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SMT.GANGA versus GIRDHARI & ORS

High Court of Rajasthan

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SMT.GANGA v GIRDHARI & ORS - CFA Case No. 566 of 2004 [2006] RD-RJ 476 (23 March 2006)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

JUDGMENT

S.B. CIVIL FIRST APPEAL NO.566/04

Smt. Ganga Vs. Girdhari & Ors.

Against judgment and decree dated 18.08.2004 passed by Addl. District Judge (Fast Track) No.2, Bhilwara in

Civil Original Suit No. 62/2004 Smt. Ganga Vs.

Girdhari & Ors.

DATE OF PRONOUNCEMENT OF

JUDGMENT: 23RD March,2006.

PRESENT

HON'BLE MR.JUSTICE SATYA PRAKASH PATHAK

Mr. S.C. Maloo for appellant.

Mr. B.K. Vyas for respondents.

BY THE COURT:

This is an appeal preferred by original plaintiff Smt. Ganga against the judgment and decree dated 18th August 2004 passed by learned Addl. District Judge (Fast Track) No.2, Bhilwara in Civil

Original Suit No. 62/2004 (Smt. Ganga Vs. Girdhari & Ors.) dismissing the suit of the plaintiff for the relief of declaration and perpetual injunction against the respondent-defendants while deciding an application moved by defendant No.1 & 2 under Order 7

Rule 11 read with Sec. 151 CPC.

Relevant facts, in brief, are as follows:

(i) On 04.06.2004, the appellant-plaintiff filed the suit stating inter-alia that on 22.04.1972 she had purchased the land in question from the father of defendants No.1 to 3 through a registered sale-deed after paying full consideration and since then she remained in continuous possession of the land. It was further stated that after purchase of the land, she by investing thousands of rupees got the land developed for agricultural use, planted trees of various types and fenced it etc. The plaintiff averred that in the year 1982 the defendants cut the trees standing on the land of her ownership for which criminal proceedings were initiated against them and the matter was ultimately compromised and defendant No.1 executed an agreement in favour of plaintiff's son and while admitting the ownership of the plaintiff on the land stated that plaintiff was entitled for the compensation of the land used for the road and as such since 1972 i.e. for last 32 years the land in question was in her sole ownership and the defendants were in know of this fact as she was in possession, use and occupation of the land in question even then the defendant No.1 & 2 alongwith their friends on 31.05.2004 entered into the land of the plaintiff and ploughed the land through tractor for which also a case was registered at Police Station Gangapur.

(ii) Alongwith the suit, the plaintiff also moved an application for temporary injunction for restraining the defendants from interfering in the possession of the plaintiff and maintaining status quo.

(iii) The defendants did not file any reply to the suit filed by the plaintiff however filed separate replies to the application for temporary injunction and thereby they denied their knowledge about execution of sale-deed dated 22.04.1972 in favour of plaintiff and according to them it was a forged one. They denied the execution of sale-deed in lieu of consideration amount of Rs.2,000 and further stated that even if the plaintiff proved the said sale deed in her favour then the same being contrary to the provisions of Sec.42 of the Rajasthan Tenancy Act, 1955 and Sec.23 of the Indian

Contract Act it was a nullity. About entering into a compromise in the year 1982, it was stated that the police personnel got signed the same under duress.

(iv) The defendants No.1 & 2 filed an application under Order 7

Rule 11 CPC stating therein that the plaintiff belongs to `Mali' caste while the defendants belong to `Nayak'. They further stated that they being members of scheduled caste and the plaintiff being not, as per the provisions of Sec.42 of the Rajasthan Tenancy Act, 1955 and Sec.23 of the

Indian Contract Act the sale being void, the plaintiff has no cause of action so the suit was liable to be dismissed.

(v) The plaintiff replied to the application moved by the defendants and stated that the father of defendants Heera had sold the land to plaintiff after getting full consideration amount of the land through a registered sale deed on 22.04.1972 and since then she was in its possession and ownership. She also stated that in the year 1982 defendant

No.1 had executed an agreement in her favour and the

Sections referred to be not applicable in the present case.

She further stated that there was no hindrance in filing the written statement to the plaint and the application moved was not maintainable because the relief claimed in the suit is in respect of declaring the sale deed by defendant No.1 & 2 null and void in favour of defendant No.4 as she has been in possession of the land for a period of 32 years.

(vi) The learned trial Court, on the basis of the rival contentions of parties decided the application moved under Order 7 Rule 11 CPC and while accepting the same dismissed the suit of the plaintiff.

Heard learned counsel for the parties.

