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Bhai Ramji Vs. Govinda Rantai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 178 of 1963
Judge
Reported inAIR1965Ori121
ActsTenancy Laws; Patna State Tenancy Act, 1944 - Sections 106
AppellantBhai Ramji
RespondentGovinda Rantai and ors.
Appellant AdvocateR.K. Mohapatra, Adv.
Respondent AdvocateR.N. Sinha, Adv.
DispositionAppeal dismissed
Cases ReferredKally Dass Ahiri v. Monmohinee Dasee
Excerpt:
.....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]. - an aborigine shall not be allowed to transfer his holding on any portion thereof by way of sale or gift to a non-aborigine except with the approval of the government after proving to the satisfaction of the government that there are special grounds for allowing him to effect such transfer and that he failed to find out an aboriginal transferee after due and reasonable attempt......under a raiyati patta and permanent lease executed by defendant no. 3 jaya jena in respect of the suit lands. defendant 1 is an auction purchaser at a certain court sale in an execution case in which defendant no. 2 is the decree holder and defendant no. 3 is the judgment debtor. the auction purchaser defendant no. 1 is the appellant herein.2. the suit b schedule lands being plot no. 78, holding no. 9 with an area of 1.26 decimals at village titilagarh, district bolangir, originally belonged to defendant no. 3 jaya jeni. the said b schedule lands and other lands in a schedule were all defendant jaya jani's gounti rayati lands. defendant no. 2 raghunath mahajan had a money claim and obtained a money decree against defendant jaya jani. in execution case no. 37 of 1955 the decree-holder.....
Judgment:

S. Barman, J.

1. This appeal arises out of a claim made by the plaintiff Govinda Rantai under a raiyati patta and permanent lease executed by defendant No. 3 Jaya Jena in respect of the suit lands. Defendant 1 is an auction purchaser at a certain Court sale in an execution case in which defendant No. 2 is the decree holder and defendant No. 3 is the judgment debtor. The auction purchaser defendant No. 1 is the appellant herein.

2. The suit B schedule lands being plot No. 78, holding No. 9 with an area of 1.26 decimals at village Titilagarh, District Bolangir, originally belonged to defendant No. 3 Jaya Jeni. The said B schedule lands and other lands in A schedule were all defendant Jaya jani's Gounti Rayati lands. Defendant No. 2 Raghunath Mahajan had a money claim and obtained a money decree against defendant Jaya Jani. In Execution Case No. 37 of 1955 the decree-holder defendant No. 2 attached the suit lands. At Court sale the appellant auction purchaser defendant No. 1 purchased the same lands. On September 11, 1959 the auction purchaser defendant, took delivery of possession of the suit lands through Court. Thereupon the plaintiff thus dispossessed of the suit lands made an application to Court complaining of such dispossession under Order 21, Rule 100, Civil Procedure Code claiming to have been in possession of the suit lands in his own right which he acquired under a rayati patta and permanent lease. The plaintiff's said application was dismissed. On December 21, 1960 the plaintiff filed the suit for declaration of his right, title and interest over B schedule lands and for a declaration that the sale of the suit lands in the said execution case in favour of auction purchaser defendant is invalid and not binding on the plaintiff, possession and other incidental reliefs.

3. The basis of the plaintiff's title to the suit lands is this: On March 12, 1940 when defendant No. 3 Jaya Jani was a minor his guardian inducted the plaintiff's undivided uncle Kasi Rantai as raiyat under an unregistered raiyati patta Ex. 6 of Schedule A lands including the suit lands in Schedule B. Since then the plaintiff and his uncle were in possession of the suit lands. In 1951 the plaintiff's uncle died and since thereafter the plaintiff has been in possession. In the meantime on April 2, 1948 defendant No. 3 Jaya Jani on having attained majority along with his co-sharers executed a registered permanent lease Ex. 5 in favour of the plaintiff. The plaintiffs case is that he has been in possession in his own right and that he is not bound by the auction sale to defendant No. 1, and that the said defendant No. 1 has not acquired an right under his purchase at Court sale.

4. The appellant auction purchaser defendant No. 1 alone contested the suit. The material defence taken by him was this. The plaintiff is not the owner of the suit land. Defendant No. 3 Jaya Jani never transferred the suit lands to the plaintiff. In the alternative, it was also contended by the defendant No. 1 that if the suit lands had been transferred as alleged such transfer was invalid under tenancy laws; that the plaintiff had knowledge of the attachment in execution of the decree against defendant No. 3 Jaya Jani and the Court sale in execution of the said decree & that the attachment and sale in execution of the decree are binding on the plaintiff. The auction purchaser defendant also submitted that the judgment debtor defendant No. 3 had full right and title over the suit lands at the time of the Court sale.

