Umakanta Pradhan Vs Rabi Narayan Pradhan

IN THE HIGH COURT OF ORISSA AT CUTTACK

R.S.A. No.7 of 2024

In the matter of an Appeal under Section 100 of the Code of Civil Procedure, 1908 assailing the judgment dated 11.05.2023 passed by the learned District Judge, Khurda, in R.F.A. No.29 of 2020 confirming the judgment and decree dated 29.02.2020 & 17.03.2020 respectively passed by the learned Senior Civil Judge, Bhubaneswar in C.S No.2007 of 2018.

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Umakanta Pradhan …. Appellant
-versus-
….
Rabi Narayan Pradhan & Respondents
Others
Appeared in this case by Hybrid Arrangement
:
(Virtual/Physical Mode)
For Appellant - Mr. Baidhar Khatoi
Advocate
-------------
For Respondents -

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CORAM: MR. JUSTICE D.DASH Date of Hearing : 29.01.2024 :: Date of Judgment: 08.02.2024

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D.Dash,J. The Appellant, by filing this Appeal, under Section 100 of Code of Civil Procedure, 1908 (for short, ‘the Code’), has challenged the judgment dated 11.05.2023, passed by the learned District Judge, Khurda, in R.F.A. No.29 of 2020.

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The Appellant as the Plaintiff had filed the suit for declaration and partition. The suit stood dismissed. So the present Appellant as the unsuccessful Plaintiff had carried the Appeal under section 96 of the Code, which too has been dismissed. The present Second Appeal is therefore, at the instance of the Appellant, who has remained unsuccessful in both the Courts below.

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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.

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3. Plaintiff’s case is that he with Defendant No.1 and 3 are the sons of Benudhar whereas Defendant No.2 and 4 are the wives of Defendant No.1 and 3 respectively. In the last consolidation operation in the year 1981, the property in schedule ‘A’ stood recorded in the name of Benudhar and the Defendant No.1 and 3 whereas the property in Schedule ‘B’ stood recorded jointly in the name of Benudhar with the Defendant No.5 (Kedarnath Pradhan) and his brother Bhramarbar Pradhan. The Defendant No.6 to 10 are the legal heirs and successors of Bhramarbar. Benudhar was having 50% share over schedule ‘B’ land whereas Defendant No.5 to 10 have 50% share. Benudhar owned another piece of land under Khata No.888/436 plot no.825/3303 area Ac 0.070 decimal in Mouza-Bhubaneswar Sahar Unit-23, Kapilaprasad. Benudhar died on 24.08.2016 at the age of 81 and his wife pre-deceased in the year 2012. Much prior to the death of

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the parents of the Plaintiff, their only daughter, who is the sister of Plaintiff and Defendant No.1 to 3 (Gitanjali) died unmarried. In the year 2009, in order to resolve the dispute amongst the family members and to bring peace and harmony in the family, on 21.12.2009, all arrived at a settlement in which they decided to distribute the property of Bhubaneswar Sahar, Unit-23, Kapilaprasad amongst the sons. Accordingly, Registered Sale Deed No. 747 dated 21.12.2009 for an area of Ac 0.028.5 decimal was executed in favour of the plaintiff and his wife. Similarly another registered sale deed dated 21.12.2009 for an area of Ac0.41.5 decimal was executed in favour of Defendant No.1 and 2 on receipt of Rs.4,00,000/- from the Defendant No.1 wherein the Defendant No.3 gave the consent. On 21.12.2009 being aggrieved by certain conditions, the Plaintiff, Defendant No.1 and 3 with their parents also executed another deed of agreement for maintenance of the parents and management of the suit property belonging to their father. The Defendant No.1 being the eldest son, kept all the documents with him providing photo copies of the same to the Plaintiff. As per the terms and conditions of the said agreement, their parents were staying with their sons for four months in turn and this started from 21.12.2009.

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It is stated that schedule ‘B’ property has not been partitioned and the ancestral qua-dwelling house of the parties is existing over

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different portions of the said land and in the house of Benudhar Pradhan, the Defendant No.3 is staying.

