Skip to content


Bansidhar Das Vs. Duryodhan Majhi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Constitution
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 279 of 1977
Judge
Reported inAIR1985Ori84
ActsOrissa Land Reforms Act, 1960 - Sections 40(2); Code of Civil Procedure (CPC) , 1908 - Sections 100; Specific Relief Act, 1963 - Sections 16
AppellantBansidhar Das
RespondentDuryodhan Majhi and ors.
Appellant AdvocateP.K. Misra and ;A.K. Padhi, Advs.
Respondent AdvocateR.K. Mohapatra, ;B. Pal and ;N. Misra, Advs.
DispositionAppeal dismissed
Cases ReferredGliasi Paikray v. Dinabandhu Muduli
Excerpt:
.....md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 400/- in cash in furtherance of the agreement of sale and endorsed to that effect on the reverse of the deed of agreement. 2000/- but as the plaintiff failed to perform his part of the contract, the contract became voidable at the option ofdefendant no. ..the learned judge also in one line followed the earlier decision of this court in madhab biswal's case (supra). thus according to the learned judge, the prohibition for alienation is there so that the provisions of the act will not be defeated. we really fail to understand..........the provision, to continue and not to allow any suit for specific performance of any contract for sale of land entered into before the commencement of the orissa land reforms (amendment) act, 1973 to be instituted. this being the clear intention of the legislature, the contention of mr. misra cannot be accepted particularly when there is no inconsistency between the provisions contained in section 40(1) of the act and the provisions contained in section 40(2) of the act..-.....'thus it is apparent that the learned judge while interpreting sub-section (2) of section 40 of the act adhered to the general principles of interpretation of statutes, namely, where the language of a statute is clear and unambiguous, it is not for the court to add or give a different meaning to the provisions.....
Judgment:

G.B. Patnaik, J.

1. Plaintiff is the appellant against an affirming judgment.

2. The second appeal came up before our learned brother Dr. Justice B. N. Misra who did not agree with the views expressed by our learned brother Justice B. K. Ray, as he then was, in Second Appeal No. 161/77 (Madhab Biswal v. Aintha alias Pabana Senapati) disposed of on 2-1-1979 and followed by learned brother Justice R. N. Misra (as he then was) in the case of Ghasi Paikray v. Dinabandhu Muduli, reported in (1980) 50 Cut LT 108 with regard to interpretation of Sub-section (2) of Section 40 of the Orissa Land Reforms Act (hereinafter referred to as the 'Act') and directed that the appeal should be heard by a Division Bench. Since the second appeal has been placed before the Division Bench for disposal, we will not only decide the question of law with regard to interpretation of Sub-section (2) of Section 40 of the Act but also finally dispose of the appeal itself and, therefore, it is necessary to state the facts so far as they are relevant.

3. According to the plaint case Lokanath, father of defendant No. 1, was the owner of the land measuring Ac. Order 29 dec. appertaining to plot No. 1904; Ac. 0.05 dec. appertaining to plot No. 1905, and Ac. 0.15 dec. appertainingto plot No. 2198 of Khata No. 30 described in schedule 'Ka' of the plaint and he was duly recorded in the Record-of-Rights. After his death, defendant No. 1 became the owner of the lands and came to possess the same. In 1970 defendant No. 1 was serving at Jatni and wanted to purchase a house. Since he was in need of money for purchase of a house, he entered into a written agreement of sale with the plaintiff in respect of the lands for a consideration of Rs. 2000/- and in furtherance of the said agreement, received a sum of Rs. 525/- from the plaintiff and delivered possession of the lands to the plaintiff. As defendant No. 1 was a member belonging to the Scheduled Caste, and permission of the competent authority was necessary before effecting a sale of his property, he filed an application before the Sub-Divisional Officer, Nayagarh, for permission to sell the lands in question. The plaintiff, however, remained in possession of the lands from the date of agreement, namely 29-9-1970. On 23-1-1971, defendant No. 1 received a further sum of Rs. 400/- in cash in furtherance of the agreement of sale and endorsed to that effect on the reverse of the deed of agreement. The Sub-Divisional Officer, Nayagarh accorded permission to sell on 16-7-1971. The plaintiff then made several demands requesting defendant No. 1 to execute the sale-deed but the demands were of no consequence. On 28-1-1972, defendant No. 1 sold the lands described in schedule 'Kha' appended to the plaint to defendants 2 and 3 by registered sale deed for a sum of Rs. 2000/-. This sale was in respect of Ac. 0.29 dec. of land appertaining to plot No. 1904 and Ac. 0.05 dec. appertaining to plot No. 1905 of Khata No. 30 and these lands form part of 'Ka' schedule lands in respect of which there was an earlier agreement of sale with the plaintiff. Again on 14-11-1972, defendant No. 1 sold Ac. 0.15 dec. of land appertaining to plot No. 2198 of Khata No. 30 to defendants 2 and 3 by registered deed of sale for a consideration of Rs. 400/-. According to the plaintiff these sales by defendant No. 1 in favour of defendants 2 and 3 are in breach of the written agreement of sale entered into by defendant No. 1 with the plaintiff on 29-9-1970 and therefore, the plaintiff filed the present suit for specific performance of contract of sale by defendant No. 1 in his favour and for a declaration that the two subsequent sale deeds in favour of defendants 2 and 3 are not binding on the plaintiff. Theplaintiff also prayed for confirmation of possession over 'Ka' schedule' lands.

