Bombay High Court
The State Of Maharashtra (The ... vs Abdul Primahamad Inamdar And Ors on 17 March, 2016
Bench: N.M. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.419 OF 1992
WITH
CIVIL APPLICATION NO.5485 OF 1992
IN
SECOND APPEAL NO.419 OF 1992
1.The State of Maharashtra (The ]
Collector of Satara) ]
2. Tahsildar of Koregaon, Taluka ]
Koregaon, District Satara ig ] ..Appellants/Orgn. Deft.
Nos.1 and 2
Vs.
1.Abdul Pirmahamad Inamdar (since ]
dead) through legal heirs ]
1a. Ismail Abdul Inamdar ]
1b. Khairrudin Abdul Inamdar(since ]
dead) through legal heirs ]
1b-i. Asif Khairrudin Inamdar ]
1b-ii. Smt. Munira Salim Mulla ]
1b-iii. Smt Nilophar Hamid Mulla ]
1b-iv. Smt Shabnam Farukh Mulani ]
1b-v. Smt Sharifa Khairrudin Inamdar ]
1c. Aayb Abdul Inamdar ]
1d. Mussa Abdul Inamdar ]
1e Mohd. Abdul Inamdar ]
1f. Nazir Abdul Inamdar ]
1g. Smt. Shakila Abdul Ajij Mulani ]
2. Babu Shripati Madane (since dead) ]
through his legal heirs ]
2A.Chandrakant Baburao Madane ]
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2B. Nandkumar Baburao Madane ]
2C. Tai Tukaram Jadhav ]
2D. Savitra Jaganath Bodere ]
2E. Shobha Raghunath Jadhav ]
2F. Babai Madhukar Jadhav ]
2G. Gangubai Babu Madane (since dead ]
through legal heirs ]
2G-i. Chandrakant Baburao Madane ]
2G-ii. Nandkumar Baburao Madane ]
2G-iii. Tai Tukaram Jadhav ]
2G-iv. Savitra Jaganath Bodere ]
2G-v. Shobha Raghunath Jadhav ]
2G-vi. Babai Madhukar Jadhav ig ]..Respondents/Orgn.
Plaintiffs.
....
Mr. Rajan Pawar, AGP for the appellants/applicants.
None for the respondents.
....
CORAM : N.M. JAMDAR, J.
DATED : 17 MARCH 2016
ORAL JUDGMENT:
. By this appeal, the State of Maharashtra challenges the
judgment and decree passed by the District Judge, Satara dated 18
July 1991 allowing the appeal arising from judgment and decree
passed by the Civil Judge, Senior Division, Satara dated 31 July
1987.
2. Respondent No.1 is the original plaintiff. He filed a
Regular Civil Suit No.474/1985 against the appellant/State for
declaration that the order of eviction passed by the appellant in
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Vatan Case No.3/1978 dated 5 May 1978 is illegal and void and
sought for injunction restraining the State from interfering with his
possession of the suit land. The respondent No.1 (hereinafter
referred as "the plaintiff") purchased Revision Survey No.152 ad-
measuring 12 acres and 19 gunthas situated at village Kinhai, Tal.
Koregaon, District Satara from respondent No.3 on 28 March 1966.
Respondent No.3 was an ex-watandar of the suit property.
According to the plaintiff, Respondent No.3 was competent to
dispose of the same after the suit land was re-granted to him. The
learned Civil Judge considered the evidence on record and
concluded that on the date of inquiry of eviction proceeding
u/s.59(b) of the Maharashtra Land Revenue Code, the plaintiff had
neither paid nazrana nor he had taken permission of the Collector
as contemplated u/s.8(2) of the Bombay Inferior Village Watans
Abolition Act, 1958 (for short "Abolition Act"). Learned Civil Judge
accordingly concluded that therefore no right accrued to
respondent No.1 to claim any relief against the appellant/State.
Learned Civil Judge also held that the suit was not within
limitation. Learned Civil Judge further held that though nazrana
was paid subsequently, it would not cure the defect in the
transaction of not obtaining requisite permission. Accordingly,
learned Civil Judge dismissed the suit by order dated 31 July 1987.