5. The trial Court found that the transfers to the plaintiff had been proved. But the trial Court dismissed the plaintiff's suit on the finding that the defendant 3, Judgment-debtor Jaya Jani having been an aboriginal and plaintiff having been a non-aboriginal the said transfers by defendant No. 3 in 1940 and 1948 were invalid as they were without the approval of the Government under Section 106 of the Patna State Tenancy Act, 1944 (Act No. I of 1944), and accordingly the plaintiff acquired no title under the said transfers, that the attachment and sale to defendant No. 1 at Court sale in execution were valid and properly made. In appeal, the learned lower appellate Court reversed the decision of the trial Court and decreed the suit in favour of the plaintiff on the finding that the transfers to the plaintiff were proved and valid, that Section 106 of the Patna State Tenancy Act is not applicable as this is a case of permanent lease and not sale. Hence this second appeal by the auction purchaser defendant No. 1.

6. Section 106 of the Patna State Tenancy Act laying down restriction to alienation of lands by aboriginals is this:

'An aborigine shall not be allowed to transfer his holding on any portion thereof by way of sale or gift to a non-aborigine except with the approval of the Government after proving to the satisfaction of the Government that there are special grounds for allowing him to effect such transfer and that he failed to find out an aboriginal transferee after due and reasonable attempt.'

The question is whether or not the raiyati patta, dated March 12, 1940 Ex. C and the registered permanent lease, dated April 2, 1948 Ex 5 in favour of the plaintiff can be construed as sale. The answer depends on the construction of Exs. 5 and 6. It is fundamental that for ascertaining the intention of the parties under one document a decision on a construction of another document cannot ordinarily afford any guidance unless the terms are exactly similar to each other. It is true that some of the terms of the document in a certain case may be approximated to some of the terms in the present case. But in each of the cases cited herein the decision really turned upon certain crucial circumstances in each of these cases.

7. The test in the light of which the documents in question are to be construed has been laid down by their Lordships of the Privy Council in Abhiram Goswami v. Shyama Charan Nandi, 36 Ind App 148 (166): ILR 36 Cal 1003 (1014) where their Lordships answered the questions as to what is the plain meaning of the words 'purchased for a valuable consideration'. It is laid down that these words mean that the ownership of the property sold has been absolutely transferred from the vendor to the purchaser in consideration of a price paid or secured by the purchaser to the vendor. Their Lordships did not accept the able argument of Sir Robert Finley for the respondents in that appeal, contending that a mokurari lease is tantamount to a conveyance in fee simple, and that the lessee must, therefore, be treated as a purchaser. The Privy Council noted with approval the distinction between the two transactions--lease and sale--as pointed out by Sir Lawrence Jenkins in Kally Dass Ahiri v. Monmohinee Dasee, TLR 24 Cal 440 (447).

The distinction is this. Because a conveyance in fee simple leaves nothing in the grantor, it does not follow that a lease in perpetuity here has any such result; the law of this country does undoubtedly allow of a lease in perpetuity, a man who, being owner of land, grants a lease in perpetuity carves a subordinate interest out of his own, and does not annihilate his own interest. This result is to be inferred by the use of the word lease which implies an interest still remaining in the lessor. Such a lease is forfeitable, notwithstanding that it is permanent. It was on these basic principles that the Privy Council expressed that they are unable to treat the lessee as a purchaser. The purchaser must be the purchaser of an absolute title.

8. The question now is: Did the transferor under Ex. 5 and Ex. 6 annihilate his own interest in the suit lands On the interpretation of the documents my answer is: No. The reasons are these: In each of the documents the transferor reserved the right to realise the present rent as also the increased rent at the next settlemen Accordingly defendant No. 3 had accepted rents as per rent receipts Ex. 2 series. The lease in favour of the plaintiff is silent as regards payment of any lump sum money for the transaction whereas in the several decisions relied on behalf of the defendant-appellant a heavy Nazrana was paid and a nominal rent was fixed purporting to show that the transaction was in substance a sale and not a lease. In the present case, it is nobody's case that the annual rent is nominal. Thus a reservation of right to realise rent at present rate and the right to increase rent at the next settlement makes' it clear that there was no complete annihilation of the transferor's interest in the suit lands in favour of the plaintiff. In my opinion, therefore, Exs. 5 and 6 are lease and not sale so as to fall within the restriction to alienation of lands under Section 106 of the Patna State Tenancy Act.

9. In the view that I have taken on the interpretation of Exs. 5 and 6 on the particular terms and conditions contained therein it is unnecessary to deal with the decisions cited on behalf of the parties which all were decided on the particular terms and conditions of the documents therein. In my opinion, the learned lower appellate Court is justified in his conclusion with which I agree.

10. The decision of the learned lower appellate Court is therefore upheld.

11. This appeal is dismissed with costs.


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