4. Defendant No. 1 in his written statement averred that he had entered into an oral agreement with defendants 2 and 3 two days prior to Panasankaranti in the year 1970 to sell the 'Ka' schedule lands to them for a consideration of Rs. 2000A. Thereafter, on 29-9-1970 he had entered into a written contract of sale with the plaintiff in respect of the 'Ka' schedule lands and had received Rs. 525/- as advance, but no possession was delivered to the plaintiff as alleged. It was further stated that an application for permission to sell the land had been made and permission was also accorded by the competent authority on 16-7-1971. It was also admitted that defendant No. 1 had received Rs. 400/- from the plaintiff on 23-1-1971. The further case of defendant No. 1 was that after obtaining permission from the Sub-Divisional Officer he asked the plaintiff several times to pay the balance consideration amount for execution of the sale-deed, but the latter did not pay the balance sale price. Defendant No. 1 requested for the last time in the last week of January, 1972 to pay up the balance consideration amount but as the plaintiff expressed his inability to make the payment and defendant No. 1 was in urgent need of money, he transferred the 'Kha' schedule lands to defendants 2 and 3 by a registered deed of sale on 28-1-1972 and 'Ga' schedule land on 11-4-1972 by another registered deed of sale. Therefore defendant No. 1 has delivered possession of the suit lands to defendants 2 and3. Consequently, defendant No. 1 claimed that plaintiffs suit must be dismissed.

5. Defendants 2 and 3 filed a separate written statement wherein they alleged that they were bona fide purchasers for value without any notice of the contract between the plaintiff and defendant No. 1 and they had entered into an oral agreement with defendant No. 1 two or three days prior to Panasankaranti day in the year 1970 and further they were in possession of the suit lands from the date of execution of the sale-deeds in their favour.

6. On these pleadings, the trial court found that : --

(i) There was a written agreement of sale between the plaintiff and defendant No. 1 on 29-9-1970 and that defendant No. 1 had received Rs. 925/- as advance out of the total consideration of Rs. 2000/- but as the plaintiff failed to perform his part of the contract, the contract became voidable at the option ofdefendant No. 1 and the plaintiff could no longer take advantage of the same.

(ii) the agreement of sale between the plaintiff the defendant No. 1 was void under the provisions contained in Section 22 of the Orissa Land Reforms Act:

(iii) the sale-deed executed by defendant No. 1 in favour of defendants 2 and 3 were valid and genuine and defendants 2 and 3 were purchasers for value without notice of agreement for sale between defendant No. 1 and the plaintiff;

(iv) the plaintiff was entitled to the refund of Rs. 925/- paid by him to defendant No. 1 along with interest at the rate of 6% per annum till the date of payment though he was not entitled to the relief of specific performance of contract against defendant No. 1.

Accordingly, the trial court decreed the plaintiffs suit only to the extent of recovery of Rs. 925/- with interest from defendant No. 1 and dismissed the suit as against defendants 2 and 3.

7. On appeal, the lower appellate Court affirmed the finding of the trial court to the effect that the plaintiff had never shown his readiness to perform his part of the contract and as such was not entitled to the relief of specific performance. It was also found by the lower appellate court that defendants 2 and 3 were purchasers of 'Kha' schedule lands for value but they had prior notice of the agreement of sale between the plaintiff and defendant No. 1. The lower appellate Court had further found that the agreement of sale between the plaintiff and defendant No. 1 was not invalid under the provisions of Section 22 of the Orissa Land Reforms Act or Section 23 of the Indian Contract Act. The lower appellate Court, however, held that the suit must abate in view of the provisions contained in Section 40(2) of the Orissa Reforms Act. The finding of the trial Court with regard to plaintiffs entitlement to the refund of Rs. 925/- from defendant No. 1 with interest was, however, confirmed When the second appeal came up for hearing under Order 41 Rule 11 C.P.C. this Court considered that the only substantial question of law arising in the case to be urged at the hearing of the appeal was with regard to the interpretation by the lower appellate Court of the provisions of Section 40(2) of the Orissa Land Reforms Act. Ground No. 1 which was accepted to be raising substantial question of law is extracted herein below : --

