Maheshwar Mandal & Anr vs The State Of Bihar & Ors on 24 June, 2014

IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.1091 of 2013
                                        With
                      Interlocutory Application No. 1572 of 2013
                                         In
                  Civil Writ Jurisdiction Case No. 1091 of 2013
===========================================================
1. Maheshwar Mandal S/O Late Bachchi Mandal
2. Sanjay Mandal S/O Maheshwar Mandal, both resident of Village Sahebganj, P.S., P.O. and Anchal- Narpatganj, Subdivision- Forbesganj, District Araria .... .... Petitioners Versus
1. The State of Bihar
2. Divisional Commissioner, Purnea
3. Land Reforms Deputy Collector, Forbesganj, Araria ..... ..... Respoondents 1st Party


4. Smt. Jashoda Devi, wife of Gosain Mandal, resident of Village Sahebganj, P.S., P.O. and Anchal- Narpatganj, Subdivision- Forbesganj, District Araria .... .... Respondent 2nd Party =========================================================== Appearance :
For the Petitioners      :      Mr. Yogendra Mishra &
                                Mr. Uma Kant Tiwary,
                                Mr. Binod Kumar, Advocates
For Respondent No. 4 :          Ms. Kumari Ritambhara, Advocate
For the State            :      Mr. Lalit Kishore, PAAG with
                                Mr. Piyush Lall, AC to PAAG
                                Mr. Ram Kishore Singh, AC to AAG 7 &
                                Mr. Syed Hussain Majeed, AC to AAG 7


Ms. Shashi Priya Pathak, AC to AAG 7
===========================================================  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH C.A.V JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)


12. 24.06.2014 This Petition under Article 226 of the Constitution has been filed by a father and the son Maheshwar Mandal and Sanjay Mandal to challenge the order dated 27th December 2011 made by the Competent Authority-cum-Deputy Collector Land Reforms, Forbesganj, Araria in B.L.D.R. Act Case No. 91 of 2011-12 in exercise of power conferred by the Bihar Land Disputes Resolution Act, 2009 (hereinafter referred to as "the Act of 2009"). The petitioners have also challenged the constitutional validity of the Act of 2009.


One Jashoda Devi, the respondent no. 4, wife of one Gosai Mandal approached the Competent Authority under the Act of 2009 for a declaration that she is the owner of the disputed parcels of land (hereinafter referred to as "the suit land") and that she is entitled to the possession of the suit land. She complained that the petitioners herein had forcibly dispossessed her. She, therefore, be put in possession of the suit land. The case was contested by the writ petitioners. According to them, the suit land was part of the lands inherited by the petitioner no. 1 and his brothers from their father Bachchi Mandal. It was the ancestral property inherited from the original owner Babujan Mandal. The sons of Bachchi Mandal were the joint owners of the land. The plaintiff, Jashoda Devi was the wife of one of the brothers. She claimed title over the suit land through a sale purportedly made by the


suit land through a sale purportedly made by the late Bachchi Mandal on 22nd December 1995. According to the  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 petitioners, the said sale was later on cancelled on 29th February 1996. The land continued to be the joint property of the six brothers and was partitioned amongst them on 12th April 2009 under a partition deed.


The Competent Authority-cum-Deputy Collector Land Reforms, Forbesganj (hereinafter referred to as "the Competent Authority") held that the deed of cancellation of sale was not a valid document and that the plaintiff, Jashoda Devi was the lawful owner of the suit land. In view of the said finding, the Competent Authority issued direction to the petitioners to handover possession of the disputed parcels of land to the plaintiff, Jashoda Devi, the respondent no. 4 herein. The said order of the Competent Authority has been confirmed by the Divisional Commissioner, Purnea Division, Purnea on 8th August 2012 in Land Dispute Appeal No. 69 of 2012. Therefore, this Petiton.


Learned advocate Mr. Yogendra Mishra has appeared for the petitioners. He has assailed the provisions contained in the Act of 2009. He has submitted that the provisions contained in the Act of 2009 divest the Civil Court of its function of adjudicating the question of title over the land. The Act of 2009 also confers unfettered and unbridled power upon the Competent Authority. Mr. Mishra has strenuously urged that the State legislature has no authority to confer power upon the executive to adjudicate civil disputes which is traditionally conferred upon the Civil Court under the Code of Civil Procedure. In support of his submission, he has relied upon Section 9 of the Code of Civil Procedure and a Full Bench judgment of this Court in the matter of Nand Kumar Rai & Others Vs. State of Bihar & Others [AIR 1974 Patna 164].

 The Petition is contested by the State Government.


Learned advocate Mr. Ram Kishore Singh has appeared for the State Government. He has relied upon Entry 18 of the State List of Schedule VII to the Constitution of India, the Bihar Tenancy Act, 1885 and the judgment in the matter of Smt. Basmati Devi Vs. Smt. Anju Kumari [2012 (3) PLJR 214]. He, however, concedes that in the present case the Competent Authority has exceeded his jurisdiction.


In view of challenge to the constitutional validity of the Act of 2009, we have heard learned Principal Additional Advocate General, Mr. Lalit Kishore on behalf of the State Government. Mr. Lalit Kishore has contested the challenge to the constitutional validity of the Act of 2009. He has taken us through the various provisions of the Act of 2009. He has submitted that the Act empowers the Competent Authority to enforce the rights conferred by or accrued under the six enactments mentioned in Schedule I to the Act of 2009. The power vested in the Competent Authority is, therefore, required to be read as confined to the enforcement of the rights conferred by or accrued under the aforesaid six enactments alone; and if so read, none of the provisions of the Act of 2009 can be said to be unconstitutional. Mr. Lalit Kishore has submitted that the petitioners have not challenged a particular provision/s of the


have not challenged a particular provision/s of the Act of 2009, but the challenge is general and vague. He has submitted that unless the State legislature lacks the legislative competence to make the enactment, the enactment cannot be said to be unconstitutional. He has further submitted that to challenge any provision as unconstitutional one has to establish contravention of the provisions contained in the Constitution. In the present case it is not the case of the petitioners that any of the provisions contained in the Act of 2009 is unconstitutional in any manner. Mr. Lalit Kishore  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 has next submitted that the provisions contained in the Act of 2009 are specific and unambiguous. Such provisions are required to be interpreted as they are. The rule of construction of legal provisions does permit reference to the preamble


construction of legal provisions does permit reference to the preamble of the enactment, but no provision can be held to be ultra vires the preamble of the enactment. Mr. Lalit Kishore has meticulously taken us through each provision particularly Section 4 and various clauses under Sub-section (1) of Section 4 of the Act of 2009.


