Anandrao Narayan Kakde And 3 Ors vs State Of Mah. Thr. Secy. Dept. Of ...
2021 Latest Caselaw 3472 Bom

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              -IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

  LETTERS PATENT APPEAL NO. 95/2007 IN W. P. NO. 2822 /1996 (D)
                          WITH
  LETTERS PATENT APPEAL NO. 96/2007 IN W. P. NO. 2821 /1996 (D)
                            WITH
  LETTERS PATENT APPEAL NO. 97/2007 IN W. P. NO. 1497 /1997 (D)
                            WITH
  LETTERS PATENT APPEAL NO. 212/2007 IN W. P. NO. 880 /1996 (D)


 LETTERS PATENT APPEAL NO. 95 OF 2007

  Vasant Laxman Buran,
  aged about 65 yrs,
  R/o. Khairgaon, Tq. Maregaon,
  Dist. Yavatmal.                                         . . . APPELLANT

                         ...V E R S U S..

  1. State of Maharashtra, through its
     Secretary, Dept. of Revenue and Forests,
     Mantralaya, Bombay-32.

       Vyankatesh Sitaram Bhedi through
       its Legal Representatives :

  2. Smt. Sarlabai Wd/o. Vyankatesh,
      aged about 82 years, Occ. Nil,
      R/o. Tilak Chowk, Wani,
      Dist. Agricultural.
     (deleted vide Court's order dt. 25.04.2007)

  3. Vivek S/o. Vyankatesh Bhedi,
     aged about 52 years, Occ. Agriculturist,
     Dist. Yavatmal.

  4. Sau. Anjali W/o. Anil Chine,
     aged about 50 years, Occ. Household,
     R/o. Shriram Apartment, Khamb Talao,
     Dist. Bhandara. ... (dead)... deleted




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        LRs.of respondent no.4.

  4(1)Ananta Anil Chine,
      C/o Chandrakant Dattatray Kulkarni,
      46, Tuljai Eknath Vihar,
      Near Shankar Nagar, Amravati.

  4(2)Sau. Ashwini Jagdish Deshmukh,
      aged major, Occ. Household,
      R/o Ambapeth, Amravati.

  5. Sau. Charusheela W/o. Pramod Deshmukh,
     aged about 48 years, Occ. Household,
     R/o. Deshmukh Wadi, Wani,
     Dist. Yavatmal.

  6.    Ku. Shama Vyankatesh Bhedi,
        aged about 46 years, Occ. Nil,
        R/o. Tilak Chowk, Wani,
        Dist. Yavatmal.

  7.    Laxman Vyankatesh Bhedi,
        aged about 61 years, Occ. Agriculturist,
        R/o. Deshmukh Wadi, Wani,
        Dist. Yavatmal.

  8.    Sau. Aruna Arvind Naik,
        Aged 56 years, Occ. Nil,
        R/o. Plot No. M-8, Vasant Nagar,
        Nagpur.                                        . . . RESPONDENTS



 LETTERS PATENT APPEAL NO. 96 OF 2007

  Vithal Bhaduji Thak,
  aged about 55 years, Occ. Agricultural,
  R/o. Botoni, Tq. Maregaon,
  Dist. Yavatmal.                                           . . . APPELLANT

                         ...V E R S U S..

  1. State of Maharashtra through its
     Secretary, Dept. of Revenue and Forests,
     Mantralaya, Bombay-32.

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        Shri Vyankatesh Sitaram Bhedi
        through its Legal Representative :

  2. Smt. Sarlabai Wd/o. Vyankatesh,
      Aged about 82 years, Occ. Nil,
      R/o. Tilak Chowk, Wani,
      Dist. Agricultural.
     (deleted vide Court's order dt. 25.04.2007)

  3. Vivek S/o. Vyankatesh Bhedi,
     Aged about 52 years, Occ. Agriculturist,
     Dist. Yavatmal.

  4. Sau. Anjali W/o. Anil Chine,
     Aged about 50 years, Occ. Household,
     R/o. Shriram Apartment, Khamb Talao,
     Dist. Bhandara.

  5. Sau. Charusheela W/o. Pramod Deshmukh,
     Aged about 48 years, Occ. Household,
     R/o. Deshmukh Wadi, Wani,
     Dist. Yavatmal.

  6.     Ku. Shama Vyankatesh Bhedi,
         Aged about 46 years, Occ. Nil,
         R/o. Tilak Chowk, Wani,
         Dist. Yavatmal.

  7.     Laxman Vyankatesh Bhedi,
         Aged about 61 years, Occ. Agriculturist,
         R/o. Deshmukh Wadi, Wani,
         Dist. Yavatmal.

  8.     Sau. Aruna Arvind Naik,
         Aged 56 years, Occ. Nil,
         R/o. Plot No. M-8, Vasant Nagar,
         Nagpur.                                        . . . RESPONDENTS



 LETTERS PATENT APPEAL NO. 97 OF 2007

 1. Anandrao Narayan Kakde,
    aged 54 years, Occ. Agriculturist,

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      R/o. Khairgaon, Tah. Maregaon,
      Dist. Yavatmal.

