Supreme Court of India

DEONARAYAN SINGH AND ORS.versusTHE COMMISSIONER OF BHAGALPUR AND ORS.

Citation: 1997 INSC 429
Decided: 22 April 1997
Disposal: Appeal(s) allowed
Bench: S B MAJMUDAR

Holding

The 1939 transaction was duly approved, creating an accrued right that survived the repeal of Section 27, making the 1950 transaction valid and precluding eviction under the Act.

Summary

The appellants inherited land that had been sold by a Mool Raiyat in 1939 to Bimal Kanti Roy Choudhury and subsequently in 1950 to their father, Radha Prasad Singh. The sale of 38.09 acres was approved and mutated by the Sub‑Divisional Officer and Deputy Commissioner after a seven‑month scrutiny, creating a vested right in the transferee. Respondents later claimed the original 1939 sale violated Section 27(1) of the Santhal Parganas Settlement Regulation, 1872 and sought eviction of the appellants under Section 20(5) read with Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949. The Supreme Court held that the competent authority’s approval gave the 1939 transferee a protected right, and that the repeal of Section 27 by the 1949 Act, governed by Section 8 of the Bihar General Clauses Act, did not extinguish that right. Consequently the 1950 transaction was valid and the respondents could not invoke the Act to evict the appellants. The appeal was allowed, setting aside the orders of the lower authorities.

Issues considered

Whether the 1939 sale, though apparently violative of Section 27(1) of the 1872 Regulation, was validated by the competent authority’s approval and mutation, thereby creating a vested right.
Whether the repeal of Section 27 by the 1949 Act (re‑enacted as Section 20) affects rights accrued under the repealed provision, invoking Section 8 of the Bihar General Clauses Act.
Whether the 1950 sale to the appellants’ father is void as a consequential transaction of an alleged invalid 1939 sale.
Whether Section 20(5) read with Section 42 of the Santhal Parganas Tenancy (Supplementary Provisions) Act can be invoked to evict the appellants.

Legislation cited

Code of Criminal Procedure, 1973s. 145
Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949s. 20(1), s. 20(5), s. 42

Subjects

Land transferSanthal Parganas Tenancy ActRepetition of rightsMutation of land recordsSection 27 RegulationSection 20 ActBihar General Clauses ActEvictionSuccessionAdverse possession

Judgment

DEONARA YAN SINGH AND ORS. A
v.
THE COMMISSIONER OF BHAGALPUR AND ORS.

APRIL 22, 1997

B
. (S.B. MAJMUDAR AND M. JAGANNADHA RAO, JJ.)

Santhal Parganas Tenancy (Supplementary Provisions) Act 1949-Ss.
20( 1) & (5), S. 42 Santhal Parganas Settlement Regulation, 1872-S. 27( I)
and (3 )--Moo/ Raiyat-Transfer of rights by--17wugh transfer of land could
have been cancelled under S. 27(3) of the Regulation, the facts of the case c
show that competent auth01ities after taking time for scmtiny, and using their .
discretion regularised the tramfer and allowed mutation whereby a 1ight ac-
cmed to the tran sfero,._lf earlier transaction is not illegal, later transactions
flowing therefrom cannot be illega~Since neither the re-enacted S. 20( 1) of
the Act nor the repealed S. 27 of the Regulation does not seek to negate the . D
final orders passed by competent authorities, any right/privilege/ obliga-
tio11/liability accmed under the earlier repealed section will continue-Bihar
General-Clauses Act. 1917-S. 8.

One B, who was appointed Mool Raiyat along with his brothers, to
pay off their debts, sold an 8 anna interest in the Mool Raiyat comprising E
of 38 acres and 9 decimals, to BK in 1939 who got his name mutated in
the revenue records, after due approval of the authorities. Later, BK, sold
his entire right, title and interest in the said lands to R, the father of the
appellants, who also got his name mutated in the revenue records. Even
so, the contesting respondents sought to disturb his possession and F
started proceedings under S. 145 of Cr.P.C. The SDO ruled in favour of
R. A Revision petition was rejected by the Sessions Court. On the death of
R, his son M, was appointed Mool Raiyat. In 1970-71, the respondents laid
claim as original co-sharers of the said lands and filed an application
before the SDO, praying for eviction of the appellants under S. 20(5) read
uith S. 42 of the Santhal Parganas Tenancy (Supplementary Provisions) G
Act 1949. On rejection of the application, an appeal was filed which was
allowed and eviction ordered by the Additionlll Deputy Commissioner on
the ground that the original sale to BK, was violative of S. 27(1) of the
Santhal Parganas Settlement Regulation, 1872 and hence all following
transactions were void. When the Appeal from this order was rejected, H
941
942 SUPREMECOURl REPORTS [1997) 3 S.C.R.

A appellants went to the High Court on a Writ Petition. A Full Bench, relying
on an earlier judgment of a Full Court in Bhauri Lal Jain and Another v.
Sub-Divisional Officer of Jamtara and Others, AIR (1973) Patna, 1, rejected
their case upon which an appeal was preferred to this Court.

Allowing the appeal, this Court
B
HELD : 1. BK was a Raiyat who was recognised as the Moot Raiyat
by the competent authorities under the Regulation. His entire right, title
and interest in the said land which was an alienable jote was transferred
under the said second transaction in favour of the appellants father. The
C right to transfer was duly recorded in the Record of Rights and required
the transferor to transfer if at all his entire right, title and interest in the
Mool Raiyat. That was precisely what done by BK in favour of the
appellants' father by transaction dated 26th June 1950. Therefore, this
--
transaction did not offend the provisions of Section 20(1) of the Act. If that
is so, it remained fully within the four corners of the said provision and
D could not be treated to be illegal or invalid from any angle. Consequently
there would remain no occasion for the authorities to invoke Section 20(5)
of the Act read with Section 42 thereof in connection with this latter trans-
action of sale dated 26th June 1950. Ali authorities below as well as the High
Court by the impugned judgment have considered the invalidity of the first
transaction of sale dated 22nd March 1939 and in that light they have
E
voided the second transaction as a consequential transaction. Once the
nexus between the two sales gets snapped and the earlier transaction by
itself cannot be found fault with from any angle, then there would remain
no occasion for the respondent-authorities to invoke the provisions of
Section 20(1) read with sub-section (5) and Section 42 of the Act in connec-
F tion with even the second sale transaction dated 26th June 1950. Once that
conclusion is reached the result becomes obvious. On these peculiar facts
there is no escape from the conclusion that the possession of the appellants
as heirs of deceased vendee R can be said to have been validly obtained and
a valid title that was conveyed in land admeasuring 36.09 acres, to their
G father R under the second sale transaction dated 26th June 1950, got legally
transmitted to the appellants by rules of succession. Consequently on these
facts no action could have been taken by the authorities under the relevant
provisions of the Act against the appellants. [955-C-H; 956-A]

2. No doubt the first transaction of sale dated 22nd March 1939 was
H duly scrutinised by the competent authorities and the Deputy Commis-
D. SINGH v. COMMISSIONER OF BHAGALPUR 943

sioner who approved the same. The proceedings remained under scrutiny A
from 31st May 1939 till 28th December 1939. Thus for seven months the
enquiry went on and ultimately the aforesaid decision was rendered. It
must, therefore, be held that there was ample opportunity for the Deputy
Commissioner, if so advised, to order eviction of the transferee in exercise
of his powers under Section 27(3) of the Regulation but it appears that in
his discretion he had waived his objection to the transaction and the same B
was regularised. The said inference is inevitable as but for the said fact
mutation in favour of vendee B K would never have been sanctioned by the
competent authority at the relevant time. It must, therefore, be held on the
peculiar facts of this case that the first transaction of sale dated 22nd
March 1939 was duly approved and cleared by the competent authority c
exercising powers under Section 27(2) of the Regulation. Once that hap-
pened a right accrued in favour of the vendees to remain in possession of
the transferred lands admeasuring 38.09 acres in his own right and the
curtain dropped on the said transaction. It is obvious that under the said
Regulation if it had continued to operate the transaction would not have D
been re-opened once it was found that the Deputy Commissioner having
notice of the transaction had not thought it lit to exercise powers under
Section 27(3) of the Regulation for evicting the illegal transferee. It may
be, that in a given case relevant facts were not brought to the notice of the
Deputy Commissioner earlier and if subsequently he had found that the
transaction was violative of sub-section (1) of Section 27 in a proper case E
he could have exercised power under Section 27(3) but such are not the
facts of the present case. As noted earlier seven months elapsed during
which the transaction remained under the gaze of scrutiny of the Sub-
Division Officer and ultimately got scrutinised by the Ueputy Commis-
sioner himself. Consequently on the peculiar facts of this case it must be F
held that the said transaction was duly filtered by the competent authority
who in its discretion approved the same years back on 28th December 1939.
Accordingly it must be held a right accrued to the transferee of the said
transfer in his favour under the Regulation. [951-8-H; 952-A-B]

3. A mere look at the relevant provisions in the Act shows that there G
is no express provision in the Act which lays down that notwithstanding
any rights which might have accrued thereunder fresh scrutiny of the said
transaction could be made under the relevant provisions of the Act which
corresponded to the earlier repealed Section 27 of the Regulation. When
such a contrary intention does not appear from the scheme of the Act, the H
f
944 SUPREME COURT REPORTS [1997] 3 S.C.R.

A effect of the repeal of Section 27 of the Regulation squarely attracts the
provisions of Section 8 of the Bihar General Clauses Act, 1917. As repealed
Section 27 of the Regulation is re-enacted as Section 20(1) of the Act and
as the latter Act does not project any different and contrary intention to
set at naught any final orders rendered by competent authorities under
the repealed Section 27 of the Regulation, the repeal of Section 27 of the
B Regulation by the Act will not affect any right, privilege, obligation, or
liability acquired, accrued or incurred under the said repealed provision.
Consequently the immunity earned by the transaction of 22nd March 1939
under the Regulation and the approval granted to it by the competent
authority, namely, the Deputy Commissioner by his order dated 28th
C December 1939 remained available and accrued to the vendee B K despite
the repeal of Section 27 of the Regulation by the Act. Thus on the peculiar
facts of this case it must be held that the transaction of 22nd March 1939
cannot be said to have any adverse effect on the right of the vendee under
the said transaction and he remained perfectly competent to deal with the
D transferred 38.09 acres of land covered by the said transaction in his
favour which was duly liltered by the then competent authority under the
Regulation. Consequently the decision rendered on the merits of this
transaction by all the authorities below and which came to be accepted by
the High Court in the impugned judgment cannot be sustained on account
of these salient tell-tale facts which have remained undisputed on record
E of the case. [952-D-F; 953-D-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4657 of
1984.

From the Judgment and Order dated 8.8.84 of the Patna High Court
F in C.W.J.C. No. 1309 of 1976.

Rajiv Dhawan, D.R. Singh, Anis Ahmad, R.K. Khanna, A.K. Pandey,
R.P. Singh, M.K. Singh, A. Sharan and M.P. Jha for appearing parties.

The Judgment of the Court was delivered by
G
S.B. MAJMUDAR, J. This appeal on special leave is directed against
the decision rendered by a Full Bench of the Patna High Court dismissing
the Writ Petition filed by the appellants.

H In order to appreciate the grievance of the appellants it will be
D. SINGH v. COMMISSIONER OF BHAGALPUR [S.B. MAJMUDAR, J.] 945

necessary to note a few relevant facts leading to these proceedings. A A
Jamabandi No. 65 of mauza Billi within Police Station Madhupur, in the
district of Santhal Parganas in the State of Bihar was recorded in the names
of Sitaram Singh, Jaleshwar Sihgh, Yudhisthir Singh and Kastura Kumari
Devi as Moo! Raiyat Ka Jote. They amongst themselves had 8 annas
interest in the said jote. As occupants of lands, they were called Raiyats
with their headman as Moo! Raiyat. Moo! Raiyat Ka Jote was land tenure
B
in Santhal Parganas. It was attached to the Moo! Raiyat who as a village
headman was responsible for the collection of land revenue in times of
British rule. The proprietor landlord was called 'Ghatwal'. Requisite rent
of the land was to be handed over by the Moo! Raiyat to the Ghatwal.
Moo! Raiyat had two types of land tenures. Moo! Raiyat Ka Jote was c
alienable and personal. Moo! Raiyat jote was inalienable and was attached
to his office. It was called official jote. It is not in dispute between the
parties that official jote admeasurcd l acre 81 decimals while Moo! Raiyat
Ka Jote which was Nij Jote admeasured 71 acres 71 decimals. On the death
of Sitar am Singh his eldest son Sarju Singh alias Bhatu Singh was appointed D
Moo! Raiyat of the village in place of his father in Revenue Miscellaneous
Case No. 99 of 1938-39 of the Court of Sub-Divisional Officer, Deughar.
The said appointment was duly approved by the Deputy Commissioner of
Santhal Parganas. It is the case of the appellants that as the entire family
of Sarju Singh @ Bhatu Singh was heavily indebted and was in need of
money, the said 8 annas interest in Moo! Raiyat comprising 38 acres 9 E
decimals representing his share in Nij Jote came to be sold by said Bhatu
Singh and his brothers to one Bimal Kanti Roy Choudhury on 22nd March
1939. The further case of the appellants is that the said vendors had been
in possession of 38.09 acres of land in lieu of their 8 annas interest in Muoi
Raiyat by family arrangement with their co- sharers. The said sale was
F
effected for a consideration of Rs. 10,000. That after the said purchase Shri
Bimal Kanti Roy Choudhury got his name mutated in respect of 8 annas
interest in Moo! Raiyat Ka Joie of the said mauza Billi in Revenue
Miscellaneous Case No. 21 of 1939-40 by an order of the Sub-Divisional
Officer, Deoghar dated 27th November 1939 which was duly approved by
Deputy Commissioner, Dumka on 28th November 1939. Shri Bimal Kanti G
Roy Choudhury was subsequently appointed as 16 annas sarbarakar of the
said mauza. The said order was passed after service of notice on all the
co-owners of Jamabandi No. 65.

That by Sale Deed dated 26th June 1950 said Bimal Kanti Roy H
946 SUPREME COURT REPORTS [1997] 3 S.C.R.

A Choudhury sold his entire right, title and interest in the Moo! Raiyat Ka
J ote to Shri Radha Prasad Singh, father of the appellants for a considera-
tion of Rs. 17,000. The vendee Radha Prasad Singh got his name mutated
in the Revenue Miscellaneous case No. 40 of 1950-51 of the Court of
Sub-Divisional Officer, Deoghar. The said order of mutation was passed
after service of notice on all the opposite parties, respondent Nos. 4 to 15.
B The vendee Radha Prasad Singh during his lifetime remained in possession
of the aforesaid 38.09 acres of land of Jamabandi No. 65 and was also
acting as sharer of 8 annas Moo! Raiyat Ka Jote and 16 annas sarbarakar
of the said Mauza. As the contesting respondents sought to disturb the
possession of Radha Prasad Singh proceedings under Section 145 Code of
C Criminal Procedure were initiated. They were registered as Criminal Case
No. 567 of 1950. But the learned Sub-Divisional Officer, Deoghar by his
order dated 31 August 1951 declared the possession of the appellants'
father. Revision against the said order was rejected by Sessions Judge,
Dumka. After the death of Radha Prasad Singh, appellant No. 4 Mathura
D Prasad Singh, was appointed as Moo! Raiyat to the extent of his interest
in the said Jote amounting to 8 annas and as 16 annas sarbarakar of the
said mauza. It was only thereafter that in the year 1970-71 respondent Nos.
4 to 15 claiming to be the original co-sharers of the mauza filed an
application before Sub-Divisional Officer, Deoghar against the appellants
for their eviction from 38.09 acres of land of J amabandi No. 65 alleging
E that the same had been illegally alienated. It was registered as Revenue
Eviction case No. 67 of 1970-71. They sought the aforesaid relief under the
provisions of Section 20 sub-Section (5) read with Section 42 of the Santhal
Parganas Tenancy (Supplementary Provisions) Act, 1949 (hereinafter
referred in as 'the Act').
F
In the first instance learned Sub-Divisional Officer, Deoghar,
rejected the said application. Respondent Nos. 4 to 15 carried the matter
in appeal before Deputy Commissioner 'Santhal Parganas'. It was trans-
ferred to the file of Additional Deputy Commissioner, Dumka, who by his
order dated 30th September 1975 allowed the appeal and ordered eviction
G of the appellants. It was held by the Additional Deputy Commissioner that
the original sale transaction by Bhatu Singh in favour of Bimal kanti Roy
Choudhury dated 22nd March 1939 was violative of provisions of Section
27(1) of the Santhal Parganas Settlement Regulation, 1872 (hereinafter
referred to as 'Regulation') which applied at the relevant time and conse-
H quently the subsequent sale by Shri Bimal Kanti Roy Choudhury in favour
D. SINGH v. COMMISSIONER or BHAGALPUR [S.B. MAJ MU DAR, J.] 947

of appellants' father was equally violative of the provisions of Section 20(1) A
of the Act. Hence the appellants were liable to be evicted from the land.
The aforesaid decision of the appellate authority resulted in further
Revenue Miscellaneous Appeal before Commissioner, Bhagalpur Division,
who by order dated 2nd June 1976 dismissed the same and confirmed the
eviction order passed by Additional Deputy Commissioner, Dumka. The B
appellants thereafter carried the matter to the High Court under Articles
226 and 227 of the Constitution of India. The appellants' Writ Petition was
heard by a Full Bench consisting of the then Chief Justice S.S. Sandhawalia,
Justice S Ali Ahmad and Justice B.S. Sinha. The Full Bench considered
the main question which was posed for its decision, namely, whether the
c
prescriptive period of 12 years for perfecting the title by adverse possession
when the original transfer was in contravention of Section 27 of the
Regulation would stop running from 1st November 1949 being the date of
enforcement of the Act. The Full Bench noted that this was the significant
solitary question arising from a deep-seated conflict of precedent within
that Court which had necessitated that reference to the Full Bench. The D
Full Bench speaking through S.S. Sandhawalia, CJ., on this moot question
referred to an earlier decision of the Full Bench of that Court in the case
of Bhauri Lal Jain and Another v. Sub-Divisional Officer of Jamtara and
Others, AIR (1973) Patna 1 and posed the question whether the earlier Full
Bench decision covered the controversy posed for their decision in the E
present case and if so what was the precise mandate of the earlier Full
Bench decision. In the impugned judgment the Full Bench took the view
that the earlier transaction of 22nd March 1939 was violative of Section 27
of the Regulation and that the possession of the vendee through Bimal
Kanti Roy Choudhury from that date was adverse to the vendors but by
the time the Act applied to Santhal Parganas with effect from 1st Novem- F
ber 1949 the said vendec Bimal Kanti Roy Choudhury had not completed
12 years of adverse possession and consequently the transaction in his
favour and the subsequent transaction by him in favour of appellants' father
on 26th June 1950 were liable to be voided both under Section 27(1) of the
Regulation as well as Section 20(1) of the Act read with Section 42 thereof. G
Resultantly the Full Bench did not find fanlt with the decision rendered by
the lower authorities against the appellants. Sandhawalia, CJ., also noted
in his judgment that in view of his decision he was disinclined to permit or
advert to the ancillary contentions sought to be urged in the alternative for
the first time in the writ jurisdiction by the appellants. Thus there was a H
948 SUPREME COURT REPORTS (1997] 3 S.C.R.

A unanimous decision of the Full Ben~h that prescriptive period of 12 years
for perfecting the title by adverse possession in connection with the trans-
actions entered into in contravention of Section 27 of the Regulation would
slop running from 1st November 1949 being the date of enforcement of the
Act. However on the question of relief to be granted under the circumstan-
ces the majority of the learned Judges took the view that the orders of the
B learned Commissioner and the Additional Deputy Commissioner directing
settlement of land with respondent No. 10 must be set aside meaning
thereby according to the majority the land should be placed at the disposal
of the State Government for being dealt with in accordance with law. We
may note at this stage that the contesting respondents who had moved a
C separate Special Leave Petition to the extent they were aggrieved by the
decision of the majority of the High Court setting aside the direction for
restoration of the land in their possession could not persuade this Court
to admit their Special Leave Petition which had stood dismissed. Hence
strictly speaking they arc out of the arena of contest and now the contest
D remains between the officers of the State of Bihar, namely, respondent Nos.
1 to 3 and State of Bihar, respondent No. 16 on the one hand and the
appellants on the other.

Dr. Dhavan, learned senior counsel for the appellants raised various
contentions before us for assailing the decision of the Full Bench under
E appeal. He also had a serious grievance against the earlier decision of the
Full Bench of the Patna High Court in the case of Bhauri Lal Jain (supra).
However as will be indicated hereinafter it is not necessary for us to
pronounce upon the correctness of the decision of the Full Bench in the
case of Bhauri Lal Jain (supra) which in its turn was heavily relied upon
by the latter Full Bench of the Patna High Court in the impugned judg-
F
ment. The appellants arc, as will be demonstrated hereinafter, entitled to
succeed on an entirely different ground which also was placed for our
consideration by Dr. Dhavan, learned senior counsel for the appellants and
which was justifiably contested by learned counsel for the respondent-
authorities. We will, therefore, deal with this solitary ground.
G
The aforesaid narration of facts leading to these proceedings shows
that on 22nd March 1939 when 8 annas share in Moo! Raiyat was conveyed
by one of the co-sharers of the said Jote, namely Bhatu Singh in favour of
Shri Bimal Kanti Roy Choudhury, Section 27(1) of the Regulation was
H holding the field. The said Section 27(1) read with Section 27(3) of the
-- D. SINGH v. COMMISSIONER OF BHAGALPUR [S.B. MAJMUDAR, J.]

Regulation provided as under :
949

A
"27. (1) No transfer by a Raiyat of his right in his holding or any
portion thereof, by sale, gift, mortgage, lease or any other contract
or agreement, shall be valid unless the right to transfer has been
recorded in the record of rights, and then only to the extent to
which such right is so recorded. B
(2) ........... .

(3) If at any time it comes to the notice of the Deputy Commis-
sioner that a transfer in contravention of sub-Section (1) has taken
place, he may, in his discretion, evict the transferee and either c
restore the transferred land to the Raiyat or any heirs of the Raiyat
who has transferred it, or resettle the land with another Raiyat
according to the village custom for the disposal of an abandoned
holding:
D
Provided -

(a) that the transferee whom it is proposed to evict has not been
in continuous cultivating possession for twelve years;

(b) that he is given an opportunity of showing cause against the E
order of eviction; and

(c) that all proceedings of the Deputy Commissioner under this
section shall be subject to control and revision by the Commis-
sioner."
F
It is not in dispute and was not rightly disputed by learned senior counsel
for the appellants that the said transaction prim a f acie appeared to be
violative of Section 27(1) of the Regulation as Bhatu Singh who was a
Raiyat sought to transfer his 8 annas share in the Moo! Raiyat when the
right to transfer which was recorded in the Record of Rights enabled the
Moo! Raiyat to transfer, if at all, his entire rights in the mauza consisting G
of his alienable Moo! Raiyat Ka Jote as he was the Moo! Raiyat. But
learned senior counsel for the appellants submitted that by a family parti-
tion prior to the transaction of sale 8 annas share in the Moo! Raiyat
comprising of 38 acres and 9 decimals fell to the share of Bhatu Singh and
it was his entire share in the Moo! Raiyat that was transferred by the H
f
950 SUPREME COURT REPORTS [1997) 3 S.C.R.

A transaction. Hence Section 27(1) was fully complied with. This contention
is not open to the learned senior counsel for the appellants for the simple
reason that the Full Bench of the High Court of Patna in the impugned
judgment has noted in paragraph 22 that there was a concurrent finding of
the Sub-Divisional Officer, the Deputy Commissioner and then the Com-
missioner that the said transfer was in violation of the record of rights of
B the estate and consequently Section 27(1) of Regulation III of 1872 and
that concurrent finding was not challenged before the High Court and
indeed being based on the relevant record was thus wholly unassailable.
We must, therefore, proceed on the basis that the transaction of sale dated
22nd March 1939 by vendor Bhatu Singh in favour of vendee Bimal Kanti
c Roy Choudhury was violative of Section 27(1) of the Regulation.

But now arises the further question as to how the said transaction
was treated by the authorities charged with the administration of the
Regulation in the area. So far as this aspect is concerned unfortunately the
D attention of the High Court does not seem to have been drawn to it. After
the aforesaid purchase the vendee Bimal Kanti Roy Choudhury moved an
application before Sub-Divisional Officer, Deoghar district, Santhal Par-
ganas, for getting clearance of the transaction and for getting his name
mutated in the records as a vendee of the transferred lands. That case was
E registered as Revenue Miscellaneous Case No. 21 of 1939-40. Thus he drew
the attention of the competent authority in connection with this transaction.
The Sub-Divisional Officer by his order dated 31st May 1939 issued notices
to the parties concerned for objection, if any. Notices were duly served.
The landlord Ghatwal did not file any objection through his agent as noted
in the proceedings of 1st July 1939. The vendee reIPained present there-
F after and the matter got adjourned from time to time. On 19th August 1939
the landlord's agent objected to the clearance of the transaction by saying
that the security offered by other co-sharers was insufficient and that the
purchaser had taken only Moo! Raiyat's interest. Hence notices were
issued to the co-sharers of the late Moo! Raiyat why their share would not
G remain in security. Thereafter on 9th October 1939 vendee's agent and
landlord's agent were present and no one appeared for the co-sharers of
the late Moo! Raiyat. Matter was put up for orders on 2nd November 1939.
On 2nd November 1939 vendee was present. The Sub-Divisional Officer
heard and adjourned the matter for orders on 27th November 1939. On
1
H 27th November 1939 co-sharers of the late Moo! Raiyat did not appear or
D. SINGH v. COMMISSIONER OF BHAGALPUR [S.B. MAJ MU DAR, J .] 951

object. He, therefore, held that mutation was required to be allowed. He, A
therefore, submitted the matter to the Deputy Commissioner for orders.
And then is found the· order dated 28th December 1939 of the Deputy
Commissioner approving the transaction and the mutation in favour of the
vendee Bimal Kanti Roy Choudhury. Accordingly mutation was carried out
on 24th January 1940 and papers were corrected. The aforesaid facts which B
have been brought on record and on which learned counsel for the
authorities could not obviously offer any objection, leave no room for doubt
that the first transaction of sale dated 22nd March 1939 was duly
scrutinised by the competent authorities and the Deputy Commissioner
who approved the same. The proceedings remained under Scrutiny from C
31st May 1939 till 28th December 1939. Thus for seven months the enquiry
went on and ultimately the aforesaid decision was rendered. It must,
therefore, be held that there was ample opportunity for the Deputy Com-
missioner, if so advised, to order eviction of the transferee in exercise of
his powers under Section 27(3) of the Regulation but it appears that in his D
discretion he had waived his objection to the transaction and the same was
regularised. The said inference is inevitable as but for the said mutation in
favour of vendee Bimal Kanti Roy Choudhury would never have been
sanctioned by the competent authority at the relevant time. It must, there-
fore, be held that on the peculiar facts of this case the first transaction of
sale dated 22nd March 1939 was duly approved and cleared by the com- E
petent authority exercising powers under Section 27(3) of the Regulation.
Once that happened a right accrued in favour of the vendee to remain in
possession of the transferred lands admeasuring 38.09 acres in his own
right and the curtain dropped on the said transaction. It is obvious that
thereafter under the said Regulation if it had continued to operate the F
transaction would not have been re-opened once it was found that the
Deputy Commissioner having notice of the transaction had not thought it
fit to exercise powers under Section 27(3) of the Regulation for evicting
the illegal transferee. It may be, as learned counsel for the authorities
rightly submitted that if in a given case relevant facts were not brought to G
the notice of the Deputy Commissioner earlier and if subsequently he had
found that the transaction was violative of sub-Section (1) of Section 27 in
a proper case he could have exercised power under Section 27(3) but such
are not the facts of the present case. As noted earlier seven months elapsed
during which the transaction remained under the gaze of scrutiny of the H
952 SUPREME COURT REPORTS [1997] 3 S.C.R.

A Sub-Divisional Officer and ultimately got scrutinised by the Deputy Com-
missioner himself. Consequently on the peculiar facts of this case it must
be held that the said transaction was duly filtered by the competent
authority who in its discretion approved the same years back on 28th
December 1939. Accordingly it must be held that a right accrued to the
B transferee of the said transfer in his favour under the Regulation. Let
us now see as to what was the effect on this right of the vendee by the
coming into operation of the Act. As noted earlier the Act became
applicable from 1st November 1949. Section 3 of the Act states that the
enactment mentioned in Schedule A are repealed to the extent specified
in the fourth column thereof. When we turn to Schedule A to the Act
C find listed as one of the Acts the Regulation of 1872 and the extent of
the repeal of the Regulation was in connection with Sections 27 and 28.
Once Section 27 of the Regulation stood repealed by the Act, question
arises whether the right which had accrued to vendee Bimal Kanti Roy
Choudhury under the Regulation in connection with the operation of
D Section 27 sub-section (1) and (3) of the Regulation was saved or not
despite the repeal of the said Section 27. A mere look at the relevant
provisions of the Act shows that there is no express provision in the Act
which lays down that notwithstanding the orders passed or actions taken
in connection with transactions under the Regulation, and notwithstand-
E ing any rights which might have accrued thereunder fresh scrutiny of the
said transaction could be made under the relevant provisions of the Act
which corresponded to the earlier repealed Section 27 of the Regula-
tion. When such a contrary intention docs not appear from the scheme
of the Act, the effect of the repeal of Section 27 of the Regulation
squarely attracts the provisions of Section 8 of the Bihar General
F
Clauses Act, 1917 which reads as under :

"8. Effect of repeal. - Where any Bihar and Orissa Act or Bihar Act
repeals any enactment hitherto made, or hereafter to be made,
then, unless a different intention appears, the repeal shall not-
G
(a) revive anything not in force or existing at the time at which
the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed,
H or anything duly done or suffered thereunder; or
D. SINGH v. COMMISSIONER OF BHAGALPUR [S.B. MAJMUDAR, J.] 953

(c) affect any right, privilege, obligation, or liability acquired, A
accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture of punishment incurred in
respect of any offence committed against any enactment so
repealed; or
B
(e) affect any investigation, legal proceeding or remedy in respect
of any such right, privilege, obligation, liability, penalty, for-
feiture, or punishment as aforesaid.

and any such investigation, legal proceeding or remedy may be C
instituted, continued or enforced, and any such penalty, forfeiture
or punishment may be imposed as if the repealing Act had not
been passed."

As repealed Section 27 of the Regulation is re-enacted as Section 20(1) of
the Act and as the latter Act does not project any different and contrary D
intention to set at naught any final orders rendered by competent
authorities under the repealed Section 27 of the Regulation, the repeal of
Section 27 of the Regulation by the Act will not affect any right, privilege,
obligation, or liability acquired, accrued or incurred under the said
repealed provision. Consequently the immunity earned by the transaction E
of 22nd March 1939 under the Regulation and the approval granted to it
by the competent authority, namely, the Deputy Commissioner by his order
dated 28th December 1939 remained available and accrued to the vendee
Bimal Kanti Roy Choudhury despite the repeal of Section 27 of the
Regulation by the Act. Thus on the peculiar facts of this case it must be
F
held that the transaction of 22nd March 1939 cannot be said to have any
adverse effect on the right of the vendee under the said transaction and he
remained perfectly competent to deal with the transferred 38.09 acres of
land covered by the said transaction in his favour which was duly filtered
by the then competent authorities under the Regulation. Consequently the
decision rendered on the merits of this transaction by all the authorities G
below and which came to be accepted by the High Court in the impugned
judgment cannot be sustained on account of these salient tell-tale facts
which have remained undisputed on record of the case.

The second transaction which is on the ·anvil of scrutiny is the sale H
954 SUPREME COURT REPORTS [1997] 3 S.C.R.

A dated 26th June 1950 by Bimal Kanti Roy Choudhury in favour of Radha
Prasad Singh, father of the appellants. So far as this Sa.le Deed is concerned
it stands on a still stronger footing. By the said Sale Deed the entire right,
title and interest of Bimal Kanti Roy Choudhury in 38.09 acres of land got
conveyed to Radha Prasad Singh. Consequently it could not be said to be
B a transfer which was hit by Section 20 of the Act. The relevant provisions
thereof read as under :

"20. Transfer to Raiyat's rights. - (1) No transfer by the Raiyat of
his holding or any portion thereof, by sale, gift mortgage, will, lease
or any other contract or agreement express or implied, shall be
c valid, unless the right to transfer has been recorded in the record
of rights, and then only to the extent to which such right is so
recorded.

Provided that a lease of Raiyati land in any subdivision for the
purpose of the establishment or continuance of an excise shop
D thereon may be validly granted or renewed by a Raiyat, for a period
not exceeding one year, with the previous written permission of
the Deputy Commissioner :

Provided further that where gifts by a recorded Santhal Raiyat
to a sister and daughter are permissible under the Santhal law,
6 E such Raiyat may, with the previous written permission of the
Deputy Commissioner, validly make such a gift.

Provided also that an aboriginal Raiyat may, with the previous
written permission of the Deputy Commissioner, make a grant in
F respect of his lands not exceeding one half of the area of his
holding to his widowed mother or to his wife for her maintenance
after his death.

(2) ........... .

G (3) ........... .

(4) .......... ..

(5) If at any time it comes to the notice of the Deputy Commis-
sioner that a transfer in contravention of sub-Section (1) or (2) has
H taken place he may in his discretion evict the transferee and either
D. SINGH v. COMMISSIONER OF BHAGALPUR [S.B. MATMUDAR, J.) 955

-- restore the transferred land to the Raiyat or any heirs of the Raiyat
who has transferred it, or re-settle the land with another Raiyat
A

according to the village custom for the disposal of an abandoned
holding:

Provided that the transferee whom it is proposed to evict shall B
be given an opportunity of showing cause against the order of
eviction."

It would at once become clear that Section 20(1) of the Act runs parallel
to the scheme of the earlier provisions of Section 27(1) of the Regulation.
Bimal Kanti Roy Choudhury was a Raiyat who was recognised as the Moo! C
Raiyat by the competent authorities under the Regulation. His entire right,
title and interest in the said land which was an alienable jote was trans-
ferred under the said second transaction in favour of the appellants' father.
The right to transfer was duly recorded in the Record of Rights and
required the transferor to transfer if at all his entire right, title and interest D
in the Moo) Raiyat. That is precisely what was done by Bimal Kanti Roy
Choudhury in favour of the appellants' father by the transaction dated 26th
June 1950. Therefore, this transaction did not offend the provisions of
Section 20(1} of the Act. If that is so, it remained fully within the
forecorners of the said provision and could not be treated to be illegal or
invalid from any angle. Consequently there would remain no occasion for E
the authorities to invoke Section 20( 5) of the Act read with Section 42
thereof in connection with this latter transaction of sale dated 26th June
1950. In fact in fairness to the respondents it must be submitted that all
authorities below as well as the High Court by the impugned judgment have
considered the invalidity of the first transaction of sale dated 22nd March F
1939 and in that light they have voided the second transaction as a conse-
quential transaction. Once the nexus between the two sales gets .snapped
and the earlier transaction by itself cannot be found fault with from any
angle, then there would remain no occasion for the respondent-authorities
to invoke the provisions of Section 20(1) read with sub-Section (5) and
Section 42 of the Act in connection with even the second sale transaction G
dated 26th June 1950. Once that conclusion is reached the result becomes
obvious. On these peculiar facts there is no escape from the conclusion
that the possession of the appellants as heirs of deceased vendee Radha
Prasad Singh can be said to have been validly obtained and a valid title
that was conveyed in land admeasuring 38.09 acres, to their father Radha H
956 SUPREME COURT REPORTS [1997) 3 S.C.R.

A Prasad Singh under the second sale transaction dated 26th June 1950, got
legally transmitted to the appellants by rules of succession. Consequently
on these facts no action could have been taken by the authorities under the ...
relevant provisions of the Act against the appellants. Only on this short
ground, therefore, the appeal is required to be allowed. We make it clear
that in view of the aforesaid decision of ours we have not thought it fit to
B consider the correctness of the decision of the Full Bench of the High
Court in the case of Bhauri Lal Jain (supra) as well as the impugned
judgment of the Full Bench in connection with the adverse possession of
the vendee under an invalid transaction of land in area being violative of
Section 27(1) of the Regulation or Section 20(1) of the Act. That question
C is, therefore, kept open. Similarly we have also not thought it fit to go into
the wider question canvassed by learned counsel for the respondent-
authorities that even if mutations are rendered by the authorities under the
Regulation or the Act if on subsequent facts being brought to the notice
of the Deputy Commissioner and once there was no earlier occasion or
D possibility for the Deputy Commissioner to exercise powers under Section
21{5) of the Act or 27(1) of the Regulation, such power could be exercised
later on under those circumstances. We leave that question also open as it
is not necessary for us to pronounce upon the same in view of the decision
rendered by us on the merits of the impugned two transactions as seen
earlier.
E
In the result the appeal is allowed. The judgment and order of the
High Court are quashed and set aside. Similarly the decision rendered by
the Additional Deputy Commissioner, Dumka dated 30th September 1975
as well as thr. decision rendered by the Commissioner dated 2nd June 1976
are also quashed and set aside and the application moved by respondent
F Nos. 4 to 15 under Section 20 sub-Section (5) read with Section 42 of the
Act is ordered to be dismissed. In the facts and circumstances of the case
there will be order as to costs.

I.M.A. Appeal allowed.

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