Bombay High Court
Smt. Saraswatibai Wd/O Balaji ... vs G G Bakade (D) Thr Lrs.Smt. D G ... on 18 January, 2018
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
MISCELLANEOUS CIVIL APPLICATION NO.233/2015
IN
SECOND APPEAL NO.189/1988
Balaji Ramaiya Manthanwar (..deleted)
L.Rs. of applicant.
1. Smt. Saraswatibai Wd/o. Balaji Manthanwar,
aged about 90 years, R/o. Suryamani Ward,
Vijasan Road, Bhadrawati, Tah. Bhadrawati,
Distt. Chandrapur.
2. Gopal S/o. Balaji Manthanwar,
Aged about 72 years, Occu. Retired,
R/o. Shivaji Complex, Mathura Layout No.4,
Mankapur, Koradi Road, Nagpur. (..dead)
Lrs. of Applicant no.2
2a. Nirmala Gopal Manthanwar,
Aged 67 years, Occu. Household,
R/o C/o Pankaj Gopal Manthanwar,
Shivaji Complex, Manthura Apartment,
Post Mankapur, 3rd Floor, Room No. 824,
Nagpur.
2b. Pankaj Gopal Manthanwar,
Aged 40 years, Occu. Service, Shivaji
Complex, Manthura Apartment, Post
Mankapur, 3rd Floor, Room No.824,
Nagpur.
2c. Neeraj Gopal Manthanwar,
Aged 37 years, Occu. Service,
R/o Omkar Height, Plot No.127,
Sector-19, Near Ramtek Thakur School,
Kharghar, New Mumbai.
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2d. Sau. Shivasin Avinash Metapalliwar,
aged 43 years, Occu. Service,
R/o Omkar Nagar, B-22, Near Water Tank,
Manewada Square, Nagpur.
3. Ramesh S/o. Balaji Manthanwar,
Aged about 66 years, Occu. Retired,
R/o. Suryamani Ward, Vijasan Road,
Bhadrawati, Tah. Bhadrawati,
Dist. Chandrapur.
4. Prabhakar S/o. Balaji Manthanwar,
Aged about 63 years, R/o. Rangari Maholla,
Wani, Tah. Wani, Dist. Yavatmal. (..dead)
Lrs. of Applicant no.4
4a. Nilesh Prabhakar Manthanwar,
aged 32 years, Occu. Nil, R/o Ward
No. 20, Rangari Mohalla, Wani,Dist. Wardha.
4b. Rakesh Prabhakar Manthanwar,
aged 28 years, Occu. Nil, R/o Ward No. 20,
Rangari Mohalla, Wani, Dist. Wardha.
4c. Priya Sunnideo Yadav,
Aged 22 years, Occu. Household,
R/o Palus, Tq. Palus, Distt. Sangali.
4d. Maya Wd/o Prabhakar Manthanwar,
Aged 58, Occu. Household, Ward No.20,
Rangari Mohalla, Wani, Dist. Wardha.
5. Suresh S/o. Balaji Manthanwar,
Aged about 60 years, R/o. Aheri,
Tah. Aheri, Dist. Gadchiroli.
6. Umesh S/o. Balaji Manthanwar,
Aged about 58 years, R/o. Bapat Nagar,
Chandrapur, Tah. and Dist. Chandrapur.
7. Smt. Alka Mohan Totewar,
Aged about 55 years, Occu. Household,
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R/o. Sai Colony, Gulmohar Ward No.4,
Pardi, Nagpur. ..Applicants.
..V/s..
Gulabrao S/o. Ganpatrao Bakade (..dead)
through Legal heirs.
1a. Smt. Deokabai wd/o. Gulabrao Bakade (dead),
1b. Ramdas S/o. Gulabrao Bakade, (Dead),
through legal representatives of respondent 1b.
(i) Pratibhatai Wd/o. Ramdas Bakade,
Aged about 45 years, R/o. Flat No.206,
Vishnupriya Apartment, Plot No. C-25,
Near Ahobilamuth, D.D. Colony, Bagh Amberpet,
Hyderabad-13.
(ii) Chandrashekhar S/o. Ramdas Bakade,
aged about 37 years, R/o. Flat No.206,
Vishnupriya Apartment, Plot No. C-25,
Near Ahobilamuth, D.D. Colony, Bagh
Amberpet, Hyderabad-13.
(iii) Bharti d/o. Ramdas Bakade,
Aged about 28 years, R/o. Bunglow No.116,
Railway Officers Colony, Opp. Chriot Church,
Pingli, Venkaiah Marg, South Lallaguda,
Secunderabad-500 017.
