GHASI PAIKARY Vs. DINABANDHU MUDULI AND ORS.

JUDGEMENT

(1.) DEFENDANT No. 4 in a suit for specific performance and injunction is in appeal against the reversing judgment and decree of the Subordinate Judge at Jeypore. The suit was filed on 28 -11 -1974 on the allegation that Defendants 1 to 3, owners of the disputed property - forty decimals of cultivable land as described in the plaint schedule - mortgaged the disputed property with the Plaintiff on 8 -8 -1971 (Ext. 1) as security for the loan of Rs. 320/ - undertaking to repay the loan by January, 1972; and failing repayment they undertook to sell the property to the Plaintiff for Rs. 400/ -. Defendants 1 to 3 failed to repay and omitted to execute the sale deed. Therefore, the suit was filed.

(2.) DEFENDANT No. 4 alone contested. He claimed that there was no binding and enforceable contract. He was a bonafide purchaser for value without notice under a registered sale deed dated 2.4.1973 (Ext. C) and Plaintiff was not entitled to relief.

(3.) AT the hearing, Mr. Ramdas for the Appellant raises a new question of law not raised earlier namely the suit is hit by Section 40(2) of the Orissa Land Reforms Act and should not have been entertained. As the point is out and out a legal one and no fact is necessary to be investigated, leave has been granted to the Appellant under Order 42, Rule 2 of the Code of Civil Procedure. Section 40(1) of the Act prohibits transfer and partition of land except with written permission of the Revenue Officer and declares that partition or transfer without permission is void. Sub -section (2) provides: