1. This is an appeal by defendant 2 in a suit for recovery of possession of certain lands appertaining to raiyati holding No. 70 of mouza Sahala, described in all material details in a schedule attached to the plaint.
2. Defendant 1 was the owner of the said lands. He transferred them on 23 4-1941 by a sale deed to the plaintiff for consideration. The plaintiff stepped into possession of the said lands along with other lands similarly sold to him by defendant 1 aforesaid. Defendant 1 later gave the same lands to defendant 2 who has since taken possession thereof and inspite of repeated demands did not give it up. The suit was contested by both defendants 1 and 2. The present contest mainly centres round the priority of title of either the plaintiff or defendant 2. Defendant 2's case is that defendant 1 and his son surrendered the suit lands to Lambardar Gountia on 30.5-1941 who, in his turn, on 31-5-1941 for consideration settled the suit lands and other lands with this defendant and that ever since, he has been in possession of the same. The trial Court had dismissed the plaintiff's suit. The learned lower appellate Court reversed the trial Court's decree and decreed the suit granting him reliefs of declaration of title and restoration of possession. The alleged deed of surrender is Ex. a and the deed of settlement for the raiyati patta in favour of defendant 2 is Ex. B. The dispute, whether the suit lands form the subject-matter of transfer in the sale deed Ex. 1, has been at rest in the learned lower appellate Court who finds :
'In these circumstances, there cannot be any manner of doubt that suit lands which are known as Pankel At as also as Mahul At had been sold by defendant 1 to plaintiff under Ex. 1, the sale deed.'
The contention relating to this has not been reiterated before us in the second appeal.
3. The fact that the plaintiff got possession in pursuance of the sale deed in his favour, has also been set at rest and has not been agitated at the bar. The learned lower appellate Court observes:
'I find therefore that plaintiff purchased the suit lands and other lands from defendant 1 under Ex. 1, the sale deed and was in possession of the suit lands for about a year and subsequently he was dispossessed from the same by defendant 2.'
4. The next question that remains to be determined is whether the sale performed by execution and delivery of ex. 1 for consideration accompanied with making over possession to the plaintiff, is binding against the contesting defendants. Admittedly, at the time of this transaction, the law governing was the Rules known as 'Sonepur State Code, vol. I. The Bhumi bidbi', (corrected up to August, 1939). The relevant rules or paras, are 22 and 23. According to R. 22 (b), an occupancy tenant may transfer his holding by a written deed of conveyance to a person who is his next heir according to law. If, however, any transfer, either of the whole ox part of his holding, by sale or mortgage, be made for reasonable cause by the occupancy tenant, it shall have to be done by executing a regular deed of conveyance on a properly stamped paper. The deed aforesaid shall not be valid in law if in addition to at least two witnesses to the deed the Gountia does not sign his name by way of giving his consent to the transaction. No transfer by way of gift or dowry is allowed to be made by the occupancy tenant.
Note-(l) The reasonable cause mentioned in the section denotes-need for paying off rightfully incurred debts for reasonable expenditure for household management and for expenses necessary to conduct agricultural operations.
Note-(2) The occupancy tenant desiring to part with a portion of his holding by sale ok desiring to mortgage a portion of his holding shall have to obtain the sanction of the Ruler through the Revenue Department that the holding may be subdivided with separate survey numbers as desired by the tenant.
Note-(3) If the holder of the village declines to sign his name on the deed aforesaid by way of giving consent, the occupancy tenant may move the Ruler through the Revenue Department by showing the reasonableness of the transfer for obtaining the validating signature and the Ruler on being satisfied with the reasonableness of the transaction may pass the order that the deed in question is fit to be validated; the occupancy tenant by obtaining a certified copy thereof may attach the copy to the deed to make the transaction valid.
Note-(4) It has been provided that to make the deed of transfer mentioned in this section valid the signature of the village holder by way of consent is necessary. The village holder shall mot demand more than ten per cent, of the consideration money for giving his consent. It is contended that the present deed of conveyance in favour of the plaintiff, which doe3 not contain the signature of the Gountia (the village holder) by way of giving his consent to the transaction, is invalid and confers no title on the plaintiff and that the plaintiff cannot recover possession from the defendant without proving a superior title. The validity of the learned lower appellate Court's judgment is challenged on the ground that he is in error in applying the rule of limitaion provided for in Schedule 3, as such a rule is not available to the plaintiff.
