Bombay High Court
Ramesh Bagaram Mankame And Anr vs Vasant Dattatraya Pawar ( Deced. Thro. ... on 18 February, 2025
2025:BHC-AS:7918
901.390.11 saj.docx
Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 390 OF 2011
1. Ramesh Bagaram Mankane
Adult, Occ: Agriculture,
Residing at: Gulsunde,
Tal. Panvel, District Raigad.
2. Hemant Bagaram Mankame
Adult, Occ: Agriculture,
Residing at: Gulsunde,
Tal. Panvel, District Raigad. ....Appellants
Vs.
1. Vasant Dattatray Pawar (Deceased)
through legal heirs
1/1. Smt. Vasanti Vasant Pawar
(Since deceased through legal heirs)
1/1.1) Mrs. Manisha Rajendra Chavan
Age 36 years, Occ: Household,
R/at Ratholi, Tal- Badlapur, Dist. Thane.
1/1.2) Mr. Manoj Vasant Pawar
Age 34 years Residing at: Gulsunde,
Tal. Panvel, District Raigad.
1/1.3) Mr. Mangesh Vasant Pawar
Age 30 years R/at Gulsunde
Tal- Panvel, Dist- Raigad.
2. Shri. Mukund Dattatray Pawar,
Adult, Residing at- Gulsunde
Tal-Panvel, District Raigad.
3. Shri. Ganesh Dattatray Pawar
Adult, Residing at- Gulsunde
Tal-Panvel, District Raigad.
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4. Shri. Suresh Dattatray Pawar
Adult, Residing at- Gulsunde
Tal-Panvel, District Raigad.
5. Shri. Tukaram Dattatray Pawar
Adult, Residing at- Gulsunde
Tal-Panvel, District Raigad.
6. Kum. Shobha Dattatray Pawar
Residing at- Gulsunde
Tal-Panvel, District Raigad.
7. Ku. Ranjana Dattatray Pawar
Residing at- Gulsunde
Tal-Panvel, District Raigad.
8. Smt. Sitabai Dattray Pawar
Residing at- Gulsunde
Tal-Panvel, District Raigad.
(Appeal stand abated against
respondent no. 8 vide Reg.
Judl-I Order dated 18/11/2011) ....Respondents
Mr. Venkatesh A. Shastry Advocate for the Appellants
Mr. Ajay Joshi h/f Mr. Rajesh More Advocate for the Respondents
CORAM : GAURI GODSE, J.
RESERVED ON: 24th OCTOBER 2024
PRONOUNCED ON: 18th FEBRUARY 2025
JUDGMENT:
Facts in brief:
1. This second appeal is preferred by original defendant nos. 1
and 2 to challenge the concurrent judgments and decrees granting
declaration of title of the suit property and injunction restraining the
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defendants from obstructing the plaintiffs' possession over the eastern
side of suit property shown in green color in the suit map.
2. The respondents are original plaintiffs who had filed the suit for
declaration and injunction based on title. Plaintiff nos. 1 to 5 are real
brothers, and plaintiff nos. 6 and 7 are their sisters. Plaintiff no. 8 is
their mother. The plaintiffs are claiming through the original owner
Dattatray, i.e. father of plaintiff nos. 1 to 7 and husband of plaintiff no. 8.
There is no dispute that Dattatray was the original owner of the suit
property. Defendants are claiming rights in the suit property based on
two agreements, one possession receipt and a Will allegedly executed
by Dattatray. The trial Court decreed the suit granting declaration of title
and injunction as prayed, and the said decree is confirmed in the first
appeal preferred by the defendants.
3. By an order dated 16th January 2014, the second appeal was
admitted on the following substantial question of law:
"(i) Whether there is a bar under section 43 of the
Bombay Tenancy and Agricultural Lands Act, to transfer
the tenancy land by a Will?"
4. When the second appeal was taken up for final disposal, learned
counsel for the appellants submitted that in view of the decision of the
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Hon'ble Apex Court in the case of Vinodchandra Sakarlal Kapadia Vs.
