@JUDGMENTTAG-ORDER
R.S. Garg, J.
By this petition, under Article 227 of the Constitution of India, Petitioner assails and challenges the correctness, validity and propriety of the Orders dated 1-7-1985 (Annexure P-14), passed by Sub-Divisional Officer and Order dated 5-5-1987 (Annexure P.13), passed by the Collector, as an Appellate Authority.
2(i) The brief facts giving rise to the present petition are, that on 23-10-1969, by a registered sale, certain agricultural lands were sold by Respondent No. 5-Rama to the present petitioner for a consideration of Rs. 7,500/- and, yet, by another registered sale dated 17-9-1970, for a consideration of Rs. 2,500/-, some more land was sold by Respondent No. 5 in favour of the petitioner.
(ii) The Respondent No. 5-Rama, moved an application before the Debt Relief Court, which was registered as case No. 36/1975. The Presiding Officer of the said Court, by his order dated 8-7-1976 (Annexure P-4) held that it was not a loan or mortgage transaction, but, was a out-right sale. The said Presiding Officer rejected the application. The Respondent No. 5 bent upon seeking possession of the property took out certain proceedings before the Sub-Divisional Magistrate, Mhow u/s 145 of the Criminal Procedure Code, which, were registered as case No. 152/1976.
(iii) The Sub-Divisional Officer, in his order, found that the present petitioner was in possession of the property since 1968. Thereafter, Respondent No. 4, wife of Respondent No. 5, moved an application before Tehsildar for restoration of possession. The said application was registered as Revenue Case No. 1A/74/75-76. After hearing the parties, learned Naib Tahsildar, by his order dated 10-1-1976, (Annexure P.6), rejected the said application, after recording a finding that Respondent No. 4 was not entitled to recover the possession.
(iv) According to the Petitioner, as he was facing threats to his title and possession, was forced to file a civil suit, which was registered as Civil Suit No. 60-A/1971. The learned Civil Judge Class II, Mhow, by his judgment and decree dated 17-5-1977, found that the suit property was purchased by the present petitioner under the valid sale-deeds from Respondent No. 5 and he was in possession since 25-5-1968. The Court decreeing the suit; granted injunction in his favour and, against the defendants of that suit.
(v) The litigation did not come to an end. Respondent No. 4 moved an application (Annexure-A) before the Sub-Divisional Officer, u/s 5 of M. P. Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (hereinafter shall be referred to as the said Adhiniyam''). The said application was opposed and contested by the present petitioner. By the Order dated 24-7-1984, in case No. 1 (Revenue)/FM/83-84, the Sub-Divisional Officer held that the transaction between the parties was a prohibited transaction of loan, the Respondent No. 4 belonged to the weaker Section of the society and as a consequence of the transaction being a prohibited transaction, Respondent No. 4 was entitled to be put in possession.
(vi) It appears that before appeal could be taken to the appellate Court, the petitioner was dispossessed on 21-8-1984. The petitioner, then, took-up the matter in appeal which was heard and decided by the Additional Collector, Indore, who, by his judgment dated 29-4-1985, in Revenue Appeal No. 55/83-84, allowed the appeal and remanded the matter back to the Sub-Divisional Officer with particular directions, including that proper opportunity be given to the parties and the matter be decided in accordance with law and, the authority should decide on the facts available before it, whether the transaction was a prohibited transaction of loan.
(vii) After the remand, the matter was re-registered as case No. 4/Samaj Ke Kamjor Vargon/84-85. The petition was again allowed. By order dated 1-7-1985, the Sub-Divisional Officer, Mhow (Distt. Indore) again recorded a finding that the transaction was a prohibited transaction of loan. The petitioner was forced to take an appeal to the appellate Court. The Collector, Indore, in Revenue Case No. 36/Appeal/84-85, by order dated 5-5-1987, dismissed the appeal.
Being aggrieved by the said orders (Annexures P. 13 and P. 14) the petitioner has preferred this petition under Article 227 of the Constitution of India.