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Suit schedule ‘A’ land is said to be a chaka land. Since 2010, Defendant No.3 was cultivating the same and dividing the usufructs into four halves, giving 1/4^th share to the Plaintiff till the death of their father. But after the death of their father, he gave 1/3^rd share to the Plaintiff. Sometime in the year 2017, Defendant No.3 disclosed that he was not in a position to cultivate the said land anymore and since then, the lands are lying fallow.

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On 29.09.2018, the Plaintiff got the news from the relevant source that the Defendant No.1 and 3 were planning to sell away schedule ‘A’ land. The Plaintiff when then searched for the Record of Right in respect of schedule ‘A’ land, he found that those lands are recorded in the name of Defendant No.1 & 2 and Defendant No.3 & 4 being divided into two parts vide Mutation Khata No.311/1279 and 311/1278. On further enquiry, he came to know that on 26.08.2014, the Defendants have illegally and fraudulently snatched away two registered sale deeds in their favour from their father, who then had no need to sale the land. Under the first document land of Ac0.419 decimals with specific boundary description was sold in favour of Defendant No.1 & 2 and the second document is concerned with the land of Ac0.419 with specific boundary, which has been sold to of Defendant No.3 & 4 out of total area of Ac0.838 decimals. It is stated

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that such sales are in contraventions of the provisions of section 34 and 35 of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972 (for short, ‘the OCH & PFL Act’). It is further stated that the transactions are sham transactions and no consideration had passed through these deeds as Defendant No.1 to 4 had never paid said consideration. The father of the Plaintiff had no knowledge about the registration and execution of the deeds being in an unfit condition both physically and mentally unfit. It is stated that after execution of the sale deeds, the Defendant No.1 to 4 have mutated schedule ‘A’ land in their favour. After 26.08.2014, though father of the Plaintiffs stayed with him as per the turn till his death he had never stated about such sales or sale deeds to the Plaintiff. On 16.11.2008, the Plaintiff found that Defendant No.1 & 2 along with an outsider had come over schedule ‘A’ property claiming the same to be their own and asked the Plaintiff not to come over there. The Plaintiff when vehemently protested, there ensured exchange of the words. They disclosed that they were going to alienate the lands to the outsiders. After the death of their father, it is stated that the right, title, interest of the schedule ‘A’ land has devolved upon the Plaintiff and Defendant No.1 and 3 equally. Defendant No.1 to 4 are said to have derived no right, title, interest over the property by virtue of those sale deeds. The Plaintiff filed Mutation Appeals for cancellation of the mutation RORs.

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4. The Defendant No.1 and 2 in their written statement have challenged the locus standi of the Plaintiff to question the sale deeds executed by their favour. It is further stated that the suit for the said relief is barred by limitation. They state that as per the amendment to the OCH & PFL Act in the 2012, the legal restriction as per section 34 and 35 of OCH & PFL Act in respect of the Mouza-kantilo which came under town planning area covered under ODA Act was not there. They refuted the alienations of the Plaintiff as according to them, the sale deeds were never snatched away illegally and by fraudulent means and they asserted that those are all legal and valid. They asserted that the alienations made by their father are valid and accordingly have been recognized by the Mutation Authority followed by issuance of mutated RoR. It is also stated that the family settlement dated 21.12.2009 has no nexus with the suit property. It is said that the Plaintiff being the creator of all such mischiefs has created documents to put the Defendants in trouble.

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5. The Defendant No.3 & 4 have filed separate written statements. However, essentially the stand remains the same as that of the Defendant No.1 and 2.

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6. On the above rival pleadings, the Trial Court have framed in total eight issues. Rightly, taking up issue no.5, 6 & 7 which deal with the validity of the two sale deeds dated 26.08.2014 executed in favour

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of Defendant No.1 & 4, on going through the evidence on record and testing the same in the touch stone and backdrop of the rival pleadings, the findings have been rendered against the Plaintiff.

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7. Practically, answer to these issues have led to the denial of the reliefs claimed by the Plaintiff. The unsuccessful Plaintiff having carried the First Appeal, the First Appellate Court upon examination of the evidence and their evaluation independently at its level has again affirmed the findings of the Trial Court.

