Bombay High Court
Laxman Ramshashtri Lonikar Died ... vs Laxmansingh Rampratapsingh ... on 30 March, 2022
Bench: Mangesh S. Patil
1 SA / 304 / 2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 304 OF 2017
AND
CIVIL APPLICATION NO. 5373 OF 2017
AND
CIVIL APPLICATION NO. 5374 OF 2017
01. Laxman S/o. Ramshashtri Lonikar
(Died) through LRs.
1/1. Shanta W/o. Laxmanrao Lonikar,
age 70 years, Occu. : Household,
R/o. Ganesh Par, Parli V.
Tq. Parli, Dist. - Beed .. (Died)
1/2. Kalidas S/o Laxmanrao Lonikar,
Age 40 years, Occu. - Agri.,
R/o. Ganesh Par, Parli V.,
Tq. Parli V. Dist. - Beed
02. Vaijnath S/o. Ramshastri Lonikar,
Age 74 years, Occu. - Agri.,
R/o. Ganesh Par, Parli V.,
Tq. Parli V., Dist. - Beed
03. Vishwanath S/o. Ramshastri Lonikar,
Dead through L.R.s
3/1. Rahul S/o. Vishwanath Lonikar,
Age 26 years, Occu. - Agri.,
R/o. Ganesh Par, Parli V.,
Tq. Parli V., Dist. - Beed
3/2. Rajesh S/o. Vishwanath Lonikar,
Age 24 years, Occu. - Agri.,
R/o. Ganesh Par, Parli V.,
Tq. Parli V., Dist. - Beed
3/3. Dipika D/o. Vishwanath Lonikar,
Age 20 years, Occu. - Nil,
minor u/g. of mother,
respondent no. 3/4.
3/4. Seema W/o. Vishwanath Lonikar,
Age 55 years, Occu. Household,
R/o. Ganesh Par,
Parli V., Tq. Parli V.,
Dist. - Beed
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2 SA / 304 / 2017
4. Ramakant S/o. Ramshastri Lonikar,
Age : 72 years, Occu. Service,
R/o. Chauslkar Colony,
Ambajogai, Dist. - Beed .. Appellants
(Plaintiffs)
VERSUS
01. Laxmansingh S/o. Rampratapsingh
Hazari (Dead) through his LRs.
1/1. Smt. Radhabai w/o. Laxmansing Hazari,
Age 73 years, Occu. - Household,
R/o. Mangalwar Peth,
Ambajogai, Dist. - Beed .. (Dead)
(Amendment carried out as per
Court's order dated 28-01-2022)
1/2. Dr. Jaishree W/o. Ram Chavan,
Age 53 years, Occu. Doctor,
R/o. C/o. R.S. Chavan,
Navjivan Hospital,
Opp. Main Bus Stand,
Bidar, Tq. And Dist. - Bidar,
State - Karnataka
1/3. Bharti w/o. Ajaykumar Thakur,
Age - 55 years, Occu. Retired Teacher,
R/o Plot No. 12, S. No. 46,
Kala Co-op. Housing Society,
Near Shinde Classes, Pahadsinghpura,
Aurangabad
(Amendment in address made as per
Court's order dated 18-08-2017)
1/4. Subhash S/o. Laxmansingh Hazari,
Age 53 years, Occu. Agri.,
R/o. Mangalwar Peth,
Ambajogai, Tq. Ambajogai,
Dist. Beed
1/5. Sunil S/o. Laxmansingh Hazari,
Age 48 years, Occu. - Service,
R/o. Mangalwar Peth,
Ambajogai, Dist. Beed
1/6. Dr. Babi @ Madhavi W/o. Harikishansingh Gadwal,
Age 50 years, Occ. Service,
R/o. Mangalwar Peth,
Ambajogai, Dist. - Beed
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3 SA / 304 / 2017
02. Vishwanath S/o. Ramappa Kotule
(Dead) .. Abated
03. Latif S/o. Shaikh Sheru,
Age 55 years,
Occu. - Labourer, R/o. Ghatnandur,
Tq. Ambajogai, Dist. - Beed
04. Kashinath S/o. Namdeo Kale,
Age 60 years, Occu. Agri.,
R/o. Warapgaon, Tq. Ambajogai,
Dist. - Beed
05. The State of Maharashtra, Through
the District Collector, Beed .. Respondents
(Defendants)
...
Mr. V.J. Dixit, Sr. Advocate i/b. Mr. S.V. Dixit, Advocate for the appellants
Mr. P.P. Dama, Advocate for the respondent no. 1/1
Mr. Subhash Laxmansingh Hazari, Party-in-person (R. No. 1/4)
Mr. Shrikant Kulkarni, Advocate for respondent no. 1/5
Mr. S.W. Munde, AGP for respondent no. 5
Respondent no. 1/2 , 1/3, 3 and 4 served - absent
..
CORAM : MANGESH S. PATIL, J.
RESERVED ON : 22 MARCH 2022
PRONOUNCED ON : 30 MARCH 2022
JUDGMENT :
This is a second appeal by the original plaintiffs who have
failed to obtain a decree for declaration of they being the owners of the
suit property and for possession based on title with consequential relief
of their entitlement to claim the periodical income derived by way of
leasing out of the suit property by the revenue officials during the
period it was in their control and power in view of section 145 of the
Code of Criminal Procedure. They also claimed a declaration that the
4 SA / 304 / 2017
decisions rendered by the courts in earlier rounds of litigation between
the parties are null and void.
2. Shorn of verbiage, the dispute can be encompassed as
follows :
a) The predecessor of the appellants by name Ramshashtri
was a pattedar of the suit property. It was a watan land. Since
abolition of watan, it was re-granted to him and he became the owner
in possession of the suit property. After his demise, they continued to
occupy the suit property as its owners till the year 1975-1976. It was
averred that the widow of the original owner - Sitabai was in need of
money and by way of an oral mortgage she raised an amount of
Rs.3,000/- from Rampratapsingh - the predecessor of the respondents.
Name of Rampratapsingh was mutated in the revenue record and in
spite of the loan amount having been repaid, it continued to appear in
the revenue record. On such repayment being made, possession was
delivered back by Rampratapsingh's son - respondent - Laxmansingh
to the successor of Ramshastri - appellant - Laxman. However, taking
advantage of the revenue entries, a dispute was raised regarding
possession of the suit property.
b) The Taluka Executive Magistrate took over its possession
under section 145 of the Code of Criminal Procedure. Respondent -
Laxmansingh and his mother Mandodaribai filed Regular Civil Suit no.
199 of 1976 for possession of the suit property on the premise that they
5 SA / 304 / 2017
were the protected tenants. They also claimed that Sitabai had agreed
to sell the suit property to them for a consideration of Rs.15,000/- and
by accepting earnest amount of Rs.13,500/-, they were put in
possession. Conspicuously, they did not claim any specific
performance.
c) The appellants failed to contest and Regular Civil Suit
no. 199 of 1976 was decreed. They challenged it by preferring an
appeal and second appeal but failed to get the judgment and decree
reversed.
d) On the basis of such decree, the respondents got back
possession of the suit property from the revenue authorities. They also
filed Regular Civil Suit no. 47 of 1991 against the revenue authorities
restraining them from auctioning the suit property as was being done
previously.
e) Faced with the situation the appellants filed Regular Civil
Suit no. 12 of 1998 i.e. the present suit.
f) Both the courts have concurrently held that the appellants
are the owners of the suit property. The respondents were not the
tenants. However, the respondents were entitled to a protection under
section 53-A of the Transfer of Property Act and also held that the
decision in Regular Civil Suit no. 199 of 1976 would operate as res
judicata. Hence this second appeal.
6 SA / 304 / 2017
3. It is necessary to note at the inception that with the
consent of both the sides, I have heard the second appeal finally by
hearing their arguments on the following substantial questions of law
which arise in this second appeal :
I) Whether the decision in Regular Civil Suit no. 199 of
1976 operates as res judicata ?
II) Whether the respondents are entitled to protection under
section 53-A of the Transfer of Property Act ?
4. The learned Senior Advocate Mr. Dixit for the appellants
would vehemently submit that the decision in Regular Civil Suit no. 199
of 1976 was not a decision on merits and was a decision in default.
The appellants had not contested that suit and the decision was
rendered in all probability by invoking powers under Order VIII Rule 10
of the Code of Civil Procedure. He would further submit that since it
was not a decision on merits, it cannot be said that the suit was heard
and finally decided. The dispute as to title was not gone into. Whereas
in the matter in hand, the appellants are claiming possession based on
title which was not directly and substantially in issue in the earlier suit.
Consequently, necessary ingredients for the earlier decision to operate
as res judicata within the four-corners of section 11 of the Code of Civil
Procedure were clearly missing. Both the courts below failed to bear in
mind the ingredients for applicability of bar under section 11 of the
7 SA / 304 / 2017
Code of Civil Procedure. The observations and conclusions were
clearly erroneous and illegal.
5. Mr. Dixit would further submit that since the issue in the
previous suit was for injunction simplicitor even there was no reason or
occasion for the appellants to take up any other plea so as to operate
as constructive res judicata. He would further submit that in any case,
since the respondents have been claiming to be in possession in part
performance of the agreement, the issue though it was raised in the
earlier suit was not considered and decided. Therefore, even the
respondents are now estopped from putting up any claim to retain
possession of the suit property based on their contention regarding the
existence of agreement of sale.
6. As against this, respondent no. 1/4 who appears in person
and learned advocate Mr. Dama for some of the respondents would
submit that the decision in Regular Civil Suit no. 199 of 1976 cannot be
said to be a decision in default. The appellants were duly served and
they appeared in the suit. They failed to file written statement and the
suit was decreed on merits. They would further submit that the
decision also reached finality up to this court. They submitted that the
appellants having failed to contest the suit, the decision which reached
finality operates as res judicata as has been correctly held by the
courts below.
8 SA / 304 / 2017
7. Admittedly, the decree in Regular Civil Suit no. 199 of 1976
was passed after the appellants failed to contest the suit. There also
cannot be any dispute that the decision reached finality. If at all the
respondents were banking upon the plea that the decision operated as
res judicata, in-fact, it was utmost necessary for them to have brought
on record the pleadings in that suit. Though there was no written
statement, they could have produced the plaint therein but even that
has not been produced. What was exactly the issue that was directly
and substantially in issue in that suit and whether that was the same as
is obtaining in the matter in hand was of prime importance. Both the
courts below have clearly overlooked this basic defect in the stand of
the respondents and seem to have proceeded simply by referring to
the judgment in that suit which alone was produced at Exhibit 154.
8. Be that as it may, even if one intends to give some leeway
to the respondents and decides to examine what was the dispute in
that suit, from the judgment it is borne out that the respondents
admitted that Ramshastri was the owner of the suit property but
claimed to be in possession as tenants and also on the basis of an
agreement to sale mentioned herein-above. It also appears that they
claimed to have acquired possessory title. They also averred that the
Executive Magistrate was obstructing their possession in exercise of
powers under section 145 of the Criminal Procedure Code and even
took over its possession. It was therefore prayed that they were
9 SA / 304 / 2017
entitled to get back the possession from the Executive Magistrate.
Accordingly, the suit was decreed granting a declaration that the
respondents were entitled to get back the possession of the suit
property from the Executive Magistrate and the appellants were
restrained from claiming its possession.
9. A bare look at the judgment would clearly demonstrate that
by no stretch of imagination, it could have been said that it was a
judgment on merits. After describing the respondents' case in
paragraph nos. 1 and 2, in paragraph no. 3 it was narrated as to how
the appellants had appeared through advocate but failed to file written
statement. This paragraph no. 3 was followed up by the operative part.
At no place any discussion touching the rival claims was made.
