Bombay High Court
Sitaram Goba @ Gobarya Chavan And ... vs Sow Kaveribai @ Kalawatibai Kdasu ... on 23 December, 2014
Bench: Rajesh G. Ketkar
1 S.A. 391.2010 - [ J ]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 391 OF 2010
1. Sitaram S/o Goba @ Gobarya
Chavan [ since deceased
through proposed L.Rs. ] :
1-A. Smt. Saraswati W/o Sitaram Chavan
Age : 57 Yrs., Occ. : Household,
R/o : Verul Tanda, Tq. Khultabad,
Dist. : Aurangabad.
1-B. Sau. Lilabai W/o Mulchand Rathod
Age : 38 Yrs., Occ. : Household,
R/o : Verul Tanda, Tq. Khultabad,
Dist. : Aurangabad.
1-C. Chhagan S/o Sitaram Chavan
Age : 35 Yrs., Occ. : Agriculture,
R/o : Verul Tanda, Tq. Khultabad,
Dist. : Aurangabad.
1-D. Vishnu S/o Sitaram Chavan
Age : 32 Yrs., Occ. : Agriculture,
R/o : Verul Tanda, Tq. Khultabad,
Dist. : Aurangabad.
1-E. Sau. Anita W/o Kaduba Rathod
Age : 28 Yrs., Occ. : Household,
R/o : Verul Tanda, Tq. Khultabad,
Dist. : Aurangabad.
2. Dammo S/o Goba @ Gobarya Chavan
Age : 50 Yrs., Occ. : Agriculture,
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2 S.A. 391.2010 - [ J ]
R/o : Verul Tanda, Tq. Khultabad,
Dist. : Aurangabad.
3. Tukaram S/o Goba @ Gobarya Chavan
Age : 49 Yrs., Occ. : Agriculture,
R/o : Verul Tanda, Tq. Khultabad,
Dist. : Aurangabad.
4. Mulchand S/o Goba @ Gobarya Chavan
Age : 47 Yrs., Occ. : Agriculture,
R/o : Verul Tanda, Tq. Khultabad,
Dist. : Aurangabad.
5.
Pralhad S/o Goba @ Gobarya Chavan
Age : 44 Yrs., Occ. : Agriculture,
R/o : Verul Tanda, Tq. Khultabad,
Dist. : Aurangabad.
6. Kaloo S/o Goba @ Gobarya Chavan
Age : 42 Yrs., Occ. : Agriculture,
R/o : Verul Tanda, Tq. Khultabad,
Dist. : Aurangabad.
7. Madan S/o Goba @ Gobarya Chavan
Age : 40 Yrs., Occ. : Agriculture,
R/o : Verul Tanda, Tq. Khultabad,
Dist. : Aurangabad.
8. Dalpat S/o Goba @ Gobarya Chavan
Age : 32 Yrs., Occ. : Agriculture,
R/o : Verul Tanda, Tq. Khultabad, ..... APPELLANTS/
Dist. : Aurangabad. [ORIGINAL PLAINTIFFS NO. 1 TO 8]
V E R S U S
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3 S.A. 391.2010 - [ J ]
1. Sow. Kaveribai @ Kalawatibai
W/o Dasu Rathod, Age : Major,
R/o : Tisgaon, Tq. Khultabad,
Dist.: Aurangabad.
2. The Tahsildar
Tahsil Office, Khultabad,
Tq. Khultabad, Dist. Aurangabad.
3. Bhausaheb S/o Kisan Kadam
Age : Major, Occ. : Agriculture,
R/o : Verul, presently residing ..... RESPONDENTS NO. 1 TO 3/
4. Kripalsing S/o Tarasing Bajwa
at Kannad, Dist. Aurangabad. [ORIGINAL DEFTS. NO. 1 TO 3 ]
Age : 58 Yrs., Occ. Agri. and
Hotlier, R/o : Shivar, Tq.
Vaijapur, Dist. Aurangabad.
5. Surendrasing S/o Tarasing Bajwa
Age : 48 Yrs., Occ. Agri.
R/o : Shivar, Tq. Vaijapur, ..... RESPONDENTS NO. 4 & 5/
Dist. Aurangabad. [ADDED DEFTS. NO. 4 & 5 ]
.............................
Mr. R.R.Mantri i/b Mr. Swapnil S.Patil,
Advocate for the Appellants.
Mr. Younus B.Pathan, Advocate for R-1.
Mr. S.P. Dound, A.G.P. for R-2 State.
Mr. V.I. Thole, Advocate for R-3 to 5.
..............................
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4 S.A. 391.2010 - [ J ]
[CORAM : R.G.KETKAR, J.]
JUDGMENT RESERVED ON : 16/12/2014
JUDGMENT PRONOUNCED ON : 23/12/2014
.............................
JUDGMENT :
1. Heard Mr. R.R.Mantri, learned counsel for the
appellants, Mr. Younus B.Pathan, learned counsel for
respondent No. 1, Mr. S.P. Dound, learned Assistant Govt.
Pleader for respondent No. 2- State and Mr. V.I. Thole,
learned counsel for respondents No. 3 to 5 at length.
2. By this Appeal, u/s 100 of the Code of Civil
Procedure, 1908 (for short, ' C.P.C.' ), original plaintiffs have
challenged the Judgment and decree dated 16/02/2010
passed by the learned District Judge-2, Aurangabad in R.C.A.
No. 49 of 2009. By that order, learned District Judge allowed
the Appeal preferred by original defendants No. 3 to 5 and
quashed and set aside the Judgment and decree dated
23/02/2009 passed by the learned 2nd Jt. Civil Judge, Senior
Division, Aurangabad in R.C.S. No. 202/2002. The learned
District Judge dismissed the Suit. The parties shall herein
after be referred to as per their status in the trial Court. The
5 S.A. 391.2010 - [ J ]
facts and circumstances giving rise to filing of the present
Appeal, briefly, stated are as below.
3. The appellants instituted R.C.S. No. 202/2002 in
the Court of the Civil Judge, Senior Division, Aurangabad for
(1) declaration that they are owners and in possession of land
bearing G.No. 555 admeasuring 2 H. 39 R. situate at Verul
Tanda, Taluka Khultabad, District Aurangabad ( for short, '
suit land ' ); (2) direction to the Tahsildar, Khultabad to take
proper entries of ownership, possession and tilling of land on
mutation record, 7/12 extracts and all other necessary
records of the suit land in the names of the plaintiffs, who are
legal representatives of late Gobarya Chavan; (3) setting
aside the illegal entries made in the name of defendant No. 1
Kaveribai Dasu Rathod in revenue record and (4) setting
aside forged sale deed dated 10/02/1977 in favour of
Kaveribai Dasu Rathod by declaring the same as illegal and
improper ; (5) setting aside the illegal entries made in
revenue and land record in the name of (a) Bhausaheb
Kadam, (b) Kripalsingh Bajwa; (c) Surendrasingh Bajwa
(defendants No. 3 to 5) and (d) Sandeep Bodkhe and/or any
other person on the basis of illegal entries and alienated only
6 S.A. 391.2010 - [ J ]
on paper and all subsequent sale deeds in favour of
defendants be declared illegal, improper, unjust and the same
may be quashed and set aside; (6) declaration that the
Judgment in proceeding No. 2001/Jama/1/KV/1281 is null
and void and not binding upon the plaintiffs; (7) issuing
injunction restraining the defendants from interfering with
the possession of the plaintiffs over the suit land.
ig It is the case of the plaintiffs that their father
Gobarya Chavan was owner and in possession of the suit land
as a protected tenant and was declared as owner for more
than 50 years back. He was also in possession of the suit
land on the basis of Isar pawti executed by previous owner
Hiralal. In the year 1982-83, during the implementation of
the consolidation scheme, S.No. 246/1, 246/2 and 246/3
were converted into G.No. 555 i.e. suit land. Till the year
1981-82, name of Gobarya Chavan appeared in record of
rights of these survey numbers. During the course of
consolidation scheme, his name was deleted from ownership
column and name of defendant No. 1 Kaveribai Dasu Rathod
was entered vide Mutation Entry No. 43 in respect of area
admeasuring 1 H. 8 R. The name of Gobarya Chavan was
7 S.A. 391.2010 - [ J ]
entered in the other rights column. Defendant No. 1
Kaveribai Dasu Rathod has no right, title and interest in the
suit land. She was also not in possession of the suit land.
