MONAHAR NAIK Vs. BRAJAMOHAN BHOI

JUDGEMENT

(1.) This appeal is by the defendants against the appellate judgment of the Additional Subordinate Judge of Shambalpur affirming the judgment of the Munsif of Sundargarh decreeing the plaintiffs' suit for setting aside the alienation of the suit land by their father in favour of the defendants on the ground of want of necessity and for recovery of possession.

(2.) The plaintiffs are the sons of one Mukteswar Bhoi of village Tildzega in Gangpur State. The suit land appertains to Khata No. 35 of the village. The revenue laws of Gangpur State did not permit the transfer of an occupancy holding by the rayat in favour of any other person. But with a view to get round this ban on such transfer the recognised practice in the State (prior to the merger) was for the transferor to apply to the State authorities for mutation of the name of the transferee in the Ruler's records. On such application a regular revenue case used to be started, enquiries made by the usual way through the local authorities concerned and after consulting the wishes of the heirs of the transferor the mutation would be allowed or rejected as the case may be. The transferee pays the stipulated money to the transferor which may for all purposes be treated as sale price and when mutation is allowed by the Ruler a separate Parcha is issued in the name of the transferee who is thus recognised as the new rayat.

(3.) On 29-10-34 Mukteswar filed a petition (Ext. 2) before the State authorities stating that he had transferred the disputed land measuring 4.24 cents to defendant No. 2, the son of defendant No. 1, for a sum of Rs. 100/- and requesting them to recognise the transfer after due enquiry. As regards the necessity for such transfer he alleged that the money was required for (1) household expenses (2) payment of arrears of rent and (3) payment of criminal fine imposed on him in a case. On receipt of that petition mutation case No. 176/361 of 1934/35 was started in the State office and after due enquiry and payment of mutation-fee to the Ruler the transfer was allowed and a new Parcha was granted in the name of the transferee on 21-11-38 (see Ext. C). For the purpose of this appeal it is necessary to describe in detail the various incidents that took place during the pendency of that mutation case. It is sufficient to note that the Tahsildar who made a preliminary enquiry reported to the State authorities on 18-4-35 that Mukteswar had transferred the disputed land because he had run into debts (see Ext. E). The defendants after thus getting the transfer recognised and obtaining a Parcha in their names applied to the State authorities for permission to excavate a tank in a portion of the holding and permission was also granted in due course (see Ext. D). A tank was also excavated after incurring expenditure to the extent of Rs. 1,000/-.