Apparently even the respondents were not called upon to prove their
averments. It appears that no evidence was recorded at all and simply
the judgment was pronounced. Not only that the evidence was not
recorded but even independently, the learned Judge did not make any
attempt to discuss the issue to record even a perfunctory finding.
Points for determination were also not framed and simply a declaration
as claimed by the respondents was granted. If such is the state-of-
affairs, one wonders as to how this could be called a decision on merits
much less touching any issue.
10. True it is that this decision was confirmed in appeal but
again, as can be seen from the judgment passed in the Regular Civil
10 SA / 304 / 2017
Appeal no. 90 of 2012 (Exhibit - 172), the only discussion that was
made in the judgment was to find out as to whether the trial court had
erred in refusing the appellants to file a written statement. Yet again,
no substantial points for determination were formulated or decided
touching the disputed questions. Even the second appeal
no. 147-A/1982 (Exhibit - 214) was dismissed without entering into the
factual disputes and simply by examining the correctness or otherwise
of the lower court's decision in refusing the appellants to file the written
statement.
11. In view of such state-of-affairs, apart from the fact that the
pleadings in the earlier round of litigation which according to the
respondents operated as res judicata were not on record, even the
decision therein could not be said to be a decision on merits after
hearing the parties and finally deciding the issue. In-fact, no issue at
all was framed or decided. It was, as has been rightly put by Mr. Dixit,
a decision in default rather than on merits. The issue even if that was
available to be decided before the courts in the earlier round of
litigation but was not raised and decided, which is now called upon to
be decided in the present litigation, cannot be said to be directly and
substantially in issue in the earlier round and even it was not heard and
decided on merits. Necessary ingredients for the decision to operate
as res judicata were clearly missing. Both the courts, therefore, have
grossly erred in recording a finding to the contrary which finding is
11 SA / 304 / 2017
liable to be reversed. Hence, I answer the first question in favour of the
appellants.
12. This takes us to the second question regarding availability
of protection to the respondents under section 53-A of the Transfer of
Property Act. The whole emphasis of the submission of Mr. Dixit was
on the point that in order to enable the respondents to claim a
protection under section 53-A of the Transfer of Property Act, it was
utmost necessary for them to have produced and proved existence of
the agreement. Though a copy of it was produced on record it was
neither proved nor was it exhibited. He would further submit that
assuming for the sake of arguments the respondents are in possession
in part performance of the agreement, still, the protection is not blanket.
He would submit that going by the wordings of section 53-A, it is
utmost necessary for a party claiming the protection to be ready and
willing to perform his part under the agreement. He would, therefore,
submit that the respondents in their written statement and even in the
evidence have failed to even aver and make an attempt to prove this
important ingredient failing which, they would not be entitled to
protection.
13. Advocate Mr. Dama and the respondent no. 1/4 in person
would submit that the appellants have been falsely disputing existence
of the agreement. There was ample evidence before the courts below
showing that pursuant to such an agreement an application was moved
12 SA / 304 / 2017
to the Collector's office (Exhibit - 209) by Sitabai on 16-07-1960
reciting the existence of such agreement and seeking permission to
sell. Not only that but affidavits were also filed in support (Exhibit - 207
and Exhibit - 208). Pursuant to such application, even the permission
was granted as can be seen from the copy of permission (Exhibit -
211). They would therefore submit that there cannot be any escape
now from the fact that Sitabai had agreed to sell the suit property. She
even secured permission to sell it off. They would also submit that
in-fact, existence of such agreement of sale being a pure question of
fact, this court cannot re-open the issue more so when both the courts
below have recorded a concurrent finding in that respect.
14. The original agreement was not produced before the trial
court and none was exhibited for whatever reason. However, it is a
matter of record that there was ample evidence before the trial court to
conclude that the respondents were in possession of the suit property
in part performance of an agreement of sale executed by Sitabai. Her
subsequent conduct of obtaining permission of the Collector to sell it off
confirmed its existence. In any event, existence of such an agreement
and the respondents' possession based thereon is a pure question of
fact. Both the courts below have recorded a concurrent finding about
it. There is no escape from the conclusion that the respondents are in
possession of the suit property in part performance of that agreement.
