RAM KISTO MANDAL AND ANR. versus DHANKISTO MANDAL

Citation: [1969] 1 S.C.R. 342 · Decided: 15-07-1968 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

RAM KISTO MANDAL AND ANR. 
v. 
DHANKISTO MANDAL 
July 15, 1968 
[J.M. SttELAT AND K. S. HEGDE, JJ.] 
Sontha/ Parganas Sett/e111ent ReRulation 3 of 1872--Cerrain tra1isfers 
of land ban:ed by s. 27 of Rcgulation-Exchan,(?e of land 1vhetlzrr surh 
trans/er-H1gh C.'ourt nitt.rt take notice of plra even if not raised at earlirr 
stage-Burden of provin;: that s. 27 applicable. on H·ho1n /ies--Suit u·he1~ 
barred by s. 11 of Regulation. 
Indian Li111itation Act. 1908, Art. 141-Transferee fron1 1vidow 1vith 
life estate whether can claim r.dverse possession against rcversioners. 
A widO\\' \vilh cl life estate in certain raiyati lands in the 
Sonthal 
Parganas in Bihar exchanged a part of the lands for other lands. 
After 
her death her hmhand's rcvcrsioncrs filed a suit challenging this cxchaniie 
ns \Veil as certain other transfers. 
The trial court as v:ell as the fi"rst 
appellate court decided in favour of the plaintiffs. 
The High Court how-
ever held that the ;iforcs.'lid exchange of land was a valid transaction and 
that the plaintiffs v.
1erc not entitled to raic;e for the first time before it 
the pica that transfers of land by exchange were prohibited by s. 27 of 
th·o Sonthal Parganas Settlement Regulation 3 of 1872. The High Court 
gave two reasons for not al10\\1ing 1he ple;1 to he raised for the first time 
hcforc it, namely (a) that the defendants could have sho\vn if the c'on-
tention had been raised earlier that as provided h~· s. 27(1) the l"';!Cord of 
rights had set out the right of the last female holder to franc;fer the said 
land• and that if that were so. s. 27 would not bar transfer of the soid 
lands by such a person; and (b) that the defendants could also have 
contended that if the said exchange \\'as invalid hy reason of ~c;. 27(1), 
they held the lands ~ftcr thz said exchange adversely to the rcvcrsioncrs 
and that (hey being: in possession for more than twelve years their title 
v.·ac; completed by advers.~ possession. 
Against the 1-ligh Court's judgment 
the plaintiffs came as appellants to this Court. 
The questions that fell 
for consideration \\·ere: (i) 
v.·he~her the High Court \vas right in dis-
allowing the appellants to raise hcfore it the plea hascd on s. 27( I) of 
the Regulation 3 of 1872; (ii) whether the appellants' claim e-0uld .ho 
rec;isted on the ground of adverse possession under Art. 141 of the Indian 
Jjmitation Act, 1908; (iii) 
whether an exchange of land was lransft:r 
within the meaning of s. 27(1) of the Regulation; (iv) whether the vali-
dity of the exchaOgc could not be challenged in vic\v of s. 11 of the 
Re_aulation. 
HELD: (i) The High Court was not right in disallo\1.-·ing t~e conten-
tion based on s. 27( I) on the ground that it \\o"ao; not raised carh~r bccau~e 
from the District Court"s iud~mcnt it \~~is clear that the contention \\'3S An 
fact canvassed before it [346 G-H] 
A 
B 
c 
D 
E 
F 
G 
The language of s. 27 is moreover clear and unarnbiguous. lt prohibits 
anv transfct of a holding by a raiyat either by sale, m~rt!!age or lea<>c .or 
ll 
bv· any other contract or agreement. 
!he section 
is 
comprchcns1ve 
enough to include a transfer of the holding by \Vay of an exchange. Sub-
section (2) of the s. 27 in clear terms enjoins upon the courts not to 
recognise any transfer of such lands by sale, mortgag~. lca-;c etc. or by 
A 
B 
.. 
c 
D 
E 
F 
G 
H 
RAM KISTO v. DHANKISTO (She/at, J.) 
343 
or under any other agreement or contract whatsoever, 
Therefore, even 
assuming that the contention as to the invalidity of the said exchange 
under s. 27 was raised for the first time before the High Court, the 
language of sub-s. 2 being absolute and clear, the High Court had to take 
notice of such a contention and was bound to hold such an ex:change 
invalid if it was showo that sul)-s. (I) applied to the transaction [347 
c,E] 
The burden of showing that s. 27 applied to the case was on the appel· 
lants. 
But once it was shown that the lands exchanged were raiyati lands 
situate in the Sonthal Parganas, if the respondent wanted to show .that the 
prohibition did not apply by relying on the exception to th·e rule laid down 
in sub-s. (1) the burden to prove that exception would shift on to the 
respondent. 'rt was, therefore, for the respondent to establish that the 
record of rights contained an entry to the effect that the transferor m 
respect of those lands had the right to transfer them. 
The High Court 
was, therefore, 
not justified in disallowing t

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