'For that the courts below have gone wrong in holding that the suit abated having regard to Section 40(2) of the O, L R. Act. It should have been held that having regard to the scheme and object to the O. L. R. Act, the intention of the legislature was that the transfer or the agreement for transfer to come within the mischief must relate to person holding land in excess of the ceiling area, and the object of the legislature was not to invalidate every agreement for sale irrespective of the extent of the land held by a person either as a raiyat or land-holder.'

8. The learned counsel for the appellant has submitted that Sub-section (2) of Section 40 must be construed to mean that the suit for specific performance in respect of lands in excess of the ceiling area would abate and the said provision would have no application where the contract is in respect of the land within the ceiling area. According to Mrs. Padhi the setting in which Sub-section (2) has been placed and the object for which such a provision is intended, the conclusion is irresistible that the said sub-section applies only when the land is in excess of the ceiling area.

Mr. R. K. Mohapatra, the learned counsel for the respondents on the other hand has submitted that the language of Sub-section (2) of Section 40 is clear and unambiguous and, therefore, is not susceptible of any other construction than what the plain and grammatical meaning connotes and in such an event, it would not be open for the Court to take any extrinsic aid to find out the intention of the legislature. In support of his contention, the learned counsel placed reliance on an unreported decision of this Court in Second Appeal No. 161/77 disposed of on 2-1-1979 and the decision in the case of Ghasi Paikray v. Dinabandhu Muduli reported in (1980) Cut LT 108. The rival contentions require careful examination.

9. Sub-section (2)of Section 40 of the Act came up for interpretation before this Court in S. A. 161/77 and our learned brother R K. Ray, J. held in that case : --

'....The Court must proceed on the footing that the legislature intended what it has said. Even if there is some difficulty in the phraseology used by the legislature, a Court cannot aid legislature's defective phrasing and add or amend or by construction make up the deficiencv which have been left in the Act.Unless the words used in a 'statute are unmeaning or absurd it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute' on the ground that to give them their ordinary meaning would lead to consequences which are not in accord with the notions of propriety or justice entertained by a Court. It is only when there are other provisions in the statute which conflict with the provisions under consideration, the court may prefer one and reject the other on the ground of repugnance. This is not the position here.....'

The learned Judge further held : --

'.....True, it is the duty of the court toharmonise different provisions of an enactment. But at the same time it is not the duty of a court to stretch the words used by the legislature in order to fill in a supposed gap or omission in the enactment. The clear intention of the legislature in making provision under Section 40(2) of the Act is not to allow any suit for specific performance of contract for transfer of land within the period provided under the provision, to continue and not to allow any suit for specific performance of any contract for sale of land entered into before the commencement of the Orissa Land Reforms (Amendment) Act, 1973 to be instituted. This being the clear intention of the legislature, the contention of Mr. Misra cannot be accepted particularly when there is no inconsistency between the provisions contained in Section 40(1) of the Act and the provisions contained in Section 40(2) of the Act..-.....'

Thus it is apparent that the learned Judge while interpreting Sub-section (2) of Section 40 of the Act adhered to the general principles of interpretation of statutes, namely, where the language of a statute is clear and unambiguous, it is not for the Court to add or give a different meaning to the provisions than the ordinary grammatical meaning. In fact, there is no quarrel with the aforesaid general rule of interpretation. But the question which remains to be considered is whether the court should stick to the ordinary rule of interpretation and give the grammatical meaning of the language used in the statute even when it is explicitly clear that the meaning so given would not subserve the purpose of the statute or by no stretch of imagination that could have been the legislative intent.

10. In the next case, namely, in the case ofGhasi Paikray v. Dinabandhu Muduli reported in (1950) 50 Cut LT 108, our learned brother R. N. Misra, J. (as he then was) did not discuss the problem and only held : --

'.....Legislative intention is clear and it isthis after the prescribed date no alienation should take place so as to defeat the provisions of the Act.....'.

The learned Judge also in one line followed the earlier decision of this Court in Madhab Biswal's case (supra). Thus according to the learned Judge, the prohibition for alienation is there so that the provisions of the Act will not be defeated. We really fail to understand the true import of the aforesaid observation of the learned Judge. Of course the learned Judge further held : --

'.....Words in Section 40(2) are quite intelligibleand there is no ambiguity. Plain construction is the rule.'

