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Case Number

Second Appeal No. 233 of 1971

Judges

Hon'ble Mr. Justice Gati Krushna Misra

Acts

sub-section (1) the other provisions of this Regulation
Section 5 of the Regulation 2 of 1956 provides:(1)
provisions of the Orissa Estates Abolition Act;
Scheduled Tribes. Section 5 of the Regulation
Section 2(e) of the Regulations, Scheduled
provisions contained in Article 341.12.

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Smart Summary

Structured Summary of the Opinion (Second Appeal)

Factual and Procedural Background

This is a second appeal by Defendant No. 1 against the affirming decision of the learned District Judge, Koraput, in a suit where the plaintiff sought declaration of title and recovery of possession of certain land or, alternatively, refund of the sale consideration.

Key factual and procedural points (as stated in the opinion):

By a registered sale deed dated 31-12-1962 (Ext. 1) the plaintiff purchased land comprised in plots 267, 238, 239 and 482 (khata No. 137, village Kenduguda) from Defendant No. 1 for Rs. 1,000.
During settlement operations the plaintiff claimed patta on the basis of his title and possession. Defendants 2 to 6 contested, alleging prior possession and that their surrender to Defendant No. 1's father-in-law (Binayak Baxi) was invalid under Orissa Regulation 2 of 1956. The final record-of-rights was published in the names of defendants 2 to 6.
After publication, defendants 2 to 6 forcibly entered the property on 27-10-1965 and cut the standing crop; a Section 145 CrPC proceeding concluded in their favour. The plaintiff filed the suit on 8-7-1967.
Defendant No. 1 maintained the plaintiff knew of the others' infirm title and that Orissa Regulation 2 of 1956 did not apply because defendants 2 to 6 were not members of Scheduled Tribes.
Defendants 2, 3 and 6 contended they were Bhotras (a caste they said belonged to Scheduled Tribes), that the relinquishment to the ex-intermediary (Binayak) was invalid without permission under the Regulation, and that any patta or transfer without requisite permission was ineffective.
The learned Trial Judge (Subordinate Judge) held that the inami estate vested effective 1-7-1954 under the Orissa Estates Abolition Act, that Binayak had no title and Defendant No.1 therefore acquired no title; while refusing to declare the plaintiff's title, the Trial Judge ordered refund of the consideration with interest and found defendants 2 to 6 to be Bhotras (covered by Regulation 2).
The learned District Judge in appeal held that the inamdar retained title until 1-7-1963 (relying on a compromise Ext. K), agreed that defendants 2 to 6 were Scheduled Tribe members, found the relinquishment and subsequent patta to Defendant No.1 invalid under Section 5 of Orissa Regulation 2 of 1956, and affirmed the Trial Judge's decree. Defendant No.1 challenged that affirming decree by second appeal.

Legal Issues Presented

Whether defendants 2 to 6 are members of the Scheduled Tribes (i.e., whether the courts below were correct in so finding).
Whether Section 5 of Orissa Regulation 2 of 1956 applies to the facts of the case and, if so, whether the relinquishment and patta were invalid for want of the requisite permission.
Whether the order for refund of the sale consideration (Rs. 1,000) to the plaintiff was justified.

Arguments of the Parties

Appellant (Defendant No. 1) — Main Arguments

Contended that defendants 2 to 6 are not members of the Scheduled Tribes and that the courts below were wrong in so finding.
Argued that even if defendants 2 to 6 are Scheduled Tribes members, Section 5 of the Regulation has no application to the facts (i.e., the relinquishment/patta do not fall foul of Section 5).
Contended that the order directing refund of the consideration money was unwarranted.
Relied on decisions of the Supreme Court (e.g., Parsram v. Shivchand and earlier authorities) to argue that a party cannot lead evidence to equate one caste-name with a different name in the Presidential Order (for the purpose of ST/Scheduled lists).

Contesting Defendants (Defendants 2, 3 and 6) — Main Arguments

Asserted they are Bhotras by caste and that the community is covered by the Scheduled Tribes as contemplated by the Constitution (Scheduled Tribes) Order, 1950 and Orissa Regulation 2 of 1956.
Maintained that Defendant No.1 (and Binayak) had no right to convey the property because the relinquishment to the inamdar and the patta were invalid without the permission required under Regulation 2/Section 5.
Argued that the unregistered relinquishment deed was invalid for lacking the permission envisaged by the Regulation and that any fresh settlement would also require necessary permission.