The learned counsel for the appellant challenging the judgment and decree passed by the trial Court has contended that the defendants had stated their caste to be Nayak but whether caste `Nayak' is a scheduled caste or a scheduled tribe can be decided only after filing written statement and only on proving sufficiently the same the suit of the plaintiff could be dismissed. It was further contended that the State Govt. has issued a circular whereby the castes `Mali' and `Nayak' both have been included in backward class category and likewise the caste `Nayak' has been shown in the lists of scheduled caste and scheduled tribes and the caste `Nayak' has been shown by the names of Nayka, Mota Nayak, Nanna Nayak etc. and it being a disputed question as to in which schedule the defendants fall, without giving opportunity to lead evidence to the parties, the judgment & decree impugned is liable to be quashed. In the last, he contended that the judgment and decree deserves to be set aside and the case is liable to be remanded for decision afresh on merit after filing of written statement by the defendants.

As against the above contentions, the learned counsel appearing on behalf of the respondents has fully supported the judgment and decree passed by the trial Court.

I have considered the submissions made before me and carefully perused the material available on record.

In the present case, the point which requires consideration is as to whether the trial Court has correctly dismissed the suit on the application moved by defendants under Order 7 Rule 11 of the CPC. The controversy, which has been raised in the present case, is that the plaintiff purchased the suit land in the year 1972 under a registered sale-deed from the father of defendant No.1 to 3 and defendants are challenging the validity of the sale as well as even the factum of sale is also challenged. It appears that several litigations are going in between the parties. Defendants' main stand in the application under Order 7 Rule 11 of the CPC was that the suit was not maintainable in view of the provisions of Sec.42 of the

Rajasthan Tenancy Act, which creates bar to the effect that the land which belongs to a member of the Scheduled Caste and Scheduled

Tribe cannot be transferred to non-scheduled caste/tribe persons.

The learned trial Court found that in view of the averments made in the plaint where the defendants' caste was mentioned as 'Nayak' and they are scheduled caste therefore the alleged sale which took place in the year 1972 creates no right in relation to the land in dispute in favour of plaintiff as per the provisions contained in Sec.42 of the

Tenancy Act. For convenience, Sec. 42 & Sec.42B of the Act are reproduced below: 42. General restrictions on sale, gift and bequest-

The sale, gift or bequest by a Khatedar tenant of his interest in the whole or part of his holding shall be void, if -

(a) Deleted w.e.f 11.11.92

(b) Such sale, gift, or bequest is by a member of

Scheduled Caste, or by a member of Scheduled Tribe in favour of a person who is not a member of the Scheduled

Tribe;

(bb) Such Sale, gift or bequest, not withstanding any thing contained in clause (b), is by a member of Saharia

Schedule Tribe in favour of a person who is not a member of the said Saharia Tribe."

"42B. Declaration as valid of sale, gift and bequest- Where any sale, gift or bequest made by a

Khatedar tenant of his interest in the holding or part of his holding before the commencement of the Rajasthan

Tenancy (Second Amendment) Act, 1992 (Act No.22 of 1992) was void on account of contravention of any of the provisions in clause (a) of Sec.42, as it stood before the said amendment Act of 1992, such sale, gift or bequest may be declared to be valid by the Collector or any other officer or authority empowered by the State Government in this behalf on an application made to him or it within such time and in such manner and on payment of such fee and penalty as may be prescribed:

Provided that,

(a) Such sale, gift or bequest was otherwise legally valid and in conformity with the provisions of laws for the time being in force except those contained in clause

(a) of Section 42 as aforesaid;

(b) The parties to the sale, gift or bequest comply with all the terms and conditions as may be prescribed by the rules or by any special or general order;

(c) The payment is made of such premium or penalty as may be prescribed;

(d)The applicant undertakes to pay urban assessment levied at such rate and in accordance with such manner as may be prescribed. "

It shall also be relevant here to reproduce Sec.23 of the Indian

Contract Act at this place.

Section 23. "What consideration and objects are lawful, and what not- The consideration or object of an agreement is lawful, unless-

It is forbidden by law; or is of such nature that, if permitted, it would defeat the provisions of any law, or is fraudulent; or involves or implies injury to the person or property of another; or the court regards it as immoral, or opposed to the public polity.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."

