1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9040 OF 2013
Aftaruddin (Dead) Rep. Thr. Lrs. .…Appellant(s)
Vs.
Ramkrishna Datta alias Babul Datta & Ors. ..Respondent(s)
J U D G M E N T
Deepak Gupta, J.
1. Ramkrishna Datta, Dhirendra Chandra Ghosh and
Lalit Mohan Ghosh, filed a suit in the trial court for
declaration of their title on the suit land with consequential
relief of permanent injunction for restraining Aftarduddin
(contesting defendant & appellant before this Court), who
has since expired and is represented by legal heirs, from
interfering in the suit land.
2
2. From the facts as pleaded and proved before the trial
court it is apparent that one Sayed Jama Kazi was the raiyat
(owner) of the suit land. Aftaruddin was under-raiyat (Kurfa
rights similar to tenancy rights). This fact is apparent from
the Revenue Record as reported in the Civil Survey of
Settlement for the year 1965-66 and in the Revenue
Khatiyan No.302 published on 15.03.96. On 11.01.71,
Aftaruddin is alleged to have executed a sale deed
transferring the entire suit land in favour of Mamataj
Begam, daughter of the raiyat Sayed Jama Kazi. Thereafter,
Mamataj Begam and Sayed Jama Kazi transferred the suit
land to plaintiffs 1 and 2 by registered sale deed on
27.11.71. On 06.04.81 plaintiff no.2 sold and transferred a
portion of his land to plaintiff no.3. In the Revenue Record
the defendant Aftaruddin was shown to be in possession of
the suit land. Therefore, the plaintiffs filed a suit for
declaration of their title and prayed for injunction that
defendant no.1 be restrained from interfering in the
suit land.
3
3. The suit was contested by Aftaruddin and two
contentions were raised: (i) that the sale deed was never
executed by him and (ii) that being an under-raiyat he could
not transfer his rights to any person in view of the bar
created by Section 108 of the Tripura Land Revenue and
Land Reforms Act, 1960 (for short the ‘TLR&LR Act’). The
original sale deed was not produced on the ground that the
same was destroyed in fire but a certified copy of the same
was produced. The trial court held that though the sale
deed had been executed, Aftaruddin could not have
transferred his rights in the suit land and, therefore,
dismissed the suit. The First Appeal filed was also
dismissed. In the Second Appeal this concurrent finding of
fact was set aside on the ground that it was a perverse
finding. It was held by the High Court that in the sale deed
Aftaruddin has represented himself to be a raiyat and not an
under-raiyat and, therefore, Section 108 of TLR&LR Act had
no application. The High Court also found that in terms of
Section 43 of the Transfer of Property Act the subsequent
vendee could not be denied their rights.
4
4. We have heard learned counsel for the appellant. A
“raiyat” has been defined in Section 2(s) of the TLR&LR Act
to mean a person who owns land for purposes of
agriculture, paying land revenue to the Government; and
“under-raiyat” under Section 2(v) means a person who
cultivates or holds the land of raiyat under an agreement,
express or implied, on condition of paying therefor rent in
cash or in kind or delivering a share of the produce and
includes a bargadar, i.e. a person who cultivates the land of
any person on a condition of delivering a share of the
produce to the land owner or raiyat.
5. Section 108 of TLR&LR Act reads as follows :-
“108. (1) The interest of under-raiyat in any land
held by him as such shall be heritable but, save as
otherwise provided in this Act, shall not be
transferable.
(2) No under-raiyat shall be evicted from
his land except as provided in this Act.”
A bare reading of the aforesaid provision makes it absolutely
clear that an under-raiyat is prohibited from transferring his
5
interest as under-raiyat in any land though this interest is a
heritable interest. Sub-section (2) provides that no underraiyat
can be evicted except in accordance with the
provisions of the TLR&LR Act. The TLR&LR Act was enacted
as an agrarian reform legislation and the purpose of Section
108 is to prevent the under-raiyats or tenants from being
evicted or being forcefully or dishonestly compelled to
transfer their rights as under-raiyats.
