RAGHUNATH CHOUDHURY Vs. BUDHI NAIK

JUDGEMENT

(1.) THIS is a defendant's appeal against the concurrent decisions of the two lower courts decreeing the plaintiffs suit and declaring that a sale deed executed by the plaintiff on 28-1-1958 for Rs. 500/- in favour of the defendant was invalid and did not convey any title. The plaintiff belongs to Tanla caste in the sub division of nayagarh which was a former Feudatory State of Orissa. He was in possession of the disputed property as Tokari Jagiri land.

(2.) IT was found by the two lower courts that on 28th January 1958 he executed a sale deed con-veyingi the said property to the defendant for a sum of Rs. 500/ -. The defendant is admittedly a high caste Hindu. Though the two lower courts held that the sale deed was validly executed and there was consideration, they nevertheless held that the transaction was invalid on account of contraven tion of rule 3 of the Nayagarh Land Transfer Rules. That Rule reads as follows:

(3.) MR. Misra for the respondents contended that Clause (b) of Section 7 applies only to transfer of a holding belonging to an occupancy tenant and that there was no evidence in this case to show that the plaintiff was an occupancy tenant. All that was admitted was that he was holding the jagir land. There was also no evidence to show that a jagir land ceased to be so on payment of rent thereby rendering the jagir also an occupancy holding by virtue of Clause (g) of Section 7 of the aforesaid Act. As there is no evidence on these matters we must bold that section 7 of the Merged States Laws Act has no application to the plaintiffs land. Consequently the provisions of Nayagarh Land Transfer Rules continued to remain in force and Rule 3 of the said Rules will operate as a bar to the transfer of the land unless written sanction of the authority concerned was obtained. It is admitted that no such sanction was obtained. The plaintiff's case is that 'tanla' is mentioned as one of the castes specified in the foot note to Rule 3 and hence the prohibition enjoined by that Rule will apply with full force and the two lower courts were justified in holding that the transfer in favour of the defendant was invalid.