the enquiry and recorded the findings that it is a valid transaction. Therefore, the judgment and decree cannot be set-aside

due to non-compliance of Section 170-B of the Code of 1959.

I do not find any ground to interfere in this appeal. The appeal is accordingly dismissed. No order as to costs.