In support of his submissions, Mr. Lalit Kishore has relied upon the judgments of the Hon‟ble Supreme Court in the matters of M/s Burrakur Coal Co. Ltd. Vs. The Union of India and Others {AIR 1961 Supreme Court 954, Mohan Lal Vs. Kartar Singh and Others {1995 Supp (4) Supreme Court Cases 684, Union of India Vs. Elphinstone Spinning and Weaving Co. Ltd. and Others {(2001)4 Supreme Court Cases 139} and Shiv Kumar Chadha Vs. Municipal Corporation of Delhi and Others {(1993) 3 Supreme Court Cases 161}.


In the matter of M.s Burrakur Coal Co. Ltd. (supra) the very issue of interpretation of statute was the subject matter of consideration by the Constitutional Bench of the Hon‟ble Supreme Court. The Hon‟ble Court held, "it is one of the cardinal principles of construction that where the language of an Act is clear, the preamble must be disregarded though, where the object or meaning of an enactment is not clear, the preamble may be resorted to explain it. ... We cannot, therefore, start with the preamble for construing the provisions of an Act, though, we would be justified in resorting to it, nay, we will be required to do so, if we find that the language used by Parliament is ambiguous or is too general though in point of <span class="hidden_text" id="span_9"> Patna High Court CWJC No.1091 of 2013 (12) dt. 24


2013 (12) dt. 24 .06.2014</span> fact Parliament intended that it should have a limited application."


In the matter of Mohan Lal (supra) a similar provision for summary enquiry by collector was the subject matter of challenge before the Hon‟ble Supreme Court. The Hon‟ble Court observed, "Though the enquiry is summary it is judicial in nature. .... Therefore, merely because the Collector acting under section 43 has to make a summary enquiry, it cannot be said that he can decide only simple questions as regards the nature of possession and not those questions which are complicated but have a bearing on the nature of possession."


In the matter of Union of India (supra) challenge was directed to the Textile Undertakings (Taking Over of Management) Act, 1983. The Court observed, "There is always a presumption that the legislature does not exceed its jurisdiction and the burden of establishing that the legislature has transgressed constitutional mandate, such as those relating to fundamental rights is always on the person who challenges its vires". The Hon‟ble Court further held, "The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions."

 In the matter of Shiv Kumar Chadha (supra) challenge was against the bar imposed upon the Civil Court to entertain matters under the Delhi Municipal Corporation Act, 1957.


Learned advocate Ms. Kumari Ritambhara has appeared for the respondent no. 4-plaintiff. She has supported the orders of the authorities below.


True, the petitioners have not raised a specific challenge  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 to a particular provision/s. The challenge to the constitutional validity of the Act of 2009 is too general and vague. The sole reliance is placed on the Full Bench judgment in the matter of Nand Kumar Rai & Others (supra). Mr. Yogendra Mishra appearing for the petitioners has failed to establish that any of the provisions of the Act of 2009 is unconstitutional; nor it is the plea of Mr. Mishra that the Act of 2009 has been enacted by the State legislature without the legislative competency. Nevertheless, I do feel that there are certain provisions in the Act of 2009 which, strictly speaking though are not unconstitutional, do require reading down.


As the Act of 2009 is under challenge before us, we shall first examine the objects and reasons of the Act of 2009 and its provisions.


The preamble of the Act of 2009 reads as under :-
 "WHEREAS, in the State of Bihar, disputes relating to record of rights, boundaries, entries in revenue records, unlawful occupation of raiyati land and forcible dispossession of allottees and settlees of public land, generate problems and cause unnecessary harassment to bona fide allotees/settlees, raiyats or occupants;


WHEREAS, such disputes with respect to raiyati land or public land allotted in favour of different classes of allottees are unnecessarily occupying major space of Civil Courts and Hon'ble High Court and which should otherwise have been resolved by the Revenue Authorities, who may be better equipped to deal with such disputes having regard to their continued presence in the field offices and their expertise in  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 Revenue Administration, WHEREAS, in larger public interest it is deemed necessary to provide for effective and speedy mechanism to resolve such disputes which give rise to major turbulence if not addressed immediately and effectively;


AND, WHEREAS, it has been found in analysis of data relating to nature of disputes that they mostly appertain to matters connected with the Record of Rights, partition of jamabandi, forcible dispossession of allottees/raiyats, boundary disputes etc. and in this context, the administration of the following Acts is involved:
                  (1)     The Bihar Land Reforms Act, 1950,
                  (2)          The Bihar Tenancy Act, 1885,
                  (3)     The Bihar Privileged Persons Homestead Tenancy
                          Act, 1947,
                  (4)          The Bihar Bhoodan Yagna Act, 1954,
                  (5)      The Bihar Land Reforms (Fixation of Ceiling and
                          Acquisition of Surplus Land) Act, 1961,


(6) The Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956, AND, WHEREAS, different forums and procedures have been provided for the resolution of disputes under the above referred Acts and it is considered expedient to provide a uniform and common forum, procedure and mechanism which would achieve the objective of effective, efficacious and speedy resolution of disputes."


Section 2 of the Act of 2009 defines various terms and phrases used in the Act. Clause (a) defines, ""Competent Authority" shall be the Deputy Collector Land Reforms or any officer assigned to discharge the function and duties of the Deputy Collector Land Reforms in the Sub-division". Clause (d) defines, ""Land" connotes Government land, raiyati land, with structure, if any". Clause (e) thereof defines, ""Allotted Land or Settled Land" connotes the land which is allotted or settled or on which raiyati rights have accrued under any of the Acts mentioned in Schedule-1 of this Act". Clause


(f) thereof defines, ""Allottee or Settlee" connotes the person with whom land has been settled by the competent authority or the person who has acquired raiyati rights over the land, under any of the Acts contained in Schedule-1 of this Act". Clause (g) thereof defines ""Raiyat" connotes a raiyat as defined under the provision of the Bihar Tenancy Act, 1885". Section 3 of the Act of 2009 gives the Act of 2009 overriding effect over the procedure prescribed under (i) The Bihar Land Reforms Act, 1950, (ii) The Bihar Tenancy Act, 1885, (iii) The Bihar Privileged Persons Homestead Tenancy Act, 1947, (iv) The Bihar Bhoodan Yagna Act, 1954, (v) The Bihar Land Reforms (Fixation of Ceiling and Acquisition of Surplus Land) Act,


Ceiling and Acquisition of Surplus Land) Act, 1961, (vi) The Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. Section 4 thereof provides for the jurisdiction of the Competent Authority. Sub-section (1) thereof empowers the Competent Authority, interalia, to resolve the disputes arising out of


(a) Unauthorised and unlawful dispossession of any settlee or allottee from any land or part thereof, settled with or allotted to him under any Act contained in Schedule-1 of this Act by issuance of any settlement document/parcha by a Competent  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 Authority; (b) Restoration of possession of settled/ allotted land in favour of legally entitled settlee/ allottee or his successors/heirs, upon adjudication of unauthorized and unlawful dispossession; (c) Threatened dispossession of a legally entitled settllee/allottee; (d) Any of the matters enumerated in


(a), (b) and (c) above appertaining of raiyati land; (e) Partition of land holding; (f) Correction of entry made in the Record of Rights including map/survey map; (g) Declaration of the right of a person; (h) Boundary disputes; (i) Construction of unauthorized structure; and (j) Lis pendens transfer. Sub-section (3) thereof imposes specific bar upon the Competent Authority in respect of the fresh rights of allottee/settlee or a raiyat which is not yet determined and is required to be determined in accordance with the provisions contained in any of the aforesaid six enactments. Sub-sections (2) to (5) thereof read as under :-


"(2) The Competent Authority shall not have jurisdiction to review or reopen any finally concluded and adjudicated proceeding under any of the Act contained in Schedule-1. The Competent Authority shall exercise his authority for resolving the dispute brought before him on the basis of any final order passed by any of the authorities empowered to do so in the Acts contained in Schedule-1 of this Act.


(3) The Competent Authority shall not have jurisdiction to adjudicate any fresh rights of allottee/settlee or a raiyat which is not yet determined and is required to be determined in accordance with provisons contained in any of the  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 Acts contained in Schedule-1:
 Provided that where rights of allottee/settlee or raiyat are already determined under any of the Acts contained in Schedule-1, the Competent Authority shall have jurisdiction to entertain cases appertaining to matters enumerated in sub- section (1).


(4) Notwithstanding anything contained in sub- section (2) and (3) hereinabove, if no provision is made in any of the Acts contained in Schedule-1 for determination of rights of allottee/ settlee or raiyat and claimed right is yet to be determined, it shall be open to the Competent Authority to finally determine such right.

 (5) The Competent Authority, wherever it appears to him that the case instituted before him involves complex question of adjudication of title, he shall close the proceeding and leave it open to parties to seek remedies before the competent Civil Court."


Section 5 of the Act confers certain powers of Civil Court upon the Competent Authority. Section 6 of the Act provides, "in all cases of civil nature, concerning a land or a portion thereof, and in which one of the parties to the case is an allottee or settlee under Section-2 of the Act, the State shall be a necessary party". Section 7 of the Act enjoins the Competent Authority to dispose of all cases summarily in accordance with the Act and Rules framed thereunder. Section 9 of the Act provides for expeditious resolution of disputes. Section 12 of the Act empowers the Collector to exercise power of supervision and control over the  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 Competent Authority. Section 15 of the Act enjoins the Competent Authority to


of the Act enjoins the Competent Authority to execute its orders. Section 16 of the Act confers power, interalia, of attachment of the standing crop upon the Competent Authority. It is apparent that the Act of 2009 has been enacted with a laudable purpose of giving quick relief to the allottees and settlees who have earned a right or to whom a right has accrued under any of the aforesaid six enactments. That is why Section 3 of the Act of 2009 gives that Act overriding effect over the procedure prescribed under any of the said six enactments. Thus, in my view, the scope and ambit of the Act of 2009 is limited and is circumscribed to the extent of enforcement of rights conferred by or accrued under the aforesaid six enactments. In other words, it is an enactment for execution of the orders made under the above referred six enactments. This intention is reinforced by


referred six enactments. This intention is reinforced by Sub-section(2) of Section 4 of the Act of 2009 insofar as it expressly provides, "Competent Authority shall exercise his authority for resolving the dispute brought before him on basis of any final order passed by any of the authorities empowered to do so under the Acts contained in Schedule-1 of the Act". Similarly, Sub-section (3) thereof expressly prohibits the Competent Authority from exercising its jurisdiction to adjudicate any fresh rights of allottee or settlee or a raiyat not yet determined under any of the aforesaid six enactments. Thus, the legislative intent to confine the Act of 2009 to execution of the orders made under the aforesaid six enactments is clear and unambiguous. Having thus circumscribed the powers of the Competent Authority under the Act of 2009, the mischief has crept in in Sub-sections (4) & (5) of Section


(4) & (5) of Section 4 of the Act of 2009. The said Sub-section (4) of Section 4 of the Act of 2009 enables the  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 Competent Authority to determine the rights of allottees or settlees or raiyats which are not yet determined. Similarly, Sub-section (5) of Section 4 of the Act of 2009 confers a discretionary power upon the Competent Authority either to adjudicate complex questions of title himself or to allow the parties to seek remedy before the Civil Court. But for Section 4(4) of the Act of 2009, the Competent Authority is not vested with power of adjudication under any of the other provisions of the Act of 2009. The Act which


the Act of 2009. The Act which is designed to execute the orders made or to enforce the rights accrued under any of the aforesaid six enactments, has been converted into a substantive or adjudicating enactment by Section 4(4) of the Act of 2009. The power of adjudication conferred under the aforesaid Sub- sections (4) & (5) of Section 4 of the Act of 2009 are largely misused. The power, which is confined to the disputes in relation to the allottees or settlees or raiyats, is exercised in respect of any dispute including the complex issues of title. Though there is no express bar against the jurisdiction of the Civil Court, the said sub- sections practically take away the jurisdiction of the Civil Court to entertain and adjudicate the disputes relating to the title to the land.


It is apparent that the Act of 2009 has been enacted with an intention to give immediate relief to the allottees and the settlees whose rights are crystallized under any of the six enactments mentioned in Schedule-1 to the Act of 2009. It is, therefore, necessary that any person approaching the Competent Authority under the Act of 2009 must have a right settled or accrued to him or her under any of the aforesaid six enactments. In other words, the plaintiff has to be the allottee or a settlee of the land under any of the aforesaid six enactments and seeks enforcement of a right crystallized in favour of the plaintiff or accrued to the plaintiff  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 under any of the aforesaid six enactments.


of the aforesaid six enactments. It is such a claim alone which can be entertained by the Competent Authority under the Act of 2009. This opinion of mine is corroborated by Section 6 of the Act which makes it mandatory that in all such cases the State Government shall be a necessary party. The preamble of the Act is clear and discloses the intention of the legislature in enacting the Act of 2009. It says, "disputes with respect to raiyati land or public land allotted in favour of different classes of allottees...........". Preamble of the Act of 2009 further refers to disputes in relation to, "the Record of Rights, partition of jamabandi, forcible dispossession of allottees/ raiyats, boundary disputes etc." In context of the above referred six enactments, Section 3 of the Act of 2009 gives the overriding effect to the Act of 2009 in respect of


to the Act of 2009 in respect of the procedure prescribed in the above referred six enactments This seemingly unfettered and unbridled power of adjudication has been misused by the Competent Authority to resolve disputes of title to the land which traditionally are required to be resolved by a Civil Court. In the present case, the respondent no. 4, the plaintiff, asserted her right to land under a sale deed. Neither she is an allottee nor a settlee nor does the dispute arise from any right crystallized or accrued under any of the aforesaid six enactments. The Competent Authority has clearly exceeded his jurisdiction and has usurped the jurisdiction of the Civil Court.


Incongruity in legislative drafting of sub-sections (3) & (4) of Section 4 of the Act of 2009 is evident. But then, that is the way the legislature functions. On one hand Sub-section (3) of Section 4 of the Act of 2009 expressly debars the Competent Authority from adjudicating any fresh rights of allottee, settlee or a  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 raiyat which is not determined or which is required to be determined in accordance with the provisions contained in any of the aforesaid six enactments. On the other hand, in stark contradiction, sub-section (4) of Section 4 of the Act of 2009 enables the Competent Authority to finally determine the rights of allottee, settlee


finally determine the rights of allottee, settlee or raiyat not yet determined. It is this sub-section (4) which is the mischief monger. Although it refers to the rights of allottee, settlee or raiyat, the broad language used by the legislature is largely misused to usurp the power not conferred by the Act of 2009 and to determine the rights claimed by the persons other than allottee, settlee or raiyat and the rights claimed outside any of the aforesaid six enactments. This wide amplitude granted under sub- section (4) calls for intervention by this Court and reading down of the sub-section (4) to bring it in consonance with the other provisions of the Act of 2009.


Similarly, sub-section (5) of Section 4 of the Act of 2009 also is a mischief monger. Once jurisdiction of the Competent Authority is confined to the execution of the orders made or enforcement of rights accrued under any of the aforesaid six enactments, sub-section (5) of Section 4 of the Act of 2009, by necessary implication, allows the Competent Authority to entertain matters not arising out of the aforesaid six enactments and issues invoking complex questions of adjudication of title. The complex issues of title can never be decided in a summary proceeding envisaged by the Act of 2009. The said sub-section (5) also has the tendency to convert the power of execution of orders into the power of adjudication. The said sub-section (5) also requires to be read down to bring it in consonance with the other provisions contained in the Act of 2009.


A Full Bench of this Court in the matter of Nand Kumar Rai (supra) had the occasion to examine the constitutional validity of Section 109 of the Bihar Tenancy Act, 1885 as it stood after its amendment under the Act 6 of 1970. It appears that under the said amendment the legislature barred the jurisdiction of the Civil Court in respect of any application or suit concerning the preparation or publication of record or rights or settlement of rent or preparation of Settlement Rent Roll or for alteration of any entry in any such record or for the determination of the incidents of any tenancy.


The said enactment was challenged on the ground that it was a fraud on the legislative power of the State and was enacted in colourable exercise of that power and that the impugned provisions were arbitrary. The Bench held that clause (d) of sub-section (1) and sub-section (2) of Section 109 of the Act introduced by Bihar Act 6 of 1970 were constitutionally invalid. The said clause (d) of sub- section (1) and sub-section (2) of Section 109 of the Act barred the jurisdiction of the Civil Court in the following terms :-
 "(d) for declaration of title to or recovery of possession of or confirmation of possession over any holding or tenancy or part thereof in which correctness of any entry in any such record or roll is expressly or impliedly challenged or in which determination of incidents of any tenancy is involved.


(2) Suit for declaration of title to or recovery of possession of or confirmation of possession over any holding or tenancy or part thereof, in which correctness of any entry in any record-of-rights or  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 Settlement Rent roll is expressly or impliedly challenged or in which determination of incidents of any tenancy is involved may be instituted before the Collector or any Revenue Officer specially empowered by the State Government by notification in this behalf who shall dispose of the suit in the prescribed manner."


The Bench held, "It is difficult to conceive how complicated title suits would be speedily and summarily disposed of by Revenue Courts and how the under-raiyats would be benefited thereby. I can take judicial notice of the fact that a large number of title suits have been filed throughout the State of Bihar wherever Revisional Survey operations have taken place. I am also aware that the number of Civil Courts is too small to dispose of such large number of title suits. I am, however, also aware of the fact that the number of Revenue Courts is also not sufficient, rather too small to dispose of such a large number of complicated title suits. They will be simply unable to decide them unless they technically choose to literally dispose of the suits by any means; no Court by a judicial approach will be above to dispose of such a large number of suits. I am, however, not concerned with the wisdom behind this legislation. I am concerned merely with its constitutional validity. In procedural matter suits of lighter


its constitutional validity. In procedural matter suits of lighter vein have been allowed to be brought to the High Court and complicated suits  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 are to be finally disposed of by the Revenue authorities. I also do not see any justification for making a distinction between title suits for declaration of title and possession and suits of other types such a partition or mortgage suits."


In my opinion, a similar mischief is found in the Act of 2009 where the competent authority is allowed to entertain and summarily decide the rights which are not crystallized under any of the aforesaid six enactments and to entertain and decide complex issues of title to the land under sub-sections (4) & (5) of Section 4 of the Act of 2009. The Act of 2009 is clear and explicit insofar as its scope and ambit are concerned. It is repeatedly emphasized that the Act of 2009 has been enacted for enforcement of a right conferred by or accrued under the above referred six enactments. It would not be out of place to note that all the above referred six enactments relate to land reforms and are pretty old. The said Acts are in force for more than fifty years. Most of the issues must have been settled by now. It may be only residuary matters which may still require to be adjudicated/enforced.


may still require to be adjudicated/enforced. No claim to a property or a dispute relating to a property can be entertained or decided by the Competent Authority under the Act of 2009 to resolve disputes other than the ones arising from the above referred six enactments.


