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KJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.363 OF 2012
SECOND APPEAL NO.364 OF 2012
SECOND APPEAL NO.365 OF 2012
WITH
CIVIL APPLICATION NO.1016 OF 2012
IN
SECOND APPEAL NO.365 OF 2012
Shri Sharad Baburao Latkar
Age-51 yrs., Occ.Business,
)
)
R/o. 261, Yadogopal Peth, Satara, )
Tal. & Dist. Satara )....Appellant
V/s.
1 Shri Sharad Wasudeodas Gujar )
Age-64 yrs. Occ. Business, )
R/o. 349, Yadogopal Peth, Satara )
2 Prashant Ganesh Kulkarni )
Age-48 yrs. Occ.Classes, )
R/o "Dnyanpeeth", 140, Somwar Peth )
Satara )....Respondents
----
Mr.Vishwanath S.Talkute for the appellant.
Mr.V.A.Thorat i/by P.B.Gujar for the respondent no.2.
----
CORAM : MRS.MRIDULA BHATKAR, J.
DATE : 27/28 th SEPTEMBER, 2012.
ORAL JUDGMENT :-
1 By consent of parties, these appeals are decided finally at
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the stage of admission. The learned Counsel for the appellant has produced the compilation of documents and the material documents are on record hence no need to call record & proceedings. The substantial question of law is very short so by consent matter is heard finally at admission stage. Appeals are admitted on following substantial questions of law :-
(1) In view of provision of Section 80 of Standards of Weights and Measures Act, 1976 and also Legal metrology Act 2009 the sale deeds of the suit land in favour of the respondents and order passed by the courts below are contrary to the law and void ?
(2) Whether by accepting aanewari the appellate court has committed an error in ascertaining the share of the plaintiff and the respondents in CTS No.260 or not ?
2 These three Second Appeals are filed against the judgment and order dated 31.10.2011 passed by the First Appeal Court. The suit property and parties in all these three appeals are same therefore, by a common judgment, these three appeals are decided.
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3 There are two suits and three First Appeals, therefore, the
status of the parties has interchanged from the plaintiffs to the defendants and the appellants to the respondents, so it will be convenient for better understanding to address the parties by their names. Sharad Baburao Latkar the appellant/plaintiff has filed Regular Civil Suit No.526 of 1991 initially for partition and mandatory injunction and subsequently prayer was modified and relief of declaration and perpetual injunction were prayed before this Court.
He sought declaration that he has ½ share in the suit property ie.
CTS No.260 of city Satara. The said suit was dismissed.
4 Shri Sharad Vasudev Gujar and others the respondents ie. Original plaintiffs have filed a Suit No.365 of 1991 for mandatory injunction and declaration. In the said suit Gujars claimed that they have 10 aanas 8 paisa share in CTS No.260 ie. Suit property. The trial court dismissed the suit filed by the appellant Latkar and partly allowed the suit of the respondents. Though trial court granted prayer of mandatory injunction in Suit No.365 of 1991, prayer of declaration has been granted to the extent of 8 aanas ie ½ share in the suit property. The appellant Latkar thereafter filed two appeals challenging the judgment and order of dismissal of the Suit No.526 of 1991 and also against the judgment and order decreeing partly Suit ::: Downloaded on - 02/08/2016 16:43:32 ::: 4 SA363.12 No.365 of 1991.
5 The appellant Latkar has filed two appeals. Appeal No.281 of 2003 was filed against the dismissal of RCS No.526 of 1991 and Appeal No.282 of 2003 was filed agaisnt the judgment and order allowing decree of mandatory injunction in RCS No.365 of 1991. The respondent Gujar filed Appeal No.256 of 2003 against the judgment and decree partly allowing his suit and challenged the denial of his share to the extent of 2 aanas & 8 pai. Appeal court after hearing appeal filed by the appellant Latkar remanded the matter to tender the evidence and to record findings of the trial court on the point of his share based in his sale deed. The trial court recorded evidence and gave findings. The findings were recorded in favour of Latkar the appellant that the appellant is having ½ share in the suit property and therefore, the respondent Gujar filed cross-
objection in the said appeal and all the matters were heard together and finally the appeals filed by the appellant Latkar were dismissed and appeal and cross-objection filed by the respondent Gujar were allowed.
6 Being aggrieved by the order of the First Appeal Court, these three Second Appeals are filed by Latkar the present appellant.
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7 To comprehend the matter the facts can be briefly stated.
The appellant and the respondent both have purchased some portion of CTS No.260. The suit land CTS No.260 is a strip which runs north south and on the eastern side, survey no.259 of respondent-Gujar is situate and on the western side survey no.261 is of the suit land.
Thus CTS No.260 is sandwiched between these two survey numbers. There is no dispute that both the parties have purchased some portion of land out of survey no.260. The only dispute is in respect of how much share was purchased by both the parties. The appellant has constructed a shed on the suit land and claims that he has constructed a shed on his share of the land. However, respondent denied that the said shed is a structure restricted to the land purchased by the appellant but it is an encroachment on the portion of the suit land which is purchased by the respondent. As per the evidence produced by both the parties, CTS No.260 was alloted to one Deuskar family by way of Sanad (Exh.48). It was alloted jointly to 7 members of family of Deuskar. As per the case of the appellant one Shivram Deuskar being karta of the family sold ½ share of suit land to one Herwadkar and from Mr.Herwadkar the appellant Latkar has purchased the said ½ portion of the said land on 24.11.1987 by (Exh.48).
8 On the other hand, respondent Gujar step by step has
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purchased the other portion of the land. Initially one Shrikrishna
Deuskar and Vishwanath sold their share to the extent of 2 aanas 8 paisa in favour of Ravindra Raut on 26.11.1987. Thereafter another member of Deuskar family Vishnu has sold his 2 aana 8 paise share dated 22.7.1988 in favour of Ravindra Raut. From Ravindra Raut, respondent-Gujar purchased on 24.12.1990 by sale deed, all the land which was purchased by Ravindra Raut earlier ie 28.16 sq. m.
Gujar purchased on 3.7.1991 from Madhukar, Madhuri & Milind Deuskar land of 2 aana 8 paise ie 14.8 sq.m and also from Vishnu share of 2 aana 8 paise ie 14.8. sq.m. Thus respondent claim total 10 aana 8 pai share on the suit land. During the pendency of the appeal, respondent-Gujar sold his land to one Prashant Kulkarni by sale deed dated 4.4.2009 Exhibit-158. Thus Prashant Kulkarni is now by way of amendment is impleaded in the array of party respondent in the respective appeals.
9 The dispute is whether the respondents have purchased 10 paisa 8 aana share or 8 aana share in the suit property and whether appellantpurchased 8 aana share in the suit property ? The appellant claims that he has purchased ½ share of CTS No.260. If it is accepted that the appellant has purchased 8 aana share then other half share is obviously consists of 8 aana thus raises question about 2 aana and 8 pai in respect of the property of the respondents.
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10 The learned Counsel for the appellant has raised the first
objection that while describing the area of the suit properties mentioned in the sale deeds scale of aanewari instead of square feet or square meters is used. He submitted that sale deed ie Exhibit-
131 when respondent no.1 purchased land from Ravindra Raut, area of the land purchased was shown as 28.16 sq. meters. He argued that Standards of Weights & Measures Act 1976 was came into force in 1976 and Section 80 was amended w.e.f. 1.7.1987. Thus as per the requirement of the Section, the scales in contract or agreement or in order or deed, are to be used in terms of the units of weights or measures or numeration as mentioned in the Act and contravention from the provision, will render the document void. He relied on sub-section 3 of Section 80 of the Act. He further argued that even in the judgment and orders passed by the appellate court, the appellate court has used the terms 10 aana & 8 paise which is contrary to the provisions of Section 80(3) of the Act.
