BANSIDHAR Vs. DURYODHAN

JUDGEMENT

(1.) Plaintiff is the appellant against an affirming judgment.

(2.) The second appeal came up before our learned brother Dr. Justice B. N. Misra who did not agree with the views expressed by our learned brother Justice B. K. Ray, as he then was, in Second Appeal No. 161/77 (Madhab Biswal v. Aintha alias Pabana Senapati) disposed of on 2-1-1979 and followed by learned brother Justice R. N. Misra (as he then was) in the case of Ghasi Paikray v. Dinabandhu Muduli, reported in (1980) 50 Cut LT 108 with regard to interpretation of sub-sec.(2) of S.40 of the Orissa Land Reforms Act (hereinafter referred to as the 'Act') and directed that the appeal should be heard by a Division Bench. Since the second appeal has been placed before the Division Bench for disposal, we will not only decide the question of law with regard to interpretation of sub-sec.(2) of S.40 of the Act but also finally dispose of the appeal itself and, therefore, it is necessary to state the facts so far as they are relevant.

(3.) According to the plaint case Lokanath, father of defendant No. 1, was the owner of the land measuring Ac.O.29 dec. appertaining to plot No. 1904; Ac. 0.05 dec. appertaining to plot No. 1905, and Ac. 0.15 dec. appertaining to plot No. 2198 of Khata No. 30 described in schedule 'Ka' of the plaint and he was duly recorded in the Record-of-Rights. After his death, defendant No. 1 became the owner of the lands and came to possess the same. In 1970 defendant No. 1 was serving at Jatni and wanted to purchase a house. Since he was in need of money for purchase of a house, he entered into a written agreement of sale with the plaintiff in respect of the lands for a consideration of Rs. 2000/- and in furtherance of the said agreement, received a sum of Rs. 525/- from the plaintiff and delivered possession of the lands to the plaintiff. As defendant No. 1 was a member belonging to the Scheduled Caste, and permission of the competent authority was necessary before effecting a sale of his property, he filed an application before the Sub-Divisional Officer, Nayagarh, for permission to sell the lands in question. The plaintiff, however, remained in possession of the lands from the date of agreement, namely 29-9-1970. On 23-1-1971, defendant No. 1 received a further sum of Rs. 400/- in cash in furtherance of the agreement of sale and endorsed to that effect on the reverse of the deed of agreement. The Sub-Divisional Officer, Nayagarh accorded permission to sell on 16-7-1971. The plaintiff then made several demands requesting defendant No. 1 to execute the sale-deed but the demands were of no consequence. On 28-1-1972, defendant No. 1 sold the lands described in schedule 'Kha' appended to the plaint to defendants 2 and 3 by registered sale deed for a sum of Rs. 2000/-. This sale was in respect of Ac. 0.29 dec. of land appertaining to plot No. 1904 and Ac. 0.05 dec. appertaining to plot No. 1905 of Khata No. 30 and these lands form part of 'Ka' schedule lands in respect of which there was an earlier agreement of sale with the plaintiff. Again on 14-11-1972, defendant No. 1 sold Ac. 0.15 dec. of land appertaining to plot No. 2198 of Khata No. 30 to defendants 2 and 3 by registered deed of sale for a consideration of Rs. 400/-. According to the plaintiff these sales by defendant No. 1 in favour of defendants 2 and 3 are in breach of the written agreement of sale entered into by defendant No. 1 with the plaintiff on 29-9-1970 and therefore, the plaintiff filed the present suit for specific performance of contract of sale by defendant No. 1 in his favour and for a declaration that the two subsequent sale deeds in favour of defendants 2 and 3 are not binding on the plaintiff. The plaintiff also prayed for confirmation of possession over 'Ka' schedule' lands.