MATHURA SINGH Vs. TETALL DOM

JUDGEMENT

(1.) This second appeal has been referred to Full Bench under Rule I, Chapter V of the Patna High Court Rules for a decision whether the decision of this Court in Smt. Budhni Mahatain v. Gobardhan Bhogto reported in 1984 BLT 226 whereby Sec. 46 (1) of the Chotanagpur Tenancy Act was declared ultra vires under Article 19(1) (f) of the Constitution, is a right decision and if the answer is in the affirmative, whether the law declared in the said decision still holds valid after deletion of Article 19 (1) (f) from the list of fundamental rights by virtue of 44th amendment of the Constitution.

(2.) The appellant herein, Mathura Singh, filed Title suit No. 26 of 1982 out of which this appeal arises, for a declaration that he was the rightful owner of the suit land and for a decree for confirmation of his possession. One of the issues in the suit was whether purchase of the suit land and for a decree for confirmation of his possession. One of the issues in the suit was whether purchase of the suit land by the plaintiff-appellant from defendant was in violation of Sec. 46(1) of the Chota Nagar Tenancy Act which provided as follows:-

(3.) There is no dispute that defendant vendor had not obtained permission of the Deputy Commissioner before transferring the land in favour of the plaintiff. The Addl. Munsif held that the sale could not be held to be invalid for breach of Sec. 46(1) of the C.N.T Act because defendant having transferred the land without obtaining permission, was estopped from raising such a plea. The suit was decreed in favour of the appellant. On appeal, the appellate court came to a contrary finding. It held that the sale was invalid because the defendant who was member of the scheduled castes had transferred his property without permission of the Deputy Commissioner as enjoined by Sec. 46(1) of the C.N.T. Act. The decree of the Munsif was reversed and plaintiff's suit was dismissed.