11 The learned Counsel in respect of 2 nd question of law, submitted that the findings given in respect of the area Exh.159 ie the sale deed which was between Gujar and the purchaser Kulkarni to the extent of 78.6 sq.mtrs is erroneous. He submitted that CTS No.260 is 117.9 sq. meters. If the area is 117.9 sq. meters then 50% ::: Downloaded on - 02/08/2016 16:43:32 ::: 8 SA363.12 of the said area comes to 58.40 sq.mtrs approximately and the respondent can claim only that area. It is further submitted that in the sale deed Exh.130 which has taken place between Vishnu and Ravindra Raut, the share of Vishnu is shown as 2 aana 8 paisa which is equivalent to 14.8 square meters. The learned Counsel submitted that if at all Exhibit-130 is considered then 2 aana 8 paisa share is equivalent to 14.8 sq.meters so 1 aana 4 pai is 7.4 square meters. So 8 aana share comes to 56.76 square meters and the calculation of 78.6 square meters as calculated by the respondent as 10 aana and 8 paisa share is wrong. He submits that on the basis of Exhibits-131, 134 & 136, respondent claims the portion purchased by him. The area mentioned in Exhibits-131, 134 & 136 in those sale deeds which comes to 28.16 sq. meters, 14.8 sq. meters and 14. 8 square meters respectively . So it comes to 56.40 square meters.
12 The learned Counsel Mr.Thorat for the respondents while opposing these appeals, has submitted that Standards of Weights & Measures Act, 1976 is not applicable. He argued that in the case of partition or in respect of the division of the joint hindu family property where the partition has not taken place and an un-divided share is sold by one of the members of the joint Hindu Family, then generally that portion is measured in aanewari as this practice is going on since long in most of the villages. The learned Counsel submitted ::: Downloaded on - 02/08/2016 16:43:32 ::: 9 SA363.12 that if such transactions/sale deeds are held void under this Act then most of the transactions would frustrate. He also submitted that section 80 will not apply as it is pertaining to sub-section 2 of Section 80 which is related to inter-State or international trade or commerce.
13 In respect of 2nd question of law, the learned Counsel pointed out that the area mentioned in Exh.159 to the extent of 78.6 square meters out of CTS No.260 is correct as in the document the area 78.6 square meters is mentioned as 10 aana 8 paisa share.
The transactions of the purchase of the land in all the sale deeds by the respondents is based on aanewari and therefore, the appeal court while confirming the decree in respect of the sale deed between the respondent Gujar and respondent Kulkarni to the extent of 10 aana 8 paisa has not committed any error. Moreover he further submitted that in the written statement of the appellant filed in his suit ie No.365 of 1991 appellants have admitted share of the respondents to the extent of 8 aana. So appeals be dismissed.
14 At the outset, it is to be noted that the appellant did not raise any point under the Standards of Weights & measures Act, 1976 either before the trial court or before the first appeal court.
However, this being a pure question of law, he was allowed to raise it at the time of hearing of these Second Appeals. CTS No.260 was ::: Downloaded on - 02/08/2016 16:43:32 ::: 10 SA363.12 given to Deuskar family by Sanad. Perused Exhibit-48. It discloses names of 7 persons from Deuskar family. From the name of the father of these persons it appears that all these 7 members of the Deuskar family are not the real brothers but they are agnates. They all have undivided shares in the suit property.
15 Under the the Legal Metrology Act 2009, the measurements are to be shown in metric system. The appellant has relied on section 80 of the Standards of Weights & Measures Act, 1976. It is useful to reproduce the same.
"80. Non-metric weight or measure not to be mentioned in any document, etc. or to form the basis of any contract after the commencement of this Act (1) No unit of weight, measure or numeration shall, after the commencement of this Act, be stated in any enactment, notification, rule, order, contract, deed or other instrument in terms of any unit of weight, measure or numeration other than that of a standard unit of weight, measure or numeration.
(2) On and from the commencement of this Act, no weight, measure or number other than the standard weight, measure or number shall be used in, or form the ::: Downloaded on - 02/08/2016 16:43:32 ::: 11 SA363.12 basis of, any contract or other agreement in relation to any inter-State or international trade or commerce ;
Provided that in relation to any goods which are exported, the weight, measure or number of such goods may be indicated thereon, or in any contract, in addition to the standard units of weight, measure or numeration, in accordance with any other system of weight, measure or numeration if the person to whom the export is to be made so requires.