In my opinion, clause (e) of Sub-section (1) of Section 4 of the Act of 2009 which reads, "Partition of land" has to be read as the dispute relating to the land allotted or settled under any of the above referred six enactments and the claim made by an allottee/ a settlee or a Raiyat. The said clause (e) will not cover each and every issue relating to any land and the partition between the co-sharers,  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 co-parceners, joint owners etc. of such land. Similarly, clause (g) of Sub-section (1) of Section 4 of the Act of 2009 which provides for "Declaration of the right of a person" also requires to be read down. Again the


also requires to be read down. Again the right referred to in the said clause (g) has to be a right conferred by or accrued under any of the aforesaid six enactments and none other. „A person‟ would mean an allottee/ a settlee of a land or a Raiyat as defined in clause (f) of Section 2 of the Act of 2009. No person other than an allottee/ a settlee or a Raiyat can have an access to the remedy under the Act of 2009. Clause (i) of Sub-section (1) of Section 4 of the Act of 2009 which refers to "Construction of unauthorized structure" should also be read down to mean the construction of unauthorized structure on the land of a Raiyat allotted or settled under any of the above referred six enactments and no other land or structure. Clause (j) of Sub- section (1) of Section 4 of the Act of


of Section 4 of the Act of 2009 is clearly outside the purview of the any of the above referred six enactments. The principle of lis pendence transfer is necessarily applicable to a civil litigation. If at all, its reference in the Act of 2009 would necessarily mean the transfer of the land of a Raiyat or a settlee allotted or settled under any of the aforesaid six enactments pending the adjudication under the concerned Act. In our opinion, the power of the Competent Authority under the Act of 2009 cannot be read to be wide enough to enfold in its embrace all kinds of disputes relating to any land.


In my opinion, Sub-section (4) of Section 4 of the Act of 2009 brings a complete anachronism as it has the effect of encompassing in its folds any real or imaginary right an allottee or a settlee or a Raiyat can claim which is not conferred by any of the aforesaid six enactments. That would necessarily mean that the  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 rights which are not conferred by or accrued under the above referred six enactments also can be adjudicated by the Competent Authority under the Act of 2009. This wide power conferred upon the Competent Authority is unbridled, unfettered and unguided. As we have seen on the facts of the present case that they are grossly abused. It is not possible to save the


abused. It is not possible to save the said Sub-section (4) of Section 4 of the Act of 2009 by employing the principle of harmonious interpretation. The said Sub-section (4) requires to be held to arbitrary and to that extent unconstitutional.


Sub-section (5) of Section 4 of the Act of 2009 empowers the Competent Authority to allow the parties to approach the Civil Court for adjudication of complex issues of title. Although the said Sub-section (5) is directory, should be read as mandatory. It shall be the duty of the Competent Authority to refer the complex issues of adjudication of title to the concerned Civil Court having jurisdiction to entertain and adjudicate such disputes.


For the aforesaid reasons, this Petition is allowed. Clauses (e), (g), (i) and (j) of Sub-section (1) of Section 4 of the Act of 2009 are read down to the extent indicated hereinabove. Sub- section (4) of Section 4 of the Act of 2009 is held to be arbitrary and ultra vires Article 14 of the Constitution and unconstitutional to that extent. The said Sub-section (4) of Section 4 is, therefore, quashed. Sub-section (5) of Section 4 of the Act of 2009 will be read as mandatory provision as indicated hereinabove.


The impugned order dated 27th December 2011 made by the Competent Authority-cum-Deputy Collector Land Reforms, Forbesganj in B.L.D.R. Act Case No. 91 of 2011-12 is quashed and set aside. Consequently, the appellate order made on 8th August 2012 made by the Divisional Commissioner, Purnea in Land  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 Dispute Appeal No. 69 of 2012 stands quashed. The B.L.D.R. Act Case No. 91 of 2011-12 filed before the Competent Authority-cum- Deputy Collector Land Reforms, Forbesganj is dismissed. The respondent no. 4 will bear the costs throughout.


It is clarified that this order shall not preclude the respondent no. 4, the plaintiff, from asserting her right to the disputed parcels of land before the Civil Court.

 Interlocutory application stands disposed of.

 (R.M. Doshit, CJ) As per Ashwani Kumar Singh, J I have had the privilege and advantage of perusing the judgment of Hon‟ble the Chief Justice. Since Hon‟ble the Chief Justice has extensively dealt with the facts and law involved in the matter, I need not repeat the same.


I fully concur with the view of Hon‟ble the Chief Justice with regard to Sub-sections (1) and (4) of Section 4 of The Bihar Land Disputes Resolution Act, 2009 (for short „the Act of 2009‟). The Hon‟ble Chief Justice has held that the Act of 2009 is an enactment for execution of the orders made under the six enactments referred to in the preamble and schedule-I of the Act of 2009. she has further held that but for Section 4 of the Act of 2009, the Competent Authority is not vested with the power of adjudication under any of the other provisions of the Act of 2009, and the Act which is designed to execute the orders made under the aforesaid six enactments, converts the Competent Authority into an adjudicating Court by dint of Section 4 of the Act of 2009. I am in


the Act of 2009. I am in  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 complete agreement with the aforesaid view of Hon‟ble the Chief Justice. I also agree with the view that Sub-section (5) of Section 4 of the Act mandatorily requires the Competent Authority to allow the parties to approach the Civil Court for adjudication of complex issues of title.


However, I am unable to resist from adding some of my own observations in the context of the provisions of Sub-section (5) of Section 4 of the Act of 2009. Sub-section (5) of Section 4 of the Act of 2009 reads as follows :
 "(5) The Competent Authority, wherever it appears to him that the case instituted before him involves complex question of adjudication of title, he shall close the proceeding and leave it open to parties to seek remedies before the competent Civil Court".


The group of words "complex question of adjudication of title" which form part of the sentence in Sub-
 section (5) of Section 4 of the Act of 2009 has been used as a phrase in the said provision. While incorporating the aforesaid group of words as a phrase in Sub-section (5), the legislature itself says that all cases involving issues of title per se involve complex questions and which cannot be decided in a summary proceeding, being the ambit and scope of the Act of 2009, and thus under all circumstances where issues relating to title arise would have to be mandatorily closed by the Competent Authority.


In other words, the said phrase occurring in sub-section (5) of Section 4 of the Act of 2009 envisages that no sooner than a question of adjudication of title which is inherently a complex one is involved, the Competent Authority is required to invariably close the proceeding. The word „complex‟ has not been used in  Patna High Court CWJC No.1091 of 2013 (12) dt. 24 .06.2014 contradistinction to the word „simple‟.


In above view of the matter, I am of the considered opinion that Sub-section (5) of Section 4 of the Act of 2009 strictly forbids the Competent Authority to entertain matters involving questions of adjudication of title. I am of the view that the Competent Authority, irrespective of nature of cases involving issues of title, is bound to close the proceedings for want of jurisdiction and leave it open to the parties to seek remedies before the competent Civil Court.

 In the result, subject to the aforesaid observations of mine, I fully agree with the findings and conclusions arrived at by Hon‟ble the Chief Justice in the matter.