There is no dispute with the aforesaid proposition and in fact the learned counsel for the appellant also did not contend anything to the contrary.

It may be necessary at this stage to put on record the view expressed by our learned brother P. K. Mohanti, J, as he then was, in the case of Jogendranath Nayak v. Prafulla Chandra Swain in S. A. 32/77. The learned Judge after quoting the two earlier decisions of this Court did not agree with the views expressed by Justice B. K. Ray and Justice. R. N. Misra and held : --

'.....But the general rule of constructionis not only to look at the words and expressions but to look at the context, the collocation and the object. The Court must look at what precedes and what succeeds and not merely at the provision itself. The heading prefixed to a Section or a group of sections may also be looked into to determine the legislative intention.....'

In paragraph 11 of his order, the learned Judge held:-

'An alienation by a person holding lands tess than the ceiling area is not prohibited by Sub-section (1) If aperson holding lands less than the ceiling area could validly sell his land, it would not have been the intention of the legislature to prohibit such a person from entering into a contract for sale of land'.

Having thus held, the learned Judge directed that the matter be referred to a Division Benchand in fact the said second appeal came up before a Division Bench consisting of Justice R. N. Misra and Justice J. K. Mohanty, but as none appeared for the appellant, the appeal stood dismissed for default and thus the matter remained at that stage.

11. In the present case, our learned brother Dr. Justice B. N. Misra, came to the conclusion that Sub-section (2) of Section 40 of the Act appeared to be ambiguous and, therefore, kept in view the statutory provisions contained in Chapter IV of the Act and Section 40(2) in particular, the harmonious construction would be that Sub-section (2) of Section 40 applied to suits for specific performance of contract for transfer of lands entered into by a person holding lands in excess of the ceiling area.

12. Rupert Gross in his book 'Statutory Interpretation' recognised that the most frequent complaint concerning the approach of the Courts to statutory interpretation was that it was excessively literal. According to ' the learned author very often the object of the legislature is frustrated by an undue insistence on the part of the courts on applying the statutory words to the particular case in a strictly literal sense. While tracing the historical approach in the matter of statutory interpretation, the learned author referred to Sussex Peerage case and observed : --

'Tindal C. J. in that case recognised that, before deciding whether the words are 'in themselves precise and unambiguous', The court must have regard to the whoie of the enacting part of the statute. The proper application of the literal rule does not mean that the effect of a particular word or phrase, clause or Section is to be determined in isolation from the rest of the statute in which it is contained.'

The author has further observed : --

'This had been recognised by Parker, C. B. in the middle of the 18th century; but his words may be thought to have contained the germs of a third rule which, in order that it may be distinguished from the mischief and literal rules, is commonly called the 'golden' rule. It allows for a departure from the literal rule when the application of the statutory words in the ordinary sense would be repugnant to or inconsistent with some other provision in the statute or even when it would lead to what the Court considered to be an absurdity. The usual consequence of applying the goldenrule is that words which are in the statute are ignored or words which are not there are read in.....'

In the case of Becke v. Smith (1836) 2 M & W 191 at page 195 Parke, B said :-

'It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnancy in which case the language may be varied or modified, so as to avoid such inconvenience, but no further.'

The learned author in Chapter III of his Book enunciated a reasonably brief and accurate statement of the rules of English statutory interpretation as follows : --

' 1. The Judge must give effect to the ordinary or, where appropriate, the technical meaning of words in the general context of the statute, he must also determine the extent of general words with reference to that context.

2. If the judge considers that the application of the words in their ordinary sense would produce an absurd result which cannot reasonably be supposed to have been the intention of the legislature, he may apply them in any secondary meaning which they are capable of bearing.

3. The judge may read in words which he considers to be necessarily implied by words which are already in the statute and he has a limited power to add to, alter or ignore statutory words in order to prevent a provision from being unitelligible or absurd or totally unreasonable, unworkable or totally irreconcilable with the rest of the statute.

5. In applying the above rules the judge may resort to the aids to construction and presumptions..........'

13. It is an accepted proposition of law that Acts must be construed as a whole. Guidance with regard to the meaning of a particular word or phrase may be found in other words and phrases in the same Section or in other Section s, although the utility of an extensive consideration of other parts of the same statute will vary from case to case.

