LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 1 LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) JUDGMENT Date of Judgment : 12 May, 2009 HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE SANGEET LODHA Mr. J.L. Purohit, for the appellants. Mr. Hemant Choudhary, Government Counsel, for the respondents. BY THE COURT (PER HON'BLE MR.SANGEET LODHA,J.) 1. This special appeal is directed against order dated 18.1.99 passed by the learned Single Judge of this Court whereby the writ petition preferred by the appellant against order dated 3.6.87 passed by the District Collector, Chittorgarh, has been dismissed. By the said order dated 3.6.87, the District Collector has refused to accept the option given by the appellant to surrender the lands held by him in excess of the ceiling area on the ground that the lands offered for surrender were not unencumbered and accordingly, the appellant has been directed to first surrender the lands in his possession which are unencumbered. 2. The ceiling proceedings were commenced against the appellant under Chapter III B of the Rajasthan Tenancy Act, 1955 by the Sub Divisional Officer, Begu (in short 'the SDO'). Pursuant to the notice issued by the SDO the appellant filed his return on 30.4.64. The SDO LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 2 determined the surplus lands held by the appellant as 55.4 standard acres and accordingly, the lands were acquired. However, the ceiling proceedings against the appellant were reopened by the State Government under Section 15(2) of the Rajasthan Imposition of Ceiling on Agriculture Holdings Act, 1973 ( in short “the Act of 1973” hereinafter) and the Additional Collector, Chittorgarh was authorised to reopen the proceedings and reassess the ceiling area. 3. The Additional Collector I, Chittorgarh vide order dated 18.2.87 determined the surplus area of the land with the appellant as 210.30 standard acres. After adjusting the surplus lands measuring 55.49 standard acres already acquired from the appellant pursuant to order dated 31.7.71, the remaining surplus lands with the appellant were determined as 154.81 standard acres and accordingly, the appellant was directed to surrender the lands held by him in excess of the ceiling area. It was further ordered that the appellant may exercise his option to surrender the lands within a period of fifteen days, failing which the unencumbered khatedari lands of the appellant measuring 154.81 acres shall be taken possession of . 4. The appellant exercised his option to surrender the lands but the Collector, Chittorgarh vide order impugned dated 3.6.87 has refused to accept the option on the ground that the lands offered for surrender were not unencumbered lands and accordingly, the appellant has been LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 3 directed to first surrender the unencumbered lands in his possession. 5. It was contended on behalf of the appellant before the learned Single Judge that once the Authorised Officer under the Ceiling Law de- recognised a transfer, the lands covered by such transfers should be treated as unencumbered land. It was further contended that in view of provisions of Section 49 of the Registration Act, any transfer of immovable property which has not been registered cannot be taken note of, therefore, the lands covered by the transfers in question de- recognised on the ground of non-registration should be treated unencumbered. 6. After due consideration, the learned Single Judge held that in terms of the provisions of Rajasthan Tenancy Act, 1955 (in short “the Act of 1955” hereinafter) the de-recognition of a transfer only means that for the purpose of computing ceiling area that land will be treated as to be the land belonging to the appellant. The learned Single opined that the de-recognition cannot mean that the encumbrance which is attached to the land has ceased to have any operation. The learned Single Judge held that as and when a sale is not recognised either registered or unregistered, the land does not become unencumbered because a liability can always be seen to that property in some form due to those sale deeds. Accordingly, the learned Single held that the Collector, Chittorgarh, has committed no illegality in directing the LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 4 appellant to first surrender unencumbered land and then encumbered lands. Hence, this intra court appeal. 7. It is contended by the learned counsel for the appellant that the lands in possession of the cultivators which were not covered by any valid transfer deeds could not be held to be unencumbered land . The learned counsel submitted that Section 30D of the Act of 1955 provides that the transfers effected after 25.2.1958 shall be deemed to be a transfer to defeat the provisions of the Act of 1955 but the said provision shall apply only to the transfers which are valid transfers under the Transfer of the Properties Act, 1882. It is submitted by the learned counsel that a transaction which is not recognizable even in absence of provisions of Section 30D of the Act of 1955, does not create any right against the transferor. It is submitted by the learned counsel that of course a transfer which is not recognised under Section 30 D create a right in favour of transferee under Section 53A of the Transfer of Properties Act, but a transaction which is not a transfer at all does not create any right in favour of the transferee. It is submitted by the learned counsel that the persons whose transactions were not recognised by the Collector as being transfer are trespassers and cannot claim any right under Section 53A of the Transfer of Property Act, 1882. In support of the said contention the learned counsel has relied upon a decision rendered by learned Single Judge of this Court in the matter of LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 5 'Kalu Singh & Ors. Vs. State of Rajasthan' 2001 (1) RLW 612. Accordingly, it is submitted by the learned counsel that the District Collector has erred in applying the principle of encumbrance and in declining to accept the option exercised by the appellant to surrender the surplus lands. 8. It is next contended by the learned counsel for the appellant that the appellant has been allowed to keep only 35 standard acres of land and he has to surrender 154.81 standard acres and if the petitioner is directed to surrender the lands as directed by the District Collector, then, it will make the appellant a landless person. 9. On the other hand, it is submitted by the learned Government Counsel that once holding is determined in the hands of holder and he is found to be in possession of the land in excess of the ceiling limit then in terms of provisions of Section 30E (2) of the Act of 1955, if the petitioner is holding the lands of which some are encumbered and some are unencumbered, the unencumbered lands have to be surrendered in preference of the encumbered lands. It is submitted by the learned counsel that the persons who were given possession of the lands in pursuance of the transfers effected by the appellant by way of transfer deeds even if those are not recognised for the ceiling purposes in computing the lands held by the appellant, the transferees cannot be said to be trespassers and the lands in their possession has to be treated LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 6 encumbered land. Accordingly, it is submitted that the learned Single Judge has committed no error in dismissing the writ petition preferred by the appellant assailing the order passed by the District Collector, Chittorgarh, directing the appellant to first surrender the unencumbered lands. 10. We have considered the rival submissions and perused the material on record. 11. The scheme of Section 33 E(2) of the Act of 1955 and Section 16 (4) read with Section 18 of the Act of 1973 makes it abundantly clear that holder of the agriculture lands is under an obligation to surrender first the unencumbered land out of the lands remaining with him after the transfers and the balance of the surplus land remaining, if any, shall be recovered from the transferees by their ejectment. The duty has also been cast on the State that while executing the order declaring the surplus land, in the first instance, the effort shall be made for acquiring the lands in the hands of the holder of the agriculture lands which are not covered by any transfer . 12. Thus, the main question which arises for consideration of this court is as to whether a person who is holding a land under a transfer deed which is not in conformity with the provisions of Transfer of Property Act, 1882 or other Laws governing the manner in which transfers are to be effected, acquires any right which can be LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 7 considered to be an encumbrance for the purposes of second proviso to Section 30E(2) of the Act of 1955 or u/s 16(4) read with Section 18 of the Act of 1973. 13. As a matter of fact, the question involved in this appeal as aforesaid is no more res integra. In the matter of “Mahesh Kanwar & Anr. vs. State of Rajasthan”, RLR 2003(1) , 241, a Bench of this court while dealing with the objects behind the aforesaid provisions incorporated in the Act of 1955 and the Act of 1973, held as under:- “40. The object behind these provisions is clear. While certain transactions made by a holder are not recognised for the purpose of ceiling proceedings so as to affect acquisition of certain lands and does not bind the State, the law does not favour to obliterate inter se rights and obligation of holder and his transferees or persons in whose favour there exist an encumbrance on the holding. 41. The provisions of the Ceiling Act, therefore, do not affect the inter-se relation between the transferor and transferee. So long as the lands are not acquired under the Ceiling Act, the rights existing between the transferor and transferee remain intact. Such rights extinguish only on acquisition of land under the Act in accordance method and mechanism provided thereunder. The transactions which are completed in all respects and have not been recognised remain intact if the lands transferred thereunder is not required by the State Govt. by giving effect to the provisions of Sec.16(4) or Sec.18, or Sec.30(E)(2) and the transfers which have not been recognised cannot be treated a void. Mere inclusion of certain land in his holding does not give the holder right to recover possession of property from transferee against whom he is debarred from enforcing his right. In the like manner, where a transferee under an unregistered contract or written agreement is in possession and is under the protection of Sec.53-A of the Transfer of Property Act, which applies to agricultural holdings also, if the said land is not acquired, the transferee retains his right to protect his LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 8 possession from any claim made by the transferors. Those rights are not extinguished merely on the basis of determination of ceiling area or by declaring the extent of surplus land in the hands of the holder. 