# RAM KISTO MANDAL AND ANR v. DHANKISTO MANDAL

- **Citation:** [1969] 1 S.C.R. 342
- **Court:** Supreme Court of India
- **Decided:** 1968-07-15
- **Bench:** J.M. SttELAT, K. S. Hegde
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-kisto-mandal-and-anr-v-dhankisto-mandal-4408
- **Pages:** 9

## Headnote

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 however 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'ontention 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 disallowing 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 validity 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 contention 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. Subsection (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
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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 prov

## Text

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 however 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'ontention 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 disallowing 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 validity 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 contention 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. Subsection (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
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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 the appellants contention
basad on s. 27 on the ground that if it had been raised earlier the respondent would have shown that there was such an entry in the Record
of Rights as to the Tranferor's right to transfer the. said lands (348 C-E]
(ii) The High Court was also not correct in disallowing the said
contention on the ground that the respondent could have shown that he
had completed his title to the properties in question by adverse possession,
if the said exchange was invalid under s. 27.
Such a plea was in fact
raised by the respondent and was rightly rejected by the District Court.
A person who has been in adverse possession for twelve years or mo're
of property inherited by a widow from her husband by any act or omission
on her part is not entitled on that ground to hold it adv·ersely as against
the next reversione'rs on the death of such a widow. The next reversioner
is entitled to recover possession of the property if it is immoveable, within
twelve years from the
widow's death under
Art. 134 of the
Indian
Limitation Act, 1908.
This ·rule does not rest entirely .on Art. 141 but
is in accord with the principles of Hindu Law and the ~neral p'rinciple
that as the right of a reversioner is in the nature of a spes successionis
and he does not trace that title through or from the widow, it would be
manifestly unjust if he is to Jose bi's right by the, negligence dr sufferance
of the widow. (348 F-H, 349 B]
Kalipada Chakraborti v. Palani Bda Devi, [1953] S.C.R. 503, relied
on.
.
(i~) Under s. 118 of the Transfer of Property Act, 1882, a transaction 1s exchange when two persons mutually transfer the ownership of
one thing for the ownership of another provided it is not an exchange for
money only.
A transfer of property in completion of an. exchange can be
made only in the manner provided for the transfer of such property by
sale.
It is not therefore, right to say that an exchange does not involve
transfer of property and therefore does not fall within the scope
of
s. 27. The exchange in the p'resent case was made when s. 27 was in force
and its subsequent repeal could not have
the effect of rendering an
invalid and void transaction a valid and binding transaction [349 C-FJ
(iv) The only effect of s. 11 of the Regulation is that a decision of a
settlement officer under the Regulation has the force of a decree of a
civil court and such a decision can only be challenged subsequently in a
court of law to the limited extent provided in s. 25A.
However
the
question whether in the present case the exchange was valid or not by
'reason of s. 27 was
neith~r agitated before, nor determined by, any
settlement officer or court and therefore the bar of s. 11 could not apply
to the present suit [349 HJ
'
3"4
SUPRDI E COURT REPORTS
[!969] I S.C.R.
C1v1L APPELLATE Jl:RISDICTION : Civil
Appeal No.
I 123
A
of 1965.
Appeal by special leave from the judgment and decree dated
March 20. 1963 of the Patna High Court in Appeal from Appellate Decree No. 1467 of 1968.
B. I'. Jha, for the appellants.
R. C. Prasad, for the respondents.
The Judgment of the Court was delivered by
Shelat J.
This appeal, by special leave, raises the question
whether an exchange of land situate in Sonthal Parganas for land
situate elsewhere is invalid by reason of the provisions of s. 27 (I)
of the Sonthal Parganas Settlement Regulation, 3 of 1872. It is
not in di<pute that the lands in question, set out in Scheduie B
to the plaint were raiyati lands and were ~overned by the said
Regulatiou.