5. The crux of the question, therefore, is if the sale deed without Gountia's signature or consent is void ab initio or if it is merely a defect, a defect curable by any other means. Note (3) above makes it clear that the consequence of the absence of such a signature can be avoided by moving the Ruler through the Revenue Department and by obtaining a ruling that the transaction was supported by reasonable cause and was a fit one to be validated. Secondly, according to Sub-section (2) of Schedule 3, any transferee under a transaction which does not fulfil the requirements of Section 22, may apply according to general rules for mutation within six months by serving notices through the Revenue Department on the Gountia, on the transferring occupancy tenant and on such a person who would have been the next successor of the transferring occupancy tenant, for mutation of his name. The Initiation of this proceeding shall afford the parties concerned a fresh opportunity for examination of the validity of the transaction, in accordance with which a fresh proceeding shall then be drawn up in the Revenue Department. The Revenue authority shall be the final arbiter to decide if the transaction is illegal. On such finding the person concerned shall be liable to be evicted forthwith and a new occupancy tenant shall be settled on the holding in question with the sanction of the Ruler.
6. If it was intended by the law-making authority that a transaction of sale gone into in accordance with the formalities prescribed in Schedule 2 (b), apart from Gountia's signature by way of consent, was void ab initio, nothing should have been simpler for it to say so, Thai it is not void ab initio, is justified by the fact that the right to avoid the transaction of sale or mortgage on ground of its illegality is limited to either the Gountia or the heir or successor of the occoupancy tenant. This right of avoidance is exercisable by a suit within the period of limitation of two years, it having been said in Sub-section (2) of Section 23 that the institution of such a suit (suit for avoiding an illegal transaction) shall be barred by limitation (after two years) even though the person entitled to sue, be a minor at the time fixed for instituting the suit.' The words 'avoid', 'entitled to sue' and a specific and express provision in the body of Schedule 3 limiting the power of avoidance to the heir or successor of occupancy tenant or the Gountia, make it clear that none of them can take the law into their own hands and forcibly dispossess a person holding under such 'an illegal' transaction.
7. A comprehensive view of the entire law contained in the Bhumi-bidhi' conveys to my mind that occupancy holdings are not inalienable, but are alienable under limited and specified circumstances, namely, for reasonable cause, which according to note (1) to cl. (b) of Section 22, means,
'need for paying off rightfully incurred debts, for reasonable expenditure, for household management and for expenses necessary to conduct agricultural operations.'
If such reasonable cause exists, the other deficiencies of validating circumstances, such as, consent signature of Gountia or certificate by the Revenue Department as to its fitness, can be removed on the mere asking for it. On the whole, till the transaction is set aside for absence of such reasonable cause in a suit at the instance of either the Gountia or the successor of an occupancy tenant or till so declared by the Revenue Department in a proceeding specifically drawn up for the purposes and carried on in the presence of the transferor, the transferee and the person entitled to avoid a transfer, the transaction binds the whole world including the parties or privies to it. Gountia cannot avoid the transaction by accepting a surrender from the occupancy tenant and entering upon the land. To permit him to do so would amount to setting the law providing the sole means of avoidance at naught. The Gountia, far less the occupancy tenant's successor cannot be judges of their own cause, until it is declared in Court or by the sola arbiter, namely, the Ruler that reasonable cause did not exist for the sale or mortgage, nor can challenge it and entitle himself on its mere assertion, to dispossess the transferee. Defendant 1, the transferor, having represented to the plaintiff transferee that there was reasonable cause for the sale, he cannot be allowed to avoid it on the ground that he had no right to transfer. His right to transfer is there, but is restricted in the sense that it is exercisible only when reasonable cause defined in note (1) of Section 22 (b) exists. Defendant 2 who derives his title from defendant 1 stands on no better footing. Simply because a process of surrender to the Gountia and settlement by the latter has been gone into, would not improve their position. Gountia too cannot enter into the lands on the mere fact that the recorded tenant has transferred it. He must, in Court, establish that the transfer is voidable at his instance and is avoided. In this view of the matter, I would hold that the learned Subordinate Judge in appeal decided rightly in favour of the plaintiff. It may be noted that for him to say that two years period of limitation having passed, the transaction was not challengeable by the Gountia or the successor of the occupancy tenant, did not amount to grant to the plaintiff a decree by applying the rule of limitation. What he meant to decide was that only persons entitled to avoid and that by a suit to be instituted within two years, having failed to do so, the transaction became binding against them as well. Thus he meats the contention of defendant 2 that he derives his title from the Gountia. It may be noted that under Sub-section (2) of Section 23 the Revenue Department had been made the sole arbiter after the expiry of the period of limitation of two years for avoidance of the transaction by the Gountia or the successor. They are not bound by any rule of limitation. The transferee is, no doubt, required under the said sub-section to apply mutation of his name within six months from the date of the transaction. But that is a matter between him and the Revenue Department. The latter may condone the delay when they are satisfied with the reasons, that the period of sis month3 has passed, does not affect the character and status of the plaintiff's purchase, so far as it governs the relationship between him and the defendants.