State of Gujarat and others1, the aforesaid question of law is no longer
res integra. He submitted that as held by the Hon'ble Apex Court, there
is a bar under Section 43 of The Maharashtra Tenancy and Agricultural
Lands Act, 1948 ('Tenancy Act') for testamentary disposition. He thus
submits that the question of law framed is not required to be answered
by this Court. However, learned counsel for the appellants pointed out
that the second appeal raised another question of law. Hence, the
parties were heard on 26th September 2024, and the following question
of law was framed under the proviso to sub-section (5) of Section 100
of Code of Civil Procedure, 1908, which reads as under:
"(i) Whether the findings recorded by both the courts
regarding the plaintiffs being in possession of eastern
side of the suit property would amount to incorrect
appreciation of the evidence on record and more
particularly ignoring the admissions given by PW-1?"
Submissions on behalf of appellants:
5. Learned counsel for the appellants submitted that the suit
property was a tenanted property, and a certificate under Section 32M
1 2020 AIR (SC) 5138
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of the Tenancy Act was issued in the name of Dattatray on 31 st May
1966. Learned counsel for the appellants submitted that through the
suit property, there was a road passing through to reach another village
by the name Dandphata. He submitted that the said village road was
passing through the North-South direction. He thus submitted that the
suit property was divided into two parts, i.e. one on the eastern side of
the road, which the plaintiffs claimed to be in possession, and the
western part of the road, in possession of the defendants.
6. Learned counsel for the appellants submitted that the plaintiffs
filed a suit on the ground that the defendants were obstructing the
plaintiffs' possession over the eastern side of the said road. The
appellants relied upon the agreement to sale deed 20 th June 1983
executed by Dattatray in favour of the defendants. Learned counsel for
the appellants submitted that by way of the said agreement for sale, the
defendants had paid the amount of ₹ 10,000/- as an earnest amount
out of total consideration agreed at ₹ 22,000/-. Learned counsel for the
appellants submitted that thereafter another agreement was executed
in their favour on 18th March 1991 for total consideration of ₹ 28,000/-
out of which, an amount of ₹ 26,000/- was paid by the defendants.
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7. Learned counsel for the appellants further submitted that
Dattatray handed over possession of the suit property to the
defendants and executed a possession receipt dated 7 th January 1993.
The defendants also relied upon a Will dated 18 th June 1992 executed
by Dattatray in their favour in respect of the suit property. Thus, the
appellants contended that the right had been created in their favour
pursuant to the two agreements executed by Dattatray and possession
receipt executed by Dattatray confirming handing over possession of
the suit property to the defendants. Learned counsel for the appellants
submitted that the oral evidence of the plaintiffs indicated that the
appellants were in possession of the suit property. He submitted that
though the plaintiffs are owners of the suit property, they would not be
entitled to any decree for injunction to protect their possession in the
absence of any specific findings recorded of them found in possession
of the suit property.
8. Learned counsel for the appellants submitted that there was no
dispute that the appellants were in possession of the western side of
the suit property. However, the dispute was as to whether the plaintiffs
(respondents) had possession of the eastern side of the road. Learned
counsel for the appellants submitted that in the oral evidence of PW 1,
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he admitted that defendants had stored heaps of rubble on the eastern
side of the road, which clearly indicates that defendants are also in
possession of the eastern side. Learned counsel for the appellants thus
submitted that the admission given by PW 1 would, in any case, mean
that during the pendency of the suit, the plaintiffs lost their possession
on the eastern side. He further submitted that though the plaintiffs were
not in possession of the eastern side, they never amended the plaint or
adduced any additional evidence explaining that they were in
possession of the eastern side. Learned counsel for the appellants thus
submitted that the findings recorded by both the courts on plaintiffs,
being in possession of the eastern side of the road, would amount to a
perverse finding, as the admissions given by PW 1 are completely
ignored.
9. Learned counsel for the appellants further relied upon the
possession receipt to support his contentions that Dattatray had
admitted that defendants were put in possession of the suit property.
Learned counsel for the appellants submitted that both the Courts
misconstrued and misinterpreted the contents of the possession
receipt. Learned counsel for the appellants relied upon the relevant part
of the cross-examination of PW 1. He submitted that PW 1 was re-
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examined by asking a specific question to him as to whether the
defendants have stored heaps of rubble on the eastern side of the suit
property. He submitted that in response to the question put to PW 1 in
re-examination, he admitted that after filing the suit, the defendants had
stored heaps of rubble on the eastern side of the suit property.
10. Learned counsel for the appellants referred to further cross-
examination after PW 1's re-examination. He submits that in further
cross-examination, PW 1 admitted that he had photographs showing
that defendants stored heaps of rubble on the eastern side, and the
photographs were taken; however, he was unable to answer as to the
date the photographs were taken. Learned counsel for the appellants
thus submitted that the question put to PW 1 in the re-examination in
chief and the further cross-examination clearly indicates that the
defendants were in possession of the eastern part of the suit property.
He thus submits that both the Courts completely ignored and failed to
appreciate the material evidence in the form of admissions in cross-
examination of PW 1, which supports the defendants' case that they
are in possession of also the eastern side of the suit property. Learned
counsel for the appellants thus submitted that the impugned decree of
injunction deserves to be quashed and set aside for incorrect
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appreciation of the evidence on record and, more particularly, ignoring
the admissions given by PW 1. He thus submits that the question of law
framed by this Court vide order dated 26 th September 2024 must be
answered in favour of the appellants.
Submissions on behalf of the respondents:
11. Learned counsel for the respondents supported the impugned
judgments and decrees. He submitted that defendants relied upon two
agreements produced on record, i.e. agreements dated 20 th June 1983
and 18th March 1991; however, the defendants claimed to be in
possession not based on the agreements but based on the possession
receipt dated 7th January 1993. Learned counsel for the respondents
referred to paragraph 9 of the agreement dated 20 th June 1983. He
submits that the said paragraph of the agreement would indicate that
no semblance of right is created in favour of the defendants. He
submits that the defendants' case is based on the written notes
submitted before the trial Court wherein the defendants claimed
ownership based on the two agreements. He submitted that the
possession receipt relied upon by the defendants cannot be accepted
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as sufficient proof of them being in possession in furtherance of any
valid contract.
12. Learned counsel for the respondents submitted that the
defendants' pleadings indicate that they claimed to be in possession of
the suit property in accordance with the agreement dated 18 th March
1991. However, the said agreement also does not refer to handing over
of possession to the defendants. Learned counsel for the respondents
submits that admittedly, the plaintiffs are owners of the suit property,
and thus, they are in de-jure possession and thus, are entitled to a
decree for injunction against the wrongful acts of the defendants. To
support his submissions, learned counsel for the respondents relied
upon the following decisions:
Himatrao Ukha Mali and others Vs. Popat Devram Patil and another 2,
Nanjegowda & Anr Vs. Gangamma & Ors 3, Lalitkumar Jagdishkumar
Grover & Ors Vs. New Bandra Hill Co-operative Housing Society Ltd
and Ors4 and Vijay s/o Mahadeo Gaikwad Vs. Parasram s/o Bhanu
Meshram5.
2 [1998(2) Mh.L.J. 383]
3 (2011) 13 SCC 232
4 2022 0 Supreme (Bom) 1347
5 2012(2) ALL MR 339
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13. Learned counsel for the respondents by relying upon the aforesaid
decisions submitted that the suit property is a tenanted property of
Dattatray. Admittedly, the order under Section 32G and the certificate
under Section 32M is issued in the name of Dattatray, which is a
conclusive proof of title and possession as held by this Court in the case
of Himatrao Mali. Learned counsel for the respondents further submitted
that the legal principles settled by the Apex Court in the decision of
Nanjegowda are clearly applicable to the facts of the present case. He
submits that the defendants are claiming to be in possession pursuant
to an agreement for sale executed in their favour by Dattatray. He
submits that admittedly, the defendants never claimed any specific
performance of the contract in their favour. The only provision to aid a
person claiming to be in possession based on an agreement for sale is
the provision of Section 53A of The Transfer of Property Act, 1882.
However, in the absence of any readiness and willingness on the part of
the defendants to perform their part of the contract, they are not entitled
to seek any protection of their alleged possession.
14. Learned counsel for the respondents thus submits that once the
plaintiffs' ownership is not in dispute and there is inference that they are
in lawful possession, and if there is a threat to their possession, they,
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being owners of the suit property, are entitled to seek protection of their
possession. To support the said submissions, Learned counsel for the
respondents relied upon the decision of this Court in the case of
Lalitkumar Grover.
15. With reference to the submissions made on behalf of the
appellants by relying upon the admissions given by PW 1 regarding
storing heaps of rubble by the defendants, learned counsel for the
respondents submitted that a stray admission cannot be picked up from
the oral evidence by ignoring the substantive oral evidence of PW 1. He
submits that in the present case, a suggestion was given with respect
to the suit property to which PW 1 gave his answer. Thus, the
admission given on a particular question put to him cannot be picked
up by way of a stray admission by ignoring the substantial evidence
that clearly indicates that the plaintiffs are in possession of the eastern
part of the suit property. To support his submissions, Learned counsel
for the respondents relied upon the decision of this Court in the case of
Vijay Gaikwad.
16. Learned counsel for the respondents submits that the defendants
had gone to the extent of relying upon a Will allegedly executed by
Dattatray in their favour. He submits that the defendants miserably
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failed to prove the validity of the Will. He thus submits that the
defendants are in nowhere entitled to oppose the decree of injunction
on the ground that they are in possession of the suit property.
17. Learned counsel for the respondents thus submits that both the
Courts have exhaustively considered all the evidence on record and
thus rightly accepted the defendants' case that they are in possession
of the eastern side of the suit property. He submits that in a second
appeal, this Court cannot take a different view by re-examining the
evidence on record. Learned counsel for the respondents thus submits
that in the absence of any perversity or illegality in the findings
recorded by both the Courts, there would not be any question of re-
appreciating the evidence for taking a different view than that is
concurrently taken by both the Courts. Learned counsel for the
respondents, therefore, submits that the question of law framed by this
Court must be answered accordingly in favour of the plaintiffs. He thus
submits that the impugned judgments and decrees protecting the
plaintiffs' possession be confirmed.
Submissions in rejoinder on behalf of the appellants:
18. In response to the submissions made on behalf of the
respondents, learned counsel for the appellants submitted that it was
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never the case of the defendants that they were put in possession
pursuant to the agreements executed in their favour by Dattatray. He
further submits that the defendants' specific case was that they were
put in possession, and subsequently, the same was confirmed by
executing the possession receipt. He submits that the trial Court framed
issue no. 4 on the defendants being trespassers, and the same was
recorded in the negative. Thus, he submits that there is no substance in
the arguments raised on behalf of the respondents that they were
entitled to protect their possession against any wrongful acts of the
defendants. Learned counsel for the appellants further submitted that
the defendants have produced on record the payment receipts worth
₹ 26,000 paid to Dattatray as against the execution of the agreements
in favour of the defendants. He thus submits that the evidence on
record clearly indicates that substantial right is created in favour of the
appellants and thus only based on the ownership rights claimed by the
plaintiffs, they are not entitled to grant of any injunction protecting their
alleged possession in the absence of any substantial evidence of them
being in actual physical possession of the suit property. He thus
submits that the question of law be accordingly answered in favour of
the defendants.
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Consideration of submissions and analysis:
19. I have considered the submissions made on behalf of the parties.
I have perused the impugned judgments as well as pleadings and
evidence on record. The plaintiffs pleaded that they own the suit
property in view of the certificate under the Tenancy Act in favour of
their predecessor, Dattatray. They further pleaded that the defendants
have encroached on the western part of the suit property shown in red
on the suit map, and the eastern side shown in green is in their
possession and is cultivated by them. Since the defendants were
obstructing the plaintiffs' possession, they prayed for a declaration of
their title and an injunction restraining the defendants from obstructing
the plaintiffs' possession in the area shown in green on the map.
20. I have carefully examined the oral evidence of PW 1 and, in
particular, the re-examination and further cross-examination of PW 1,
which is interpreted by the learned counsel for the appellants as an
admission on the part of the plaintiffs that defendants were in
possession of the eastern side of the suit property. A perusal of the oral
evidence led on behalf of the plaintiffs indicates that the plaintiffs have
specifically supported their pleadings that they are in possession of the
eastern part of the suit property. The admission given by PW 1 that
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after filing of the suit, the defendants had stored heaps of rubble on the
eastern side of the suit property cannot be accepted as an admission
on the part of the plaintiffs that defendants are in possession of the
eastern side. Forcible entry on the eastern side of the suit property or
storing heaps of rubble without any permission cannot be construed to
mean that the defendants are in possession of the eastern side of the
suit property. Thus, admissions given on behalf of PW 1 cannot be read
as an admission about defendants being in possession of the eastern
side of the suit property. In fact, correct perusal of the oral evidence of
PW 1, his re-examination and further cross-examination would mean
that PW 1 has only accepted that after filing of the suit, the defendants
have kept heaps of rubble in the suit property. Thus, the oral evidence
of PW 1 indicating the defendants' act of storing heaps of rubble on the
eastern side would mean a wrongful act on the part of the defendants
to store heaps of rubble on the plaintiffs' property.
21. Admittedly, the plaintiffs are the owners of the eastern side as
well as the western side of the suit property. Though there are two
agreements of sale in favour of the defendants, admittedly, the
defendants have never attempted for specific performance of the
contract in their favour. The defendants' case of making payment
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towards the consideration amount is disbelieved by both the courts for
lack of sufficient evidence. After considering the admissions of DW 2,
who had signed possession receipt, both the Courts have held that
execution of the possession receipt is proved, but actual handing over
of possession is not. A perusal of the evidence of DW 2 does not
indicate that possession of the suit property was handed over. Thus,
the possession receipt would not assist the defendants in seeking
protection under section 53-A of The Transfer of Property Act without
proof of payment of the consideration amount and without proof of
defendants put in possession in furtherance of the contract, if any,
between defendants and Dattatray.
22. Admittedly, the plaintiffs' predecessor, Dattatray, is the tenant
purchaser of the suit property under Section 32G of the Tenancy Act.
The purchase certificate under Section 32M of the Tenancy Act was
issued to Dattatray on 31st May 1966. The defendants claim possession
based on alleged agreements to sell executed by Dattatray in 1983 and
1991 and a possession receipt dated 7th January 1993. Learned
counsel for the respondents submitted that the certificate under Section
32M is conclusive proof of the plaintiffs' title and possession. He,
therefore, relied upon paragraphs 8 and 9 of the decision of this Court,
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in the case of Himatrao Ukha Mali, and submitted that the defendants
would not be entitled to seek protection under Section 53A of the
Transfer of Property Act.
23. To correctly understand the applicability of Section 53A and the
bar under Section 43 of the Tenancy Act, it is necessary to refer to the
facts and the proposition laid down in the decision of Himatrao Ukha
Mali. The decision in the said case arose from the proceedings under
Section 84 of the Tenancy Act for summary eviction of a party who was
admittedly put in possession in furtherance of a contract by a protected
tenant. The protected tenant had filed a suit for possession, and
pending the suit, an order of purchase was passed under Section 32G
of the Tenancy Act. However, the first suit filed by the tenant purchaser
and the second suit by his heirs were dismissed, holding that the
purchaser was entitled to protect his possession under Section 53A of
the Transfer of Property Act. The heirs of the tenant purchaser then
filed an application under Section 84 of the Tenancy Act for summary
eviction of the purchaser. However, that was also dismissed, holding
that the protection under Section 53A was available. In these facts, this
Court in the decision of Himatrao Ukha Mali, held in paragraph 9 that a
contract to sell property purchased under the Tenancy Act will be
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invalid in view of the provisions of Section 23 of the Indian Contract Act,
because it contravenes the provisions of Section 43(1) of the Tenancy
Act and thus such an agreement to sell would be illegal by virtue of
Section 43(2) of the Tenancy Act. Thus, it was held that the purchaser
of such land would not be entitled to the protection under Section 53A
of the Transfer of Property Act.