 (Ashwani Kumar Singh, J.) AFR Manish/Sanjeet


Sri Ashok Goenka & Anr vs Chandra Bhushan Singh & Ors on 15 September, 2009

IN THE HIGH COURT OF JUDICATURE AT PATNA
                    MA No.38 of 2004
   1.SRI ASHOK GOENKA son of late Kedarnath Goenka and
   Proprietor M/S Premier Synthetics, Patna, resident
   of Mohalla Laxmi Bhawan, Munger, P.S.Kotwali Town,
   District Munger, at present residing at B-9,
   Greater Kailash, New Delhi
   2.M/S Premier Synthetics, Kumaharar, P.S.Sultanganj
     Town, District Patna, represented through its
     Proprietor Sri Ashok Goenka son of late
     Kedarnath Goenka, residing at B-9, Greater
     Kailash, New Delhi-Defendants 1 set- Appellants
                  (in both the appeals)
                          Versus


Versus
   1.Chandra Bhushan Singh son of Permanand Singh
   2.Manoj Kumar Rai son of Sri Permanand Singh
     Both resident of village Bishunpur, P.S.Akhilpur
     District Patna--Plaintiffs- Respondents 1st set
   3.Smt. Gulabia Devi W/o Sri Rambabu Rai
   4.Smt.Fulpatia Devi W/o Sri Jagat Rai
   5.Smt.Malwa Devi W/o Sri Niranjan Rai
     All resident of village Purana Punnapur, P.S.
  Akhilpur, District Patna-Defendants II set-


-----Respondents II set
                  (in M.A.No.38 of 2004)
   1.Sri Sukhnandan Rai son of late Ganga Bishun Rai
     resident of Haripur Colony, Digha, P.S.Digha Town
     District Patna
   2.Smt.Neelam Devi D/o late Ram Prasad Yadav,
     resident of village Bishunpur, P.S.Akhilpur,
     District Patna
     At present residing at Mohalla Digha, P.S.Digha
  Town, District Patna-Plaintiffs, Respondents Ist set
   3.Smt.Gulabia Devi W/o Sri Rambabu Rai
   4.Smt.Fulpatia Devi W/o Sri Jagat Rai
   5.Smt.Malwa Devi W/o Sri Niranjan Rai


All resident of village Puranapunnapur, P.S.Akhilpur
  District Patna---Defendants IIset,Respondents II set


(in M.A.No.39 of 2004)
                          ------
 For the Appellants in both the appeals :M/S S.S.Dwivedi,Sr.Advocate Praveen Kumar,Advocate Arunjay Kumar,Advocate For Respondents 1 & 2 in both the appeals :M/S Devendra Kr.Sinha,Sr.Advocate Nikesh Sinha,Advocate For Respondents 3-5 in both the appeals :Mr.Manoj Kr.Ambastha,Advocate
 -------

17. 15.9.2009 In both these Miscellaneous Appeals identical issues arise on practically the same set of facts and therefore with the consent of the parties the matters have been heard together and are being disposed of by this common order at the stage of admission itself.


M.A.No.38/04 is directed against the order dated 24.11.2003 passed by the Ist Sub- Judge, Danapur in Title Suit No.24 of 2003 by which he has allowed the petition dated 17.4.2003 filed by the plaintiffs-respondents Ist Set under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure and directed that the defendants-appellants shall not make attempt to dispossess the plaintiffs from the disputed land till the disposal of the suit.

 M.A.No. 39 of 2004 is also directed against the order dated 24.11.2003 passed in Title Suit No. 19 of 2003 by which also a petition dated 17.4.2003 under the same provisions has been allowed in the same terms.


The defendants-appellants and the defendants-respondents II set nos. 3 to 5 are common in both the appeals.


Both the suits had been filed by the plaintiffs-respondents nos. 1 and 2 in the respective appeals for a direction upon the defendants-appellants to execute a registered sale-deed in favour of the plaintiffs in respect of Schedule-I property and if the defendants fail to do so within the time fixed by the court the sale-deed be executed and registered through the process of the court and according to law conveying absolute title to the plaintiffs. The further relief sought for in the suit is for restraining the defendants by an order of ad-interim injunction from executing and registering the sale-deed in favour of any other persons with respect to the suit land and in any manner disposing of the land or creating any encumbrance thereon detrimental to the interest of the plaintiffs till disposal of the suit and confirm the possession of the plaintiffs over the suit land.


The defendant-appellant no.2 and defendant-appellant no.1 are the firm and proprietor of the said firm which is the owner of the suit land in both the cases.


The case of both the sets plaintiffs was that the defendants-appellants had entered into an agreement with them and executed in both the cases an agreement for sale on 27.3.2002 for the sale of the respective suit lands and as per the terms and conditions of the agreement for sale 5 kathas of land in each of the case would be sold at the rate of Rs.63,000/- per katha and the total consideration money comes to Rs.3,15,000/-, out of which the plaintiffs in each case have already paid the advance money of Rs.2,50,000/- at the time of execution of the agreement and the balance amount of Rs.65,000/- was to be paid at the time of registration of the suit land. It was asserted that the defendants-appellants gave possession of the suit land to the respective plaintiffs. It was further agreed that the sale-deed would be executed and registered in between


sale-deed would be executed and registered in between 27.3.2002 and 31.1.2003. However, the request by the plaintiffs for such registration was not paid heed to and even the legal notice sent on 16.12.2002 in each of the cases had no effect and the defendants-appellants failed and neglected to perform their part of contract and hence the suit was filed.


The defendants-appellants appeared in the suits and filed their written statements in which, inter alia, apart from raising the plea of maintainability it was alleged that the agreement for sale is most fabricated, sham, without consideration and a document prepared by means of practicing fraud. The statement regarding payment of the amount of Rs.2,50,000/- in each of the cases was denied as concocted and further stand taken is that the agreement for sale could not have been executed in view of the amendment made in the Registration Act and such a document could not be a legal document in the absence of registration.


The plaintiffs thereafter filed the aforesaid petitions dated 17.4.2003 under Order 39 Rules 1 and 2 read with Section 151 CPC with the prayer for ad-interim injunction restraining the defendants from executing and registering the sale-deed in favour of any other persons with respect to the suit land or in any manner disposing of the land or dispossessing the plaintiffs from the suit land. It was alleged in the injunction petition that after receiving the summons in the suit on 22.3.2003 the defendant-appellant no.2 had executed and registered a sale-deed for the suit land on 24.3.2003 in favour of the defendants-respondents nos. 3 to 5. Show cause to the said injunction petitions was filed on behalf of the defendants-appellants in which the fact of having entered into an agreement for sale with the plaintiffs was denied and further stated that the land in question had been sold to the


that the land in question had been sold to the defendants- respondents nos. 3-5 who were the bonafide purchasers and have been put in actual physical possession over the suit land.