14. We will now examine the provisions of the Act. The Orissa Land Reforms Act was enacted as a progressive piece of legislation relating to agrarian reforms in order to conferbetter rights to agriculturists so as to ensure increase in food production. The Act is undoubtedly a piece of social legislation, one of the main object being to put a ceiling upon the holding of any individual and to take surplus lands for the purpose of distribution amongst the landless people, as has been observed in the judgment of the Kerala High Court in the case of Kuttan v. State of Kerala reported in 1976 Ker LT 49:--

'The provisions of the Land Reforms Act proceeds entirely on a different economic principle. Too much investment in land is taken as an exploitation of the landless and a re-distribution of land with little regard to an economic ceiling area but with more emphasis on the limit of the area of the holding is aimed at.....'

Except Chapters III and IV of the Act, the rest of the provisions of the Act came into force on 1st. day of October, 1965 : Chapter III of the Act came into force on 9-12-1965 and Chapter IV came into force on 7th January, 1972. Chapter IV deals with the topic 'Ceiling and disposal of surplus land'. Section 40 occurring in Chapter IV deals with prohibition of transfer and partition of land and restriction of suits for specific performance of contracts. The provision relating to specific performance of contract was introduced by way of amendment by President's Act 17 of 73 which now continues as Sub-section (2) of Section 40. Under the said provision, suit for specific performance of contract for transfer of land instituted after 26-9-1970 and before the commencement of the Orissa Land Reforms (Amendment) Act, 1973 abates and no suit for specific performance of any such contract entered into before such commencement shall be maintainable. On being given a literal meaning, the said provision applies to all cases of suits for specific performance of contract instituted between the period mentioned therein and also bars filing of any suit for specific performance entered into before the commencement of Orissa Land Reforms (Amendment) Act, 1973 irrespective of whether it is in respect of surplus holder having land more than the ceiling area or not. The provisions contained in Chapter IV are basically intended for fixation of a ceiling and vesting of surplus land with the State and thereafter disposal of the same. Sub-section (1) prohibits transfer by sale, gift or by partition of any land after the commencement of theOrissa Land Reforms (Amendment) Act, 1973 in case of person holding land in excess of the ceiling area. In other words, for a person holding land within the ceiling area there is not fetter on his power of disposition over his property. Sub-section (3) also applies to suits for partition of land when the subject matter of the suit exceeds the ceiling area in respect of the persons in which case the suit would abate. These provisions are intended to effectively achieve the desired object of putting a ceiling, on every land-holder's holding and to plug the loopholes so that the basic object is not frustrated. There is no rationale as to why Sub-section (2) of Section 40 should apply to all suits for specific performance of contract irrespective 01 the fact whether it is in respect of land in excess of the ceiling area or not. diving a literal meaning to the said provision, in our opinion, does not subserve any purpose, much less the basic purpose of the provisions contained in Chapter IV. The legislature cannot be supposed to have made provisions in a statute without any specific object. The setting in which Sub-section (2) is placed, in our opinion, unequivocally connotes that it is intended to apply only when the suit for specific performance of contract is in respect of a land held in excess of the ceiling area. We are quite aware of the general principles of construction of a statute which have been taken recourse to by our learned brother Justice B. K. Ray while interpreting Sub-section (2) of Section 40 of the Act, but in our opinion, the learned Judge has completely overlooked and lost sight of the main object of the statute and particularly the provisions contained in Chapter IV. It would not be in consonance with the principles of construction of a statutory provision to interpret the same by giving it literal meaning even though by such interpretation the basic purpose of the legislation is not achieved. In our opinion, Sub-section (2) of Section 40 of the Act must be construed to apply only in a case where contract is in respect of land in excess of the ceiling area and has no application when the land in question is within the ceiling area. We, therefore, hold that the decision of our learned brother Justice B. K. Ray in Second Appeal No. 161/77 and the decision of Justice R. N. Misra in the case of Gliasi Paikray v. Dinabandhu Muduli reported in (1980) 50 Cut LT 108 are not correctly decided, and those two decisions are overruled.

15. Even if our conclusion in the interpretation of Sub-section (2) of Section 40 supportsthe contention of the learned counsel for the appellant, yet the appeal itself must be dismissed inasmuch as the concurrent finding of fact arrived at by the two courts below is that 'the plaintiff had never shown his readiness to perform his part of the contract and as such was not entitled to the relief of specific performance'. Mrs. Padhi appearing for the appellant could not point out anything to assail the aforesaid finding of fact. Under Section 16(c) of the Specific Relief Act, specific performance of contract cannot be enforced in favour of a person who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him. In this view of the law and in view of the (findings of the Courts below which are also being confirmed by this Court, the plaintiffs prayer for specific performance of contract is bound to be rejected and hasbeen rightly rejected.

16. In the ultimate result, therefore, the second appeal fails being devoid of merits and is accordingly dismissed. There would be no order for costs of this appeal.

P.C. Misra, J.

17. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //