Subhash Kashinath Satpudke vs Sachin Shyam Arkhel
2022 Latest Caselaw 8854 Bom

                                                        1                                    918.SA.332-2022.odt




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

                             SECOND APPEAL NO. 332 OF 2022
                                   ( Subhash Kashinath Satpudke
                                                Vs.
                                       Sachin Shyam Arkhel )

Office Notes, Office Memoranda                           Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. S.K. Bhoyar, Advocate for the Appellant.



                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 6th SEPTEMBER, 2022.

Heard Mr. Bhoyar, learned counsel for the appellant.

2. The appeal challenges the concurrent findings of the Courts below, whereby the suit for specific performance of the agreement dated 18.02.2016 as filed by the respondent namely Spl.C.S. No. 98/2016 has been decreed by the learned trial Court by the judgment and decree dated 19.12.2019 (page 49). The appeal there against, has been dismissed by the learned Ad-hoc District Judge-2, Wardha by its judgment dated 04.05.2022 (page 26).

3. Mr. Bhoyar, learned counsel for the appellant, raises four grounds: (i) the land was an agricultural land held in Class-II occupancy, and therefore, was not transferable, placing reliance on Section 61 of the 2 918.SA.332-2022.odt

Maharashtra Land Revenue Code (for short "MLR Code"), (ii) the agreement was a nominal document executed as a security for the loan availed by the appellant, (iii) the plaintiff/respondent was not an agriculturist, and therefore, the purchase by him was barred under Section 89 of the Maharashtra Tenancy and Agricultural Land (Vidarbha Region) Act, 1958 (for short "the Act of 1958") and (iv) the question of hardship was not considered by the Courts below.

4. Insofar as the first ground is concerned, Section 61 of the MLR Code, merely lays down a bar that an occupancy which is not transferable without the previous sanction of the Collector, and such sanction has not been granted to a transfer which has been made or ordered by a Civil Court or on which the Court's decree or order is founded, such occupancy shall not be liable to the process of any Court, and such transfer shall be null and void. It is a settled position of law, that an agreement of sale is not a transfer within the meaning of the expression and while decreeing specific performance, it can always be made subject to the requisite permission of the Collector being obtained in this regard. A perusal of the agreement dated 18.02.2016, copy of which is included in the paper-book of the first appellate Court as provided by Mr. Bhoyar, learned counsel for the appellant, indicates that vide clause No. VIII, the appellant had undertaken the responsibility to convert the occupancy of the land from Class-II to Class-I and the learned trial Court has decreed the suit in light of the 3 918.SA.332-2022.odt

terms and conditions as contained in the agreement which would include a responsibility upon the appellant to apply and convert the holding of the land from Class-II to Class-I before the transfer. I therefore do not find any merit in this contention.

5. Insofar as the contention that the agreement was nominal in nature and was a loan transaction, the execution of the agreement by the appellant/defendant stands admitted. Once that is the position, the burden would then shift upon the appellant to examine witnesses to indicate that the nature of the transaction as enumerated in the agreement of sale dated 18.02.2016 was not one which it reflected. However except the examination of DW-1 no other witness has been examined on this point, in view of which, the plea which has been sought to be raised in defence has not been proved.

6. The third contention is that the plaintiff is not an agriculturist, and therefore, the bar under Section 89 of the Act of 1958 would apply. It is material to note, that such a permission can always be obtained by the plaintiff/respondent before the transfer is effected in his favour as Section 89 of the Act of 1958 contemplates grant of such a permission. That being the position, even at the execution stage, it is permissible for the plaintiff/respondent to file an application under Section 89 of the Act of 1958. I therefore do not see any merit in this contention.

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7. Insofar as the plea regarding hardship is concerned, the appellant has already received a consideration of Rs. 3,00,000/- from the plaintiff on the date of the agreement of sale. The requisite material to demonstrate hardship, in my considered opinion for not decreeing specific performance, on the material available on record is not spelt out.

8. I therefore do not see any substantial question of law being made out so as to enable me to interfere in the well reasoned judgments by the learned Courts below. No other points were canvassed.

9. The Second Appeal is therefore without any merit and it is dismissed accordingly. No costs.

10. Pending application/s, if any, shall stand disposed of accordingly.

JUDGE SD. Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:07.09.2022 14:16