Gobarya Chavan died on 23/10/2000. The plaintiffs are
legal representatives of deceased Gobarya Chavan.
Defendant No. 1 Kaveribai @ Kalawatibai executed sale
deeds in favour of defendants No. 3 to 5 and other persons.
Plaintiff No. 7 Madan Chavan made several representations
to the Tahsildar, Khultabad against the entries made in the
name of Kaveribai and other persons on the basis of these
sale deeds. The sale deed dated 10/02/1977 in favour of
defendant No. 1 Kaveribai is forged and fabricated document.
The name of Kaveribai was entered in the revenue record in
the year 1982-83 on the basis of forged sale deed by
Mutation Entry No. 1. The sale deed was, however,
registered on 07/06/1985. The entry made by revenue
authorities in the name of Kaveribai is illegal. There was
dispute in respect of way among different land owners
adjacent to the suit land. On 17/01/2002, Tahsildar,
Khultabad passed order in proceeding No.
2001/Jama/1/KV/1281 to the effect that eastern side of the
suit land be used as a way on the basis of consent given by
8 S.A. 391.2010 - [ J ]
defendant No. 1 Kaveribai. The said order is bad in law and
is not binding upon the plaintiffs. The name of defendant
No. 1 Kaveribai is wrongly mutated during consolidation
scheme in the record of rights. The plaintiffs, therefore,
instituted Suit for the aforesaid reliefs.
5. Defendant No. 1 Kaveribai resisted Suit by filing
Written Statement at Exh. 18 contending interalia that
Gobarya Chavan was owner of land bearing S.No. 245/1 and
Dhanji Pandu, cousin of Gobarya Chavan was owner of land
S.No. 246/2. They executed sale deed in her favour on
10/02/1977. After registration of the sale deed, both survey
numbers were consolidated into G.No. 555. Her name was
recorded in the consolidation scheme. It appeared
consistently in the record of rights of the suit land. She had
sold 1 H. 21 R. out of the suit land in favour of Shankar
Mahadu Koli under registered sale deed. After death of
Shankar Koli, name of his widow Satyabhamabai was
recorded in the revenue record by Mutation Entry No. 1228.
After her death, names of her legal representatives were
recorded by Mutation Entry No. 1237. Excluding that
portion, defendant No. 1 Kaveribai is in possession of the suit
9 S.A. 391.2010 - [ J ]
land. During his life time, Gobarya Chavan has instituted
Suit against her, but the same was dismissed in default.
6. Defendant No. 2 - Tahsildar though was duly
served, failed to appear. The Suit, therefore, proceeded
exparte against defendant No. 2. Defendants No. 3 to 5 filed
their Written Statement at Exh. 89 contending interalia that
the Suit is barred by limitation. Defendant No. 1 executed
registered sale deed on 23/08/2002 to the extent of 3 Acres
for the consideration of ` 1,60,000/- [Rupees One Lac Sixty
Thousand only] in favour of defendant No. 3. On the same
day, defendants No. 4 and 5 jointly purchased 2 Acres 19
gunthas out of the suit land for the consideration of
` 1,40,000/- [Rupees One Lac Forty Thousand only].
Defendant No. 3 sold the land purchased by him to one
Sandeep Asaram Bodkhe. The defendants denied that the
plaintiffs were ever in possession of the suit land and that the
sale deed executed by Gobarya Chavan in favour of
defendant No. 1 is a bogus and fabricated document. The
name of Gobarya Chavan was rightly deleted during the
implementation of consolidation scheme.
10 S.A. 391.2010 - [ J ]
7. On the basis of the pleadings of the parties,
learned trial Judge framed the necessary Issues at Exh. 18.
The parties adduced oral as well as documentary evidence.
After considering the evidence on record, learned trial Judge
partly decreed the Suit on 23/02/2009. The learned trial
Judge declared that the plaintiffs are owners and possessors
of the suit land; that the alleged sale deed dated 10/02/1977
of defendant No. 1 and subsequent sale deeds of the
defendants are illegal, null and void and not binding upon
the plaintiffs and issued injunction restraining the defendants
from interfering in possession of the plaintiffs over the suit
land.
8. Aggrieved by that decision, defendants No. 3 to
5 preferred Appeal before the District Court, Aurangabad.
The learned District Judge held that the Suit is barred by
limitation; that the plaintiffs failed to prove that they are
owners and in possession of the suit land; that the plaintiffs
failed to prove that the sale deed in the name of defendant
No. 1 Kaveribai is forged and fabricated. Consistent with
these findings, the learned District Judge allowed the Appeal
and dismissed the Suit. It is against this decision, plaintiffs
11 S.A. 391.2010 - [ J ]
have instituted present Appeal u/s 100 of C.P.C.
9. The Appeal was heard for admission on
12/09/2011. After hearing both sides, this Court dismissed
Appeal on 12/09/2011 at admission stage. Aggrieved by this
order, plaintiffs approached the Apex Court. By order dated
30/01/2013, Apex Court allowed Civil Appeal No. 821 of
2013 and set aside this Court's order and remitted the matter
for reconsidering afresh and dispose of the same in
accordance with law within a period of three months from
the date of communication of the order. While allowing the
Appeal, it was also made clear that the Court has not
expressed any opinion on the merits of the case. The Court
also directed the parties to maintain status-quo till disposal of
the Second Appeal by the High Court.
10. Before the Apex Court, the counsel for the
plaintiffs submitted that he will re-frame the substantial
questions of law in a precise manner, which will be clearly
based on the grounds already taken as grounds No. 2,4,5,8
and 13 of the Appeal memo. In pursuance thereof, plaintiffs
have amended the Appeal memo. The matter was thereafter
12 S.A. 391.2010 - [ J ]
heard on 10/11/2014 when the following substantial
questions of law were framed :
(i) Whether the point of limitation decided by
the lower appellate Court under Article
58 of the Limitation Act can be sustained ?
(ii) Whether the sale deed dated 10/02/1977 is
legal and valid in view of Section 50-B of
ig Hyderabad Tenancy and Agricultural Lands
Act, 1950 ?
(iii) Whether the adjudication of lower appellate
Court on the point of possession in favour of
defendants is perverse in view of the mutation
entries and the report of Tahsildar produced on
record ?
(iv) Whether the learned District Judge was
justified in not discussing the provisions of
Maharashtra Land Revenue Code, 1966 and in
particular section 149 thereof as also
Registration Act,1908 ?
11. In view thereof, Second Appeal is admitted on
the above substantial questions law. The learned counsel for
13 S.A. 391.2010 - [ J ]
the respective respondents waive service. At the request and
by consent of the parties, as also in view of the Apex Court
Order dated 30/01/2013, Appeal is taken up for final
hearing.
12. In support of this Appeal, Mr. Mantri raised
following contentions :
(I)
ig Original sale deed dated 10/02/1977 did not see
the light of the day. No permission was obtained by the
defendants for leading secondary evidence. The learned trial
Judge had rightly drawn adverse inference against defendant
No. 1;
(II) Though the sale deed is alleged to have been
executed by Gobarya Chavan in favour of defendant No. 1
Kaveribai on 10/02/1977, it was registered on 07/06/1985.