P laintiff's Evidential Position

The plaintiff (as P.W. 1) stated that defendants 2 to 6 are Bhotras and are of Scheduled Tribes.
The plaintiff relied on Ext. 1 (registered sale deed) and sought either declaration of title and possession or refund of the consideration; the Trial Judge found the sale was for good consideration and ordered refund when title could not be declared.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Parsram v. Shivchand, (1969) 1 SCC 20 : AIR 1969 SC 597	Affirmed earlier decisions that determination of whether a caste is a Scheduled Caste/Tribe is a matter for the Presidential notification and that courts should not permit evidential attempts to equate unnamed caste-names with those in the notification.	The court acknowledged the binding nature of these decisions but concluded that, on the facts, “Bhotras” and “Bhottadas” referred to the same community and that the courts below were correct in holding defendants 2–6 to be Scheduled Tribe members.
Basavalineappa v. D. Munichinappa, AIR 1965 SC 1269	Held that where one caste has another name it is generally mentioned in brackets in the Presidential Order; therefore parties cannot ordinarily lead evidence to show a caste not explicitly named in the Order is part of a named caste.	Referred to as part of the line of authority precluding evidential attempts to alter the scope of the Presidential Order; the court considered these authorities when addressing the appellant's contention about the name difference (Bhotra vs. Bhottada).
Bhaiya Lal v. Harikrishen Singh, AIR 1965 SC 1557	Held that inquiries to equate a caste (or sub-caste) not specified in the Presidential Order with one that is specified are not permissible for determining Scheduled Caste/Tribe status.	Used to support the general proposition relied upon by the appellant; the court nonetheless found on the facts that “Bhotras” and “Bhottadas” referred to the same community and therefore treated the defendants as Scheduled Tribe members.
Damodar Mohapatra v. Raghunath Pradhani, (1969) 35 Cut LT 139	Contains observations (in the High Court's view) that a question whether a named group includes another group can be a question of fact; quoted by the appellant to support the possibility of factual inquiry.	The court observed that some paragraphs of that decision may run counter to the Supreme Court rule but found it unnecessary to reach a final conclusion on that point in the present case.

Court's Reasoning and Analysis

The court addressed the three main contentions sequentially and applied statutory definitions, evidential findings, and precedent as follows:

On whether defendants 2–6 are members of Scheduled Tribes:
- The written statements and the plaintiff's oral evidence (P.W.1) asserted that defendants 2–6 are Bhotras and members of Scheduled Tribes. Defendant No.1 did not lead evidence to disprove this; D.W.1 (father-in-law) did not support the contention that they were not members of Scheduled Tribes.
- The courts below found defendants 2–6 to be Bhotras. Under Section 2(e) of Orissa Regulation 2 of 1956, “Scheduled Tribes” are those specified for Orissa in the Constitution (Scheduled Tribes) Order, 1950; the Presidential Order for Orissa lists “Bhottada” or “Dhotada” (Item No. 5).
- The appellant relied on Supreme Court authority (Parsram and earlier cases) which emphasize the limits on judicial inquiry to equate caste-names not appearing in the Presidential Order. The court considered these authorities but determined that in the present dispute the names “Bhotras” (as pleaded) and “Bhottadas” (as in the Presidential Order) refer to the same community on the evidence and pleadings before the court. Accordingly the courts below were correct in holding defendants 2–6 to be members of Scheduled Tribes.
On applicability of Section 5 of Orissa Regulation 2 of 1956:
- The court reproduced the text of Section 5 (sub‑section (1) and (2)) which makes a surrender or relinquishment by a tenant who is a member of a Scheduled Tribe invalid unless, after such surrender, the landlord settles the holding with another member of a Scheduled Tribe or retains it or obtains the approval of the competent authority where a member of a Scheduled Tribe is not available; sub-section (2) treats such surrender as a transfer within the meaning of the Regulation.
- Given the court's factual finding that defendants 2, 3 and 6 are members of Scheduled Tribes and that Defendant No.1 is not, Section 5 is attracted. The courts below found (and the appellate court agreed) that the relinquishment (Ext. B) in favour of the inamdar and the subsequent patta in favour of Defendant No.1 were without the requisite permission and therefore invalid under Section 5. The present court found no basis to overturn that conclusion.
On the refund of consideration money:
- The courts below found Ext. 1 to be a sale for good consideration and that Rs. 1,000 had been received by Defendant No.1. Since the plaintiff could not be declared to have title on the footing of Ext. 1, the Trial Judge decreed refund of the consideration money (a relief specifically pleaded in the plaint), and the Appellate Court upheld that part of the decree.
- Defendant No.1 failed to prove that the plaintiff knew of the title defect at the time of the sale. The present court saw no reason to relieve the vendor from the decree to refund the purchase money: there was no justification for the vendor to appropriate the consideration when she was unable to pass good title. Accordingly, the court held that the refund direction was proper and not open to attack.