 2. Dattatraya Narayan Kakde,
    aged 31 years, Occ. Agriculturist.

 3. Daulat Narayan Kakde,
    aged 24 years, Occ. Agriculturist.

 4. Smt. Yamunabai W/o. Narayan Kakde,
    aged about 65 years, Occ. Agriculturist

      All R/o. Khairgaon, Post- Botoni-Chincholi,
      Tah. Maregaon, Dist. Yavatmal.                           . . . APPELLANTS

                               ...V E R S U S...

 1. State of Maharashtra through its
    Secretary, Dept. of Revenue and Forests,
    Mantralaya, Bombay-32.

     Vyankatesh Sitaram Bhedi through
     its Legal Representative :

 2. Smt. Sarlabai Wd/o. Vyankatesh,
     aged about 82 years, Occ. Nil,
     R/o. Tilak Chowk Wani,
     Dist. Agricultural.
    (deleted vide Court's order dt. 25.04.2007)

 3. Vivek S/o. Vyankatesh Bhedi,
    aged about 52 years, Occ. Agriculturist,
    Dist. Yavatmal.

 4. Sau. Anjali W/o. Anil Chine,
    aged about 50 years, Occ. Household,
    R/o. Shriram Apartment, Khamb Talao,
    Dist. Bhandara.

 5. Sau. Charusheela W/o. Pramod Deshmukh,
    aged about 48 years, Occ. Household,
    R/o. Deshmukh Wadi Wani,
    Dist. Yavatmal.



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 6.    Ku. Shama Vyankatesh Bhedi,
       aged about 46 years, Occ. Nil,
       R/o. Tilak Chowk, Wani,
       Dist. Yavatmal.

 7.    Laxman Vyankatesh Bhedi,
       aged about 61 years, Occ. Agriculturist,
       R/o. Deshmukh Wadi, Wani,
       Dist. Yavatmal.

 8.    Sau. Aruna Arvind Nail,
       aged 56 years, Occ. Nil,
       R/o. Plot No. M-8, Vasant Nagar,
       Nagpur.                                         . . . RESPONDENTS

 LETTERS PATENT APPEAL NO. 212 OF 2007

       Vyankatesh Sitaram Bhedi
       (Since deceased)
       By L.Rs.

  1. Vivek s/o. Vyankatesh Bhedi,
     aged about 52 years, Occupation
     Agriculturist, R/o Tilak Chowk, Wani,
     Dist. Yavatmal.

  2. Sau. Anjali w/o. Anil Chine,
     aged about 50 years, Occ. Household,
     R/o. Shriram Apartment, Khamb Talao,
     Dist. Bhandara.

  3. Sau. Charusheela W/o. Pramod Deshmukh,
     aged about 48 years, Occ. Household,
     R/o. Deshmukh Wadi Wani,
     Dist. Yavatmal.

  4.    Ku. Sushma Vyankatesh Bhedi,
        Aged about 46 years, Occ. Nil,
        R/o. Tilak Chowk, Wani,
        Dist. Yavatmal.                              . . . APPELLANTS

         VERSUS

  1. State of Maharashtra through its


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       Secretary, Dept. of Revenue and Forests,
       Mantralaya, Bombay-32.

  2.    Laxman Vyankatesh Bhedi,
        Aged about 61 years, Occ. Agriculturist,
        R/o. Deshmukh Wadi, Wani,
        Dist. Yavatmal.
  3.    Sau. Aruna Arvind Naik,
        Aged 56 years, Occ. Nil,
        R/o. Plot No. M-8, Vasant Nagar,
        Nagpur.                                                      . . RESPONDENTS


 In LPA Nos.95/2007, 96/2007 & 97/2007.
 Shri S. R. Deshpande, Advocate for the appellant.
 Ms. K. S. Joshi, I/c G.P. for the respondent no.1/State.
 Shri Gaurav Singh Sengar, Advocate h/f. Shri A. M. Deshmukh for
 respondent nos. 3 to 6.
 In LPA No.212/2007
 Shri Gaurav Singh Sengar, Advocate h/f. Shri A. M. Deshmukh, and
 Shri S.R.Deshpande, Advocates for the appellants.
 Ms. K.S.Joshi, I/c G.P. for respondent no.1/State.
 -----------------------------------------------------------------------------------------------
                                      CORAM :- Z. A. HAQ AND
                                                      AMIT B. BORKAR, JJ.

RESERVED ON :-22/12/2020.

PRONOUNCED ON :-24/02/2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Since issues involved are the same and the impugned

judgment is common, we are disposing of all the Letters Patent

Appeals by a common judgment.

2. These Letters Patent Appeals have been filed by the

transferees and the owner of lands, which are the subject matter of

the present appeals, to challenge the judgment rendered by learned

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Single Judge of this Court in Writ Petition Nos.2821, 2822, 880 of

1996 and 1497 of 1997.

3. In order to appreciate the grievance of the appellants, it

will be necessary to have a glance at a few introductory facts:

The appellant in Letters Patent Appeal No.212 of 2007

owned and possessed various pieces of the agricultural lands situated

in Yavatmal district. It is the case of the appellants in remaining three

Letters Patent Appeals that in the year 1965, they agreed to purchase

the properties in dispute for valuable consideration on the basis of

oral agreement to sale. In the year 1965 itself, possession of the

properties in dispute was handed over to the appellants and their

names were recorded in the crop statements from 1965 onwards.

4. The appellant in Letters Patent Appeal No.212 of 2007,

original owner filed return of his land, as required under Section 12 of

Maharashtra Agricultural Lands (Ceilings of Holdings) Act, 1961 (For

short "the Act of 1961"). In the first round of the litigation, the matter

went up to the Supreme Court and it was remanded back to the

Surplus Lands Determination Tribunal (SLDT) for fresh decision.

5. The learned SLDT after remand held that the original

owner still holds all the lands and rejected his contention that his

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holding of the lands to the extent of the lands transferred, by way of

oral agreement to sale, needs to be deducted from his holding, as

contemplated by Section 2(14) of the Act of 1961.

6. Being aggrieved by the order of the SLDT, the appellants

had filed the appeals before the Maharashtra Revenue Tribunal (MRT)

and the learned Member of the MRT dismissed all the appeals

including the appeal filed by the original owner. The transferees and

the original owner, therefore, had filed the Writ Petitions before the

learned Single Judge of this Court and all the Writ Petitions were

dismissed by the learned Single Judge holding that the orders passed

by the SLDT and MRT were legal and proper. The appellants have,

therefore, filed the present Letters Patent Appeals.

7. We have heard Shri S. R. Deshpande, learned Advocate for

the appellants/transferees. It is vehemently contended by Shri

Deshpande, that the entire approach of the learned Single Judge is

erroneous. He submitted that for the purpose of said Act, transfer of

property by an oral agreement to sale along with delivery of possession

amounts to transfer, as contemplated by Section 8 of the Act of 1961.

He submitted that the delivery of the possession of the property in

dispute alongwith an oral agreement to sale is covered by Clause

"other disposition" as per Section 8 of the Act of 1961. He submitted

9 lpa-95-97-07j final.odt

that Explanation 2 of Section 10 (1) of the Act of 1961 is not attracted

in the present case, as there is no written document executed between

the parties, which can be registered under the provisions of the

Registration Act, 1908. According to him, the appellants are in lawful

possession of the property in dispute, on the basis of an oral agreement

to sale and, therefore, they have become owner, as contemplated by

Section 2(21) of the Act of 1961. In support of his submission, he

relied upon the following judgments:-

(i) Sadashio Sambashio Mungantiwar Vs. State of Maharashtra and

another [1977 Mh.L.J. 783].

(ii) Gulabrao Anandrao Mahure Vs. State of Maharashtra [1976

Mh.L.J. 727].

(iii) Uttar Chand (dead) by L.Rs. Vs. State of Maharashtra and

another [AIR 1980 SC 806].

(iv) Hanumant Yeshwant Deshmukh and others Vs. State of

Maharashtra and others [1983 Mah.L.J. 38].

(v) Shriram S/o. Jagoji Brahmane Vs. State of Maharashtra and

others [2007 (2) Mah.L.J. 353].

(vi) Awadhoot Kisan Ambalkar and others Vs. State of Maharashtra

and others [1977 Mh.L.J. 689].

(vii) Kiran Singh and others Vs. Chaman Paswan and others [AIR

1954 SC 340].

10 lpa-95-97-07j final.odt

(viii) State of Maharashtra Vs. Gulab Rao [1995 (1) Mh.L.J. 708].

(ix) Shankargir Gulabgir Gosavi and others Vs. State of Maharashtra

and others [2005 (1) BCR 470].

(x) Vijay Khadke Vs. State of Maharashtra (W. P. No. 8472/2018,

Decided on 25.11.2019).

(xi) Smt. Nemibai Gandhi Vs. State of Maharashtra (W. P. No. 474/

2017, Decided on 31.10.2018).

(xii) Mohd. Arif Vs. Allah Rabbul Alamin [AIR 1982 SC 948 (1)].

(xiii) Raghunath and others Vs. State of Maharashtra [1971 Mh.L.J.

877].

8. Per contra, Ms. K. S. Joshi, learned I/c. Government

Pleader for the respondent no.1 - State submitted that the issue

involved in the present matters is squarely covered by the judgment of

the Apex Court in the case of State of Maharashtra Vs. Gulab Rao

reported in 1995 Suppl. (2) SCC 21. She submitted that the defence of

oral agreement to sale along with delivery of possession raised by the

appellants is nothing but, fraudulent transfer to evade provisions of

the Ceiling Act. She submitted that the judgments relied upon by the

appellants are distinguishable on facts and no longer good law, in view

of the judgment of Gulab Rao (supra).