(3) Any contract or other agreement in contravention of the provisions of sub-section (2) shall be void.
(4) No written record of the results of any measurement shall be maintained in any unit other than the standard unit of weight, measure or numeration established by or udner this Act."
16 The appellant relied heavily on sub-section 3 of Section 80 of the Act. It is useful to reproduce the said section for better understanding.
"(3) Any contract or other agreement in contravention of the provisions of sub-section (2) shall be void."::: Downloaded on - 02/08/2016 16:43:32 :::
12 SA363.12 Sub-Section 3 of Section 80 states that any contract or other agreement in contravention of the provisions of sub-section (2) shall be void. Section 3 thus does not say that all the agreements or all the contracts shall be void but the agreements or the contracts which are entered into under sub-section 2 of Section 80 are void.
Sub-section (2) does not cover all the contracts but restricts the contracts and agreements in relation to any inter-State or any international trade or commerce. Therefore section 80 is not applicable to contracts/deeds between private parties not invoking any international trade or commerce. Sections 11 & 12 of the Legal Metrology Act 2009 are relied by the appellant. Sections 11 & 12 of Legal Metrology Act 2009 read as under :-
"11 (1) No person shall, in relation to any goods, things or service-
(a) quote, or make announcement of, whether by word of mouth or otherwise, any price or change, or
(b) issue or exhibit any price list, invoice, cash memo or other document, or
(c) prepare or publish any advertisement, poster or other document, or
(d) indicate the net quantity of a pre-packaged commodity, or
(e) express in relation to any transaction or ::: Downloaded on - 02/08/2016 16:43:32 ::: 13 SA363.12 protection, any quantity or dimension, otherwise than in accordance with the standard unit of weight, measure or numeration.
(2) The provisions of sub-section (1) shall not be applicable for export of any goods, things or service.
12 Any custom, usage, practice or method of whatever nature which permits a person to demand, receive or cause to be demanded or received, any quantity of article, thing or service in excess of or less than, the quantity specified by weight, measure or number in the contract or other agreement in relation to the said article, thing or service, shall be void."
Uniform standardisation of weights and measures is based on metric system. Legal Metrology Act is applicable to the goods and the commdities. The Act protects the interest of the consumers in every aspect of life. It gives guarantee of a quantity to the public. This enactment aims at mainy objects as to regulate the wrights and measure system to achieve uniformity and precision in method of weights and measures to enable trade and commerce consistent, smooth and to avoid any ambiguity in the weight of the commodity, service given to the buyers and prevents exploitation of the consumers in the market. This enactment was came in force ::: Downloaded on - 02/08/2016 16:43:32 ::: 14 SA363.12 with effect from 14.1.2010. It replaced the standards of weight and measures Act of 1976. This cannot be streched to the land transaction in property of joint hindu family. Thus this enactment is applicable to the goods and commodities where consumer is concerned. In sale and purchase of land, question of satisfaction of the consumer does not arise. These enactments are not applicable to the present transaction. Though as per the metric system, an area of the land is to be measured and counted in square feet and square meters, in villages all the transactions do take place in acres and guntha or in hectors and R's. Court has to take realistic approach while appreciating the sale deeds or agreement of sale of such land. Hence, the submissions of the learned Counsel for the appellant hold no merit.
Moreover, these sections prohibit use of any custom or usage which is contrary to the Standard Weights or Measures and states that such custom shall be treated as void. However, this is an enactment of 2009 which came into force with effect from 14.1.2010 and all these sale deeds which are the subject matter of these appeals are of 1987 or 1990, which are prior to the enactment. A member of the joint family has right to sale his undivided share and there is no other way to sale his share by any other method but by using aanewari, because manytimes a portion of the land is unidentifiable. Therefore, considering the peculiar nature of the ::: Downloaded on - 02/08/2016 16:43:32 ::: 15 SA363.12 enjoyment of the right or ownership by the co-sharers of the joint Hindu family property and the nature of disposal/transaction of the undivided share by the co-sharer, a method of aanewari was adopted and is in vogue. Under such circumstancts, the agreements of sale of the lands which are based on aanewari cannot be treated as void or non-effective. Therefore, the first question of law is to be decided against the appellant.