Holding and Implications

Final Holding: The second appeal is dismissed. The court affirmed the conclusions of the courts below that defendants 2 to 6 are members of the Scheduled Tribes, that Section 5 of Orissa Regulation 2 of 1956 applied rendering the relinquishment/patta invalid for want of requisite permission, and that the decree for refund of the consideration money to the plaintiff was properly made.

Direct Consequences / Implications:

The affirming decree of the District Judge stands: Defendant No.1 does not acquire title to the disputed land through the patta/sale which were held invalid by reason of the Regulation.
The plaintiff was not declared the owner on Ext. 1 but is entitled to the refund of the Rs. 1,000 consideration (as ordered by the Trial Court and affirmed on appeal), and the appeal was dismissed with costs throughout.
The opinion does not claim to create any new legal precedent; it applies existing statutory provisions (Orissa Regulation 2 of 1956, Section 5) and follows the existing line of authority cited when assessing the permissibility of factual inquiries about caste names vis-à-vis the Presidential Order.

Disposition recorded in the opinion: "The second appeal must accordingly fail. It is dismissed with costs throughout. Appeal dismissed."

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Sailabala Baxi v. Johanas Bissoi And Others.

1. Defendant No. 1 is in second appeal against the affirming decision of the learned District Judge, Koraput in a suit for title recovery of possession or alternatively for recovery of the consideration money paid for the sale.

2. Defendant No. 1. plaintiff alleged, sold the land covered by plots numbers 267, 238, 239 and 482 appertaining to khata No. 137 of village Kenduguda to plaintiff under a registered sale deed dated 31-12-1962 (Ext. 1) for a consideration of Rs. 1,000/-. During the recent settlement operations, plaintiff claimed patta on the strength of his title and possession. Defendants 2 to 6 contested plaintiff's claim on the allegation that they were in possession before plaintiff got into possession and their surrender to defendant No. 1's father-in-law for arrears of revenue was invalid and contrary to the provisions of Orissa Regulation 2 of 1956. The final record-of-rights was published in the names of defendants 2 to 6. After receiving the record of rights, defendants 2 to 6 forcibly entered into the property on 27-10-1965 and cut away the standing crop. A proceeding under Section 145 of the Cr PC was initiated which terminated in favour of the defendants. Plaintiff thereafter filed the suit on 8-7-1967. Defendant No. 1 took the stand that plaintiff knew that the other defendants were not able to pay the dues and had given up cultivation and relinquished the land in favour of the land-holder Binayak Baxi and plaintiff had also made due enquiries and had come to learn that defendant No. 1 as pattadar was in possession of the land. Plaintiff had made due enquiries and was satisfied about the defendants' title and thereafter had entered into the sale transaction. According to defendant No. 1. Orissa Regulation 2 of 1956 had no application because defendants 2 to 6 are not members of the Scheduled Tribes.

3. Defendants 2, 3 and 6 who entered contest in a joint written statement took the stand that defendant No. 1 is the daughter-in-law of Binayak Baxi, the exintermediary of the inam village. Defendant No. 1 was not the pattadar of the suit property and had no right, title or interest to convey to plaintiff. The contesting defendants were Bhotras by caste and, therefore, belonged to the scheduled tribes and were entitled to the protection of Regulation 2 of 1956. The disputed property was never in khas possession of the ex-intermediary and the unregistered deed of relinquishment from the second defendant was invalid in law because no permission had been obtained as envisaged under the aforesaid Regulation. Even if there were a valid relinquishment, the fresh settlement had to be with the necessary permision; otherwise it is bound to be affected in view of the provisions of the Regulation. Defendants 4 and 5 laid no claim to the property.

4. The learned Trial Judge found that the inami estate vested with effect from 1-7-1954 under the provisions of the Orissa Estates Abolition Act; Binayak had no title to the disputed property and, therefore, defendant No. 1 acquired no title under the patta in her favour. While refusing to declare the title of plaintiff, the learned Subordinate Judge gave a decree for refund of the consideration money together with interest. He further recorded a finding that defendants 2 to 6 were Bhotras - a community covered by Orissa Regulation 2 of 1956.