11 lpa-95-97-07j final.odt

9. Shri Gaurav Singh Sengar, learned Advocate h/f. Shri A.

M. Deshmukh, learned Advocate for respondent nos. 3 to 6/original

owner adopted the arguments of Shri S. R. Deshpande, learned

Advocate.

10. Having given our anxious consideration to the rival

contentions, we are of the opinion that the learned Single Judge has

rightly dismissed the Writ Petitions filed by the appellants.

11. At this stage, it is necessary to set out certain provisions of

Act of 1961. Section 2(4) of the Act of 1961 defines 'appointed day' as

meaning the day on which the 1961 Act comes into force, which is

26.01.1962. It is relevant to note that the drastic changes have been

brought about subsequent to the enactment in 1961. To understand its

impact, the provisions of Sections 3, 4 and 5 of the Act of 1961, as

originally enacted are referred to here under: -

Section 3 reads as under:--

"3. In order to provide for the more equitable distribution of agricultural land amongst the peasantry of the State of Maharashtra (and in particular, to provide that landless persons are given land for personal cultivation),on the commencement of this Act, there shall be imposed to the extent, and in the manner hereinafter provided, a maximum limit (or ceiling) on the holding of agricultural land throughout the State."

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            Section 4 reads as under:--

"4(1). Subject to the provisions of this Act, no person shall hold land in excess of the ceiling area, as determined in the manner hereinafter provided.

Explanation.- A person may hold exempted land to any extent. (2) Subject to the provisions of this Act, all land held by a person in excess of the ceiling area, shall be deemed to be surplus land, and shall be dealt with in the manner hereinafter provided for surplus land."

Section 5 provided for the ceiling area.

Chapter III in which Sections 8 and 9 of the Act, 1961 fell, is to

be noticed.

"8. No person who, on or after the appointed day, holds land in excess of the ceiling area, shall on or after that day transfer or partition any land until the land in excess of the ceiling is determined under the Act;

Explanation.- In this Section "transfer" means transfer by act of parties (whether by sale, gift, mortgage with possession, exchange, lease or any other disposition) made inter-vivos; and "partition" means any division of land by act of parties made inter-vivos."

The appointed day, it has been noticed was the 26 th day of January, 1962.

"9. No person shall, at any time on or after the appointed day, acquire by transfer or partition any land, if he already has land in excess of the ceiling area, or land which together with any other land already held by him will exceed in the total the ceiling area.

Explanation.- In this section, "transfer" and "partition" have the same meaning as in Section 8."

13 lpa-95-97-07j final.odt

12. A reference is made to the far-reaching changes, which

were brought out by the Maharashtra Act No.XXI of 1975. The

preamble reads as follows:

"WHEREAS, in the State of Maharashtra, the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 imposed for the first time, in the public interest the maximum limit (or ceiling) on the holding of agricultural land, and provided for the acquisition of land held in excess of the ceiling for distribution thereof amongst the peasantry of the State, and in particular, among landless persons; and for other purposes therein stated;

AND WHEREAS, it is now expedient to lower, in the public interest, the maximum limit (or ceiling) on the holding of agricultural land in the State for making available additional land as surplus, so as to secure a still more equitable distribution of land, and for the purpose of removing economic disparities, and thereby for assisting more effectively landless and other persons; and generally for the purpose of so distributing the agricultural resources of the community as best to subserve the common good, and also to prevent the concentration of the means of agricultural production and wealth to the common detriment."

It was to come into force on such day, as it was notified. It came

into force from 19/09/1975.

Section 2(6A) of the Act of 1961 defines the "commencement

date" to mean the 2nd Day of October, 1975.

14 lpa-95-97-07j final.odt

Section 2 (14) is relied upon by the learned advocate for

appellant and it defines the words "to hold land":

"2(14)"to hold land", with its grammatical variations and cognate expressions means to be lawfully in actual possession of land as owner or as tenant; and "holding" shall be construed accordingly;

Section 2 (21) also relied on by the appellant defines the word

"owner":

"2(21)"owner", in relation to any land, includes the person holding the land as occupant, or superior holder as defined in the Code, or as lessee of Government, a mortgagee-in-possession, and a person holding land for his maintenance;"

Section 3 (1) contains the actual prohibition in the matter of

holding land and it reads as follows:

"3(1) Subject to the provisions of this Chapter and Chapter III, no person or family unit shall, after the commencement date, hold land in excess of the ceiling area, as determined in the manner hereinafter provided.

Explanation.-A person or family unit may hold exempted land to any extent."

13. We may now note Sections 8, 9 and 10 of the Act of 1961,

which substituted the earlier provisions:

"8. Restrictions on transfer.- Where a person, or as the case may be, a family unit holds land in excess of the ceiling area on or after the commencement date, such person, or as the case may be, any

15 lpa-95-97-07j final.odt

member of the family unit shall not, on and after that date, transfer any land, until the land in excess of the ceiling area is determined under this Act.