6. The learned Single Judge laid great emphasis on the
fact that in the sale deed Aftaruddin is described to be a
raiyat. This cannot in any manner validate the sale deed
which is otherwise totally against law. Obviously, a SubRegistrar
could not have registered a sale deed where the
seller has described himself as an under-raiyat. We may
also add that the vendee Mamataj Begam was none other
than the daughter of Sayed Jama Kazi, the raiyat. A few
months after Aftaruddin executing the sale deed on
11.01.71, Mamataj Begam and her father Sayed Jama Kazi
sold the entire land in favour of the plaintiffs/respondents
6
on 27.11.71. It is obvious that the sale deed dated 11.01.71
was got executed showing Aftaruddin as a raiyat to get over
the bar of Section 108. This is what Section 108 prohibits.
The plaintiffs who were subsequent purchasers cannot take
benefit of the subterfuge and fraud committed by Sayed
Jama Kazi and Mohd. Aftaruddin. Their remedy, if any, lay
in taking action against Sayed Jama Kazi and Mamataj
Begam, who were not even impleaded as parties in the suit.
The High Court totally mis-interpreted the provisions of
Section 108.
7. In 1987 Aftaruddin was conferred the rights of the
raiyat. It was contended on behalf of the plaintiffs that in
view of Section 43 of the Transfer of Property Act since
Aftaruddin is now entitled to transfer his rights a sale deed
in their favour becomes valid. This is not at all correct. No
sale deed was executed by Aftaruddin in favour of the
plaintiffs. The fraud was not committed by Aftaruddin but
by Sayed Jama Kazi and Mamataj Begam. The protection
under Section 108 of the TLR&LR Act which is a statutory
7
protection could not have been taken away by the subterfuge
committed by the then raiyat.
8. We are clearly of the view that the High Court exceeded
its jurisdiction in setting aside the concurrent finding of fact
without any question of law much less a substantial
question of law arising in the second appeal. Accordingly
the judgment of the High Court is set aside and the
judgment of the trial court is restored. The appeal is,
accordingly, allowed.
……………………………..J.
(Madan B. Lokur)
……………………………..J.
(Deepak Gupta)
New Delhi
December 08, 2017
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9040 OF 2013
Aftaruddin (Dead) Rep. Thr. Lrs. .…Appellant(s)
Vs.
Ramkrishna Datta alias Babul Datta & Ors. ..Respondent(s)
J U D G M E N T
Deepak Gupta, J.
1. Ramkrishna Datta, Dhirendra Chandra Ghosh and
Lalit Mohan Ghosh, filed a suit in the trial court for
declaration of their title on the suit land with consequential
relief of permanent injunction for restraining Aftarduddin
(contesting defendant & appellant before this Court), who
has since expired and is represented by legal heirs, from
interfering in the suit land.
2
2. From the facts as pleaded and proved before the trial
court it is apparent that one Sayed Jama Kazi was the raiyat
(owner) of the suit land. Aftaruddin was under-raiyat (Kurfa
rights similar to tenancy rights). This fact is apparent from
the Revenue Record as reported in the Civil Survey of
Settlement for the year 1965-66 and in the Revenue
Khatiyan No.302 published on 15.03.96. On 11.01.71,
Aftaruddin is alleged to have executed a sale deed
transferring the entire suit land in favour of Mamataj
Begam, daughter of the raiyat Sayed Jama Kazi. Thereafter,
Mamataj Begam and Sayed Jama Kazi transferred the suit
land to plaintiffs 1 and 2 by registered sale deed on
27.11.71. On 06.04.81 plaintiff no.2 sold and transferred a
portion of his land to plaintiff no.3. In the Revenue Record
the defendant Aftaruddin was shown to be in possession of
the suit land. Therefore, the plaintiffs filed a suit for
declaration of their title and prayed for injunction that
defendant no.1 be restrained from interfering in the
suit land.