Shri V. K. Jain, learned counsel for Petitioner, placing reliance upon the definition of "Prohibited Transaction of Loan", as given in Section 2(f), contends that as the transaction was not a prohibited transaction of loan, it being a out-right sale; no loan transaction was subsisted on the appointed day therefore and even, otherwise, as there was no evidence to support the plea raised by Respondent No. 4, the petition filed by Respondent No. 4 deserved dismissal.
Resting his arguments on the strength of a Division Bench Judgment of this Court in the matter of Kesharsingh v. Bhavsingh 1994 MPLJ 268, he contended, that after all some finality has to be given to the judicial proceedings. He submits that almost every authority, including the Civil Court, held that the transaction was a bona fide transaction, it was not a loan transaction. The Revenue Authorities could not sit-over the earlier findings and the principles of res judicata would apply with full force. He also submits that the Respondent/S.D.O. and the Collector were absolutely unjustified in granting the petition of Respondent No. 4.
Jettisoning the arguments of learned counsel Shri V.K. Jain, Shri S.M. Jain, learned counsel for State, contended that the Act was brought into the existence to help and assist the weaker section of the society and as the assistance of legal practitioner is not available to the parties, the justice must lean in favour of the weaker section. He contends that the findings recorded by the lower tribunals are based on proper view and appreciation. Therefore, no interference is called for.
Undisputedly, the said Act (Act No. 3 of 1977) has been brought into existence to better economic conditions of holders of agricultural land. In the weaker section of the people by providing further relief from agricultural indebtedness by nullifying the land grabbing designs resorted to in many a form by lenders of money while and after extending credit to them and matters connected therewith. But it cannot be lost sight of that, unless, it is proved that the transaction is a prohibited transaction of loan, the weaker section cannot be granted any relief. It is not every transaction, which, can be condemned under the provisions of this Act. For application of the Act, an application before the said authority has to be moved by the holder of agricultural land who is of the weaker section of society with a plea that he entered into the transaction of a loan, with some documents if were written or, with a plea that it was a oral loan transaction, the purchaser of the property was a lender of money and in view of the definition, contained in Section 2(f) of the Act, the transaction was a prohibited transaction of loan.
After considering the matter from this angle, the Tribunal has to record a finding that the transaction was a prohibited transaction of loan, and, the applicant, before it, had a right or authority to be put back in possession.
The Act itself is a complete Code. Section 4 provides that all claims in relation to a prohibited transaction of loan, subsisting on the appointed day, or entered into thereafter, but, on or before the date of publication of this Act, in the Gazette, shall be subject to the protection and relief in accordance with the provisions of this Act. The law further provides that this power can be exercised by the authority, notwithstanding anything contained in the Code (M. P. Land Revenue Code) or any other enactment, for the time being in force, or any decree or order, if any, of any Court or authority.
Section 5 provides for submission of an application by the holder of agricultural land. After filing of such an application, proper opportunity is required to be given to the other party against whom the relief is sought.
During the enquiry, to be conducted u/s 6, the Sub-Divisional Officer is bound for the purpose of ascertaining the true nature of transaction of loan, try to collect, as far as may be, information with respect to the particular facts, detailed in Sub-section (4) of Section 6.
After such an enquiry, a finding will have to be recorded by the Sub-Divisional Officer, that the transaction was a prohibited transaction of loan. Only after recording such a finding, on due appreciation of the evidence, an order in favour of the holder of land can be passed.
It would not be out of place to mention at this stage, that while taking into consideration the requirements of Sub-section (4) of Section 6, the Sub-Divisional Officer has also to take into consideration various other aspects and attending circumstances. The law may show itself to be blind, but, the justice has to be done with open eyes. One has not to read the words of a statute book, but, has to read the intention of legislation. If the intention of legislation was to protect the weaker section or the holders of agricultural land in the weaker section, then, simultaneously it protected the authority and rights of the other.
