Aftaruddin(Dead) Rep. Thr. Lrs. vs Ramkrishna Datta Alias Babul Datta

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 9040 OF 2013

Aftaruddin (Dead) Rep. Thr. Lrs. .…Appellant(s)

Vs.

Ramkrishna Datta alias Babul Datta & Ors. ..Respondent(s)

JUDGMENT

Deepak Gupta, J.

1. Ramkrishna Datta, Dhirendra Chandra Ghosh and

Lalit Mohan Ghosh, filed a suit in the trial court for

declaration of their title on the suit land with consequential

relief of permanent injunction for restraining Aftarduddin

Signature Not Verified (contesting defendant & appellant before this Court), who Digitally signed by MEENAKSHI KOHLI

has since expired and is represented by legal heirs, from Date: 2017.12.08 12:14:56 IST Reason:

interfering in the suit land.

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2. From the facts as pleaded and proved before the trial

court it is apparent that one Sayed Jama Kazi was the raiyat

(owner) of the suit land. Aftaruddin was under-raiyat (Kurfa

rights similar to tenancy rights). This fact is apparent from

the Revenue Record as reported in the Civil Survey of

Settlement for the year 1965-66 and in the Revenue

Khatiyan No.302 published on 15.03.96. On 11.01.71,

Aftaruddin is alleged to have executed a sale deed

transferring the entire suit land in favour of Mamataj

Begam, daughter of the raiyat Sayed Jama Kazi. Thereafter,

Mamataj Begam and Sayed Jama Kazi transferred the suit

land to plaintiffs 1 and 2 by registered sale deed on

27.11.71. On 06.04.81 plaintiff no.2 sold and transferred a

portion of his land to plaintiff no.3. In the Revenue Record

the defendant Aftaruddin was shown to be in possession of

the suit land. Therefore, the plaintiffs filed a suit for

declaration of their title and prayed for injunction that

defendant no.1 be restrained from interfering in the

suit land.

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3. The suit was contested by Aftaruddin and two

contentions were raised: (i) that the sale deed was never

executed by him and (ii) that being an under-raiyat he could

not transfer his rights to any person in view of the bar

created by Section 108 of the Tripura Land Revenue and

Land Reforms Act, 1960 (for short the ‘TLR&LR Act’). The

original sale deed was not produced on the ground that the

same was destroyed in fire but a certified copy of the same

was produced. The trial court held that though the sale

deed had been executed, Aftaruddin could not have

transferred his rights in the suit land and, therefore,

dismissed the suit. The First Appeal filed was also

dismissed. In the Second Appeal this concurrent finding of

fact was set aside on the ground that it was a perverse

finding. It was held by the High Court that in the sale deed

Aftaruddin has represented himself to be a raiyat and not an

under-raiyat and, therefore, Section 108 of TLR&LR Act had

no application. The High Court also found that in terms of

Section 43 of the Transfer of Property Act the subsequent

vendee could not be denied their rights.

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4. We have heard learned counsel for the appellant. A

“raiyat” has been defined in Section 2(s) of the TLR&LR Act

to mean a person who owns land for purposes of

agriculture, paying land revenue to the Government; and

“under-raiyat” under Section 2(v) means a person who

cultivates or holds the land of raiyat under an agreement,

express or implied, on condition of paying therefor rent in

cash or in kind or delivering a share of the produce and

includes a bargadar, i.e. a person who cultivates the land of

any person on a condition of delivering a share of the

produce to the land owner or raiyat.

5. Section 108 of TLR&LR Act reads as follows :-

“108. (1) The interest of under-raiyat in any land held by him as such shall be heritable but, save as otherwise provided in this Act, shall not be transferable.

(2) No under-raiyat shall be evicted from his land except as provided in this Act.”

A bare reading of the aforesaid provision makes it absolutely

clear that an under-raiyat is prohibited from transferring his

4 interest as under-raiyat in any land though this interest is a

heritable interest. Sub-section (2) provides that no under-

raiyat can be evicted except in accordance with the

provisions of the TLR&LR Act. The TLR&LR Act was enacted

as an agrarian reform legislation and the purpose of Section

108 is to prevent the under-raiyats or tenants from being

evicted or being forcefully or dishonestly compelled to

transfer their rights as under-raiyats.

6. The learned Single Judge laid great emphasis on the

fact that in the sale deed Aftaruddin is described to be a

raiyat. This cannot in any manner validate the sale deed

which is otherwise totally against law. Obviously, a Sub-

Registrar could not have registered a sale deed where the

seller has described himself as an under-raiyat. We may

also add that the vendee Mamataj Begam was none other

than the daughter of Sayed Jama Kazi, the raiyat. A few

months after Aftaruddin executing the sale deed on

11.01.71, Mamataj Begam and her father Sayed Jama Kazi

sold the entire land in favour of the plaintiffs/respondents 5 on 27.11.71. It is obvious that the sale deed dated 11.01.71

was got executed showing Aftaruddin as a raiyat to get over

the bar of Section 108. This is what Section 108 prohibits.

The plaintiffs who were subsequent purchasers cannot take

benefit of the subterfuge and fraud committed by Sayed

Jama Kazi and Mohd. Aftaruddin. Their remedy, if any, lay

in taking action against Sayed Jama Kazi and Mamataj

Begam, who were not even impleaded as parties in the suit.

The High Court totally mis-interpreted the provisions of

Section 108.

7. In 1987 Aftaruddin was conferred the rights of the

raiyat. It was contended on behalf of the plaintiffs that in

view of Section 43 of the Transfer of Property Act since

Aftaruddin is now entitled to transfer his rights a sale deed

in their favour becomes valid. This is not at all correct. No

sale deed was executed by Aftaruddin in favour of the

plaintiffs. The fraud was not committed by Aftaruddin but

by Sayed Jama Kazi and Mamataj Begam. The protection

under Section 108 of the TLR&LR Act which is a statutory 6 protection could not have been taken away by the subterfuge

committed by the then raiyat.

8. We are clearly of the view that the High Court exceeded

its jurisdiction in setting aside the concurrent finding of fact

without any question of law much less a substantial

question of law arising in the second appeal. Accordingly

the judgment of the High Court is set aside and the

judgment of the trial court is restored. The appeal is,

accordingly, allowed.

……………………………..J. (Madan B. Lokur)

……………………………..J. (Deepak Gupta) New Delhi December 08, 2017

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