5. The learned District Judge in appeal came to hold that the inamdar continued to have title to the property until 1-7-1963 on the basis of the compromise (Ext. K). He further found that defendants 2 to 6 were members of the Scheduled Tribes and therefore the Orissa Regulation had application to them. In the absence of the requisite permission the learned Appellate Judge held in agreement with the learned Subordinate Judge that the relinquishment under Ext. B by the second defendant in favour of the inamdar Binayak was invalid. He further found that the patta in favour of defendant No. 1 by Binayak was contrary to Section 5 of the Regulation as there had been no requisite permission and accordingly defendant No. 1 obtained no title to the property. Accordingly he affirmed the decree of the learned Subordinate Judge. This affirming decree is impugned in second appeal.

6. Three contentions have mainly been raised on behalf of the appellant:

(1) Defendants 2 to 6 are not members of the Scheduled Tribes and the finding reached in the courts below is contrary to law;

(2) Even if they are members of the Scheduled Tribes. Section 5 of the Regulation has no application to the facts of the case; and

(3) The order of refund of the consideration money is unwarranted.

7. Contention No. 1: - Defendants 2, 3 and 6 in their written statement said that they were Bhotras by caste and were “covered by Scheduled Tribes as contemplated by the Constitution of India and Regulation 2 of 1956 of Orissa”. Plaintiff as P.W 1 stated:—

“Defendants 2 to 6 are Bhotras by caste and they are of Scheduled Tribes.

8. Defendant No. 1 did not examine herself, but her father-in-law was examined as D.W 1. He did not lead any evidence in support of the plea that defendants 2 to 6 were not members of the Scheduled Tribes. The other defendants led evidence to support the contention that they were Bhotras and belonged to the Scheduled Tribes.

9. Both the courts below have come to find that these defendants (2 to 6) are Bhotras. Under Section 2(e) of the Regulations, “Scheduled Tribes” shall mean “the Scheduled Tribes specified in respect of the State of Orissa in the Constitution (Scheduled Tribes) Order, 1950”, and in the said Order so far as the State of Orissa is concerned, “Bhottada” or “Dhotada” occurring as Item No. 5 in the list declares members of the said community to be a Scheduled Tribe.

10. Learned counsel for the appellant relies upon certain decisions of the Supreme Court. In the case of Parsram v. Shivchand, (1969) 1 SCC 20 : AIR 1969 SC 597, the court approved the earlier decisions in the case of Basavalineappa v. D. Munichinappa, AIR 1965 SC 1269 and in the case of Bhaiya Lal v. Harikrishen Singh, AIR 1965 SC 1557. In Basavalingappa's case (AIR 1965 SC 1269), it had been said:—

“………… Wherever one caste has another name it has been mentioned in brackets after it in the Order. Therefore, generally speaking, it would not be open to any person to lead evidence to establish that caste B is part of Caste A notified in the order.”

11. In the second case (AIR 1965 SC 1557) the court held:—

“………… the plea that the Dohar caste is a sub-caste of the Chamar caste cannot be entertained in the present proceedings in virtue of the Constitution (Scheduled Castes) Order, 1950………….

In order to determine whether or not a particular caste is a scheduled caste within the meaning of Article 341, one has to look at the public notification issued by the President in that behalf. In the present case, the notification refers to Chamar, Jatav or Mochi and so in dealing with the question in dispute between the parties, the enquiry which the Election Tribunal can hold is whether or not the appellant is a Chamar. Jatav or Mochi. The plea that though the appellant is not a Chamar as such, he can claim the same status by reason of the fact that he belongs to the Dohar caste which is a sub-caste of the Chamar caste, cannot be accepted. It appears to us that an inquiry of this kind would not be permissible having regard to the provisions contained in Article 341.”

12. Dealing with the point raised in Parsram's case ((1969) 1 SCC 20 : AIR 1969 SC 597), the court held:—

“These judgments are binding on us and we do not therefore think that it would be of any use to look into the gazeteers and the glossaries on the Punjab castes and tribes to which reference was made at the Bar to find out whether mochi and chamar in some parts of the State at least meant the same caste although there might be some difference in the professions followed by their members, the main difference being that Chamars skin dead animals while Mochis do not. However that may be. the question not being open to agitation by evidence and being one the determination of which lies within the exclusive power of the President, it is not for us to examine it and come to a conclusion that if a person was in fact a mochi he could still claim to belong to the scheduled caste of Chamars and be allowed to contest an election on that basis………….”