(iv) Guddi @ Alka d/o. Ramdas Bakade,
Aged about 30 years, R/o. Flat No.203,
Sai Ram Towers, Kannamwar Chowk,
Anchaleshwar Ward, Chandrapur-442 402.
1c. Arvind S/o. Gulabrao Bakade,
aged about 48 years.
1d. Manohar S/o. Gulabrao Bakade,
aged about 46 years.
All R/o. Ward No.1 Wani, Tah. Wani,
Dist. Yavatmal. ..Non-applicants.
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Shri Manoj Kumar Mishra, Advocate for the applicants.
Shri V.G. Palshikar, Advocate for the non-applicants.
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CORAM : Z.A. HAQ, J.
DATE : 18.1.2018.
ORAL JUDGMENT
1. Heard Shri Manoj Kumar Mishra, Advocate for the applicants, Shri
V.G. Palshikar, Advocate for the non-applicants.
2. Rule. Rule made returnable forthwith.
3. Balaji Ramaiya Manthanwar (predecessor of the present applicants)
had filed Special Civil Suit No.13/1976 against Gulabrao Ganpatrao Bakade
(predecessor of non-applicants) praying for decree of possession of the suit
property and for inquiry into the mesne profits. The claim of Balaji Ramaiya
Manthanwar was opposed by Gulabrao Ganpatrao Bakade on various grounds,
one of it being that Gulabrao Ganpatrao Bakade was put in possession of the
suit property pursuant to the oral agreement dated 5 th April, 1962. The trial
Court dismissed the civil suit by judgment dated 26th November, 1982. The
learned trial Judge held that Balaji Ramaiya Manthanwar was not entitled for
decree for possession as the possession of Gulabrao Ganpatrao Bakade over the
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suit property was protected as per Section 53-A of the Transfer of Property Act,
1882. The judgment and decree passed by the trial Court was challenged by
Balaji Ramaiya Manthanwar before District Court in Regular Civil Appeal
No.67/1983. This appeal was dismissed by the learned District Judge by the
judgment delivered on 17th December, 1987. The judgment and decree passed
by the District Court was challenged before this Court in Second Appeal
No.189/1988 which is decided by this Court on 19th September, 2014.
In connected proceedings which culminated in Second Appeal
No.190/1988 and which is decided alongwith Second Appeal No.189/1988 it is
recorded that Gulabrao Ganpat Bakade had proved that by oral agreement
dated 5th April, 1962, Balaji Ramaiya Manthanwar had agreed to sell the suit
plot in question and Gulabrao Ganpat Bakade had accepted the offer and out of
purchase price of Rs.8,750/-, Gulabrao Ganpat Bakade had paid an amount of
Rs.5,500/- to Balaji Ramaiya Manthanwar, and Gulabrao Ganpat Bakade was
put in possession of the suit property as per the above agreement. This Court
dismissed the Second Appeal No.189/1988 in view of the finding that
Gulabrao Ganpat Bakade was put in possession of suit property as per oral
agreement dated 5th April, 1962 and, therefore, he and then his legal
representatives (present non-applicants) are entitled to protect their possession
as per Section 53-A of the Transfer of Property Act, 1882.
4. Gulabrao Ganpat Bakade claimed that the suit property was a plot
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owned by Adarsh Gruha Nirman Sanstha, Wani and Gulabrao Ganpat Bakade
and Balaji Ramaiya Manthanwar were members of that co-operative society.
Gulabrao Ganpat Bakade claimed that on 5th April, 1962 Balaji Ramaiya
Manthanwar had agreed to sell the plot in question and Gulabrao Ganpat
Bakade accepted the offer of Balaji Ramaiya Manthanwar and agreed to
purchase the plot in question for Rs.8,750/- and out of that, an amount of
Rs.5,500/- was paid to Balaji Ramaiya Manthanwar. According to Gulabrao
Ganpat Bakade, as Balaji Ramaiya Manthanwar had not executed the sale-
deed inspite of repeated requests, he had filed a dispute under Section 91 of
the Maharashtra Co-operative Societies Act, 1960 seeking decree for specific
performance of contract. By the award dated 31st March, 1969, the nominee of
the Registrar, to whom the matter was assigned, passed an award directing
Balaji Ramaiya Manthanwar to execute the sale-deed in favour of Gulabrao
Ganpat Bakade. This award was challenged before the Co-operative Appellate
Tribunal in appeal which was dismissed on 13th March, 1970. Balaji Ramaiya
Manthanwar carried the challenge further before this Curt in Special Civil
Application Nos.1397/1970 and 1398/1970. By the judgment dated 13 th
August, 1975 this Court accepted the challenge raised on behalf of Balaji
Ramaiya Manthanwar that the award passed in favour of Gulabrao Ganpat
Bakade and maintained by the Appellate Tribunal was not sustainable, as the
nominee of the Registrar had no jurisdiction to entertain the dispute. The
award was set aside.
