Durjan Singh (Dead) Th. Lr. vs Vir Singh .

NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No(s). 53 OF 2008

DURJAN SINGH (DEAD) THR. LR. & ANR. Appellant(s)

VERSUS

VIR SINGH & ORS. Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) This appeal arises out of judgment and order dated 11th

April 2005 and dated 29th July, 2005 passed by the High Court of

Madhya Pradesh at Jabalpur by which the High Court has set

aside the order passed by the District Collector who held that

the transaction was a loan transaction.

(2) Case of the appellants is that the predecessors of the

appellants as well as respondent NO(s).7 and 8 obtained a loan

of Rs.400/- from the father and uncle of the first respondent

and in security of the said loan executed a sale deed dated 23 rd

November, 1953 in the name of the first respondent for 2/3rd

area of Khasra No(s).315, 316/2 and 313/3 i.e. 8.04 acres out

of total 12.03 acres. It is the further case of the appellants

that a further loan of Rs.200/- was taken and against the

security of the said loan, an agreement to sell was executed Signature Not Verified Digitally signed by MAHABIR SINGH Date: 2018.09.14

for the remaining 1/3rd i.e. 1.28 acres of land bearing Khasra 17:30:58 IST Reason:

No.129/2.

2

(3) After coming into force of the Madhya Pradesh Samaj Ke

Kamjor Vargon Ke Krishi Bhumi Dharakon Ka Udhar Dene

Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se

Paritran Tatha Mukti Adhiniyam, 1976 (For short, M.P. Adhiniyam 1976). The predecessors of the appellants moved an

application under Section 5 of the M.P. Adhiniyam 1976 with a

prayer to set aside the sale deed, allegedly executed in

security of the loan, and to declare the same as null and void.

Upon examination of the report, about the transaction from the

Sub-Registrar and the statement of witness, S.D.O., Sagar,

allowed the application by holding that the transaction/sale

deed is within the prohibited transaction of Section 4 of the

M.P. Adhiniyam 1976, declared the sale deed dated 23 rd November,

1953 as null and void and directed the first respondent to hand

over possession of the disputed lands to the appellants. In

appeal, the order of the S.D.O. was affirmed by the District

Collector.

(4) Being aggrieved, the respondents herein preferred writ

petition before the High Court challenging the order of the

District Collector. The High Court observed that in order to

attract the provisions of Section 4 of the M.P. Adhiniyam 1976,

it is necessary for the appellants to prove that they were not

holding the land exceeding eight hectares of unirrigated land

or four hectares of irrigated land within the State whether as

a Bhumiswami or as a occupancy tenant or a Government lessee. 3

The High Court simply held that in order to set the law in

motion the provision of Section 4 of M.P. Adhiniyam 1976, it is

to be proved that the respondents thereon, appellants herein,

are of weaker sections, as indicated in Section 4 of M.P.

Adhiniyam 1976. The High Court held that in the application

before the Sub-Divisional Officer there was no entry in the

prescribed format or there were no averments to show that the

predecessors of the appellant/appellants were having less than

eight hectares of unirrigated land/four hectares of irrigated

land within the State and in the absence of such averments in

the application, order of the District Collector passed under

the M.P. Adhiniyam 1976 was not maintainable. Being aggrieved

the appellants are before us.

(5) We have heard Mr. Akshat Shrivastava, learned counsel

appearing for the appellants and Ms. Pragati Neekhra, learned

counsel appearing for respondent NO.1 and Mr. Rajesh

Srivastava, learned counsel appearing for the respondents-State

and considered the impugned order(s) and the materials on

record.

(6) Even at the very outset, it is to be pointed out that the

High Court has not examined the crucial points that were raised

in the writ petition, namely:- (i) Whether M.P. Adhiniyam 1976

(appointed date of which was 1st January, 1971) would be

applicable to a transaction dated 23rd November, 1953, entered

into prior to the appointed day, which is the subject-matter in

the present case.; and (ii) Whether the transaction in-question 4

dated 23rd November, 1953 would or would not come within the

purview of the M.P. Adhiniyam 1976 and whether the alleged

loan, if any, for which the sale deed alleged to be executed

was subsisting on the date of the appointed day. In our

considered view, the High Court should have examined these

questions of law. Only after considering these two questions

of law, in our view, the High Court could have examined the

question whether the appellants are “holders of agricultural

land” within the meaning of Section 2(c) of the M.P. Adhiniyam

1976 to examine whether the appellants are holding less than

eight hectares of unirrigated land or four hectares of

irrigated land within the State whether as a Bhumiswami or as a

occupancy tenant or a Government lessee.

(7) Be that as it may, from the impugned order it appears that

the High Court has proceeded on the basis of the submission

made on behalf of the writ petitioners. It is the case of the

appellants that the original records were not available and the

High Court had no occasion to look into the application of the

appellants which was never produced before the High Court. The

impugned order also does not indicate whether the application

of the appellants had actually been perused.

(8) In the result, the impugned order(s) is set aside and the

matter is remitted back to the High Court for considering the

matter afresh after affording sufficient opportunity to both

the parties as well as State of Madhya Pradesh and decide the 5

same in accordance with law preferably within a period of six

months from the date of receipt of copy of this judgment.

Status quo, as on today, be continued till the disposal of the

matter by the High Court.

(9) The appeal is accordingly disposed of.

..........................J. (R. BANUMATHI)

..........................J. (INDIRA BANERJEE) NEW DELHI, SEPTEMBER 6, 2018.