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8. When in the Memorandum of Appeal as required under sub section 3 of section 100 of the Code, no substantial question of law involved in this Appeal has been stated; learned counsel for the Appellant submitted that the Courts below have gone wrong in not holding that the sale transactions are void for contravention of the provision contained in section 34 & 35 of the OCH & PFL Act. He submitted that when for such contravention, the sale deeds are void, the view taken by the Courts below that those having come into being in the year 2014 do not fall foul of the provisions contained in section 34 & 35 of the OCH & PFL Act, which is wholly untenable. He therefore, urged for admission of this Appeal to answer the above as the substantial questions of law.

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9. Keeping in view the submissions made, I have carefully read the judgments passed by the Courts below.

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10. At this stage, it be stated that the OCH & PFL Act has undergone amendment very recently by OCH & PFL (Amendment) Act, 2023.

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In order to address the submission and ascertain as to if there surfaces any substantial question of law, 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 the coming into force of the OCH & PFL Act (Amendment) Act, 2023.

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“34. (I). No agricultural 1and in a locality shall be portioned and transferred or partitioned so as to create a fragment.

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(2) No fragment shall be transferred except, to a landowner of a contiguous Chaka :

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Provided that a fragment may be mortgaged or transferred in favour of the State Government, a cooperative 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.

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(3) When a person intending to transfer a fragment is unable to do so owing to restrictions imposed under subsection (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

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among the land owners of contiguous Chakas at a value not less than the market value, so determined.

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(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.

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(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.

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(1) A. transfer or partition; in contravention of the provision of section 34 shall be void

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(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.”

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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 omitted by section 2 of the OCH & PFL (Amendment) Act, 2023 and as per section 3 of the said Amendment Act, section 36A has been introduced. The Amendment Act has come into force with effect from 29^th December, 2023.

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The said provision of Section 3 of the Amendment Act which introduced section 36-A reads as under:-

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“In the principal Act, after section 36, the following section shall be inserted, namely:-

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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:

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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.”

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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 a bar.

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The previous provision of sub-section 1 of section 34 of the OCH & PFL Act, 1972 created a bar for transfer or 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 subsection 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 partition creating fragment in contravention of the provision of Section 34 of the Act were made statutorily void. As per provision of sub-section 3 of section 34 of the Act such transfer

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of fragment or partition creating fragment was permissible with the prior permission of the competent authority.

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As per sub-section 2 of section 35 of the OCH & PFL Act,

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1972, in order to see that by such transfers or partition, fragmentation land is not done and prevented as by such transfers or partition, the very objective sought to be achieved under the whole scheme of the OCH & PFL Act was to see that the strenuous exercise undertaken at the huge expenses from State exchequer is not frustrated. So, the Collector was even given the power to evict said person possessing as the violator of law to restore the previous position without fragmentation.

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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. Thus the fragmentation is no more a contravention to invite invalidity to the transaction in facing the eviction from the land in question. The Legislature’s intention thus is clear that focus is no more on prevention of fragmentation. Therefore, as one step forward, the provision of section 36A has been introduced in the statute that all such transfer or partition of agricultural land in a locality creating fragmentation under the existing law prior to amendment would be treated valid. Only those cases where eviction has been made

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by the Collector in sub-section (2) of Section 35 of the OCH & PFL Act were saved and the position would continue as before without being affected by the amendment. This provision is not saving the order of eviction but protecting the possession of the wrongdoer. It also protects the innocent person put in possession instead of restoring the position prior to eviction which would have been the situation, had the saving provision would not have been there. The omission of the provisions contained in the original Act is without any 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. The reading of the provision would lead to interpret the same as if effective notwithstanding the period of transaction. The Legislature has introduced this provision of section 36A after omitting the provisions of sections 34 and 35 in the original Act only 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 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. This

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covers all such cases where even declaration has been made but 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 in contravention of said provisions as those were before omission as void.

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It is well neigh the settled position of law that the change in law after the disposal of the original proceedings can be very much 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 under section 34 and 35 and the acts, deeds and effects by virtue of those omitted provisions; the submission of the learned counsel for the Appellant has no legal base to stand upon. Therefore, even upon saying that the reasons assigned by the Courts below to uphold the transaction in question as valid are untenable, in view of the changed scenario after coming into force of the OCH & PFL (Amendment) Act, 2023, the said contraventions are no more visible in the eye of law.

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13 . In the wake of aforesaid discussion, the submission of the learned counsel for the Appellant-Plaintiff fails and this Court

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finds that there arises no such substantial question of law for being answered in this Appeal meriting its admission.

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