172nd question of law :-
The area in sale deed Exh.158 is mentioned as 10 aana 8 paisa which is equivalent to 78 square meters. The dispute is if area of 2 aana 8 paisa as mentioned in agreement Exh.130 or Exh.131 or Exh.134 or Exh.136 is accepted then it comes to 14.8 sq.meters. So it is argued that applying this calculation of 2 aana & 8 paisa is equivalent to 14.8 sq.meters then total area of 10 aana 8 paisa does not come to 78.6 sq.meters but it comes to 60.32 sq. meters. Hence, it is submitted that the appeal court has committed an error in accepting the area mentioned in Exh.158 of the sale deed and passing decree to that effect. In RCS No.365 of 1991 the trial court held that Gujar has purchased total land of 8 aanas and not of 10 aana & 8 paisa. The trial court has refused to accept a sale deed Exh.136 dated 8.7.1991 between Deuskar and Gujar and therefore, it was calculated as 8 aanas. It was deducted the portion of 2 aana 8 ::: Downloaded on - 02/08/2016 16:43:32 ::: 16 SA363.12 paisa from the land purchased by Gujar. However, the appeal court has discussed how the sale of the land as mentioned in Exh.136 is legal and valid in paragraph-14 of its judgment. It has considered how vendor Vishnu Manohar Deuskar was the owner of 2 aana 8 paisa share as initially one of the members of this Deuskar family has relinquished his share in favour of great grand-father of Vishnu. The appeal court has discussed the family tree and the rights of the family members of Deuskar and their land transactions of CTS No.260 with Ravindra Raut and Sharad Gujar in detailed. To that effect appeal Court has rightly set aside the finding of the trial court and confirmed the share of Gujar as 10 aana 8 paisa. Now considering the submissions made by the learned Counsel for the appellant whether the land is to be calculated on the basis of aanewari or not is to be considered.
18 Undisputedly the total area of the land is 117.9 sq.meters. If this particular fact is not disputed by both the parties then this one unit consists of 6 portions. Therefore, first appeal court has divided this area by 16. The calculation given by the appeal court reflects in paragraph-58 of its judgment while discussing point no.13. It considered that when the total area of the plot is 117.9 sq. meters so the area of 1 aana 4 paisa is admeasuring 9.825 sq. meters. The area mentioned in Exh.130 is mentioned as 2 aanas & ::: Downloaded on - 02/08/2016 16:43:32 ::: 17 SA363.12 8 paisa and area as mentioned is 14.8 sq. meters. Appellant insisted that the area mentioned in sale deed which is in square meters ie 14.2 sq.meters for 2 aanas & 8 pai is the authentic area and this measurement prevails over the measurement of aanewari.The submissions of the learned Counsel for the appellant are not convincing. In the transaction of sale and purchase of the land the understanding and intention of the seller and buyer is important. All the 7 co-parceners in Deuskar family have undivided shares in the suit land and their shares were divided in aanewari. For better understanding analysis of this aanewari is reproduced from the property extract (Exh.4) which are as follows :-
(i) Sakharam Kondu Deuskar -2 Anna & 8 pai
(ii) Keshav Krishna Deuskar -2 Anna & 8 pai
(iii) Shivram Kashinath Deuskar -1 Anna & 4 pai
(iv) Ramchandra Vinayak Deuskar -2 Anna & 8 pai
(v) Sadashiv Hari Deuskar -2 Anna & 8 pai
(vi) Purshottam Laxman Deuskar -2 Anna & 8 pai
(vii) Govind Sitaram Deuskar -1 Anna & 4 pai
Even though the area of 2 aana 8 pai as mentioned in the sale deed is 14.8 sq.meters then the 10 aana 8 pai area approximately comes to 74 sq.meters and the area mentioned in the ::: Downloaded on - 02/08/2016 16:43:32 ::: 18 SA363.12 sale deed is 78 square meters. Thus there is a variance in these measurements, it is only 4 square meters. Moreover, the fact agreed by both the parties is total area admeasuring 117.9 sq. meters. If this is so, then the method of calculation which is adopted by the first appeal court and considering that the area of 1 aana 4 pai is 9.825 sq. maters cannot be faulted out. Therefore, if the respondent after calculating the total area by applying method of aanewari is 10 anna & 8 paisa then by the calculation used by the appeal court the area mentioned as 78 sq.meters cannot be said as perverse.