Mr. Mantri relied upon Sections 23,25,34,74 to 77 of the
Indian Registration Act, 1908. He submitted that the sale
deed was not registered within the time stipulated in the
Registration Act, 1908. It is, therefore, a void transaction;
14 S.A. 391.2010 - [ J ]
(III) Defendant No. 1 Kaveribai did not enter the
witness box and consequently the sale deed dated
10/02/1977 at Exh. 101 is not proved;
(IV) On 07/01/1958 Gobarya Chavan became owner
of the suit land u/s 38E of the Hyderabad Tenancy and
Agricultural Lands Act, 1950 (for short, ' Tenancy Act ' ). His
name appeared in the relevant revenue record up to 1981.
After 1981, his name was deleted and name of defendant No.
1 Kaveribai is entered. U/s 50B (1) of the Tenancy Act,
without previous sanction of the Collector, any land
purchased by tenant u/s 38E can not be transferred by sale,
gift, exchange, mortgage, lease or assignment. Any transfer
in contravention of sub section (1) is null and void. In the
present case, before executing sale deed on 10/02/1977
sanction of the Collector was not obtained;
(V) Section 98C of the Tenancy Act provides for
disposal of land, alienation of which is invalid. Since the sell
is void, Civil Court has jurisdiction to entertain and try the
Suit;
15 S.A. 391.2010 - [ J ]
(VI) The learned District Judge committed error in
holding that the Suit is barred by limitation in view of Article
58 of the Limitation Act, 1963. He submitted that in the facts
and circumstances of the case, Article 65 is applicable and not
Article 58. Article 65 of the Limitation Act provides that for
possession of immovable property or any interest therein
based on title, period of limitation is 12 years and time from
which period begins to run is when the possession of the
defendant becomes adverse to the plaintiff. In the present
case, defendants have not set up plea of adverse possession
and, therefore, it can not be said that the Suit is barred by
limitation. In fact, defendants did not take up plea that the
Suit is barred by limitation before the trial Court and for the
first time this plea was taken up before the District Court.
Initially, Gobarya Chavan has instituted R.C.S. No. 852/1986
against defendant No. 1 Kaveribai for injunction. The Suit
was dismissed in default on 02/08/1991. A fresh cause of
action accrued to the plaintiffs as the adjacent land owners
started asserting right of way. The Tahsildar, Khultabad
passed order on 17/01/2002 and based on this cause of
action, present Suit is instituted. The Suit is, therefore, not
barred by limitation ;
16 S.A. 391.2010 - [ J ]
(VII) The plaintiffs are in possession as is evident from
voluminous documentary evidence on record which is
considered in detail by the trial Judge in paragraph 14.
However, learned District Judge has not discussed this
evidence at all. The District Court being the last fact finding
Court, ought to have considered this evidence and given
finding as to who is in possession. In support of these
submissions, Mr. Mantri relied upon following decisions :
(a) Raj Kumar Dey Vs. Tarapada Dey, 1987 AIR
(SC) 2195 and in particular paragraph 5 thereof to contend
that if the document is registered beyond the period
stipulated in Sections 23 and 25 of the Registration Act,
1908, the registration would be void;
(b) Bhimrao S/o Kondiba Bhosale and others Vs.
Ankush S/o Rangnath Khadke and others, 2012 (6)
Mh.L.J. 88 and in particular paragraph 28 thereof to contend
that in the present case, plaintiffs have sought relief of
declaration that the sale deed dated 10/02/1977 is null and
void and that the said sale deed is not binding upon them.
The sale deed is also a forged and fabricated document. The
17 S.A. 391.2010 - [ J ]
said Issues could not have been agitated or gone into under
the provisions of Section 98C of the Tenancy Act and Civil
Court has jurisdiction to entertain and try the Suit;
( c) Sukumabai Bandu Balighate Vs. Chandgonda
Kalgonda Patil and another, 2002 (5) Bom.C.R. 641 to
contend that since the transaction dated 10/02/1977 is ex-
facie illegal and invalid as there was no previous sanction of
Collector before the execution of sale deed, it was not
necessary for Civil Court to refer the matter to the tenancy
authorities. In other words, Civil Court has requisite
jurisdiction to entertain and try the Suit;
(d) Himatrao Ukha Mali and others Vs. Popat
Devram Patil and another, 1998 (2) Mh.L.J. 383 to
contend that the sale deed dated 10/02/1977 without
obtaining previous sanction of Collector is invalid;
(e) Dnyanoba Sukhdeo Lande and another Vs.
Shrirang mahataraji Dhurwade, 1982(2) Bom.C.R. 18 to
contend that the transfer which is invalid can not give
protection u/s 53 (A) of the Transfer of Property Act, 1882;
18 S.A. 391.2010 - [ J ]
(f) State of Maharashtra Vs. Pravin Jethalal
Kamdar (dead by L.Rs. ), AIR 2000 SC 1099 to contend
that since the sale deed dated 10/02/1977 is void, it was not
necessary to pray for declaration that it is null and void. The
Suit will be governed by Article 65 and not by Article 58 of
the Limitation Act.
(g) ig Rameshwar Gopikishan Toshniwal Vs.
Sakhubai w/o Vithoba Gaikwad - died through L.Rs. Smt.
Prayagabai w/o Ganpat Mali, 1999 (3) ALL MR 57 to
contend that sale deed hit by section 50B is rendered void.
13. On the other hand, Mr. V.I.Thole supported the
impugned order. He submitted that initially plaintiffs
instituted Suit in the year 2002 only against defendant No. 1
Kaveribai and defendant No. 2 Tahsildar. Defendant No. 1
Kaveribai had sold suit land to defendants No. 3 to 5. They
were thereafter impleaded and filed Written Statement.
However, subsequently they were deleted. Defendant No. 1
Kaveribai did not contest the Suit. After considering the
evidence, trial Court decreed the Suit on 13/08/2004.
Defendants No. 3 to 5 filed R.C.A. No. 234 of 2004 which was
19 S.A. 391.2010 - [ J ]
allowed on 06/01/2005. The trial Court's decree was set
aside and Suit was restored with a direction to implead
defendants No. 3 to 5. He raised following contentions
(1) The sale deed was executed by Gobarya Chavan
in favour of defendant No. 1 Kaveribai on
10/02/1977 and the same was presented for
ig registration within the stipulated period in the
year 1977 itself but the same was registered in
the year 1985. After presenting the document
before the Sub Registrar for its registration and if
said document is registered subsequently, it does
not invalidate execution of the sale deed. As per
Section 47 of the Registration Act, 1908, a
registered document operates from the time from
which it would have commenced to operate if no
registration thereof had been required or made,
and not from the time of its registration. In
other words, though the sale deed is registered in
the year 1985, it operates from the date of the
execution i.e. on 10/02/1977. He further
submitted that Section 34 of the Registration Act
20 S.A. 391.2010 - [ J ]
is not applicable;
(2) P.W. 1 Madan admitted execution of sale deed
dated 10/02/1977. Defendant No. 1 Kaveribai
was in custody of original sale deed. She did
not contest the Suit. Defendants No. 3 to 5 have
produced certified copy of the sale deed and also
ig examined D.W. 2 Vasant Narayan Jadhav at Exh.