42. With these premise, when the law requires the holder of the land to give an option which are encumbered land and satisfy the claim of surrender, it is inherent that the law postulates as far as possible protection of inter se right between the transferor and transferee so far as its possession without effecting the right of the State to acquire surplus land from the holder of the land is concerned. 43. That is further apparent from the fact with the clear provisions enacted under sub-sec.(4) of Sec.16 that State must acquire the land remaining with the holder after the transfer and must acquire the balance from the transferee only such land which remain in balance after acquiring the land remaining with the holder.”(emphasis added) 14. Considering the question as to whether where right to possession under a written document of transfer which is not registered is not encumbrance so as to come within the purview of obligation contained in Section 30 E(2) second proviso or under Section 16(4) of the Act of 1973 , the court observed :- “47. We have noticed above that under Sec.53A a right exists in favour of the transferee under an agreement to sale or under a completed transaction which has to be formalised to prevent the holder of title from interfering his possession and from enforcing his owner's right. This right under the contract is the legal right and enforceable in law against the owner. In these circumstances, we are unable to sustain the contention of the learned counsel for the appellants that right to remain in possession and to prevent the owner from exercising his right is not a legal right, which can be protected. 48. This is also apparent from the decision of the Supreme Court referred to above where the Supreme Court has given effect to the legal rights created under Sec.53-A by holding that the equity of redemption of mortgagee by the mortgagor also extinguishes when a transfer of property is executed in LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 9 favour of mortgagee in possession of the land under a completed sale though the formalities of registration have not been carried out, by invoking the provisions of Sec.53-A of the Transfer of Property Act.The Court has made it clear that the rights do not arise out of contract but they come into existence by act of parties. 49. Therefore, it is not just to accept the contention of the learned counsel that a right of a transferee under Sec.53A is not a legal right which does not create a burden on the estate. It undoubtedly give a right to property against the transferor or his successors in interest, that is to say, to remain in possession inspite of title in favour of transferor and effectively keep him out of property and law debars him from enforcing his right of ownership in respect of that property against such transferee. 50. It is true that mere fulfilment of terms of agreement without completing the formalities does not pass on title but it binds both the parties of the acts which have been done in furtherance of such agreement between them and transferor is not entitled to take advantage merely of the circumstance that a transfer has not been completed in the manner required by law. He is therefore, bound to honour such commitment made by him on the principle of estoppel. Permitting a transferor inspite of specific provisions of law to give an option of the lands than offered by him or in respect of which he has created certain obligation, which is binding on him, to surrender such lands with an object of absolving him from such obligation would result in defeating the very object of the provisions. The object of such option is clearly not to permit the transferor to do indirectly what the transferor cannot directly. 51. Taking other view will also be contrary to object with which the provisions in ceiling laws, old or new, have been made obligating State not to acquire lands, transfer in respect of which has not been recognised so long as he has other lands with him and simultaneously obligating the holder to opt for unencumbered land to satisfy the acquisition of surplus lands in the first instance. It may be noticed that while obligation of State is to leave as far as possible the lands which have been transferred by the holder, but which have not been recognised for the purpose of determining holdings with the holder, the obligation of holder is not confined to land transferred by him but is much wider. It stops him from opting for surrendering LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 