Explanation.-In this section, "transfer" means transfer, whether by way of sale, gift, mortgage with possession, exchange, lease, assignment of land for maintenance, surrender of a tenancy or resumption of land by a landlord or any other disposition, whether by act of parties made inter vivos or by decree or order of a court, tribunal or authority(except where such decree or order is passed in a proceeding which is instituted in such court, tribunal or before such authority before the 26 th day of September 1970), but does not include transfer by way of sale or otherwise of land for the recovery of land revenue or for sums recoverable as arrears of land revenue, or acquisition of land for a public purpose under any law for the time being in force.

9. Restrictions on acquisition of land in excess of ceiling area.- No person or a member of a family unit shall at any time, on or after the commencement date, acquire by transfer any land if he, or as the case may be, the family unit already holds land in excess of the ceiling area or land which together with any other land already held by such person, or as the case may be, the family unit, will exceed in the total the ceiling area.

Explanation.-In this section, transfer has the same meaning as in section 8.

10. Consequences of certain transfers and acquisitions of land.- (1) If-

(a) any person or a member of a family unit, after the 26 th day of September 1970 but before the commencement date, transfers any land in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, or

16 lpa-95-97-07j final.odt

(b) any land is transferred in contravention of section 8 then, in calculating the ceiling area which that person, or as the case may be, the family unit, is entitled to hold, the land so transferred shall be taken into consideration, and the land exceeding the ceiling area so calculated shall be deemed to be in excess of the ceiling area for that holding, notwithstanding that the land remaining with him or with the family unit may not in fact be in excess of the ceiling area.

If by reason of such transfer, the holding of a person, or as the case may be, of the family unit is less than the area so calculated to be in excess of the ceiling area, then all the land of the person, or as the case may be, the family unit shall be deemed to be surplus land; and out of the land so transferred and in possession of the transferee [unless such land is liable to forfeiture under the provisions of sub-section (3)], land to the extent of such deficiency shall, subject to rules made in that behalf, also be deemed to be surplus land, notwithstanding that the holding of the transferee may not in fact be in excess of the ceiling area. Explanation. - For the purposes of clause (a) 'transfer' has the same meaning as in section 8.

All transfers made after the 26 th day of September 1970 but before the commencement date, shall be deemed (unless the contrary is proved) to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972.

Explanation. - For the purposes of this sub-section, a transfer shall not be regarded as made on or before 26 th September 1970 if the document evidencing the transfer is not registered on or before that date or where it is registered after that date, it is not presented for registration on or before the said date.

(2) If any land is possessed on or after the commencement date by a person, or as the case may be, a family unit in excess of the ceiling area, or if as a result of acquisition (by testamentary disposition, or devolution on death, or by operation of law) of any

17 lpa-95-97-07j final.odt

land on or after that date, the total area of land held by any person, or as the case may be, a family unit, exceeds the ceiling area, the land so in excess shall be surplus land.

(3) Where land is acquired in wilful contravention of section 9, then as a penalty therefor, the right, title and interest of the person, or as the case may be, the family unit or any member thereof in the land so acquired or obtained shall, subject to the provisions of Chapter IV, be forfeited, and shall vest without any further assurance in the State Government:

Provided that, where such land is burdened with an encumbrance, the Collector may, after holding such inquiry as he thinks fit and after hearing the holder and the person in whose favour the encumbrance is made by him, direct that the right, title and interest of the holder in some other land of the holder equal in extent to the land acquired in wilful contravention of section 9, shall be forfeited to Government.

14. Among the changes that have been ushered in the definition

clause, the following are noted:--

In Section 2, sub-Section(5A) was added and it defined

'Code' to mean the Maharashtra Land Revenue Code, 1966 and sub-

Section 6A, which was added as the 'commencement date' means date

on which the Amending Act, 1972, comes into force.

A completely different Chapter came to be inserted as

Chapter II. This was done by way of substitution of the earlier Chapter,

the Chapter contained in the Act prior to the amendment.

18 lpa-95-97-07j final.odt

15. The Act of 1961, as amended lays down a ceiling on the

holdings of the land by the person concerned. As per Section 3(1) of

the Act of 1961, no person or family unit shall after the

commencement date hold land in excess of ceiling area, as determined

in the manner provided in the Sections therein after. It is pertinent to

note that Section 3(1) of the Act of 1961 that is made subject to

provisions of Chapter II and Chapter III of the Act of 1961. The term

"to hold the land" is defined by Section 2(14) to be lawfully in actual

possession of land as owner or as tenant and holding shall be

construed accordingly. The word "owner" is defined under Section 2

(21) to the effect that landowner would include the person holding the

land as occupant or superior holder as defined in the Code or as lessee

of Government, mortgagee in possession and a person holding land for

his maintenance. In order to appreciate the intention of the Legislature

in this regard, the word "transfer" as employed in Section 10 of the

Act of 1961 must be understood as meaning a transfer which is

genuine. The word "transfer" must be understood, as describing,

cases where under the said Act, by means of the modes mentioned in

the Explanation to Section 8. The legislative intention was that such

transfers, which otherwise would be termed as genuine transactions

and therefore, would have the effect of defeating the object of the Act

19 lpa-95-97-07j final.odt

as contained in Section 3 and the Chapter relating to the distribution

of surplus land, should not be rendered ineffective.