121 who was serving as Clerk in the office of the
Sub Registrar. In other words, sale deed dated
10/02/1977 at Exh. 101 was duly proved;
(3) G.No. 555 was formed out of S.No. 246/2 and
246/3 as is evident from Exh. 100 being extract
of consolidation;
(4) Section 50B of the Tenancy Act provides that no
land purchased by a tenant under section 38E,
can be sold without the previous sanction of the
Collector. Any transfer of land in contravention
of sub-section (1) is invalid and not null and
void. In the case of Lachmabai W/o Hanumant
21 S.A. 391.2010 - [ J ]
and others Vs. Vithabai W/o Laxman
Namawar and others, 2008 (3) Mah. L.R. 621
it is held that transfer in violation of section 50B
of the Tenancy Act is not null and void, but is
only invalid and section 98C of the Tenancy Act
lays down how land should be disposed of,
alienation of which is invalid. In that section,
ig Tabhsildar suo motu on the application of any
person interested in such land has reason to
believe that such alienation, transfer or
acquisition is or becomes invalid under any of
the provisions of the Act, the Tahsildar shall
issue a notice and hold inquiry as provided for in
section 98-B and decide whether the alienation,
transfer or acquisition is or is not invalid. It is
only after declaration by Tahsildar, the land vests
in the Govt. and it does not go back to the
vendor or transferor. Such land is to be disposed
of as per sub section (4);
(5) Suit is clearly barred by limitation as sale deed is
under challenge. Article 65 of the Limitation
22 S.A. 391.2010 - [ J ]
Act is not applicable in the facts and
circumstances of the present case;
(6) The learned District Judge considered evidence
of Ramdas Koli, who was examined as D.W. 4 at
Exh. 137 and D.W. 3 Lala Dhansing Chavan at
Exh. 136. Both these witnesses deposed that
ig defendants No. 3 to 5 are in possession. D.W. 4
Ramdas Koli deposed that adjacent to his land,
(appellants No. 2 and 3 before the District Court)
and they are in possession of the suit land. He
submitted that Appeal is devoid of substance and
no power is exercised invoking section 100 of
C.P.C.
14. Mr. Yousuf B. Pathan invited my attention to the
affidavit dated 26/04/2011 made by defendant No. 1 and
submitted that defendant No. 1, after going through the
record of R.C.S. No. 202/2002, has stated that she did not
file Written Statement at Exh. 18 in the trial Court. The
same is also not signed by her. She did not appoint any
23 S.A. 391.2010 - [ J ]
Advocate to defend her in that Suit. Defendant No. 1 has no
interest in the suit land. Defendant No. 1 never entered into
sale transaction in respect of the suit land. Gobarya Chavan
did not execute the sale deed in her favour on 10/02/1977.
He submitted that all these documents are required to be
verified from the hand writing and finger print experts.
15. ig In reply, Mr. Mantri submitted that for the first
time in this Appeal, defendants No. 3 to 5 have contended
that G.No. 555 was formed out of S.Nos. 246/2 and 246/3 as
is evident from Exh. 100, extract of consolidation scheme.
He submitted that in paragraph 2-D, plaintiffs specifically
asserted that in the year 1982-83 during the course of
consolidation scheme, S.Nos. 246/1 ,246/2 and 246/3 were
converted into G.No. 555. In paragraph 3, plaintiffs gave
boundaries of the suit land. Defendants No. 3 to 5 filed
Written Statement dated 06/02/2006 at Exh. 89. In
paragraph 15, they admitted that the contents of paragraph
2-D are correct. It was submitted that the consolidation
scheme was implemented and S.Nos. 246/1 ,246/2 and
246/3 were converted into G.No. 555. In paragraph 11, they
admitted that the contents of paragraph 3 as regards
24 S.A. 391.2010 - [ J ]
boundaries are true and correct. He submitted that since
defendants No. 3 to 5 admitted contents of paragraphs 2-D
and 3, it is not open for defendants No. 3 to 5 now to
contend that S.Nos. 246/2 and 246/3 were converted into
G.No. 555. He further submitted that though P.W. 1 Madan
admitted in cross examination that S.Nos. 246/2 and 246/3
were converted into G.No. 555, plaintiffs did not get
opportunity to explain that admission. Had the opportunity
been given, plaintiffs would have examined Officer from the
Consolidation department. The parties may, therefore, be
given opportunity to lead evidence on this aspect.
16. I have considered the rival submissions made by
the learned counsel appearing for the parties. I have also
perused the material on record, as also original record.
17. Mr. Mantri submitted that original sale deed
dated 10/02/1977 did not see light of the day. Defendants
No. 3 to 5 did not produce original sale deed. They did not
obtain permission for leading secondary evidence. The
learned trial Judge had rightly drawn adverse inference
against defendant No. 1. I do not find any merit in this
25 S.A. 391.2010 - [ J ]
submission. It has come on record that defendants No. 3 to
5 examined D.W. 2 Vasant Narayan Jadhav at Exh. 121. He
was serving as a Clerk in the office of Sub Registrar. He had
brought the record from the office of the Sub Registrar,
Aurangabad and from record he deposed that Gobarya
Chavan and Dhanji Chavan were shown as vendors and
Kalavatibai Dasu Rathod as purchaser. He deposed that both
the vendors have put their thumb impressions. He brought
the thumb impression book along with him, which showed
that Gobarya Chavan and Dhanji Chavan have impressed
their thumb impressions in the thumb impression book.
18. Defendants No. 3 to 5 also examined D.W. 3 Lala
Dhansing Chavan, attesting witness of the sale deed executed
by Gobarya Chavan and Dhanji Chavan in favour of
defendant No. 1 Kaveribai at Exh. 136. D.W. 3 Lala is a
nephew of Gobarya Chavan. He deposed that Gobarya
Chavan and Dhanji Chavan had sold the land to defendant
No. 1 Kaveribai for the consideration of ` 10,000/- [Rupees
Ten Thousand only]. He was present in the Collector's office
at the time of execution of the document. The stamp paper
was purchased by Gobrya Chavan and the entire contents of
26 S.A. 391.2010 - [ J ]
the sale deed were narrated by Gobarya Chavan and Dhanji
Chavan to the scribe of the sale deed and thereafter Gobarya
Chavan and Dhanji Chavan had put their thumb impressions
in his presence. D.W. 3 Lala thereafter had put his signature
on the sale deed and after his signature, other witnesses
signed the sale deed. The Sub Registrar obtained thumb
impressions of Gobarya Chavan and Dhanji Chavan in the
register. P.W. 1 Madan was shown sale deed dated
10/02/1977. He admitted that the document shown to him
is a sale deed dated 10/02/1977. As noted earlier, defendant
No. 1 did not contest the Suit. Defendants No. 3 to 5
produced certified copy of the sale deed at Exh. 101. P.W. 1
admitted that document shown to him is a sale deed.
Witnesses examined by defendants No. 3 to 5 have proved
the execution of the sale deed. For all these reasons, I do not
find that the learned trial Judge was justified in drawing
adverse inference against defendant No. 1 for not producing
original sale deed.
19. Mr. Mantri submitted that though the sale deed
is alleged to be executed on 10/02/1977, it was registered on
07/06/1985. He relied upon Sections 23,25,34,74 to 77 of
27 S.A. 391.2010 - [ J ]
the Registration Act, 1908. He submitted that since the sale
deed was not registered within stipulated time, it is,
therefore, void transaction. In support of his submission, he
relied upon the decision of the Apex Court in the case of Raj
Kumar Dey (supra). Section 23 of the Registration Act lays
down time for presenting documents. It lays down that
subject to the provisions contained in sections 24,25 and 26,
no document other than a will shall be accepted for
registration unless presented for that purpose to the proper
officer within four months from the date of its execution. We
are not concerned with the proviso in this case. Section 25
lays down that if owing to urgent necessity or unavoidable
accident, any document executed, or copy of a decree or
order made, in [India] is not presented for registration till
after the expiration of the time hereinbefore prescribed in
that behalf, the Registrar, in cases where the delay in
presentation does not exceed four months, may direct that,
on payment of a fine not exceeding ten times the amount of
the proper registration fee, such document shall be accepted
for registration. Mr. Mantri submitted that in view of
Section 23, document has to be presented within four months
from the date of its execution and further period not
28 S.A. 391.2010 - [ J ]
exceeding four months in Section 25 subject to fulfillment of
the conditions stipulated therein. Section 74 of the
Registration Act lays down procedure on the application
made to the Registrar in the event of the Sub Registrar
refusing to register a document. Section 75 empowers the
Registrar to pass order. Section 76 provides for order of
refusal by Registrar. Section 77 lays down that where the
Registrar refuses to order the document to be registered,
under section 72 or section 76, any person claiming under
such document, or his representative, assign or agent, may,
within thirty days after the making of the order of refusal,
institute in the civil Court, within the local limits of whose
original jurisdiction is situate the office in which the
document is sought to be registered, a suit for a decree
directing the document to be registered.