'
The appeal arises from a suit filed by the appellants
fo1
a
dcclar:ition of title and possession of lands described in ~cheduks
B, C and D to the plaint. The lands belonged to one Tonu Mand•!
"ho died several years ago leaving him surviving two daughters.
Manoda <llld Nilmoni Dasi.
Manoda died in 1940 and Nilmoni
Dasi died in 1948. On the death of the said Torrn Manda!, the
two daughters inherited his property as limited owners. Ther:! was
a scl!lem~nt thereafter between them as a result of which the said
Manoda got I 0 annas share and ihe said J\ilmoni Dasi got 6 annas
share in the said properties.
On Manoda·s death, Nilmoni Da"si
succeeded to her share.
Consequently. Nilmoni Dasi was possessed of the entire property of Tonu Manda! as a limited owner.
The said Nilmoni Dasi had four sons, all of whom died during her
life time.
She left, however, grancbons surviving
her.
These
grandsons were defendants first party in the suit and Scheduk D
properties were in their possession at the time when the suit was
fil.:d.
T:ic said Nilmoni Dasi had executed a sale deed in 1314
Bcn~Jli Sambat Year in respect of Schedule C properties in favour
of the predecessors-in-title of the defendants third party and these
dcf~ndants were in possession of those properties at the date of the
suit.
Jn 1295 Bengali Sambat Year, she had also executed a deed
of cxchar.gc in favour of one Premmoyce Dasi under which she
gave away Sch. B properties in exchange for Sch. E properties
situate in villa)!e Gokrul.
In accordance with the said exchange.
the names of the two ladies were recorded
as
raiyats of the
respective properties.
The descendants of the said. Premmo~cc
Dasi were defendants of the second party and were m possession
of Sch. n properties at the date of the suit.
TI1e defendant; of
the first party were in possession of Sch. E properties.
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RAM KISTO v. DHANKISTO (She/at, J.)
345
The said Tonu Mandal had two brothers, Santusta Mandal
and Bhim Manda!. Plaintiff 2 was the sole surviving descendant
of Bhim Mandal when the said Nilmoni Dasi died, and plaintiff
1 :md the defendants of the fourth party. Kalipada and Gobind,
were the surviving descendants of the said Santusta Manda! at
that time.
Under the Dayabhaga law by which the parties were
governed the two appellants (plaintiffs) and the defendants of
the fourth party were the nearest reversioners of the sa!d Tonu
Manda! after the death of Nilmoni Dasi and were entitled
tu
succeed to his estate, the share of the appellants and that of the
defendants of the fourth party being equal.
The said
Gobind
Manda! died while the suit was pending and his sons and widow
were brought on record as his legal representatives.
The appellants' case was that the said sale deed in favour of
the defendants of the third party and the said deed of exchange
in favour of the said Premmoyee Dasi were not valid and binding
on them, being neither for legal necessity nor for the benefit of
the e3tate of Tonn Manda! and that defendants of the first party
had no right, title or interest to the properties in their possession
after Nilmoni Dasi died.
The defendants, on the other hand,
contended that the said sale and the said exchange were for legal
necessity or for the benefit of the estate and that as they were in
possession of the said properties for a very Jong time their title
thereto had ripened in any event by adverse possession. The trial
court and the District Conrt in appeal concurrently found that
the said Nilmoni Dasi was in possession of Schs. D and E properties and though the defendants of the first party took possession
on her death of the said properties, they had no right, title or
interest therein and were
trespassers.
Both the courts
also
rejected the plea of adverse possession on the ground that Art. 141
of the Limitation Act,. 1908 applied enabling the appellants, as
reversioners, to file a suit for possession within twelve years after
the death of the said Nilmoni Dasi. They also concurrently found
that the said sale deed in favour of defendants of the third party
and. the said deed of exchange in favour of the said Premmoyee
Dasi, the mother of defendant 6, were neither for legal necessity
nor for the benefit of the estate of Tonu Manda!. The trial Court,
on these find~gs, passed a decree, which was confirmed by the
D1stnct court, 111 favour of the appellants declarincr their title to an
8 anna_s share in Schs. B,. C and D properties a'i°id granted joint
p~sse_ss10n thereof_ along w1~ defendants of the fourth party. The
D1stnct court while confirmmg the decree passed by the
trial
court clarified that in view of the finding that the said deed of
exchange was not valid and binding on the appellants, the respundent (defendant 6) was entitled to fall back upon Sch. E properties.
346
SUPREME COURT REPORTS
[ 1969] I S.C.R.
Aggrieved by the said judgment and decree passed by the
District Court, the respondent liled second appeal No. 1467 of
1958 and the two grandsons of the said Nilrnoni Dasi, Tribhanga
Gorain and Pawan Gorain, preferred second appeal No. 1468 of
1950 in the High Court. The High Court dismissed second appe;1I
·No. 1468 cf 1958 on the ground that it was not entitled to interfere with the concurrent findings of fact arrived at by the trial
court a;;d the District court. So far as second appeal No. 1467
o1 1958 was concerned, the High Court came to the conclusion
t!lat the said deed of exchange executed by Nilmoni Dasi was valid
and bind111g on the appellants and consequently set aside the
decree in relation to Sch. B properties and dismissed the appellants'
suiL in regard there.to.
Before the High Court, the appellants raised two contentions
in regard to Sch. B properties : ( 1) that the said exchange was
neither for legal necessity nor for the benefit of the estate of Tonu
Manda!; and (2) that in any events. 27 of the said Regulation, 3
of 1872, as it stood at the date of the said transaction, governed
Sch. B properties which were admittedly raiyati properties and
forb;i<le any transfer thereof and, therefore, the said exchange ''as
inv3lid.
As regards the first contention, the High Court held
that though the said exchange could not be said to be for kgal
necessity, it was for the benefit of the estate. Regarding the second
ccntention, the High Court disallowed the contention
on the
ground that it was raised for the first -time <luring the ar!,'lllllcnts
before it and it could not allow it to be raised as it involved a:1
investigation of certain facts, namely, (a) that the respondents
could have shown if the contention had been raised earlier that as
provided by s. 27{1 ), the record of rights had set out the nght
of Nilmo~1i Da>i to transfer the said lands and that if that were
so,'s. 27 would not har transfer of the said lands by such a person;
and (b) that the respondents could also have contended thal if
tl'e said exchange was invalid by reason of s. 27 (1), they held
the lands after the said exchange adversely to the reversioners of
Nilmoni Dasi and that they hcing in possession for more tilan
twelve years their title was completed by adverse possession.
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The High Court, however, was not correct in its view that the
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contention based on s. 27 ( 1) was raised for the first time in the
cour<e of arguments before it.
It is clear from the judgment of
the District court that the contention based on s. 27 was in fact
canvassed before it.
That is clear from the fact that the District
Judge, in the course of his judgment, has clearly drawn a distinction between lands situate in Sonthal Parganas, that is, Sch. B
H
properties, and the lands situate in village Birbhum, that is Sch. E
properties and has observed that whereas s. 27 applied to the
former it did not apply to the latter. The High Court. therefore,
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RAM KISTO v. DHANKISTO (She/at, J.)
347
was not right in disallowing the said contention on the ground
that it was not raised earlier.
Section 27 of the Regulation laid down an absolute bar to
sales of the rights of a raiyat. As aforesaid, it is not in dispute
that the said Nihnoni Dasi was a raiyat in relation to the lands in
Sch. B properties. The section provided that "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 agreei;nent, shall be
valid unless the right to transfer has been recorded m the Record
of Rights and then only to the extent to which such right is
recorded".
Sub-section (2) of that section provided that "l'io
transfer in contravention of sub-section ( 1) shall be registered or
shall be in any way recognised as valid by any court whether in
the exercise of civil, criminal or revenue jurisdiction." The
language of s. 27 is clear and unambiguous. It prohibits any
transfer of a holding by a raiyat either by sale, gift, mortgage or
lease or by any other contract or agreement. The section is comprehensive enough to include a transfer of the holding by way of
an exchange. The Sch. B properties were admittedly of raiyati
character and were, therefore, inalienable.
Sub-section (2) of
s. 27 in clear terms enjoins upon the courts not to recognise any
transfer of snch lands by sale, mortgage, lease etc. or by 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 au exchange as invalid if it was shown that sub-s. (3)
of s. 27 applied to that transaction.
The prohibition against transfers of raiyati lands situate in
Sonthal Parganas has its roots in the peculiar way of life of Sonthal
villages, which favoured the emergence of a powerful village community with its special rights over all the lands of the village.
This community of village raiyats has preferential and reversionary
righ[> ovec all lands in the village, whether cultivated or uncultivated. There is also in the majority of the villages of this district
a headman, who, in addition to performing certain village duties,
collects rent from the raiyats and pays it to the proprietor. One of
his duties in his capacity as the headman is to arrange for settlement of lands in his village which may fall vacant and be available for settlement. All the raiyats in the village are included in
the Jamabandi prepared for the village and it is the headman's
duty to settle the available land to one of the Jamabandi raiyats.
It is manifc.st that the interest of the village co=unity as also of
the headman would suffer if the land, which as raiyati land would
be included in the J amabandi, is allowed to be taken out of the
total quantity of the raiyati lands. If once these lands are allowed
. 348
SUPREME COURT REPORTS
(1969] I S.C.R .
to lose their raiyati character, it is certain Ihc village may find in
the course of a few years the toial stock of land available for sculernent to 1 esident raiyats dwindling before their eyes.
It was in
this state oi things that the alienation of a raiyati holding in any
form was interdicted by Government orders in
1887.
Tilcsc
on.icrs had the effect of checking the practice of open transfers.
But 1ransfers in disguised fom1s continued as is clear from a nole
by ~lcPherson to the senlement report of the Sonthal Parganas
wherein he warned against such disguised transfers. His note was
accepted hy Government and the result was the amendmem of the
Regulation hy which s. 27 was inducted therein:
(see Jyotish
Thakur v. Taraka11 Iha)(').
Section 27 having thus laid down a prohibition against li~·ns
fer of raiyati land, the burden of showing that it applied and,
therefore, the said exchange was invalid was, no doubt, upon the
;1p1;cllams.
But once it was shown that the subject matter of the
exchange, namely,_ Sch. B properties, was raiyati land situate in
Scnthal Parganas, if the respondent wanted to show that the
prohibition did not apply by relying upon .the exception to the
rule laid down by sub-s. (I) the burden to prove that exception
would shift on to the respondent. It was, therefore, for the respon-
.dent to establish that the record of right' contained an entry to
the effect that the transferor in respect of those lands had the right
to trans[cr them.
The High Court, therefore, was not justified in
.disallowing the contention raised by the appellants either on the
ground that the said contention was raised for the first time before
it or on the ground that if raised earlier, the respondent could
haw sl:own that there was such an entry in the Record of Rights
us lo Ihe tr;insferor's right to transfer the said lands.
The High Court also was not correct in disallowing the said
·Contention on the .ground that the respondent could have shown
that he had completed his title to Sch. B properties by adverse possession if the said exchange was invalid under s. 27. Such a pica
w'ls in fact raised by the respondent and was rightly rejected by
the District court on the ground that s. I 4 I of the Liniitation Act,
1908 applied and that the suit having been filed only two years
after the death of Nilmoni Dasi, their claim to a declaration and
possession was not barred. A person who has been in adverse
posse>sion for t.welve years or more of property inherited by a
widow from her husband by any act or omission on her p;:rt is
not en:itled on that ground to hold it adversely as against the next
rcvc"inncr> on the death of such a widow.
The next revcr;'.oner
is entitled to recover possession of the property, if it is immovabl~.
within twelve years from the widow's death under Art. 141. This
rnle C•)eS not rest entirely on Art. 141 but is in accord with the
(I) [196.'\] s~1pr!. l S.C.R. !1. 20, 21.
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RAM KISTO v. DliANKISTO (She/at, J.)
349
A
principles of Hindu law and the general principle that as the right
of a reversioner is in the nature of spes succession is and he does
not trace that title through or from the widow, it would be manifestly ,unjust if he is to lose his right by the negligence or sufferance of the widow :
(cf. Kalipada Chakraborti v. Palani Bala
Devi(') and Mulla's Hindu Law, 13th ed. 233). The High Court
B
was thus in error in disallowing the said contention on either of the
two grounds suggested by it.
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Counsel for the respondent, however, contended that s. 27
does not in express terms mention an exchange and, therefore, a
transaction of exchange was beyond the scope of that section.
Under s. 118 of the Transfer of Property Act, 1882, a transaction
is exchange when two persons mutually transfer the ownership
of one thing for the ownership of another provided it is not an
exchange of money only. A transfer of property in completion
of an exchange can be made only in the manner provided for the
transfer of such property by sale. It is not, therefore, right to say
that an exchange does not involve transfer of property and, therefore, does not fall within the scope of s. 27. As aforesaid, the
language of s. 27 (1) is comprehensive enough to include any
agreement or contract of exchange and, consequently it must be
held, given the other conditions of that section, that that section
would apply to a transaction of exchange. It is true that ss. 27
and 28 of the Regulation were repealed by the Santai Tenancy
(Supplementary Provisions) Act, 14 of 1949. But s. 27 was in
force when the said transaction of exchange was made and governed the transaction made by Nilmoni Dasi and Premmoyee Dasi.
That transaction being invalid and void, the fact that s. 27 was
subsequently repealed made no difference as the repeal could not
have the effect of rendering an invalid and void transaction a
valid and binding transaction.
·
The next contention was that by reason of s. 11 of the Regulation, the appellants' suit was not maintainable as the validity of
the said excliange c.ould not be agitated in a court once the settle
ment court had made an entry in regard thereto. Section 11 lays
down that except as provided in s. 25A no suit shall be filed in any
civil court regarding any matter decided by any settlement officer
and his decisions and orders regarding tlm interests and rights
above-mentioned shall have the force of a decree of a court. But
neither s. 11 nor s. 25A of the Regulation has any application to
the facts of the instant case. The only effect of s. 11 is that a
decision of a settlement officer under the Regulation has the force
of a decree of a civil court and such a decision can only be
challenged subsequently in a court of law to the limited extent
provided by s. 25A.
However, the question whether the said
(1) [1953] S. C. R. 503.
12Sup.C.1168-8
350
SUPREME COURT REPORTS
(1969] J s.c.lt.
exchange of Sch. B properties for Sch. E properties was invalid or
A
1101 by reason of s. 27 was neither agitated before, nor determined
by, any se1tlcme111 officer or court and, therefore, the bar of s. 11
cannot apply to the pres~nt suit. That being the position, we do
net see any merit in the contention raised by counsel on the basis
of s. 11.
For the reasons aforesaid, the High Court was in error in
interfering with and setting aside the decree passed by the trial
court and confirmed by the District Court.
The District court
was also right in holding that in view of the appellants being
entitled to Sch. B properties, they were not entitled to their alternJLive claim in respect of lich. E properties and that consequently
the successors-in-title of the said Premmoyee
Dasi
would
be
entitled to Sch. E properties. We, therefore, allow the appeal, set
aside the judgment and decree passed by the High Court and
restore the decree passed by the trial court and confirmed by the
District court.
The respondents will pay to the appellanls the
costs of this appeal and in the High Court.
Appeal allowed.
G.C.
B
c
D
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