16. In the backdrop of the provisions of Sections 2, 8 and 10

of the said Act of 1961, in our view the judgment of Apex court in the

case of Gulab Rao (supra) assumes importance for adjudicating issue

involved in the present appeals. The Supreme Court in the case of

Gulab Rao (supra) has held in paragraph nos.5 and 6 as under:-

"5. A mere look at sub-section (1)(a) of Section 1.0 shows that if any person or a member of a family unit after 26-9-1970, but before the commencement date which is defined by Section 2(6a) as 2-10-1975, transfers any land in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, then in calculating the ceiling area which that person or as the case may be the family unit is entitled to hold, the land so transferred, shall be added back into the transferor's holding and accordingly the holding shall be computed for arriving at the excess holding beyond the ceiling area. As per Explanation I to Section 10 all transfers made after 26-9-1970 but before the commencement date shall be deemed (unless the contrary is proved) to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act. This fiction will arise in connection with all such transfers effected between the aforesaid two termini which represent between them a grey area. It is no doubt true that ex facie the transfers had taken place much prior to 26-9-1970 and, therefore, they would not be covered by the sweep of the first Explanation of Section 10, but then follows the second Explanation which states that for the purpose of sub-section (1) of Section 10, a transfer shall not be regarded as made on or before 26-9-1970, if the document evidencing the transfer is not registered on or

20 lpa-95-97-07j final.odt

before that date. We are not concerned with the second part of the Explanation as it is not the case of the respondent that these agreements were registered at any time after 26-9-1970. It is not in dispute that these agreements of sale were unregistered documents. Therefore, by the sweep of Explanation II they will have to be treated to be transfers made after 26-9-1970 and would fall within the grey area as indicated by Section 10(1)(a) read with the first Explanation and would be deemed, unless the contrary is proved, to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972, as it is not the case of the respondent that they were entered into at any time after the commencement date. However, Shri Lalit vehemently contended that Explanation II to Section 10 cannot apply for the simple reason that an agreement of sale is not a transfer as understood by the Transfer of Property Act. That may be so. However, as laid down in the Act, for the purpose of clause

(a) of Section 10 transfer has the same meaning as in Section 8, as stated in the first Explanation. Then we turn to Section 8 and find Explanation giving meaning of transfer. It lays down that 'transfer' means transfer, whether by way of sale, gift, mortgage with possession, exchange, lease, assignment of land for maintenance, surrender of a tenancy or resumption of land by a landlord or any other disposition, whether by act of parties made inter vivos or by decree or order of a court, tribunal or authority (except where such decree or order is passed in a proceeding which is instituted in such court, tribunal or before such authority before 26-9-1970), but does not include transfer by way of sale or otherwise of land for the recovery of land revenue or for sums recoverable as arrears of land revenue, or acquisition of land for a public purpose under any law for the time being in force.

(emphasis supplied)

6. This Explanation to Section 8 gets engrafted in Section 10(1)(a) by virtue of first Explanation to Section 10(1). The Explanation to Section 8 clearly covers all types of transfers by way of sale, gift, mortgage, exchange, lease, assignment of land for

21 lpa-95-97-07j final.odt

maintenance, surrender of tenancy or resumption of land, which are different forms of transfers but, the said term also includes any other disposition made inter vivos or by decree or order of the court. The words "any other disposition" would clearly include transfer of possession of lands under an agreement of sale by the owner to the transferee, who is the prospective purchaser as such transfer of possession is made by act of parties. In fact the learned Single Judge has also held that in view of Section 8 read with the First Explanation even the Second Explanation to Section 10 would get attracted. However, in his view, before the lands covered by such unregistered agreements are added back to the holding of the owner it has to be established whether the owner has proved to the contrary, namely, the transaction was not made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972. Now it must be kept in view that nowhere before the Tribunal nor before the original Authority any such clear-cut defence was put forward by the respondent nor had he made any effort to prove to the contrary for getting out of the sweep of the First Explanation to Section 10(1)(a) read with Explanation-II thereof. It was not his case that these transactions were genuine ones, which were absolutely needed to be entered into by the owner in favour of the transferees and they had nothing to do with the Amending Act. As such was not his defence there arose no occasion to prove such a defence. His contention was on the contrary solely to the effect that this is not a transfer at all as contemplated by the Explanation and that the transferee was protected by Section 53-A of the Transfer of Property Act and that the owner was not in actual possession of these lands on the commencement date. These contentions are totally irrelevant for deciding the applicability of twin explanations to Section 10(1)(a). Whether the transfer is protected by Section 53-A of the Transfer of Property Act or not is not relevant for deciding the applicability of Section 10(1)(a). Whether the respondent was in cultivation of these lands or not was equally irrelevant when the question of adding back of the transferred lands in the holding comes up for

