1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 261/2003
1] Leelabai w/o Anna Salunke
2] Anna Madhu Salunke,
Both R/o Saur, Tahsil and ,
District-Amravati. .. Appellants
-versus-
Malti w/o Shriniwas Joshi,
R/o Telhara, Tq. Akot,
District-Akola .. Respondent
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Shri. J.J.Chandurkar the learned counsel for the appellant
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CORAM : V.M. DESHPANDE, J.
DATED : NOVEMBER 1, 2017
ORAL JUDGMENT:
1] Heard Shri J.J.Chandurkar the learned counsel
for the appellant. None for the respondent though served by paper publication.
::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 00:53:02 ::: 2 2] The present second appeal arises out of Judgment and Decree passed by learned 3rd Jt.Civil Judge Junior Division Amravati dated 28/7/1993 by which the learned trial Court decreed the suit filed by present respondent and directed the defendants to handover vacant and peaceful possession of suit field survey No. 142/1 of village Saur, admeasuring 4 acres of land. Further decree of injunction was granted in plaintiff's favour that the defendants should not disturb the possession of the plaintiff after taking the possession of the suit property. The judgment and decree passed by the learned trial Court in Regular Civil Suit No. 875/1990 is confirmed by the learned Joint District Judge Amravati on 6/3/2003 in Regular Civil Appeal No. 189/1993 wherein the appeal filed by the present appellants was dismissed. 3] The present appeal is filed by original defendant Nos. 1 and 2.
4] At the time of admission of this appeal following substantial question of law was formulated:- ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 00:53:02 ::: 3
" Whether the appellants purchase the suit property under deed dated 24/6/1986 is protected by virtue of the 2 nd part of Section 100 of the Transfer of Property Act."
5] The submission of learned counsel for the appellant Shri Chandurkar is that, in view of second part of Section 100 of Transfer of Property Act, both the Courts below committed error in decreeing the suit. He submitted that when the appellants purchased the suit property on 24/6/1996, he was not aware about the fact that the property in question was having charge in favour of the respondent in view of the decree in her favour for maintenance. He submitted, therefore, the appeal needs to be allowed.
6] Respondent herein filed suit for possession and permanent injunction against the appellant and other defendants. According to the plaintiff, the suit property is the ancestral property of plaintiff's husband Shriniwas Joshi. Her husband was addicted to the various vices, therefore, the plaintiff alongwith her daughters were required to file a suit against Shriniwas for maintenance and charge on the property. the said suit was registered as Regular Civil Suit No. 30/78. The Court tried the said suit ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 00:53:02 ::: 4 and passed decree in favour of the plaintiff on 10/4/1979 thereby charge was created on the suit property as well as other properties.
7] It is the further case of the plaintiff that she was required to file execution proceedings vide Regular Darkhast No. 24/79. In the said Execution Proceedings the suit property was put into auction. It is also a case of the plaintiff that huge amount of maintenance was accumulated against Shriniwas, therefore, she filed another Execution Proceedings for recovery vide Special Execution Case No. 9/82 in which suit field was sold on 18/10/1985 and the plaintiff herself purchased the property. The aforesaid auction sale was confirmed by the Court and a Sale Certificate was granted in favour of the plaintiff. It was further case of the plaintiff that thereafter she was actually cultivating the suit property, however, the defendants illegally and forcibly entered the suit field and dispossessed her. With this, she brought the suit which gives rise to the present second appeal.
::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 00:53:02 ::: 5 8] The suit was contested by the defendants. the gist of their defence is that they purchased the suit property from Shriniwas on 24/6/1986 for valuable consideration. It is further a case of the defendants/appellants that at the time of purchase of the suit property from Shriniwas, they were not having knowledge about the charge over the suit property. Therefore, they are bonafide purchaser without notice. 9] As observed above, both the Courts below negated the contention and defence of the appellants. 10] It is an admitted position that the present appellants purchased the suit field from Shriniwas, the husband of the plaintiff on 26/6/1986 and 10/7/1986 which are later dates of auction sale and confirmation of the sale on 18/10/1985.
11] Once Shriniwas lost his title over the suit field on 18/10/1985, he was not competent to execute sale deed in favour of the appellants on 24/6/1986 and 10/7/1986. ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 00:53:02 ::: 6 On these dates Shriniwas was not having any marketable and saleable title with him which he could transfer for consideration. Thus, in my view, the appellants have purchased the suit property from a person who had already lost his title over the suit fields.
12] It is not in dispute that the auction sale in which plaintiff purchased suit field was conducted after following due process. The appellants are resident of village Saur where the sale proclamation was done by beating drums and publishing notice in the Chawadi of village Saur. Therefore, in my view, it can not be said that the appellants were not having knowledge about the auction sale. Further, the auction sale was confirmed by the competent Court and Sale Certificate was issued in favour of the respondent/original plaintiff.
13] In backdrop of above, in my view, there is no substantial question of law as sought to be submitted, in view of the second part of Section 100 of Transfer of Property Act, because the said provision will come into ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 00:53:02 ::: 7 picture only when the sale deed executed in favour of a person by vendor who is having marketable title with him. In the present case, Shriniwas had already lost his title at the time of execution of the sale deeds in favour of the appellants. Therefore, there is no substantial question of law involved in the second appeal. Consequently, the appeal is dismissed with costs and the decree of both Courts below are hereby confirmed.
JUDGE RSG ::: Uploaded on - 08/11/2017 ::: Downloaded on - 09/11/2017 00:53:02 :::