20. As against this, Mr. Thole relied upon Section 47
to contend that a registered document shall operate from the
time from which it would have commenced to operate if no
registration thereof had been required or made, and not from
the time of its registration.
29 S.A. 391.2010 - [ J ]
21. In the present case, it has come on record that
sale deed in favour defendant No. 1 Kaveribai is dated
10/02/1977. The sale deed is registered on 07/06/1985. It
has come on record that the sale deed was presented before
the Sub Registrar in the year 1977 itself. The learned
District Judge has considered this aspect in paragraph 18 of
its Judgment. After considering Section 47 of the
Registration Act, learned District Judge observed that after
presenting document before the Sub Registrar for its
registration and if such document is registered subsequently
even then it does not invalidate the execution of the sale
deed. Though the sale deed is registered subsequently its
effect would be from the date of its execution. Mr. Mantri
relied upon the decision of the Apex Court in the case of Raj
Kumar Dey (supra) and in particular paragraph 5 thereof as
also following observation,
" It was held before the High Court that
no registration was permissible beyond the
period fixed under S. 25 read with S. 23 of
the Registration Act and any registration
beyond such period would be void. "
After going through that Judgment, I do not find
30 S.A. 391.2010 - [ J ]
that the Apex Court has held that if the sale deed is not
registered within the stipulated period, it is a void
transaction. Firstly, in the present case, plaintiffs have not
established that the sale deed was not presented within the
time stipulated u/s 23 or u/s 25 of the Registration Act.
Secondly, having regard to Section 47 thereof, I do not find
any merit in the submission of Mr. Mantri that the sale deed
is a void transaction. Even if defendant No. 1 Kaveribai did
not enter into witness box, it can not be said that the sale
deed dated 10/02/1977 is not proved.
22. Mr. Mantri submitted that on 07/01/1958,
Gobarya Chavan become owner in view of Section 38E of the
Tenancy Act. U/s 50B (1) of the Tenancy Act no land
purchased by respondent can be sold to any person without
the previous sanction of the Collector. Any transfer of land in
contravention of sub section (1) is null and void. He relied
upon the decision of this Court in the case of (1) Sukumabai
Bandu Balighate (supra), (2) Himatrao Ukha Mali (supra)
and (3) State of Maharashtra (supra). Before I consider these
authorities, it is necessary to reproduce Section 50-B of the
Tenancy Act.
31 S.A. 391.2010 - [ J ]
" 50B. (1) No land purchased by a
tenant under sections 38, 38A, 38E, 38F,
38G, [38H or] [46D or 48], or sold to
any person under section 53F, 53G, 53H,
or 98C shall be transferred by sale, gift,
exchange, mortgage, lease or assignment
[***] without the previous sanction of
the Collector.
(2) Any transfer [***] of land in
ig contravention of sub-section (1) shall
be invalid. "
23. Perusal of Section 50B clearly shows that if
land purchased by tenant u/s 38E among other sections is
sold or transferred by sale, gift, exchange, mortgage, lease or
assignment without previous sanction of the Collector, such
transfer is invalid. In other words, sub section (2) of
section 50B does not lay down that any transfer of land in
contravention of sub section (1) is null and void. In the case
of Himatrao (supra), learned Single Judge of this Court also
held that alienation by tenant in contravention of section 43
(1) of the Bombay Tenancy and Agricultural Lands Act, 1948
was invalid u/s 43 (2) thereof. Section 43 (1) and (2) are
paramateria with section 50B (1) and (2) of the Tenancy
32 S.A. 391.2010 - [ J ]
Act. This decision however does not lay down that such
transfer is null and void. In the case of Sukumabai (supra) it
was urged before this Court that the question as regards
validity of the sale deed should be referred to the tenancy
Court u/s 84C of the Bombay Tenancy Act and Civil Court
will have no jurisdiction to entertain and try this issue. It is
in that context the learned Single Judge of this Court
observed that the sale deed and transaction was ex-facie
illegal and invalid as there was no previous sanction taken by
the parties before transfer of the suit land. It was not
necessary for the Civil Court to once again sent the letter
back for considering the sale deed. This Court has not
pointedly held that the transaction in contravention of
Section 43 (2) was null and void. The decision, therefore, is
of no assistance to the plaintiffs.
24. In the case of Rameshwar Gopikishan Toshniwal
(supra), respondent before the High Court had initiated
proceedings for possession of the suit land. It was her case
that her husband Vithoba was the owner of S.No. 210 to the
extent of 18 Acres. He had become owner in pursuance of
the tenancy proceedings u/s 38E of the Tenancy Act. He
33 S.A. 391.2010 - [ J ]
died in the year 1972. After his death, Sakhubai became
owner thereof. In 1973, appellant-original defendant
illegally and forcibly occupied 4 Acres 20 gunthas out of the
suit land. The plaintiff demanded possession which was
refused. Sakhubai, therefore, instituted Suit for recovery of
possession. The appellant raised defence that Vithoba was
never owner of the land. The plaintiff was not in possession
at any point of time. He came out with the case that he had
purchased the suit land from Vithoba through registered sale
deed dated 30/05/1967. The learned trial Judge dismissed
the Suit. The appellate Court held that the transaction itself
was void abinitio. The question of acquiring any right, title
or interest in the vendee Rameshwar did not arise. In view
of this observation, appellate Court held that the civil Suit,
to which objection was tried to be raised as not maintainable,
has been held to be maintainable for eviction of
unauthorized occupant. Mr. Mantri relied upon paragraph 4
of that decision to contend that even this Court has held that
transaction is null and void. Paragraph 4 of the Judgment
reads as under,
" Dissatisfied with the judgment of
the learned Judge of the trial Court, the
respondent plaintiff approached the
34 S.A. 391.2010 - [ J ]
lower appellate Court through Regular
Civil Appeal No. 117/81. The learned
Judge of the lower appellate Court
reappreciated the evidence, appreciated
the facts of the case, weighed the
pleading of the parties before him in
proper perspective and reached to the
conclusion that Vithoba the husband of
the plaintiff had become the owner of
the land in pursuance of the provisions
ig of section 38-E of the Hyderabad
Tenancy and Agricultural Lands Act,
1950. The learned Judge of the lower
appellate Court dissecting the provisions
of law and relying on specific provision
of section 50-B of the Hyderabad
Tenancy and Agricultural Lands Act,
1950, reached to the conclusion that the
same could be said to have been caught
within the mischief of the provisions of
this section and hence the transaction
itself was as against law and no sanctity
could be attached to the said document
of sale deed. The learned Judge of
lower appellate Court, therefore,
observed that when the transaction
itself was ab-initio void, the question of
acquiring any right, title or interest in
the property by vendee Rameshwar did
35 S.A. 391.2010 - [ J ]
not arise. In view of this specific
observation by the learned Judge, the
natural conclusion was that the civil
suit to which an objection was tried to
be raised as not maintainable has been
held to be maintainable for eviction of
unauthorized occupier as the possession
of the appellant was not less than that
of an unauthorized occupier or a person
in wrongful possession. The learned
ig Judge of the lower appellate Court,
therefore, rightly held that the
provisions of section 98 of the
Hyderabad Tenancy and Agricultural
Lands Act, 1950 could not be invoked in
the present case and that the Civil Court
could have passed the decree. Thus the
natural conclusion on the basis of the
above said findings was to allow the
appeal by setting aside the Judgment
and decree passed by the Court below.