The facts detailed in extenso, would show that the transaction took place on 23-10-1969 and 17-9-1970. The execution of the sale-deeds is undisputed. The contention of Respondents Nos. 4 and 5, who have proposed to remain absent before this Court all through, had been, that it was a loan transaction. Before the Debt Relief Court, it was contended that, as the debt stood discharged, they were entitled to get back the possession. A competent officer, after hearing the parties, held that it was not a loan transaction, but, was a genuine sale. That was the first dent to the pleadings of the Respondents Nos. 4 and 5. Yet, another competent Officer in the proceedings, u/s 145 of Criminal Procedure Code held in favour of the petitioner and clearly recorded that the petitioner was in possession of the lands since 1968. This changed the colour of scenario projected by Respondents Nos. 4 and 5.
Respondent No. 4 has filed an application before Naib Tahsildar for restoration of possession submitting that it was a Inam land and she was entitled to get possession. Dismissal of the said application by Naib Tahsildar under Annexure P.6 on 10-1-1976, would also give a blow to the pleadings of Respondents Nos. 4 and 5. True, it is, that irrespective of the decree or order of a Court or authority, the Sub-Divisional Officer, can proceed with the matter, but, the law does not say that the findings recorded by a competent Court of law have to be ignored absolutely, and would have no weight before a Revenue Officer.
The judgment and decree passed in civil suit No. 60-A/1971 on 7-5-1997, by the Civil Judge CI.II, Mhow, between the same parties, would give a death blow to the claim of Respondents Nos. 4 and 5. Once it is held by a competent court that the transaction was a genuine transaction of sale; was not a prohibited transaction of sale, or, a transaction of loan, then in the subsequent proceedings, such a finding is entitled to respect. After all there is a limit to the litigation. One cannot be permitted to proceed on with his efforts in different Courts on different dates. Nor the different authorities can be permitted to take a view at different times. The judicial discipline would be seriously hampered, if, the authorities at different time take different views in the same matter between the same parties relating to same subject matter.
Section 11 of the Code of Civil Procedure, certainly would come into effect at this stage. If one has lost in the litigation finally, he must thank his stars and should feel content. It is not sufficient that he is proceeding with the fight.
Be that as it may, we are now concerned with the order passed by Sub-Divisional Officer and the order confirming the said order.
In the matter of Kesharsingh (supra), this court while dealing with the provisions of law, has taken into consideration, almost, every aspect of the law . The Court, in para 22 has observed as under :
"It is an admitted fact that earlier an application was filed by applicant-respondent before the Debt Relief Court and that has ultimately been decided against applicant-respondent. It is, thus, apparent that an enquiry in the case about its being a transaction of sale or mortgage was already done by competent authority. There was a clear finding in favour of petitioner-non-applicant and as against the respondent-applicant, and in such a situation the principle of res judicata would be attracted otherwise, there will be no finality in the matter and purchaser of land would be subject to harassment all the time and whenever a fresh application to that effect is made."
According to the Division Bench Judgment, if there was a clear finding in favour of one person, then, in such a situation principle of res judicata would be attracted, otherwise, there would be no finality in the matter and, the purchaser of the land would be subject to harassment all the time and whenever a fresh application to that effect is made.
Applying the ratio of the said case, unhesitatingly, I am inclined to hold that the principle of res judicata would certainly apply to the facts of the present case. If three competent authorities under three different Acts have every time found that the present transaction was not a loan transaction, then, the Sub-Divisional Officer, on the surmises and conjectures could not hold that the present transaction was a prohibited transaction of loan.
Needless to say that the enquiry was not conducted in accordance with the provisions of Section 6 of the Act, but, in view of the findings recorded above, it is not necessary to remand the matter back to the competent authority to hold a trial de novo. After all enough is enough. The dead must be buried to the eternity.
The petition is allowed. The Respondents Nos. 4 and 5 had not appeared to contest the litigation. There shall be no order as to costs.
As a consequence of quashment of the order passed by Sub-Divisional Officer and the Collector, the petitioner is now entitled to get back the possession. It shall be the duty of Sub-Divisional Officer and the Collector to see that within a period of one month from the date of submission of the certified copies of the order, the possession is restored back to the Petitioner.
Security amount, if, any, be refunded back to the Petitioner after due verification.