3. Plaintiff thereafter filed an appeal in the District Court at
Satara. The District Court held that action of the appellant was
taken under undue haste and that the equities were in favour of
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respondent No.1 since the ex-watandar, i.e. respondent No.2
herein, had already received the sale proceeds. The learned District
Judge after referring to the provisions of the Abolition Act and the
circulars, held that the policy of the Act and the circular
contemplates that the moment additional payment is made, as a
matter of formality order of conversion should be passed and the
order of relaxation of consideration. The learned District Judge also
held that the suit was within limitation. Accordingly, by the
impugned judgment and order the District Court decreed the suit
granting declaration that the order passed on 5 May 1978 to be
declared as null and void and the appellant is restrained from
disturbing the possession of respondent No.1.
4. The Appeal was admitted on 3/9/1992 on the following
questions of law.
"2. Whether or not the suit as filed by the Original
Plaintiff challenging Eviction Order in Vatan Case
No.3 of 1978 is barred by the law of limitation ?
3. Whether or not, regrant of the suit land in favour
of the defendant No.3 in terms of Mutation
No.2407 was subjected to conditions of non-
alignability and impartiability ?
4. Whether or not, the title under the sale deed in
question can be legalized in the absence of the
deposit of the Najrana amount, occupancy price
and permission of the Collector contemplated
under section 5(3) of the Abolition Act ?"
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5. During the pendency of the appeal, respondent No.1
expired and his heirs have been brought on record and they have
been served. It appears that no vakalatnama on their behalf is filed.
Respondent No.2 has been served. Respondent No.2 did not file
written statement in the Trial Court.
6. I have heard Mr. Rajan Pawar, the learned AGP for the
appellant-State.
7.
As regards issue of limitation is concerned the Appellate
Court as a finding on fact concluded that the suit was filed on 17
October 1985 after respondent No.1 was served notice on 4 July
1985. learned District Court Judge held that on the basis of mere
mutation entry, it cannot be held that respondent No.1 had lost
possession of the property and the suit was filed or that respondent
No.1 apprehended his dispossession at the hands of the appellant.
In the circumstances, there is no error in the view taken by the
learned District Judge that the suit was within limitation.
8. As regard the other question of law in respect of effect of
the provisions of the Abolition Act, it will have to be kept in mind
that the Sale Deed in question is of 28/3/1966 executed nearly 50
years ago. Ex-vatandar is not contesting the proceeding and it is an
appeal filed by the State. Learned District Judge has taken note of
the law laid down by this Court in Vithal Mondhelkar vs. The
State of Maharashtra and others, 1981 Bombay Cases Reporter,
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38. In this decision, this Court has noted that after the additional
payments are made, order of conversion and removal of restrictions
on transfer should follow. During the pendency of the appeal,
section 5 of the Abolition Act has been amended. Section 5(3) and
clauses (a) & (b) have been introduced, giving power of relaxation
on certain conditions to the State. Therefore, the fact that
transaction has been entered into without taking requisite sanction
will not ipso facto result in such transaction being illegal and an
opportunity is being given to the purchaser of the said land upon
certain condition being satisfied to apply to the State for relaxation.
Therefore, the view taken by the learned District Judge as regards
policy of the State cannot be faulted. It has come on record and it is
not disputed that 10 times nazrana has been paid by respondent
No.1. Once the State has made its intention clear by carrying out
statutory amendment that relaxation can take place on deposit of
monetary compensation and the fact that 10 times nazrana was
paid by respondent No.2, I am of the opinion that after a period of
50 years, it will be against the policy of the Abolition Act itself to
allow the appeal and set aside the protection granted to respondent
no.1 from being dispossessed without due process of law.
9. In the circumstances, the judgment and decree passed by
the learned District Judge, Satara being in consonance with the
policy of the appellant and the law laid down by this Court in
Vithal Mondhelkar vs. The State of Maharashtra and others
(supra) and the subsequent amendments to the Abolition Act and
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that period of 50 years has lapsed since the date of Sale Deed, the
same will have to be confirmed. In the circumstances, appeal
cannot be entertained and is accordingly dismissed. In view of
dismissal of Appeal, Civil Application does not survive and is
disposed of.
(N.M. JAMDAR, J.)