Appeal was thus allowed which is
challenged in the present Second
Appeal."
25. In the first place, no contention was advanced
before this Court based upon Section 50B of the Tenancy Act.
Secondly, it was not argued that in the absence of previous
36 S.A. 391.2010 - [ J ]
sanction of Collector, the transfer is null and void. Thirdly,
no finding to that effect is recorded by this Court. This
Court noted the findings recorded by the first appellate
Court.
26. As against this, Mr. Thole relied upon the
decision of this Court in the case of Lachmabai W/o
Hanumant and others (supra). This Court considered
Section 50B of the Tenancy Act and observed that transfer in
violation of section 50B of the Tenancy Act is not null and
void but only invalid. This Court reproduced section 50B in
paragraphs 14. In paragraph 15, which this Court held that
Section 50B of the Tenancy Act makes it clear that transfer
in violation of Section 50B is not null and void, but only
invalid. I, therefore, do not find any merit in the submission
of Mr. Mantri that as no previous sanction of the Collector
was obtained before the execution of the sale deed dated
10/02/1977, the sale deed is null and void.
27. Mr. Mantri submitted that since the sale deed is
null and void, Civil Court will have jurisdiction to entertain
and try the Suit and it is not necessary to initiate proceedings
37 S.A. 391.2010 - [ J ]
u/s 98C of the Tenancy Act. I have already held that sale
deed is not null and void and at the highest in view of sub
section (2) of section 50B, it will be invalid. Section 98C of
the Tenancy Act lays down that, where in respect of the
permanent alienation, transfer or acquisition of any land
made on or after the commencement of the Amending Act,
1957, the Tahsildar suo motu or on the application of any
person interested in such land has reason to believe that such
alienation, transfer or acquisition is or becomes invalid under
any of the provisions of the Act, the Tahsildar has to issue a
notice and hold inquiry as provided for in section 98B and
decide whether the alienation, transfer or acquisition is or is
not invalid. Sub section (2) lays down that if, after holding
such inquiry, the Tahsildar comes to the conclusion that the
alienation, transfer or acquisition of land is invalid, he has to
make an order declaring the alienation, transfer or
acquisition to be invalid. Proviso thereof lays down that
where the alienation or transfer of land was made by the
landholder to the tenant in possession of the land and the
area of the land so alienated or transferred together with the
area of other land, if any, cultivated personally by the tenant
did not exceed three family holdings, the Tahsildar shall not
38 S.A. 391.2010 - [ J ]
declare such alienation or transfer to be invalid subject to
conditions (i) and (ii) stipulated therein. Sub section (3)
lays down that on the declaration made by the Tahsildar
under sub section (2), the land shall be deemed to vest in the
State Government free from all encumberances lawfully
subsisting thereon on the date of such vesting and shall be
disposed of in the manner provided in sub section (4).
ig In paragraph 16 of Lachmabai W/o Hanumant
and others (supra), it is held that if the Tahsildar declares
that the transaction was invalid, then the land vests in the
Government and then he did not become owner. Such land
is required to be disposed of as per sub section (4). In view
of the provisions of Section 98C, 99 and 99-A of the Tenancy
Act, in my opinion, Civil Court will have no jurisdiction to
settle, decide or deal with any question which is required to
be dealt with under the Tenancy Act. I have already held
that even if there is no previous sanction of the Collector
before execution of sale deed dated 10/02/1977, the
transaction does not become null and void and at the highest
it becomes invalid. In view of the provisions of sections 98C,
99 and 99A of the Tenancy Act, Civil Court will have no
39 S.A. 391.2010 - [ J ]
jurisdiction to investigate this issue. Mr. Mantri relied upon
the decision of this Court in the case of Bhimrao S/o Kondiba
Bhosale and others (supra) to contend that since the sale
deed is null and void, Civil Court will have jurisdiction to
entertain and try the Suit. In view of my finding that sale
deed is not null and void, decision in the case of Bhimrao
does not assist plaintiffs in any manner.
ig Mr. Mantri relied upon the decision of the Apex
Court in the case of State of Maharashtra (supra) to contend
that since the sale deed is null and void, it was not necessary
to obtain declaration to that effect. For the reasons already
indicated, I have held that sale deed is not null and void.
Therefore, I do not find any merit in the submission as well.
30. Mr. Mantri submitted that the learned District
Judge committed error in holding that Suit is barred by
limitation in view of Article 58. He submitted that in the
facts and circumstances of the case, Article 65 is applicable.
The period of limitation will begin to run when the
possession of the defendant becomes adverse. The
defendants did not set up plea of adverse possession and,
40 S.A. 391.2010 - [ J ]
therefore, it can not be said that the Suit is barred by
limitation.
31. As noted earlier, the sale deed is executed on
10/02/1977. The plaintiffs claim that they are owners of the
suit land and to that effect they are seeking declaration.
They have applied for setting aside sale deed dated
10/02/1977. The learned District Judge has considered this
aspect in paragraphs 11 and 12 of its Judgment. The
learned District Judge considered the evidence of P.W. 1
Madan. During cross examination, he admitted that he got
knowledge of the registration of the sale deed in favour of
defendant No. 1 Kaveribai in the year 1986. Despite that
they have instituted Suit in the year 2002. The learned
District Judge, therefore, observed that plaintiffs ought to
have instituted Suit for relief of declaration within 3 years as
per Article 58 as right to sue first accrued to them in the year
1986.
32. Section 3 of the Transfer of Property Act, 1882
defines expression " a person is said to have notice ". It
reads as under,
41 S.A. 391.2010 - [ J ]
" Interpretation clause - In this Act,
unless there is something repugnant in the
subject or context,
" A person is said to have notice " of
a fact when he actually knows that fact, or
when but for willful abstention from an
enquiry or search which he ought to have
made, or gross negligence, he would have
known it.
Explanation - Where any
ig transaction relating to immovable
property is required by law to be and has
been effected by a registered instrument,
any person acquiring such property or any
part of, or share or interest in, such
property shall be deemed to have notice of
such instrument as from the date of
registration or, where the property is not
all situated in one sub-district, or where
the registered instrument has been
registered under sub-section (2) of section
30 of the Indian Registration Act, 1908
F(16 of 1908), from the earliest date on
which any memorandum of such
registered instrument has been filed by any
Sub-Registrar within whose sub-district
any part of the property which is being
acquired, or of the property wherein a
share or interest is being acquired, is
42 S.A. 391.2010 - [ J ]
situated;
Provided that - (1) the instrument
has been registered and its registration
completed in the manner prescribed by the
Indian Registration Act, 1908 (16 of
1908), and the rules made thereunder,
(2) the instrument or memorandum has
been duly entered or filed, as the case may
be, in books kept under section 51 of that
ig Act, and
(3) the particulars regarding the
transaction to which the instrument
relates have been correctly entered in the
indexes kept under section 55 of that Act.
Explanation II - Any person acquiring any
immovable property or any share or
interest in any such property shall be
deemed to have notice of the title, if any,
of any person who is for the time being in
actual possession thereof.