22 lpa-95-97-07j final.odt

consideration in the light of Section 10(1)(a). Consequently, it must be held that all these Survey Nos. 12, 13 and 14 measuring 51.08 acres were transferred within the meaning of Section 10(1)

(a) Explanations I and II before 26-9-1970 otherwise than by registered documents and hence they were to be ignored and as per the sweep of the First and Second Explanations to Section 10(1)(a), they were deemed to have been made after 26-9-1970 in anticipation of or in order to avoid or defeat the object of the Amending Act. The respondent, as seen earlier, has failed to plead and prove to the contrary though ample opportunity was available to the respondent for doing so before both the authorities, namely, the First Authority as well as the Maharashtra Revenue Tribunal. The respondent could not have been given a second innings in this connection for proving a case never pleaded by him. Once that conclusion is reached, the result becomes obvious. These transfers of land will be treated to have been made in anticipation of or in order to avoid or defeat the object of the Amending Act, 1972 during the grey period after 26-9-1970 and before the commencement date. Consequently, as laid down by Section 10(1)

(a) in calculating the area, which the transferor is entitled to hold these transferred lands shall be taken into consideration meaning thereby they will be added back to the holding even though he may not be in actual cultivation thereof on the commencement date and after adding these lands, the excess ceiling land would have to be determined. That is precisely what is done by the original Authority and it is this decision, which was confirmed by the Maharashtra Revenue Tribunal. The said decision of the Maharashtra Revenue Tribunal was perfectly justified both in law and on facts. Hence, the learned Single Judge was in error in interfering with the said decision of the Tribunal."

17. The Supreme Court in the case of Gulab Rao (supra) has

held that the term "any other disposition" would clearly include

23 lpa-95-97-07j final.odt

transfer of possession of lands under an agreement of sale by owner to

the transferee, who is prospective purchaser.

18. The crux of the issue involved between the parties to the

present appeal is about applicability of Second Explanation to Section

10(1) of the Act of 1961 to oral agreement to sale. According to the

appellant, there is no document executed between the original owner

and the transferee and, therefore, there is no question of registering

the document as contemplated by Second Explanation. In our opinion,

this contention on behalf of the appellant is covered by observations of

Apex Court in the case of Gulab Rao (supra). The Supreme Court after

considering scheme of the Act in para 6 has observed thus:-

"6. Consequently, it must be held that all these Survey Nos. 12, 13 and 14 measuring 51.08 acres were transferred within the meaning of Section 10(1)(a) Explanations I and II before 26-9- 1970 otherwise than by registered documents and hence they were to be ignored and as per the sweep of the first and second Explanations to Section 10(1)(a), they were deemed to have been made after 26-9-1970 in anticipation of or in order to avoid or defeat the object of the Amending Act."

19. There is one more reason for not accepting submission on

behalf of the appellant that in absence of written instrument, Second

Explanation to Section 10(1) of the Act of 1961 would not be

attracted. Before changes, which were brought out by the Maharashtra

24 lpa-95-97-07j final.odt

Act No. XXI of 1975, the appointed day was the 26 th day of January,

1962. Section 9 of Act of 1961 imposed embargo that no person shall,

at any time on or after the appointed day, acquire by transfer or

partition any land, if he already has land in excess of the ceiling area,

or land which together with any other land already held by him will

exceed in total the ceiling area. As per Explanation to Section 9,

"transfer" had the same meaning as in Section 8. The Legislature,

when it enacted the Maharashtra Act No.XXI of 1975, must be

presumed to know that a transfer, by way of a sale or lease or a

mortgage, may be nothing but a nominal and a sham transaction. A

clever camouflage ingenuously disguised as an oral agreement to sale,

cannot be permitted to defeat the intention of the Legislature.

Therefore, they have provided for Second Explanation that any transfer

of land within the meaning of Section 8 of the Act of 1961 before 26-9-

1970 shall be ignored, which is otherwise than by registered

documents. The emphasis of legislature in second explanation to

Section 10 (1) is on the factum of registration. The object of

registration is designed to guard against fraud by obtaining a

contemporaneous publication and an unimpeachable record of each

document. The object and purpose of the Registration of document,

amongst other things, is to provide a method of public registration of

documents so as to give information to people regarding legal rights

25 lpa-95-97-07j final.odt

and obligations arising or affecting a particular property, and to

perpetuate documents, which may afterwards be of legal importance,

and also to prevent fraud. Registration lends inviolability and

importance to certain classes of documents. Second Explanation to

Section 10 (1) has been added to statute book to prevent two

contingencies to evade provisions of the Act of 1961, i.e. (i) somebody

would be trying to dispose of the excess area to remain within the

ceiling area and; (ii) some person, who has less than ceiling area may

be interested in acquiring the land up to the ceiling area. For the said

purpose, persons may take to dubious method to adjust their land

holdings by creating benami transactions. Such Sale and Acquisition

may not be bonafide, but would only defeat the provisions of the Act.

