Leelabai W/O Anna Salunke And ... vs Malti W/O Shriniwas Joshi
2017 Latest Caselaw 8319 Bom

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          NAGPUR BENCH, NAGPUR.

                 SECOND APPEAL NO. 261/2003


          1]   Leelabai w/o Anna Salunke

          2]   Anna Madhu Salunke,

                Both R/o Saur, Tahsil and ,
                District-Amravati.                                        ..  Appellants


                                     -versus-


                Malti w/o Shriniwas Joshi,
                R/o Telhara, Tq. Akot,
                District-Akola                                              ..  Respondent


                  -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                  Shri. J.J.Chandurkar the learned counsel for the appellant
                  =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-


                                             CORAM :     V.M. DESHPANDE, J.

                                             DATED  :     NOVEMBER 1, 2017


                  ORAL JUDGMENT:


                  1]              Heard   Shri   J.J.Chandurkar   the   learned   counsel

for the appellant. None for the respondent though served

by paper publication.

2] The present second appeal arises out of

Judgment and Decree passed by learned 3rd Jt.Civil Judge

Junior Division Amravati dated 28/7/1993 by which the

learned trial Court decreed the suit filed by present

respondent and directed the defendants to handover

vacant and peaceful possession of suit field survey No.

142/1 of village Saur, admeasuring 4 acres of land.

Further decree of injunction was granted in plaintiff's

favour that the defendants should not disturb the

possession of the plaintiff after taking the possession of the

suit property. The judgment and decree passed by the

learned trial Court in Regular Civil Suit No. 875/1990 is

confirmed by the learned Joint District Judge Amravati on

6/3/2003 in Regular Civil Appeal No. 189/1993 wherein

the appeal filed by the present appellants was dismissed.

3] The present appeal is filed by original defendant

Nos. 1 and 2.

4] At the time of admission of this appeal following

substantial question of law was formulated:-

" Whether the appellants purchase the suit property under deed dated 24/6/1986 is protected by virtue of the 2 nd part of Section 100 of the Transfer of Property Act."

5] The submission of learned counsel for the

appellant Shri Chandurkar is that, in view of second part of

Section 100 of Transfer of Property Act, both the Courts

below committed error in decreeing the suit. He submitted

that when the appellants purchased the suit property on

24/6/1996, he was not aware about the fact that the

property in question was having charge in favour of the

respondent in view of the decree in her favour for

maintenance. He submitted, therefore, the appeal needs to

be allowed.

6] Respondent herein filed suit for possession and

permanent injunction against the appellant and other

defendants. According to the plaintiff, the suit property is

the ancestral property of plaintiff's husband Shriniwas

Joshi. Her husband was addicted to the various vices,

therefore, the plaintiff alongwith her daughters were

required to file a suit against Shriniwas for maintenance

and charge on the property. the said suit was registered as

Regular Civil Suit No. 30/78. The Court tried the said suit

and passed decree in favour of the plaintiff on 10/4/1979

thereby charge was created on the suit property as well as

other properties.

7] It is the further case of the plaintiff that she was

required to file execution proceedings vide Regular

Darkhast No. 24/79. In the said Execution Proceedings the

suit property was put into auction. It is also a case of the

plaintiff that huge amount of maintenance was

accumulated against Shriniwas, therefore, she filed another

Execution Proceedings for recovery vide Special Execution

Case No. 9/82 in which suit field was sold on 18/10/1985

and the plaintiff herself purchased the property. The

aforesaid auction sale was confirmed by the Court and a

Sale Certificate was granted in favour of the plaintiff. It

was further case of the plaintiff that thereafter she was

actually cultivating the suit property, however, the

defendants illegally and forcibly entered the suit field and

dispossessed her. With this, she brought the suit which

gives rise to the present second appeal.

8] The suit was contested by the defendants. the

gist of their defence is that they purchased the suit

property from Shriniwas on 24/6/1986 for valuable

consideration. It is further a case of the

defendants/appellants that at the time of purchase of the

suit property from Shriniwas, they were not having

knowledge about the charge over the suit property.

Therefore, they are bonafide purchaser without notice.

9] As observed above, both the Courts below

negated the contention and defence of the appellants.

10] It is an admitted position that the present

appellants purchased the suit field from Shriniwas, the

husband of the plaintiff on 26/6/1986 and 10/7/1986

which are later dates of auction sale and confirmation of

the sale on 18/10/1985.

11] Once Shriniwas lost his title over the suit field on

18/10/1985, he was not competent to execute sale deed in

favour of the appellants on 24/6/1986 and 10/7/1986.

On these dates Shriniwas was not having any marketable

and saleable title with him which he could transfer for

consideration. Thus, in my view, the appellants have

purchased the suit property from a person who had already

lost his title over the suit fields.

12] It is not in dispute that the auction sale in which

plaintiff purchased suit field was conducted after following

due process. The appellants are resident of village Saur

where the sale proclamation was done by beating drums

and publishing notice in the Chawadi of village Saur.

Therefore, in my view, it can not be said that the

appellants were not having knowledge about the auction

sale. Further, the auction sale was confirmed by the

competent Court and Sale Certificate was issued in favour

of the respondent/original plaintiff.

13] In backdrop of above, in my view, there is no

substantial question of law as sought to be submitted, in

view of the second part of Section 100 of Transfer of

Property Act, because the said provision will come into

picture only when the sale deed executed in favour of a

person by vendor who is having marketable title with him.

In the present case, Shriniwas had already lost his title at

the time of execution of the sale deeds in favour of the

appellants. Therefore, there is no substantial question of

law involved in the second appeal. Consequently, the

appeal is dismissed with costs and the decree of both

Courts below are hereby confirmed.

JUDGE RSG