19 It is to be noted that the intention of the party vendor was to sale area of his share I.e 2 aana 8 pai and that was the understanding of the vendee. The intention and understanding of the cosharer and buyer prevails over area mentioned in square meters.
Another issue needs to be dealt with while deciding this point. The appellant has filed a Suit No.526 of 1991 for declaration and injunction. Declaration was sought on the basis of sale deed dated 24.11.1987. It was decreed by the trial Court. However, the appeal court has discussed the documents produced before the court especially property extract which is marked at Exhibit-4 and has fixed the portion which were fallen to the shares of all the members of Deuskar family.
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20 It is not disputed that the appellant has purchased land
from one Shivram Kashinath Deuskar. The construction of the said document was an issue before the courts below. The learned Counsel for the appellent pointed out that while deciding the share or the area ; correctness of the area mentioned in Exh.158, the court needs to look into the share which is sold to him by sale deed Exh.41. For that limited purpose, this document Exh.41 is also considered. In the sale deed Shivram Kashinath Deuskar has mentioned that he sold half the portion of his share jointly owned in the suit land as a karta of the family. Thus the portion he sold is half the portion his undivided share in the suit land. It is in vernacular language marathi. The word half the portion used in the sale deed and therefore, the appellant claims that he is the owner of half the portion of the suit land. However, in the said agreement it is further mentioned that being karta of the family, he is selling half portion of the land owned by him jointly and other half portion of the land belonged to the other family members of Deuskar family and the names of other family members are mentioned. In the beginning it is made clear that all 7 family members are not the real brothers as the names of their fathers are considered. Thus how Shivram has proclaimed himself as karta of the family and how he sold half the share of the portion of the entire suit land, this question emerged. It is true that nobody from Deuskar family has challenged either of the ::: Downloaded on - 02/08/2016 16:43:32 ::: 20 SA363.12 sale deed. Thus sale transactions go unchallenged. It was submitted that Shivram can sell the share which is fallen to his share only. This is an accepted position that one can sell the share which is fallen into his share and therefore, he cannot go beyond that.
Exhibit-4 throws light on this misty situation. This property extract gives the details of the names of the family members of the Deuskar in whose favour sanad was granted and also name of Mahadev Vasudev Herwadkar who has purchased his share from Shivram Deuskar. The name of Herwadkar as purchaser is mentioned and this shows that he was holding 1 aana 4 paisa share in the total plot CTS No.260. The area of the plot is also mentioned in this property extract as 117.9 sq.meters, which is supposed to be the oldest one available and so produced. On perusal of Exhibit-4, it is amply clear that what area was fallen to the share of Shivram and said area is sold by him to Herwadkar and Herwadkar sold to Mr.Latkar.
Curiously, sale deeds Exh,41 & Exh.42 also do not mention the area of square feet or square meters but at the time of sale the area is described or area is measured as half the portion of the land. This shows that when undivided share in the land is sold and is purchased by the respondent himself, he also did not purchase his area by measurement of square feet or square meters but it was just mentioned as half the portion. Considering the method applied by the appeal court of calculating the area of 1 aana 4 paisa on the ::: Downloaded on - 02/08/2016 16:43:32 ::: 21 SA363.12 basis of the total undisputed area 117.9 square meters is a correct method and therefore, the finding of the appeal court is not to be said as perverse. The appeal court has considered entire evidence and there is no omission or erroneous appreciation and therefore, question of law no.2 is decided against the appellant. Hence, all the three appeals are dismissed.
21 In view of dismissal of these appeals, Civil Appliction is also disposed of.
22 The learned Advocate for the respondents prays that order may be stayed for a period of ten weeks to approach the Apex Court. This order is stayed for a period of ten weeks. Parties not to create any third party rights for a period of ten weeks.
(JUDGE) ::: Downloaded on - 02/08/2016 16:43:32 :::