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5. After the Special Civil Application Nos.1397/1970 and 1398/1970 were
decided, Gulabrao Ganpat Bakade filed Regular Civil suit No.53/1978 praying
for decree for specific performance of contract. The claim of Gulabrao Ganpat
Bakade was opposed by Balaji Ramaiya Manthanwar on various grounds, one
of it being that the claim was barred by limitation. The civil suit was decided
by the trial Court by the judgment dated 26 th November, 1982. The trial Court
accepted the claim of Gulabrao Ganpat Bakade regarding oral agreement of
sale and that he was ready and willing to perform his part of contract and
default was on the part of Balaji Ramaiya Manthanwar, however, the civil suit
was dismissed on the ground that the claim of Gulabrao Ganpat Bakade was
barred by limitation. The judgment and decree passed by the trial Curt was
challenged before the District Court in Regular Civil Appeal No.70/1983 which
was allowed by the learned District Judge and decree for specific performance
of contract of sale was granted in favour of Gulabrao Ganpat Bakade on 17 th
December, 1987. This judgment was challenged before this Court in Second
Appeal No.190/1988 by the legal representatives of Balaji Ramaiya
Manthanwar. The Second Appeal No.190/1988 and Second Appeal
No.189/1988 are decided by common judgment dated 19 th September, 2014.
The Second Appeal No.190/1988 is allowed and the judgment and decree
passed by the District Court in Regular Civil Appeal No.70/1983 on 17 th
December, 1987 is set aside. This Court has recorded that Gulabrao Ganpat
Bakade is not entitled to claim benefit of Section 14 of the Limitation Act and
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seek condonation of delay of the period during which he prosecuted the
proceedings under Section 91 of the Maharashtra Co-operative Societies Act.
The claim of Gulabrao Ganpat Bakade is dismissed by this Court recording that
it is barred by limitation.
6. The present non-applicants (legal representatives of Gulabrao
Ganpat Bakade) have not challenged the judgment passed by this Court in
Second Appeal No.190/1988.
7. The applicants seek review of the judgment passed by this Court in
Second Appeal No.189/1988. The applicants contend that the protection as per
Section 53-A of the Transfer of Property Act will not be available to the present
non-applicants as even according to Gulabrao Ganpat Bakade (predecessor of
present non-applicants), the alleged agreement was oral and the necessary
ingredient for availing the protection under Section 53-A of the Transfer of
Property Act is that contract should be in writing and signed by the person,
who agrees to transfer the property.
8. The learned Advocate for the non-applicants has submitted that this
ground was not raised by the applicants at the time of arguing the second
appeal and, therefore, it is not open to them to seek review of the judgment on
this ground.
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9. After going through the record of the second appeal, I find that on 3 rd
July, 1989 the following substantial question of law was formulated.
"What does constitute an agreement for the purposes of
Section 53-A of the Transfer of Property Act so as to avail the
benefit of protection of the possession ?"
This substantial question of law was dealt with by this Court while
deciding Second Appeal No.189/1988 but this Court failed to examine whether
non-applicants are entitled for protection of their possession over the suit
property as per Section 53-A of the Transfer of Property Act, though the alleged
agreement, on which they rely, is oral and not in writing.
10. In the case of Mool Chand Bakhru and another V/s. Rohan and others
reported in AIR 2002 SC at page 812 it is held that a person (claiming to be a
proposed vendee ) cannot protect his possession of an immovable property on
the plea of part performance under Section 53-A of the Transfer of Property Act
on the basis of an oral agreement, the terms of which have not been reduced in
writing. The written agreement is sine qua non for the applicability of the
equitable doctrine of part performance enshrined in Section 53-A of the Act.
11. In view of the fact that the provisions of Section 53-A of the
Transfer of Property Act are not considered by this Court in the right
perspective, I find that there is an error apparent on the face of record while
deciding the Second Appeal No.189/1988. Therefore, the review application
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has to be allowed.
12. Hence, the following order:
(i) The judgment passed in Second Appeal No.189/1988 is recalled.
(ii) The second appeal is restored.
(iii) The Miscellaneous Civil Application No.233/2015 is allowed
accordingly.
(iv) In the circumstances, the parties to bear their own costs.
SECOND APPEAL NO.189/1988
Shri V.G. Palshikar, Advocate appears for the respondents.
Put up before appropriate Bench.
JUDGE
Tambaskar.
