Smt. Vajirbi Khutub Mulla And Ors vs Ilahi Ramjan Sarjekhan And Ors
2021 Latest Caselaw 3502 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           CIVIL APPELLATE JURISDICTION

                               WRIT PETITION NO.408 OF 2021


     Smt. Vajirbi Khutub Mulla & Ors.               .... Petitioners

             Vs.

     Ilahi Ramjan Sarjekhan & Ors.                  .... Respondents


     Mr. A.V. Anturkar, Senior Advocate i/by Ramdas A. Shelke for
     Petitioners.
     Mr. Suresh M. Kamble for Respondent
     Smt. Madhubala Kajle "B" Panel AGP for Respondent Nos. 5 and 6.


                                        Coram : NITIN W. SAMBRE, J.

Date : 24TH FEBRUARY, 2021

P.C.:

1 The case of the Petitioner-Plaintiff is, he is perfected his

title through a sale-deed, after having obtained permission on 17 th July

1984 under the provisions of Section 43 of Bombay Tenancy and

Agricultural Land Act (for short "BTAL Act") thereby getting

subsequent sale-deed.

2 In the aforesaid backdrop, prior sale-deed dated 22 nd

December, 1983 was held to be invalid, in view of legal embargo

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provided under Section 43 of the said Act. The said order of the

revenue authorities was confirmed upto the Apex Court against the

Petitioners.

3 Based on the aforesaid title on 18th June 1986, the

Petitioner filed a suit being Regular Civil Suit No. 202 of 2018 thereby

seeking declaration that he is in possession of the suit property and he

has become owner of suit property by virtue of sale-deed dated 18 th

June, 1986. An application for temporary injunction thereby praying

protection of his possession came to be rejected on 29 th September,

2018, which order was confirmed vide judgment dated 4 th December,

2019 passed in an appeal preferred by the Petitioner being

Miscellaneous Civil Appeal No. 205 of 2018. As such, this petition.

4 Learned Senior Counsel for the Petitioners, Mr. Anturkar

would urge that once the Petitioners' title to the property is perfected

after having obtained permission under Section 43 of BTAL Act, the

Court below ought not to have rejected the prayer for injunction.

According to him, the earlier owner has executed two sale-deeds of

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same property in Petitioners favour. The sale-deed dated 27 th December,

2003 will not come in the way of the Petitioners in claiming protection

of possession, as the title was perfected in second sale-deed dated 18 th

June, 1986 after taking recourse to the provisions of Section 43 of the

BTAL Act i.e. by obtaining permission in favour of Petitioners from

Revenue Authorities.

5 He would then urge that possession if any taken by the

revenue authorities pursuant to the provisions of Section 84(c) of the

BTAL Act, cannot be termed to be lawful as neither any notice before

taking such possession was served nor the application of mind based on

issue of subsequent perfection of title can be inferred.

6 Considered rival submissions.

7. The Petitioner claimed to be in possession of the suit

property, by virtue of his title vested upon him, vide sale-deed dated

22nd December, 1983, which was declared invalid under Section 43 of

the Act, which order was confirmed upto the Apex Court.

8 The Petitioner thereafter in regard to the very same land,

obtained permission under Section 43 of BTAL Act and got executed

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fresh sale-deed i.e. on 18th June, 1986.

9 The moment 1983, sale deed was declared invalid by virtue

of which the Petitioner claimed to be continued in possession, the effect

of the provisions of Section 84( c) of BTAL Act came into force. As such

the very possession of the Petitioner has rendered illegal as the sale-

deed based on which he would claiming title was declared invalid. In

this background, even if the Petitioner ha subsequently taken

permission under Section 43 of BTAL Act while getting the sale-deed

executed on 18th June, 1986, his earlier possession will not be validated

as neither permission under Section 43 of BTAL Act is retrospective nor

second sale-deed gives any retrospective possession.

10 In the aforesaid background, the Respondent Revenue

authorities were justified in taking our possession of the suit property.

11 As the possession has already stood vested in the revenue

authorities, in the light of aforesaid observations, no case for

interference is made out. The petition fails, dismissed.

(NITIN W. SAMBRE, J.)