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TMI Blog1950 (3) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... nt there is a house standing thereon with its appurtenant Bari. It is further admitted by the parties that the previous owner of the property was one Rukuni Bewa. The plaintiffs claimed to have purchased the property from her by two kabalas dated 8-4-1943 and 25-6-1943. They alleged that the defendant was occupying the house as a tenant-at-will of Rukuni Bewa at a monthly rental of ₹ 1-8-0 and that after the plaintiffs' purchase the defendant was asked to vacate the house but he refused. Thereupon, the plaintiffs issued a notice to quit on 2.9-1943 and then instituted the present suit for declaration of their title, recovery of possession after eviction of the defendant therefrom and also for consequential reliefs such as recovery of arrear rental due from the defendant. The defendant contended that he had purchased the same property from Rukuni Bewa by an oral sale sometime in 1942 and that at that time there was no house standing on the plots. He claimed to have constructed a building thereon and to be staying there in his own light. He therefore challenged the title of the plaintiffs on the ground of prior sale from the original owner. The trial Court disbelieved the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the nature of the suit. 4. The first point involves an interpretation of the provisions of the Government of India Act, 1986, under which the Orissa Legislature passed the Orissa Tenancy (Amendment) Act of 1938 (Orissa Act (VII [8] of 1938), and inserted Section 31(1) which runs as follows: Every transfer of an occupancy holding or a portion or share thereof whether by sale, exchange or gift' shall be made by registered instrument except in the case of a sale in execution of a decree or of a certificate signed under the Bihar and Orissa Public Demands Recovery Act, 1914. As already pointed out, the disputed plots are in Khata No. 8 and consequently they form part of an occupancy holding. The aforesaid section of the O. T. Act would therefore, apply unless it can be said that Section 54, T. P. Act would override the provisions of that section of the Orissa Act. Under the Government of India Act, 1935, legislation in respect of transfer of property other than agricultural land was dealt with in item 8, Concurrent List, and the Centre as well as the Province had concurrent powers to legislate on the subject. But under item 21, Provincial legislative list (List II), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing of the O. T. (Amendment) Act of 1938, transfers of occupancy holdings required the consent of the landlord and also the payment of mutation fees. These were abolished by the Amending Act but with a view to give notice to the landlord of transfers so as to enable him to make necessary corrections in his rent-roll, elaborate provisions were made in Section 31 requiring compulsory registration irrespective of the value and making adequate provisions for service of notice on the landlord through the Registration Officer. The whole object of the amending Act was therefore to give complete freedom to the occupancy raiyats to transfer their holdings or portions of the same subject only to compulsory registration so as to ensure automatic service of notice on the landlord. There is nothing in Section 31, 0. T. Act, to indicate that registration was necessary only for the limited purposes of making such transfers binding on the landlord. On the other hand, a fair construction of Sub-section (l) makes it clear that registration was made mandatory. The Legislature was fully aware of the provisions of Section 54, T. P. Act, and when they, while purporting to legislate on a subject which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d it as agricultural land because by virtue of the definition of the expression 'raiyat' in Section (2), O. T. Act, the primary purpose for which the right to hold the land wa3 obtained was for the purpose of cultivation. 8. The expression 'agricultural land' occurring in item 21, List II, has not been defined in the Government of India Act but there are by now several decisions explaining the same. In the case of Megh Raj v. Allah Rakhia, the first decided by the Federal Court in (1942) 5 P. L. J. 33 : A. I. R. 1942 F. C. 27 the said expression was not fully explained though there are some observations to the effect that the general character of the land and not the use to which it may be put at a particular point of time would be one of the factors in deciding whether a piece of land is agricultural land or otherwise. That case went up to the Privy Council (See Megh Raj v. Allah Rakhia A. I. R. 1947 P. C. 72 : 74 I. A. 12 and though their Lordships also did not attempt at an exhaustive definition of the expression 'agricultural land' they held that Section 3(l), Punjab Restitution of Mortgaged Lands Act, which defined 'land' as including the sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T. Act, would apply to the transfer of such land notwithstanding any of the provisions of Section 54, T. P. Act. The oral purchase of the defendant cannot therefore confer any valid title. 11. Mr. Mohapatra thereupon contended that in view of the frame of the suit for ejectment of a tenant of the termination of his tenancy by a notice to quit, a decree for ejectment of a trespasser cannot be passed. He relied on Seetha Beherani v. A. Jagannath 9 C. L. T. 32: A. I. R. 1944 Pat. 312. That case is, however, distinguishable on facts from the present case. Here the relief claimed by the plaintiffs was for confirmation of their title and recovery of possession after declaring that the defendant had no title to the same. Doubtless there was a consequential prayer for arrears of rent on the ground that the defendant was a monthly tenant in possession of the house from the previous owner, namely, Rukuni Bewa. But the plaintiffs had no personal knowledge of this tenancy. When, they purchased the land from Rukuni Bewa they found the defendant in possession of the same and seem to have inferred the existence of the relationship of landlord and tenant between Rukuni and the defendant. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment and decree of the Munsif with cost, B. Jagannadhadas, J. 13. I agree entirely with my learned brother on the various points dealt with in his judgment. 14. As a matter of construction of Section 31(1), O. T. Act, it appears to me to be quite clear that an unregistered private sale of agricultural land is ineffective to pass title irrespective of the value thereof. If the section had merely said that every sale etc, shall be registered it might have been possible to contend that registration is superimposed on a sale, whose validity must depend on other legal provisions-and that non-compliance with registration, while it may have been so superimposed to provide for ipso facto notice to the landlord, does not vitiate the sale itself, if otherwise valid. The section, however, says that transfer by sale shall be made by registered instrument . This language is similar to that in Section 54, T. P. Act which in respect of property of the value of rupees one hundred and upwards says 'that the transfer can be made only by a registered instrument. I have, therefore, no doubt that the effect of Section 31(l), O. T. Act, as of Section 51, T. P. Act, is to invali ..... X X X X Extracts X X X X X X X X Extracts X X X X
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