Bombay High Court
Anwarulla Khan Ahmed Khan Pathan vs Shankar Laxman Waghmare on 10 August, 2021
Bench: V. V. Kankanwadi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.105 OF 2021
WITH
CIVIL APPLICATION NO. 5671 OF 2017
Anwarulla Khan s/o Ahmed Khan Pathan = APPELLANT
(Orig.Plaintiff)
VERSUS
Shankar s/o Laxman Wghmare = RESPONDENT
(Orig.Defendant)
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Mr.KM Nagarkar,Advocate for Appellant;
Mr.GN Chincholkar,Advocate for Respondent
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 10th August, 2021.
PER COURT :-
1) Present appeal has been filed by original
plaintiff, challenging the concurrent findings. He had
filed Regular Civil Suit No.65/2010 before Civil Judge,
Junior Division, Dharmabad, District Nanded, for
declaration of ownership, cancellation of sale-deed
along with perpetual injunction. It came to be
dismissed on 3.2.2015. He challenged the said judgment
and decree in Regular Civil Appeal No.14/2015 before
the learned District Judge-1, Biloli, District Nanded.
After hearing both sides, the said appeal has been
dismissed on 7.12.2016. Hence, the present appeal.
2) Heard learned Advocates appearing for the
respective parties. In order to cut short it can be
stated that both of them have made submissions in
support of their respective contentions.
3) It is to be noted that the plaintiff was
claiming ownership over the suit property by virtue of
registered sale-deed executed by one Sayyad Mukhtar Ali
s/o Sayyad Kasim Ali on 20.10.2008 in his favour.
According to the plaintiff, when his name was mutated
in the revenue record on 22.11.2008, vide M.E.No.2556,
it was objected by the defendant. According to the
plaintiff, the defendant has no right. But, then the
defendant contended that one Sayyad Kasim Ali s/o Diwan
Ali, i.e. father of the vendor of the plaintiff, was
owner of Survey No.229 and 337/2/B. He executed the
sale-deed in favour of the defendant on 16.12.1974.
However, the said sale-deed has been declared as
illegal by the Revenue officer, contending that it is
in contravention of the provisions of The Bombay
Prevention of Fragmentation and Consolidation of
Holdings Act (hereinafter referred to as the said Act).
Name of the defendant came to be mutated in other
rights column and after death of Sayyad Kasim Ali, name
of his son Sayyad Mukhtar Ali came to be mutated vide
M.E.No.2289. On the basis of application by Sayyad
Mukhtar Ali, name of the defendant was deleted from the
other rights column on 15.7.2008, vide M.E.No.2551. The
plaintiff contends that the said sale-deed executed by
Sayyad Kasim Ali in favour of the defendant was
nominal, sham and bogus and was not acted upon. So also
possession of the suit land was never handed over to
the defendant. The plaintiff had purchased the suit
property after due enquiry and, therefore, he filed the
suit for declaration, cancellation of sale-deed and
injunction.
4) The defendant had resisted the claim by
filing written statement and submitted that he had
purchased the land from Sayyad Kasim Ali in view of the
execution of registered sale-deed dated 16.12.1974. His
name was mutated in the other rights column; but he
has handed over possession of the property on the day
of sale. The authorities have wrongly recorded the
name of the plaintiff, when in fact, he is the owner.
Sayyad Mukhtar Ali had no right to sell the land to the
defendant.
5) Both the Courts below have held that the
revenue authorities had no right to declare the sale-
deed as illegal under any Act and it is in exclusive
jurisdiction of a Civil Court to declare a document as
void or illegal. A fact is taken on record that on
16.12.1974, Sayyad Kasim Ali sold the land for
consideration of Rs.3,000/-. The sale-deed has been
produced at Exh.49 and it also mentions that possession
of those lands, which have been sold, has been handed
over to the defendant. Now, the first and foremost
fact is that it has not come on record as to when
Sayyad Kasim Ali expired. Neither he nor his son had
taken any action for cancellation of the sale-deed. If
we consider the fact for the sake of arguments that the
said sale-deed in favour of the defendant was against
the provisions of the said Act; yet unless that
transaction would have been got set aside, Sayyad Kasim
Ali or his son had no right to sell the land to a third
persons. Further it can be seen that throughout the
trial, the order passed by the appropriate authority
under the said Act, was not produced. When enquiry was
made by this Court to the learned Advocate for the
appellant as to whether, by that order, the revenue
authorities intended to say that since the land, which
was sold was a fragment, the sale-deed is against the
provisions of the said Act ? However, the learned
Advocate for the appellant, could not help the Court.
Further question was asked as to what was the standard
holding in the village where the suit land is situated.
It was told by the learned Advocate for the appellant
that he would have to get instructions from his client
on that point. If the revenue authorities found that
the piece of land, which was sold by Sayyad Kasim Ali
to the defendant, was a fragment and, therefore, it is
in violation of the said Act, then same rule will be
applicable to the plaintiff also. But, the plaintiff
is not coming with a case that what he has purchased is
a fragment. The plaintiff never tried to bring a fact
on record as to how and under which provision of law,
the sale-deed in favour of the defendant was void or
illegal. Merely on the basis of the revenue entry, he
cannot say that the said transaction was void.
6) Both the Courts below have correctly and
properly assessed the oral as well as documentary
evidence and the law points which are involved. Under
such circumstance, no substantial question of law is
arising in this case and, therefore, the Second Appeal
deserves to be dismissed and it is accordingly
dismissed in view of the decision in the case of Kirpa
Ram (Deceased) Through L.Rs. And Ors. Vs. Surendra
Deo Gaur and Ors. - (2021) 3 Mah.L.J. 250. Pending
Civil Application, if any, stands disposed of.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