10 such land which is encumbered.” (emphasis added) 15. Thus, even if an instrument of transfer is defective and has not been executed and completed in the manner as prescribed therefor by the law , the transferor or the successor in interest are debarred from enforcing any right against the transferee in respect of the land of which transferee has taken possession or continued in possession. The transferor or his successor in interest cannot claim any advantage on account of non registration of the document or non fulfillment of other formalities under the law. Thus, notwithstanding the fact that no valid title is transferred under the transfer deed, the transferee has a right to protect his possession over the land in question. In this view of the matter, the lands which are subject matter of transfers which are not recognised while computing the ceiling area in the hands of the respondent no. 4 has to be treated as encumbered lands and the respondent no. 4 cannot surrender the same against the surplus land vested in the State Government in preference to the unencumbered lands in his possession. 16. The next contention of the learned counsel that since the transfers made have not been recognised as same were found to have been made not in conformity with the provisions of the Transfer of Property Act, 1882 therefore, the transferees has to be treated as trespasser over the lands in question is also bereft of any merit. Of LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 11 course, Section 53 A of the Transfer of Property Act confers no right of action on a transferee in a possession under unregistered contract of sale but it imposes a statutory bar on transferor from enforcing against the transferee and the persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession and thus protects the possession of the transferee in respect of the property . Therefore, by no stretch of imagination, the transferee in possession of the land under the unregistered contract can be said to be a trespasser . 17. The decision of this court in Kalu Singh's case (supra) relied upon by the learned counsel for the petitioner, a learned Single Judge of this court held as under:- “5. The emphasis is for surrendering the land excess of ceiling area of a person who on such date is in possession of excess land. Thus possession here in ordinary sense will refer to lands in his control and not out of his control. That is in consonance with object of denuding a person of the land in his possession, which he holds in excess of ceiling area determined under Sec.30-C. Keeping in view this scheme where any interest in the land which by voluntary act has been made to outstanding the holder must be considered to be an encumbered land to become part of surrender after the unencumbered land. What was implicit under the provisions of Tenancy Act has been enacted u/s. 16(4) of the Act of 1973. It has been made specific u/s. 16(4) of the new Act that where any transfer of land is not recognised or taken into consideration, for determining the ceiling area applicable to the transferor under sub Section (1) of Section 6, surrender of surplus land vesting in the State Govt. would be made by the transferor first out of the land remaining with him after such transfers and only thereafter if necessary the acquisition will reach the transferred lands. That is the principle founded on LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 12 wholesome consideration of justice and equity in favour of the ignorant and innocent transferees.” 18. In the said decision while relying upon yet another decision of this court in the matter of “Sawai Singh & Anr. vs. State of Rajasthan”, 1999 RLR(1), 724, it has been observed by the court that the land in possession of a trespasser cannot be said to be encumbered , in the sense that no interest of the holder is outstanding and he has the right to immediate possession. However, it has nowhere been held that a transferee in possession of the land under the unregistered contract shall be treated to be trespasser over the land. Thus, the said decision has no relevance to the controversy raised before us. 19. Coming to the last contention of the learned counsel that if the appellant is compelled to surrender the unencumbered land in his possession then, it will make him a landless person , suffice it to say that the act of the transfer being the lands holder own act , he cannot be permitted to exercise an option to surrender the land in possession of the transferees under the contract and retain the unencumbered land in his possession, on the pretext that else he will become a landless person. Moreover, in view of the unequivocal provisions of Section 30 E (2) of the Act of 1955 read with Section 16 of the Act of 1973 governing the option to be exercised by the transferor , the contention raised on behalf of the appellant is absolutely devoid of any merit. LRs OF RAO JAGANNATH SINGH VS. STATE OF RAJASTHAN & ORS (D.B. CIVIL SPECIAL APPEAL (W) NO.294/99) 13 20. In view of the discussion above, the special appeal lacks merit and deserves to be dismissed. 21. Accordingly, the special appeal is dismissed with no order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-