3
3. The suit was contested by Aftaruddin and two
contentions were raised: (i) that the sale deed was never
executed by him and (ii) that being an under-raiyat he could
not transfer his rights to any person in view of the bar
created by Section 108 of the Tripura Land Revenue and
Land Reforms Act, 1960 (for short the ‘TLR&LR Act’). The
original sale deed was not produced on the ground that the
same was destroyed in fire but a certified copy of the same
was produced. The trial court held that though the sale
deed had been executed, Aftaruddin could not have
transferred his rights in the suit land and, therefore,
dismissed the suit. The First Appeal filed was also
dismissed. In the Second Appeal this concurrent finding of
fact was set aside on the ground that it was a perverse
finding. It was held by the High Court that in the sale deed
Aftaruddin has represented himself to be a raiyat and not an
under-raiyat and, therefore, Section 108 of TLR&LR Act had
no application. The High Court also found that in terms of
Section 43 of the Transfer of Property Act the subsequent
vendee could not be denied their rights.
4
4. We have heard learned counsel for the appellant. A
“raiyat” has been defined in Section 2(s) of the TLR&LR Act
to mean a person who owns land for purposes of
agriculture, paying land revenue to the Government; and
“under-raiyat” under Section 2(v) means a person who
cultivates or holds the land of raiyat under an agreement,
express or implied, on condition of paying therefor rent in
cash or in kind or delivering a share of the produce and
includes a bargadar, i.e. a person who cultivates the land of
any person on a condition of delivering a share of the
produce to the land owner or raiyat.
5. Section 108 of TLR&LR Act reads as follows :-
“108. (1) The interest of under-raiyat in any land
held by him as such shall be heritable but, save as
otherwise provided in this Act, shall not be
transferable.
(2) No under-raiyat shall be evicted from
his land except as provided in this Act.”
A bare reading of the aforesaid provision makes it absolutely
clear that an under-raiyat is prohibited from transferring his
5
interest as under-raiyat in any land though this interest is a
heritable interest. Sub-section (2) provides that no underraiyat
can be evicted except in accordance with the
provisions of the TLR&LR Act. The TLR&LR Act was enacted
as an agrarian reform legislation and the purpose of Section
108 is to prevent the under-raiyats or tenants from being
evicted or being forcefully or dishonestly compelled to
transfer their rights as under-raiyats.
6. The learned Single Judge laid great emphasis on the
fact that in the sale deed Aftaruddin is described to be a
raiyat. This cannot in any manner validate the sale deed
which is otherwise totally against law. Obviously, a SubRegistrar
could not have registered a sale deed where the
seller has described himself as an under-raiyat. We may
also add that the vendee Mamataj Begam was none other
than the daughter of Sayed Jama Kazi, the raiyat. A few
months after Aftaruddin executing the sale deed on
11.01.71, Mamataj Begam and her father Sayed Jama Kazi
sold the entire land in favour of the plaintiffs/respondents
6
on 27.11.71. It is obvious that the sale deed dated 11.01.71
was got executed showing Aftaruddin as a raiyat to get over
the bar of Section 108. This is what Section 108 prohibits.
The plaintiffs who were subsequent purchasers cannot take
benefit of the subterfuge and fraud committed by Sayed
Jama Kazi and Mohd. Aftaruddin. Their remedy, if any, lay
in taking action against Sayed Jama Kazi and Mamataj
Begam, who were not even impleaded as parties in the suit.
The High Court totally mis-interpreted the provisions of
Section 108.
7. In 1987 Aftaruddin was conferred the rights of the
raiyat. It was contended on behalf of the plaintiffs that in
view of Section 43 of the Transfer of Property Act since
Aftaruddin is now entitled to transfer his rights a sale deed
in their favour becomes valid. This is not at all correct. No
sale deed was executed by Aftaruddin in favour of the
plaintiffs. The fraud was not committed by Aftaruddin but
by Sayed Jama Kazi and Mamataj Begam. The protection
under Section 108 of the TLR&LR Act which is a statutory
7
protection could not have been taken away by the subterfuge
committed by the then raiyat.
8. We are clearly of the view that the High Court exceeded
its jurisdiction in setting aside the concurrent finding of fact
without any question of law much less a substantial
question of law arising in the second appeal. Accordingly
the judgment of the High Court is set aside and the
judgment of the trial court is restored. The appeal is,
accordingly, allowed.
……………………………..J.
(Madan B. Lokur)
……………………………..J.
(Deepak Gupta)
New Delhi
December 08, 2017