Explanation III - A person shall be deemed
to have had notice of any fact if his agent
acquires notice thereof whilst acting on his
behalf in the course of business to which
that fact is material;
Provided that, if the agent
43 S.A. 391.2010 - [ J ]
fraudulently conceals the fact, the
principal shall not be charged with notice
thereof as against any person who was a
party to or otherwise cognizant of the
fraud. "
33. Admittedly, in the present case, the sale deed
was registered on 07/06/1985. Article 58 of the Limitation
Act provides for limitation of 3 years and the time from
which the period begins to run when right to sue first
accrues. Thus, within 3 years from 07/06/1985, plaintiffs
ought to have filed Suit for setting aside the sale deed in
terms of Article 58. P.W. 1 Madan admitted that he acquired
knowledge about the sale deed in the year 1986. Thus,
defendants No. 3 to 5 ought to have filed Suit within 3 years
from 1986. Mr. Mantri submitted that Article 65 is
applicable, which provides period of 12 years and the time
from which period begins to run is when the possession of
the defendants becomes adverse to the plaintiff. In the
present case, plaintiffs are claiming to be in possession.
Therefore, Article 65 of the Limitation Act is not applicable as
plaintiffs have not sued for recovery of possession.
44 S.A. 391.2010 - [ J ]
34. That apart, even if it is accepted that Article 65
is applicable, admittedly the sale deed is registered on
07/06/1985. In view of Section 3 of the Transfer of Property
Act, 1882, plaintiffs can be said to have notice of the said
transaction after the registration of the sale deed on
07/06/1985. In any case, P.W. 1 Madan admitted that he
acquired knowledge about the sale deed in the year 1986.
Defendant No. 1 is asserting her right of ownership and also
started asserting that in pursuance of the sale deed, she was
put in possession. Time of 12 years will, therefore, begin to
run from 1986. The Suit, therefore, ought to have been filed
within 12 years from 07/06/1985 or at any rate within 12
years from 1986. Admittedly, the Suit is instituted in the
year 2002. I, therefore, do not find that the learned District
Judge committed any error in holding that the Suit is barred
by limitation.
35. Mr. Mantri submitted that the plaintiffs are in
possession of the suit lands as is evident from voluminous
documentary evidence on record. The learned trial Judge
has considered this evidence in detail in paragraph 14.
However, learned District Judge did not discuss this evidence
45 S.A. 391.2010 - [ J ]
at all. The District Court being the last fact finding Court,
ought to have considered the documentary evidence as also
oral evidence on record.
36. On the other hand, Mr. Thole submitted that
learned District Judge has considered the evidence of D.W. 3
Lala Chavan, who is attesting witness to the sale deed at Exh.
136 and D.W. 4 Ramdas Koli who was examined at Exh. 137.
In paragraph 12, learned District Judge considered the
evidence of D.W. 3 Lala Chavan and D.W. 4 Ramdas Koli,
who deposed that defendants No. 3 to 5 are in possession.
D.W. 4 Ramdas Koli deposed that adjacent to his land, there
is land of defendants No. 4 and 5 (appellants No. 2 and 3 in
the District Court) and they are in possession of the suit land.
37. Without prejudice to the above submission, Mr.
Thole submitted that if the lower appellate Court has not
decided the issue as to who is in possession, evidence on
record is sufficient to decide the said issue and, therefore,
this Court may determine the issue as to who is in
possession.
46 S.A. 391.2010 - [ J ]
38. The learned trial Judge has considered the oral
as well as documentary evidence on record. In particular in
paragraph 14, learned trial Judge considered following
documents :
(i) Pahani Patrak at Exh. 43 for the year 1954-55;
(ii) 7/12 extract at Exh. 45 for the period from
ig 1959-60 to 1981-82 ;
(iii) 7/12 extract at Exh. 46 for the period from
1978-79, 1980-81 and 1981-82 ;
(iv) 7/12 extract at Exh. 48 to 60 which showed
the name of defendant No. 1 Kaveribai and
Satyabhamabai. In other rights column,
possession of Gobarya Chavan was shown.
(v) 7/12 extract at Exh. 61 and 62 indicated
name of defendants No. 1, 3 to 5 and legal
representatives of Satyabhamabai. Name of
defendant No. 1 was entered into ownership
column of the suit land in the year 1982
and name of defendant No. 5 was entered
in 7/12 extract in the year 2001-02. In
other rights column, possession of Gobarya
47 S.A. 391.2010 - [ J ]
Chavan was shown ;
(vi) Certified copy of report dated 03/01/2008
at Exh. 150.
39. The learned trial Judge after considering these
documents, found that plaintiffs are in possession. Perusal of
the order passed by the learned District Judge however does
not show that the learned District Judge has considered these
documents at all. In my opinion, learned District Judge
being the last fact finding Court, ought to have considered
entire oral and documentary evidence on record and
thereafter recorded finding. This assumes importance as
plaintiffs have claimed declaration that they are in possession
of the suit land. They have also claimed injunction
restraining the defendants from obstructing their possession
on the footing that they are in possession. It was, therefore,
necessary for the District Court to have considered entire
evidence before recording finding as regards possession.
40. Section 103 of C.P.C. lays down that in any
second appeal, the High Court may if the evidence on record
is sufficient, determine any issue necessary for the disposal of
48 S.A. 391.2010 - [ J ]
the appeal :
(a) Which has not been determined by the lower
Appellate Court or both by the Court of first
instance and the lower Appellate Court, or
(b) Which has been wrongly determined by such
ig Court or Courts by reason of a decision on such
question of law as is referred to in Section 100.
41. Order XLI Rule 24 lays down that where
evidence on record is sufficient to enable the Appellate Court
to pronounce judgment, the Appellate Court may, after
resettling the issue, if necessary, finally determine the suit,
notwithstanding that the judgment of the Court from whose
decree the appeal is preferred has proceeded wholly upon
some ground other than that on which the Appellate Court
proceeds.
42. Perusal of Section 103 read with Order XLI Rule
24 shows that discretion is given to the Court to determine
any issue for the disposal of the appeal not decided by the
49 S.A. 391.2010 - [ J ]
trial Court or first appellate Court, if the evidence on record
is sufficient.
43. In the case of H.Siddiqui (dead) by L.Rs. Vs.
A. Ramalingam, 2011 (4) SCC 240, the Apex Court held in
paragraph 18 that it must be evident from the judgment of
the appellate court that the court has properly appreciated
the facts/evidence, applied its mind and decided the case
considering the material on record. It would amount to
substantial compliance of Order XLI Rule 31 if the appellate
court's judgment is based on the independent assessment of
the relevant evidence on all important aspect of the matter
and the findings of the appellate court are well founded and
quite convincing. It is mandatory for the appellate court to
independently assess the evidence of the parties and consider
the relevant points which arise for adjudication and the
bearing of the evidence on those points. Being the final court
of fact, the first appellate court must not record mere general
expression of concurrence with the trial court judgment
rather it must give reasons for its decision on each point
independently to that of the trial court. Thus, the entire
evidence must be considered and discussed in detail. In
50 S.A. 391.2010 - [ J ]
paragraph 19, Apex Court referred to its earlier decision in
B.V.Nagesh and another Vs. H.V. Sreenivasa Murthy, JT
(2010) 10 SCC 551, wherein it was held that the first appeal
is a valuable right of the parties and unless restricted by law,
the whole case therein is open for re-hearing both on
questions of fact and law. The judgment of the appellate
Court must, therefore, reflect its conscious application of
mind and record findings supported by reasons, on all the
issues arising along with the contentions put-forth and
pressed by the parties for decision of the appellate Court. In
view thereof, it will be necessary to direct the learned District
Judge to record findings as to who is in possession on the
basis of evidence already on record, as also whether the
plaintiffs are entitled to injunction.
44. Mr. Mantri submitted that for the first time in
this Appeal, defendants No. 3 to 5 have contended that G.No.