A perusal of the above provisions clearly indicate that proviso to

Sec.42 added by Amendment Act 1956 prohibits transfer of rights by the Scheduled Caste and Scheduled Tribe members in favour of persons who are not members of Scheduled Castes or Tribes. In the array of party in the plaint, word Nayak has been mentioned. Nayaks are Scheduled Caste persons and in this connection though a dispute has been raised that Nayaks infact are not persons of Schduled Caste but are of backward class but the same is not tenable for the reason that the learned trial Court while considering the matter has referred to a Gazette Notification issued in this behalf. In Para 4 of the judgment, the learned trial Court has found as under:-

" . 1 2 . 22.04.72 . 1 ! # . . / . 42 ! 3/ / .8 /1/8/6566/72-605-23 21-07-65 53 38 ! 8 # 22-09-76 22.07.77 ! . 01.09.75 06 #,78 / 57 - 3 ! 8

A . ! . ! # 3 C . ! - # "" ! . 01 02 . ! 16 " # ! " " 3 , , , A ! # " " A

" " A # 3 : 3 8

C . 1 2 / .. . 1982 244 A . 3 ! 8 # 3 3 ! . / 21.07.65 / .8 / 20.09.76 / .8 . 27.07.77

C ! 3 . 1 2 ! . . ! . 3 . 1 2 . 4 ! 04.05.04 10.05.04 3 / # / "

The position of law is also clear in view of provisions contained in the Tenancy Act, particularly Sec.42 of the Act, that a person who is not a member of Scheduled Caste or Schedule Tribe legally not entitled to purchase the land belonging to the persons of

Scheduled Castes or Scheduled Tribes. In this case, what has been found by the trial Court is that the sale of the land in dispute regarding which injunction was sought was void in view of the provisions of Sec.42 of the Tenancy Act and there appears to be no reason to take a view different than the one taken by the learned trial

Court in view of settled position of law.

In Kaloo Chand & Ors. Vs. Board of Revenue & Ors.

(2003 RRD (Aug) 389), the Single Bench of this Court while considering the provisions of Sec.42 of the Tenancy Act has held that

Sec.42 of the Act creates bar in relation to transfer of lands belonging to the Scheduled Castes and Scheduled Tribes in favour of the persons who are not members of the Scheduled Castes and Scheduled

Tribes.

In Babu Singh Vs. State of Rajasthan & Ors. (1998 RRD 396), the sale was made in the year 1963 by a Gair Khatedar and this

Court held that in view of amendment made in the Tenancy Act, particularly in Sec.42 of the Act, sale even by a Khatedar tenant, who is a member of Scheduled Caste of his interest in the holding is void if the person, to whom the sale is made, is not a member of the

Scheduled Castes or Scheduled Tribes. The Court also observed that Sec.23 of the Indian Contract Act also prohibits such transactions.

In Ram Chandra Vs. Om Prakash (1978 RLW 442), it was held by this Court that Sec.42 forbids sale by a member of

Scheduled Caste or Scheduled Tribes in favour of a person who is not a member of that class and therefore such sale is forbidden in law within the meaning of Sec. 23 of the Indian Contract Act and no

Court will lend its assistance to give effect to a contract forbidden by law. In the facts and circumstances, it was held that the vendee did not get any legal right in the land by such transaction.

Thus, the position of law as discussed above is absolutely clear and there remains no doubt that in relation to the lands belonging to Scheduled Castes and Scheduled Tribes the same creates no right by way of transfer in favour of the persons who are not members of Scheduled Castes and Scheduled Tribes. An argument has been raised that Malis are of backward class. This argument is of no consequence particularly in view of the fact that the

Nayaks have been declared as members of the Scheduled Caste community and there is no mention of backward class in Sec.42 of the

Act entitling them to purchase the lands belonging to SC/ST community.

The provisions of Order 7 Rule 11 CPC indicate that while considering such an application the Court is required to see the plaint and with the averments made in the plaint if it appears that the suit is barred by law then the same can be dismissed. In the instant case, the plaint which has been filed, clearly makes a mention regarding the respondent defendants that they are members of Nayak community and as per the notification issued by the State of

Rajasthan which has been referred to in the judgment of trial Court, also indicates that the defendants and their father are the members of

Scheduled Caste community. The learned counsel for the respondents also submitted that the allotment made to the father of the defendant-respondents clearly makes mention that on account of their being Scheduled Caste persons, allotment of the land in dispute was made to their father.

After carefully considering the entire matter, I am of the opinion that the trial Court has correctly discussed the matter and has rightly concluded that the suit was liable to be dismissed and it requires no interference by this Court. The answer to question is accordingly.

In view of foregoing discussions, no merit appears in this appeal, hence the same stands dismissed.

No order as to costs.

(SATYA PRAKASH PATHAK)J. /jpa [14]


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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