In order to keep a check on such dubious methods, Second Explanation

to Section 10(1) requires that for the purposes of said sub-Section, a

transfer shall not be regarded as made on or before 26 th September

1970, if the document evidencing the transfer is not registered on or

before that date or where it is registered after that date, it is not

presented for registration on or before the said date. We are

therefore, of the considered view that any transfer of land within the

meaning of Section 8 of the Act of 1961 before 26-9-1970 shall be

ignored, which is otherwise than by registered documents.

26 lpa-95-97-07j final.odt

20. The Advocate for the appellant has relied upon the

judgment of the learned Single Judge of this Court in the case of

Sadashiv Sambashio Mungantiwar (supra) and the judgment in the

case of Gulabrao Anandrao Mahure (supra). In Sadashivio Sambashio

Mungantiwar's case, on the basis of an oral agreement to sale dated

28.05.1962 , a registered sale-deed was executed in the year 1971,

which was held to be protected from the Act of 1961. It appears that

the learned Single Judge of this Court in the said case had not

adverted to the second explanation to Section 10(1) of the Act of

1961. Apart from the said reasons, the Apex Court in the case of

Gulabrao Anandrao Mahure (supra) has observed that transfer as per

Section 8 of the Act of 1961 otherwise than by registered instrument

will be covered by the second explanation to Section 10(1) of the Act

of 1961.Therefore, the said judgment will not be of any help to the

appellant. The second judgment in the case of be of Gulabrao

Anandrao Mahure (supra) of this Court has been set aside by the

judgment of the Apex Court in the very case of Gulabrao Anandrao

Mahure.

In the next judgment relied upon by the appellant in the

case of Uttachand (dead) by L.Rs .(supra), the transfer was made prior

to coming into force of the Act of 1961. In the said case all

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transactions took place in the year 1956. Therefore, the said judgment

is of no help to the appellant.

The judgment in the case of Hanumant Yeshwant

Deshmukh and others (supra), is in relation to the land acquired under

the Land Acquisition Act prior to the date of vesting and, therefore, the

said case is of no help to the appellant.

The next case relied upon by the appellant is the judgment

of this Court in the case of Shriram s/o Jagoji Brahmane (supra),

wherein the question before this Court was regarding right of selection

of property to be retained by the land holder. Since, we have held that

the entire holding shall be counted in the holding of the original

owner, the judgment in the case of Shrirram Jagoji Brahmane, is not

relevant.

The judgment in the case of Awadhoot Kisan Ambalkar

and others, is on the point of interpretation of Rule 3 of sub-rule (3)

of the Maharashtra Agricultural Lands (Lowering of Ceiling on

Holdings) (Declaration and Taking possession of Surplus Land) and

Amendment Rules, 1975. Therefore, for the purpose of deciding the

issue involved in the present appeal, the said judgment is not relevant.

Another judgment relied upon by the appellant is in the

case of Kiran Singh and others (supra), which is in relation to effect of

decree passed by Court without jurisdiction. Considering the issue

28 lpa-95-97-07j final.odt

involved in the present appeal, the said judgment is of no help to the

appellant.

Remaining judgments relied upon by the appellant are not

on the point of applicability of Explanation II to Section 10(1) of the

Act of 1961 to the oral agreement to sale. Therefore, it is not

necessary to consider in detail each and every judgment.

21. In view of above discussion, we are of the considered

view that transfer as contemplated by Section 8 of the Act 1961 by way

of oral agreement of sale alongwith delivery of possession of said lands

needs to be evidenced by registered document as per Explanation II to

Section 10 (1) (a) of the Act 1961 otherwise such transfers shall be

deemed to have been made after 26.9.1970 in anticipation of or in

order to avoid or to defeat object of amending Act i.e. Maharashtra Act

No.XXI of 1975.

22. For the reasons stated above, there is no merit in all the

Letters Patent Appeals. Hence, all Letters Patent Appeals are dismissed

with no order as to costs.

CAZ No.13/2020 in LPA No.95/2007, CAZ Nos.12/2020, 47/2016, 16/2016, 17/2016, 28/2015 in LPA No.96/2007 with CAZ Nos.11/2020, 14/2020, 12/2016, 13/2016, 29/2015 in LPA No.97/2007 and CAZ No.110/2014 in LPA No.212/2007.

29 lpa-95-97-07j final.odt

In view of disposal of Letters Patent Appeal Nos. 95/2007,

96/2007, 97/2007 and 212/2007, the Civil Applications do not

survive. They are disposed.

                  JUDGE                            JUDGE

 Ambulkar