555 was formed out of S.No. 246/2 and 246/3 as is evident
from Exh. 100, extract of consolidation scheme. He
submitted that in paragraph No. 2-D of the plaint, plaintiffs
specifically asserted that in the year 1982-83, during the
course of consolidation scheme, S.No. 246/1, 246/2 and
51 S.A. 391.2010 - [ J ]
246/3 were converted into G.No. 555. Defendants No. 3 to 5
filed Written Statement at Exh. 89. In paragraph 11 they
admitted the contents of paragraph 2-D as correct. Mr.
Mantri further submitted that in paragraph No. 3 of the
plaint, plaintiffs gave boundaries of the suit land. In
paragraph 15, defendants No. 3 to 5 admitted that the
contents of paragraph 3 as regards boundaries are true and
correct. Mr. Mantri submitted that once defendants No. 3 to
5 admitted the contents of paragraphs No. 2-D and 3, it is
not open for them now to contend that S.Nos. 246/2 and
246/3 were converted into G.No. 555. He submitted that
plaintiffs did not get opportunity to lead evidence by
examining Officer from Consolidation department. As far as
the so called admission given by P.W. 1 Madan during the
course of cross examination, plaintiffs did not get
opportunity to explain that admission.
45. Mr. Mantri submitted that learned District Judge
ought to have discussed the provisions of Maharashtra Land
Revenue Code, 1966 (for short, ' Code ' ) and in particular
Section 149 thereof as also Registration Act, 1908. Section
149 of Code lays down that any person acquiring any rights
52 S.A. 391.2010 - [ J ]
as holder, has to report orally or in writing his acquisition of
such right to the Talathi within three months from the date
of such acquisition. In view of the fact that the sale deed is
registered on 07/06/1985, proviso to Section 149 exempted
any person acquiring right by virtue of registered document
from obligation to report to the Talathi. In view thereof, I
do not find any merit in the submission of Mr. Mantri that
learned District Judge ought to have discussed Section 149 of
the Code. As far as submission as regards provisions of the
Registration Act, 1908 is concerned, I have already dealt with
this submission earlier. I do not find any merit in this
submission as well.
46. P.W. 1 Madan admitted in cross examination
that S.Nos. 246/2 and 246/3 were converted into G.No. 555.
Plaintiffs did not put any question in re-examination. They
did not even make any attempt to examine any Officer from
Consolidation department for explaining admission. In
other words, plaintiffs had ample opportunity in the trial
Court either to explain the admission of P.W. 1 in re-
examination and/or also to examine Officer from the
consolidation department to substantiate their plea that
53 S.A. 391.2010 - [ J ]
G.No. 555 was formed from S.Nos. 246/1, 246/2 and 246/3.
That apart, I have already held that the suit challenging the
sale deed dated 10/02/1977 is barred by limitation. In view
of Sections 98C,99 and 99A of Tenancy Act, the plaintiffs
ought to have moved the tenancy authorities for challenging
the sale deed. In view thereof, even if it is accepted that
S.No. 246/1, 246/2 and 246/3 were converted into G.No.
555, that will not establish plaintiffs claim that sale deed is
invalid.
47. It is necessary to deal with affidavit made by
defendant No. 1. Defendant No. 1 has filed affidavit dated
26/04/2011 in this Appeal. It is set out therein that she did
not file Written Statement at Exh. 18 resisting R.C.S. No.
202/2002. The Written Statement is not signed by her.
She did not appoint any Advocate to defend her in that Suit.
Defendant No. 1 has no interest in the suit land. Gobarya
Chavan did not execute the sale deed dated 10/02/1977 in
her favour. Defendant No. 1 never entered into sale
transaction in respect of the suit land. Mr. Pathan submitted
that all these documents are required to be verified from the
hand writing and finger print expert.
54 S.A. 391.2010 - [ J ]
48. In the entire affidavit, defendant No. 1 did not
state that suit summons was not served on her. She did not
come out with the case made out in this affidavit before the
trial Court. In fact, she did not participate in the trial Court.
She did not even appear before the appellate Court. The
Appeal proceeded exparte against her. In short, the case
made out in this affidavit was not made out in the trial Court
or before the appellate Court. For the first time, defendant
No. 1 has come with the case that Gobarya Chavan did not
execute the sale deed in her favour, in that, she has no
interest in the suit land. She has also contended that she did
not file Written Statement at Exh. 18 in the trial Court. She
did not sign the said Written Statement. Though she was
represented in the trial Court, as also on her behalf Written
Statement is filed, she is repudiating the said facts. In other
words, she is trying to create an impression that her
Advocate acted contrary to her instructions. In my opinion,
having regard to the record before the Courts below, it is not
open to the defendant No. 1 to allege facts for the first time
in the affidavit which were not pleaded in the trial Court.
Defendant No. 1 also did not participate in the trial Court
and did not face cross examination. Be that as it may. To
55 S.A. 391.2010 - [ J ]
say the least, the affidavit does not inspire any confidence.
The said affidavit is accordingly discarded.
49. In the light of the aforesaid discussion, my
findings recorded against the substantial questions of law
formulated on 10/11/2014 are as under :
Sr. SUBSTANTIAL QUESTIONS
ig FINDINGS
No. OF LAW
(i) Whether the point of limitation YES
decided by the lower appellate
Court under Article 58 of the
Limitation Act can be sustained ?
(ii) Whether the sale deed dated For the reasons
10/02/1977 is legal and valid in recorded earlier,
view of Sec. 50-B of Hyderabad this issue can
Tenancy and Agricultural Lands not be gone into
Act, 1950 ? by the Civil Court
and the plaintiffs
out to have
moved tenancy
authority in view
of provisions of
Secs. 98C, 99
and 99A thereof.
(iv) Whether the learned District Judge For the reasons
56 S.A. 391.2010 - [ J ]
was justified in not discussing the recorded earlier,
provisions of Maharashtra Land since the sale
Revenue Code, 1966 and in deed was
particular section 149 thereof as registered on
also Registration Act,1908 ? 07/06/1985,
deft. No. 1 was
exempted from
obligation to
report to the
Talathi.
------------------------------------------------------------------------------------
50. In light of the aforesaid discussion, the prayers
of the plaintiffs for declaration of ownership of the suit land
is dismissed (part of prayer clauses A and A-1). The prayers
for cancellation of the sale deed dated 10/02/1977 and other
sale deeds and consequent entries effected on that basis is
also dismissed (prayer clauses A-2 and A-3). Prayer for
setting aside decision of the Tahsildar in proceeding No.
2001/Jama/1/KV/1281 also is dismissed (prayer clause B).
The substantial questions of law are answered accordingly.
However, as far as substantial question of law No. (iii) is
concerned, learned District Judge has not discussed the
evidence while deciding the point of possession. In other
words, only following reliefs survive for consideration :
57 S.A. 391.2010 - [ J ]
(1) It be declared that the plaintiffs are in
possession of the suit land (part of
prayer clauses ' A ' and ' A-1 ' ).
(2) That the defendants be restrained
from interfering in the possession
of the suit land ( prayer clause ' C ').
51. The learned District Judge now will decide
whether the plaintiffs are entitled to a decree :
(A) of declaration that they are in possession
and
(B) of perpetual injunction restraining the
defendants from causing obstruction to
their possession over the suit land.
52. The parties shall appear before the learned
District Judge on 12/01/2015 and for that purpose fresh
notice need not be issued to them. The learned District
Judge is requested to decide these points on the basis of
evidence already on record within 3 months from the date of
appearance of the parties. During the pendency of Appeal,
the Order dated 30/01/2013 of the Apex Court directing the
58 S.A. 391.2010 - [ J ]
parties to maintain status-quo shall remain in force. The
office shall transmit the record and proceedings to the
District Court forthwith. The Appeal shall be heard only on
these two points.
53. The Appeal is partly allowed in aforesaid terms
with no order as to costs.
ig [R.G.KETKAR, J.]
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