13 SA / 304 / 2017
15. It is important to note at this juncture that the respondents
were also simultaneously claiming to be in possession of the suit
property on the basis of their claim of being permanent tenant.
However, both the courts below have flatly refused to record any
finding in their favour in that respect and have concluded that their
possession was not as tenants. Again, this being a factual dispute, one
need not re-open it more so when no cross-objections are filed on their
behalf questioning such findings of the courts below.
16. It is trite that protection under section 53-A of the Transfer
of Property Act is available to a party even if its claim to have a specific
performance is time barred. In spite of the fact that such a plea was
available to the respondents to be had, they never claimed specific
performance. Keeping aside the dispute as regards such a claim is
time barred or otherwise, the fact remains that their very conduct of
protecting their possession by indulging in various litigations since the
year 1976 without ever asking for specific performance itself, in my
considered view, is a strong circumstance demonstrating that it is
indeed seriously doubtful as to if they could be said to be ready and
willing to perform their part of the contract. Yes, they had parted with
major amount of consideration of Rs.13,500/- out of Rs.15,000/- and
even a permission of the Collector was obtained for the transaction.
But they never took any step to complete the transaction by paying the
balance amount of consideration and getting the sale deed executed.
14 SA / 304 / 2017
If such is their conduct, it cannot be said that they fulfill the basic
requirement of having such protection under section 53-A.
17. In fact, the written statement of the respondents nowhere
demonstrates that they even bothered to take any such plea in their
defence to the suit claiming possession based on title. The courts
below ought to have been more circumspect in considering such a plea
which was not even put up in the written statement leave alone sought
to be proved in the testimony. Pertinently, though the respondent
no. 1/4 - Subhash deposed as their witness, he failed to even whisper
about any circumstance to indicate that the respondents were ready
and willing to perform their part under the contract. He merely narrated
as to how the agreement was brought into existence and as to how
subsequently permission was obtained from the Collector,
conspicuously omitting to state that the respondents were ever ready
and willing to perform their part of the agreement. He simply vaguely
asserted that the appellants avoided to execute the sale deed by
accepting the balance amount of Rs.1500/-. Therefore there was
dearth of pleading and evidence to demonstrate that the respondents
were ready and willing to perform their part under the agreement.
Consequently, it was imperative for the courts below to have noted,
firstly, absence of a specific plea disclosing the readiness and
willingness and, secondly, the lack of even iota of evidence to
demonstrate it.
15 SA / 304 / 2017
18. In view of the above state of evidence, both the courts
below have grossly erred in recording a finding that the respondents
were entitled to a protection under section 53-A of the Transfer of
Property Act. I, therefore, answer even this question in appellants'
favour.
19. However, the appellants' further claim that the decisions in
the earlier round of litigation starting from Regular Civil Suit no. 199 of
1976, were illegal and void ab initio obviously cannot be granted and,
therefore, except such declaration the rest of the claim deserves to be
allowed.
20. Resultantly, the second appeal deserves to be allowed but
only partly and is allowed accordingly.
21. Pending civil applications are disposed of.
A] The judgments of both the courts below are quashed and
set aside. The suit is partly decreed.
B] It is declared that the appellants are the owners of the suit
property bearing Survey no. 393 and admeasuring 20 Acre 28 Guntha
corresponding to Gat no. 615 admeasuring 8 Hectare 19 Are of village
Ghatnandur, Taluka - Ambajogai, District - Beed.
C] The respondents shall deliver vacant possession of the
suit property within two (2) months.
16 SA / 304 / 2017
D] An enquiry be made into the mesne profits under Order XX
Rule 12(1)(c) of the Code of Civil Procedure.
E] Costs in cause.
A decree be drawn accordingly.
[ MANGESH S. PATIL ]
JUDGE
arp/