The learned trial court, however, upon hearing the parties passed the aforesaid impugned orders in the terms as mentioned above.


Learned counsel for the appellants submits that the unregistered agreement for sale dated 27.3.2002 under which the plaintiffs-respondents claim part performance having been put in possession of the suit land is barred by the provisions of Section 17(1-A) of the Registration Act read with Section 53A of the Transfer of Property Act. It is contended that on the basis of the said unregistered agreement for sale no plea regarding part performance could have been raised by the plaintiffs-respondents or entertained by the court below as the same is completely barred under the provisions of Section 17(1-A) of the Registration Act which has been inserted into the said Act by Act 48 of 2001. It is thus urged that the court below could not have taken into account any claim of possession on behalf of the plaintiffs on the basis of any clause contained in the said unregistered agreement for sale and granted any relief on the basis of the same.


Learned counsel further submits that even otherwise the law is well established that an agreement for sale does not create any interest in the property but only entitles a party to bring a suit claiming the equitable right of purchase on the basis of Section 53A of the Transfer of Property Act and thus the order of injunction cannot travel beyond the scope of the said Section. It is argued that the rights under Section 53A can only be utilized for the purpose of protecting the defendants' possession and he cannot be permitted to claim any title on the basis of such provision.

 In support of the said proposition learned counsel relies upon a decision of a learned Single Judge of this Court in the case of Fool Kumari Devi vs. Krishna Deo Upadhya & anr. : 1998(1) PLJR 262, in paragraph-7 of which it has been held as follows :


"7. An order of injunction restraining the defendant in a suit for specific performance of contract from making repairs or construction on the suit premises, as may be necessary, does not fall in any of the three categories. It is well established that an agreement to sale does not create any interest in the property. It only provides a cause of action to him to bring a suit claiming an equitable right of purchase based on Section 53A of the Transfer of Property Act. The order of injunction, therefore, cannot travel beyond the scope of Section 53A of the said Act. It is well settled that the right conferred by Section 53A is a right available to the defendant to protect his position. The defendant cannot claim any title on the basis of the provisions contained therein. As is said sometimes, the right under Section 53A is to be used as a shield but not as a sword."


It is further submitted by learned counsel that since legal title in the suit land continues in favour of the appellants from the very beginning the same could not have been given to the plaintiffs and the plaintiffs being further debarred from raising the plea of part performance in view of the amended provisions of Registration Act it was not open to the court to issue an order which virtually amounts to accepting such plea of the plaintiffs. It is contended that in such circumstances neither law permits such an order nor the question of balance of convenience or irreparable loss can be held to be in favour of the plaintiffs. In support of the same he relies upon a decision of a Division Bench of this Court in the case of Kalyanpur Lime Works Ltd. vs. the State of Bihar and another : AIR 1951 Patna 226, in paragraph-10 of which it has been held as follows :


"10. We have also been addressed on the question whether the appellant can be sufficiently compensated by money in respect of any loss suffered before specific performance of the contract. The learned Advocate General has drawn our attention to S.12, Expln. And Ss. 54 and 56, Specific Relief Act. He has also drawn our attention to S.19, Specific Relief Act, which says that any person suing for the performance of a contract may also ask for compensation for its breach, either in addition to or in substitution for such performance. Personally, I do not see any reason why the appellant cannot be compensated by money for any loss he may suffer, provided the appellant is entitled to compensation in addition to specific performance, under the law, as to which I express no opinion at this stage. If, as I have already stated, there is no question of stopping the quarrying operations during the pendency of the suit for specific performance, the question of compensation will remain whether an order


the question of compensation will remain whether an order of injunction is or is not passed. It cannot surely be urged that in a suit for specific performance the plaintiff is entitled to ask, during the pendency of litigation, that the defendant in whom the legal title still vests should be restrained from using the property. If the plaintiff were so entitled, then in a suit for specific performance the defendant would be required to vacate the property which he had contracted to sell or lease. That surely cannot be the law."


Learned counsel for the appellants has vehemently argued that there is no factual basis for the court below to come to the conclusion that the plaintiffs were in possession over the land in question and the reliance upon Clause 5 of the alleged agreement for sale for the said purpose was completely uncalled for and barred by the newly amended provisions of the Registration Act. It is submitted that further reliance upon an order passed in 144 Cr.P.C. proceeding shows that the decision is perverse as no issue of possession has been or could have been decided in the said proceedings. Similarly no reliance could have been placed on certain criminal cases filed by the plaintiffs against the defendants-respondents nos. 3 to 5.


Learned counsel for the respondent nos. 3 to 5 has supported the stand of the appellants on the aforesaid grounds and further sought support from a decision of this Court in the case of Ramashish Rai vs. Baijnath Mishra & 11 another : 1998(3) PLJR 862, in paragraph-5 of which it has been laid down as follows :


"5. Be that as it may, admittedly, the plaintiff's case is that there was an oral agreement to sell of the suit land and on payment of consideration money the plaintiff was put in possession. There is no dispute that a suit for Specific Performance of Contract can be filed on the basis of oral agreement. The question for consideration in this case is whether the plaintiff has a legal right to restrain the defendant from alienating the suit land by obtaining an order of temporary injunction. It is well settled that an agreement to sell creates a right in personam and it does not create any right in the property. An agreement to sell gives a right to the proposed purchaser to bring a suit for specific performance of contract to sell but he cannot claim any interest in the property till his suit for specific performance is decreed. Learned counsel appearing for the petitioner placed reliance on a judgment delivered by me which is reported in 1998(2) PLJR 120 (Lallan Prasad vs.


120 (Lallan Prasad vs. Parmeshwar Singh). The ratio decided by me in that judgment does not help the petitioner rather it totally goes against the petitioner. In the said judgment this Court observed:-


"I have heard learned counsel for the parties and have gone through the orders passed by both the courts below. In my opinion, both the courts below have committed serious illegality and material irregularity in granting temporary injunction in the facts and circumstances of the case. The courts below have over- looked the settled principles of law that an agreement to sell creates right in personam and it does not create any right in property. An agreement to sell gives a right to the proposed purchaser to bring a suit for specific performance of contract to sell but he cannot claim any interest in the property till his suit for specific performance is decreed. In the case of Jiwan Dass vs. Narain Dass (AIR 1981 Delhi, 291) it has been held by a Division Bench that an agreement to sell creates a right in personam and not in the estate such right created against a vendor to obtain specific performance can ultimately bind any subsequent transferee till, therefore, a decree of specific performance


till, therefore, a decree of specific performance is obtained the vendor or a purchaser from him is not entitled to full enjoyment of the property even if a decree for specific performance of contract is obtained and no sale deed is actually executed, it cannot be that any interest in the property is passed. Consequently, temporary injunction cannot be granted till sale deed is executed on the basis of decree of specific performance of contract to prevent the transferee under the sale deed from enjoying possession."


