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Bhula Gouda Vs. Sunder Majhi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 170 of 1979
Judge
Reported inAIR1986Ori87; 60(1985)CLT344
ActsMerged States (Laws) Act, 1949 - Sections 7; Code of Civil Procedure (CPC) , 1908 - Sections 100
AppellantBhula Gouda
RespondentSunder Majhi and ors.
Appellant AdvocateR.K. Rath, ;N.G. Panigrahi and ;G.S. Sarangi, Advs.
Respondent AdvocateP.K. Misra, L. Mohapatra and ;J.P. Misra, Advs.
DispositionAppeal dismissed
Excerpt:
.....of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the..........plaintiff alleged that mitu majhi was a drunkard and without any legal necessity he executed a sale deed in favour of defendants nos. 1 and 2 bhula gouda and jirman gouda in the year 1962 in respect of the suit land which is a joint family property without any consideration. the suit was filed for a declaration that the transfer of the land by defendant no. 3 in favour of defendants 1 and 2 was void. he further prayed for a declaration of his right, title and interest over the suit land and for delivery of possession of the same to him. defendants 1 and 2 filed a written statement denying the plaint allegations. their case is that the transfer is valid, the sale is for consideration and the plaintiff and defendant no. 3 mitu majhi were separate in mess and property. defendant no. 3.....
Judgment:

J.K. Mohanty, J.

1. Defendant No. 1 Bhula Gouda, who has lost in both the Courts below has filed this appeal.

2. The plaintiff (respondent No. 1 in this appeal) and Mitu Majhi, defendant No. 3 (respondent No. 2 in this appeal) are brothers. Plaintiff alleged that Mitu Majhi was a drunkard and without any legal necessity he executed a sale deed in favour of defendants Nos. 1 and 2 Bhula Gouda and Jirman Gouda in the year 1962 in respect of the suit land which is a joint family property without any consideration. The suit was filed for a declaration that the transfer of the land by defendant No. 3 in favour of defendants 1 and 2 was void. He further prayed for a declaration of his right, title and interest over the suit land and for delivery of possession of the same to him. Defendants 1 and 2 filed a written statement denying the plaint allegations. Their case is that the transfer is valid, the sale is for consideration and the plaintiff and defendant No. 3 Mitu Majhi were separate in mess and property. Defendant No. 3 supported the case of the plaintiff. The trial Court after considering the evidence and the facts and circumstances of the case decreed the plaintiff's suit. In appeal preferred by Bhula Gouda and Jirman Gouda, defendants Nos. 1 and 2, against the aforesaid judgment and decree the learned Additional District and Sessions Judge, Bhawanipatna confirmed the decision of the trial Court. Against this decision of the learned Addl. District and Sessions Judge, the present appeal has been filed by defendant No. 1.

3. Learned counsel appearing for the appellant assailed the findings of both the Courts, namely (1) as there was no partition between the plaintiff and defendant No. 3, prior to the execution of the sale deed by defendant No. 3, the defendant No. 3 had no right to transfer the suit land without any legal necessity and (2) the sale deed is void as no permission has been obtained under Section 7 of the Merged States (Laws) Act (hereinafter called 'The Act') by defendants 1 and 2.

4. In this case it has been held that the sale deed is void as no permission was obtained Under Section 7 of the Act by defendants 1, 2 or 3 before the sale of the suit land. The Act was in force in the ex-Slate of Kalahandi at the relevant time and the above defendants did not obtain permission from the S.D.O. before the sale deed was executed, as such the sale was void. As per the provisions of Section 7 of the Act no transfer of a holding from a member of an aboriginal tribe to a member of a non-aboriginal tribe shall be valid unless such transfer is made with the previous permission of the Sub-divisional Officer concerned. In this case defendant No. 3 is a member of the aboriginal tribe while defendants 1 and 2 are members of non-aboriginal tribe and in view of the above provision permission should have been obtained before the transfer of the land. So the finding of the learned Courts below that in the absence of permission from the S.D.O. Under Section 7 of the Act the sale is void cannot be assailed.

5. Learned counsel for the appellant argued that the learned Courts below have gone wrong in holding that there was no partition by metes and bounds between the plaintiff and defendant No. 3. It was further argued by the learned counsel that the very fact that the plaintiff has attested the sale deed will support the contention of the appellant that there was, in fact, a partition between the parties. The learned Courts below have considered the evidence adduced by both parties and the facts and circumstances of the case and have come to a definite finding that there was no partition between the plaintiff and defendant No. 3 and defendant No. 3 had no right to transfer the property without any legal necessity or for the benefit of the estate. I also do not see any reason to differ from the concurrent finding of both the Courts below.

6. In the result, there is no merit in this appeal which is accordingly dismissed. Parties to bear their own costs.


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