Bombay High Court
Shri Sharad Baburao Latkar vs Shri Sharad Wasudeodas Gujar on 28 September, 2012
Bench: Mridula Bhatkar
1 SA363.12
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.
3 SA363.12
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
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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.
7 SA363.12
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%
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
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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
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
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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."
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
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
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
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.
2nd 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
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 &
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
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.
19 SA363.12
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
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
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)