Learned counsel for the respondent nos. 1 and 2, on the other hand, submits that the court below has rightly granted injunction in view of the fact that subsequent to the filing of the suit the registered sale-deed was executed in favour of the respondent nos. 3 to 5 on 24.3.2003 and an attempt was made to dispossess the plaintiffs from the suit land. It is further submitted by him that the fact of possession having been handedover to the plaintiffs is clearly mentioned in Clause 5 of the agreements for sale both dated 27.3.2003 in favour of the plaintiffs of both the cases. According to learned counsel apart from what was stated in Clause 5 the court below has also rightly relied upon S.144 Cr.P.C. proceedings and other criminal cases filed by the plaintiffs against the respondent nos. 3 to 5 when an attempt was made to dispossess them as supported by evidence as indicated by the plaintiffs.


as supported by evidence as indicated by the plaintiffs. It is further submitted by learned counsel for the plaintiffs-respondents that the appellants have sold their lands to respondent nos. 3 to 5 and they cannot claim any further interest in the matter and it is not open to them to challenge the injunction order by filing these appeals.


In support of the aforesaid stand learned counsel relies upon a decision of the Supreme Court in the case of Ashwinkumar K.Patel vs.Upendra J.Patel and others : AIR 1999 SC 1125, paragraphs 11 and 12 of which are quoted below :
 "11. A reading of the judgment of the trial Court shows that though the agreement of sale executed in favour of the plaintiff was, according to the said Court, invalid because of its being in breach of the Tenancy Act still, in view of the compromise decree and the subsequent admission of the defendants 1 to 14 and report of the Court Commissioner in special suit No. 293 of 1996, the trial Court held that plaintiff was in "permissive possession" as this was accepted by the owners. It held that a possessory right was sufficient to permit the plaintiff to have an order of temporary injunction in his favour.


12. Therefore, without going into the validity of the agreements executed by the owners in favour of the plaintiff or defendants 15 to 28, or the validity of the sale deed executed by defendants 15 and 28, we are of the view that the trial Court was right in coming to the conclusion that the plaintiff has made out a prima facie case. The trial Court has given several reasons for the grant of temporary injunction and, in our view, the two reasons given by the High Court were, on the facts, not sufficient to warrant a remand."


Learned counsel relies upon paragraphs 4 and 5 of a Division Bench decision of the Calcutta High Court in the case of Sm. Muktakesi Dawn and others vs. Haripada Mazumdar and another: AIR 1988 Calcutta 25, for the proposition that an injunction restraining pendente lite transfer can be granted in such suits so as to preserve the property in status quo during the pendency of the suit.


I have considered the rival submissions of the parties and the materials on the record. It is evident from the impugned orders that the court below has not at all taken into account the effect of Section 17(1-A) of the Registration Act, 1908 as inserted by the amending Act 48 of 2001. The said provision is quoted below :
 "S.17(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A."


It is evident from the said provision that any document containing contracts to transfer for consideration, any immoveable property for deriving the benefit under Section 53A of the Transfer of Property Act must be registered if it has been executed after the commencement of the Amending Act of 2001 and in case such document is not registered on or after such commencement it will have no effect for the purpose of invoking the doctrine of part performance under Section 53A. The doctrine of part performance protecs the right of a transferee of an agreement for sale if he has been put in possession or continues in possession in part performance of the contract or has done some act in furtherance of the contract. Prior to the amending Act of 2001 a party could claim the benefit of such possession on the basis of the doctrine of part performance even if the agreement for sale was not registered but the same has now been specifically debarred by the amending Act. That being the position, it is not


Act. That being the position, it is not open to the courts of law to permit any such plea of possession or right to continue in possession on the basis of any unregistered document. In the present matter despite the legal provision being to the contrary, by the impugned orders of injunction the court below has put a stamp of legality over the alleged possession claimed by the plaintiffs on the basis of an unregistered agreement for sale dated 27.3.2002. The same is clearly not permissible under the law.


Even otherwise this Court does not find that apart from the said Clause 5 of the unregistered agreements for sale there was any material before the court on the basis of which it could have come to the conclusion regarding the plaintiffs being in possession over the suit land. Thus the finding of prima facie case in favour of the plaintiffs- respondents is perverse being based on practically no material on the record apart from the reliance upon the unregistered documents which is impermissible after the Amendment Act 48 of 2001.


Even otherwise as has been laid down by this Court in the case of Fool Kumari Devi(supra) no title could have been claimed by the plaintiffs on the basis of the mere agreements for sale which only entitle them to approach the court for further relief of specific performance of contract but such agreements for sale did not create any interest in the property in their favour which they can use to injunct the owner of the land so far as the right and title over the suit land is concerned.


The reliance placed by learned counsel for the plaintiffs-respondents on the decision of the Supreme Court in Ashwinkumar K.Patel's case (supra) is of no avail as in the said case the suit was between two sets of purchasers; one directly from the owners of the land and other from the alleged power of attorney holder from the owners but in the said case the clear stand of the owners of the land was that they have put the plaintiff in possession and in the said circumstances the Apex Court held that such possessory right would entitle the plaintiff to an injunction as against the other purchaser of the land who has no possession over the land.


So far as the case of Sm. Muktakesi Dawn (supra) is concerned the only issue decided therein is that an injunction restraining the pendente lite transfer can be granted in an appropriate case where relief for specific performance is sought. There can be no dispute with the said proposition. However, in the present matter the subsequent sale has already been made through a registered deed of sale by the appellants in favour of respondents nos. 3 to 5.

 Thus, on a consideration of the entire facts and circumstances of the case, this Court is clearly of the view that the impugned orders dated 24.11.2003 passed in Title Suit No. 24/03 and Title Suit No. 19/03 cannot be sustained being contrary to the law of the land apart from there being no factual basis for the grant of injunction in such terms and the same are accordingly set aside. The appeals are allowed.


However, considering the fact that the plaintiffs would be put to serious difficulties and inconvenience if there is any further sale of the properties in dispute the appellants and the respondents nos. 3 to 5 are restrained from making any further sale of the properties in question.

 It is pointed out by learned counsels that both the suits are at the stage of hearing and two witnesses have already been examined in Title Suit No. 24/03 while the other case is ready for examination of the witnesses. In the said circumstances, the learned court below is directed to proceed expeditiously in the matters and dispose of both the title suits within a period of six months from today.

 (Ramesh Kumar Datta,J.) spal/