13. Relying on these decisions, Mr. Mohanty for the appellant contends that “Bhotras” have not been declared as members of the Scheduled Tribes. The Presidential order refers to “Bhottada” and not to “Bhotra”. Therefore, evidence could not have been received from the parties in support of the contention that defendants 2 to 6 were really “Bhottadas”. According to Mr. Mohanty, some observations of this court in the case of Damodar Mohapatra v. Raghunath Pradhani, (1969) 35 Cut LT 139 cannot be taken to be good law in view of the pronouncements of the Supreme Court referred to above. This Court said in paragraph 5 of the judgment:

“Whether a Bhotra comes within any of the sub-groups of Scheduled Tribes enumerated in Part IX is a pure question of fact. The decree-holder from the very start accepted the position that judgment-debtor No. 1 was a member of the Scheduled Tribe. If any objection had been raised that he was not a member of the scheduled tribe the purchaser from judgment-debtor No. 1 and judgment-debtor No. 1 could have pleaded and proved that they belonged to one of the sub-groups of the Scheduled Tribes. I accordingly do not find any substance in the contention of Mr. Ramdas that on a bare comparison of the various classes of Scheduled Tribes in Part IX of the Order the court would come to a conclusion that judgment-debtor No. 1 was not a member of the Scheduled Tribe………….”

14. Some of these observations may run counter to the rule indicated by the Supreme Court in the cases referred to above, but it is unnecessary to reach a final conclusion in this case on such score.

15. Plaintiff and defendants 2 to 6 have taken the stand that defendants 2 to 6 are Bhotras belonging to the Scheduled Tribes. The dispute in the present case does not relate to any sub-caste of the named caste. Bhotras as pleaded in the case and Bhottadas as indicated in the Presidential Order refer to the same community and the courts below appear to have come to the correct conclusion. I do not think on the basis of the decisions of the Supreme Court referred to above, defendant No. 1 can succeeded in her contention that defendants Nos. 2 to 6 are not members of the Scheduled Tribes. The first contention must accordingly fail.

16. Contention No. 2. Section 5 of the Regulation 2 of 1956 provides:—

“(1) No surrender or relinquishment of any holding or a part of a holding by a tenant to a landlord under any law for the time being in force and applicable to such tenancy such tenant being a member of a Scheduled Tribe, shall be valid unless after such surrender or relinquishment the landlord thereof by whatever name called either settles the said holding or part of the holding as the case may be with another member of a Scheduled Tribe or else retains it in his possession or settles it with any other person with the approval of the competent authority when such member of a Scheduled Tribe is not available.

(2) Any surrender or relinquishment shall be deemed to be a transfer of immovable property within the meaning of this Regulation and except as otherwise provided in sub-section (1) the other provisions of this Regulation shall, so far as may be, apply.

(3)…… …… ……… ………”

17. According to defendants 2, 3 and 6, they were tenants in possession of the property. Defendant No. 1 took the stand that defendant No. 2 had relinquished the tenancy interest in the property by Ext. B dated 8-6-1959 in favour of her father-in-law Binayak. Binayak in his turn, according to defendant No. 1, granted a patta in her favour two days thereafter under Ext. C. Once it is held that defendants 2, 3 and 6 were members of the Scheduled Tribes and in view of the conceded position that defendant No. 1 is not a member of the Scheduled Tribes. Section 5 of the Regulation is certainly attracted. Only when the settlement was in favour of a member of the Scheduled Tribes Binayak's action would not have been open to dispute. The view taken by the courts below about the effect of Section 5 of the Regulation is thus not open to challenge.

18. Contention No. 3. The finding of the courts below is that the sale deed (Ext. 1) is for good consideration and a sum of Rs. 1,000/- had been received by defendant No. 1 from plaintiff. Accordingly on the finding that plaintiff is not entitled to have his title declared on the footing of Ext. 1, the learned Subordinate Judge decreed refund of the consideration money for which there is a specific prayer in the plaint. The Lower Appellate Court has upheld that part of the decree. Defendant No. 1 has failed to establish her specific plea that her defect of title was known to plaintiff at the time the sale transaction took place.

19. I do not think there is any justifying circumstance to relieve defendant No. 1 - vendor from the direction in the decree for refunding the consideration money. There is no justification for defendant No. 1 to appropriate the consideration money when she is unable to pass good title to plaintiff. That part of the decree also is not open to attack in my view.

20. The second appeal must accordingly fail. It is dismissed with costs throughout.

21. Appeal dismissed.

Sailabala Baxi v. Johanas Bissoi And Others.

Structured Summary of the Opinion (Second Appeal)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Defendant No. 1) — Main Arguments

Contesting Defendants (Defendants 2, 3 and 6) — Main Arguments

P laintiff's Evidential Position

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Sailabala Baxi v. Johanas Bissoi And Others.

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