8. Mr. G. G. Das has urged that non-compliance with the forms prescribed for effecting Bale of an occupancy holding to a person other than the occupancy tenant's next heir according to law, can be compared to non registration of a compulsorily registrable deed of conveyance for the purpose of determining their consequences on affectation or otherwise of the title by the transfer. 1 cannot accede to this contention. As I have already shown, by reference to the various provisions in the two Sections 22 and 23: of the Code of Sonepur, the formalities prescribed there are divided into two classes. The irregularity of not obtaining Gountia's consent as a formality is a curable one. His consent is obtainable on payment of 10 per cent, of the consideration money. On his failure to grant it, a certificate could be granted by the Revenue Department. This cannot be compared with the compulsory nature of registration under the Registration Act. I should say that if the deed is not on a properly stamped paper and is not attested by two witnesses, it would be an invalid' document which would not effect the transfer of title as between the transferor and the transferee. On the contrary, transfers without Gountia's consent, can be compared to transfers of occupancy holdings, without the consent of the landlord or proprietor under Schedule 1 of the preamendment, Orissa Tenancy Act. Such transfers, though not valid and binding against the landlord for purposes of proceedings for realisation of rent, were always considered to be binding against the transferor and his successors-in-interest. I do not think that in the circumstances of this case a different view can be taken. It is contended by Mr. G. K. Misra, the learned counsel for the respondent that since after the integration of the States including the Sonepur State into the province of Orissa as it then was, occupancy holdings have become freely transferable. Ha relies upon Schedule 0, Administration of Orissa States Order, 1948. The section provides (so much of it as is material, for our purposes),
'Notwithstanding anything contained in the Tenancy laws of the States as continued in force under sub-para, (b) of Para. 4 an occoupancy tenant shall be entitled-(i) to freely transfer his holding subject to the restriction that 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 sanction of the Sub-Divisional Magistrate concerned.'
Sub-para, (b) of Para. 4 reads:
'as respects to those matters which are not covered by the enactments applied to the Orissa States under sub-para, (a), all Laws in force in any of She Orissa States prior to the commencement of this Order, whether substantive or procedural and whether based on custom and usage or statutes, shall, subject to the provisions of this Order, continue to remain in force until altered or amended by an Order under the Extra - Provincial Jurisdiction Act, 1947 (XLVII  of 1947).'
9. According to this paragraph, the Bhumibidhi should stand modified by Schedule 0 of the Order already quoted. While allowing the tenancy laws in force in any of the Orissa prior to the commencement of the Order to continue it provides that it shall continue to remain in force subject to the provisions of this Order. Therefore, so much of it as interferes with the very transfer of an occupancy holding is no longer a good law.
10. The question arises whether it is retrospective in its operation. Regarding that our attention is drawn to the proviso to cl. (3) of Schedule 2 of the Order, The proviso reads:
'That the law to be followed by such Courts shall be the law applied or continued in force under Para. 4.'
The laws applied are those contained in schedule of the Order and dealt with in sub-para, (a) of Para. 4 and the laws continued in force are those referred to in sub-para, (b). As has already been shown, the laws in force either under the statute or under custom or under any rule should continue in force subject to the provisions of the order. Therefore, laws continued in force under Para, 4, within the meaning of the proviso, should be the laws in force prior to the commencement of the Order subject to the variations introduced into it by this Order. Sab-paragraph (c) enumerates the proceedings in which such laws have to be followed. The sub-paragraph says,
'all appeals, revision petitions and other proceedings that were pending before any civil criminal or revenue Court on 31-121947, shall be heard and disposed of by the appropriate civil, criminal or revenue Court constituted or continued by or under this Order and exercising jurisdiction which, as far as may be, corresponds to the jurisdiction of the Court before which such appeals and petitions were filed and such proceedings were commenced.'
and according to the proviso, such Court in dealing with such appeals or proceedings etc. should follow the laws continued in force under Para. 4. This suit, at some stage or other, was a pending one on 31-12-1947 and it must, therefore, be decided in accordance with the laws continued in force under sub-para, (b) of para. 4. This means that the occupancy holding which is the Subject-matter of this appeal shall be taken to be one free to be transferred in an ordinary manner. The question of registration of the document does not arise as the consideration for the sale is less than us. 100 and it was accompanied with delivery of possession.
11. In the premises aforesaid, I am clear in my mind that the appeal has been rightly decided by the learned lower appellate Court.
12. I would, therefore, dismiss the appeal and decree the suit with costs throughout.
13. I agree.