24. It is necessary to refer to the well-established principles on a
statutory bar for the sale of a property and the applicability of Section
53A of the Transfer of Property Act to a purchaser put in possession in
furtherance of a contract. The Hon'ble Apex Court, in the decision of
Nathulal Vs Phoolchand 6, was dealing with the provisions of Madhya
Bharat Land Revenue and Tenancy Act 66 of 1950. The facts in the
said case and the legal principles were summarised in the following
paragraphs:
"5. Under the terms of the agreement Nathulal had undertaken to
get the name of his brother Chittarmal removed from the revenue
records and to get his own name entered, but the lands continued
to stand recorded in the name of Chittarnmal till October 6, 1952,
and before that date Nathulal rescinded the contract. Again by
virtue of Section 70(4) of the Madhya Bharat Land Revenue and
6 (1969) 3 SCC 120
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Tenancy Act 66 of 1950, Phoolchand not being an agriculturist
the land could not be sold to him without the sanction of the State
Government. In the absence of any specific clause dealing with
this matter, a condition that Nathulal will secure the sanction
under Section 70(4) after paying the appropriate fee must be
implied for it is well settled that where by statute property is not
transferable without the permission of the authority, an
agreement to transfer the property must be deemed subject to
the implied condition that the transferor will obtain the sanction of
the authority concerned: see Motilal v. Nanhelal [LR 57 IA 333]
and Mrs Chandhee Widya Vati Madden v. Dr C.L. Katial [(1964)
2 SCR 495] .
6. Phoolchand could be called upon to pay the balance of the
price only after Nathulal performed his part of the contract.
Phoolchand had an outstanding arrangement with his Banker to
enable him to draw the amount needed by him for payment to
Nathulal. To prove himself ready and willing a purchaser has not
necessarily to produce the money or to vouch a concluded
scheme for financing the transaction: Bank of India
Ltd. v. Jamsetji A.H. Chinoy and Messrs. Chinoy and
Company [LR 77 IA 76,91].
7. The High Court proceeded to decide the case largely upon the
view that Nathulal committed breach of contract. But the question
whether Nathulal had committed the breach is not of much
significance. Nathulal was the owner of the land; he had executed
no conveyance in favour of Phoolchand in the land or the factory.
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Nathulal had sued for possession relying upon his title, and
Phoolchand could defeat that claim if he established his defence
of part performance under Section 53-A of the Transfer of
Property Act.
8. The argument raised by counsel for Nathulal, that by virtue of
Section 70(8) of the Madhya Bharat Land Revenue and Tenancy
Act, the plea of part performance is not available to a person put
in possession of the property under a contract of sale, has, in our
judgment, no force. Section 70(8) provides:
"No sale under this section shall be deemed to be valid until
the sale deed effecting such a sale has been registered in
accordance with the law of registration in force for the time
being."
But this clause only requires that not only the conditions
prescribed by Section 70, but registration of sale deed in
accordance with the law of registration for the time being in force
is a condition require to be complied with before a sale is deemed
valid. There is no sale in the present case, and Phoolchand is not
relying upon any sale. He is relying upon a contract of sale and
equity which he may set up to defend his possession against the
claim made by Nathulal. To the making of such a claim, relying
upon the doctrine of part performance in Section 53-A of the
Transfer of Property Act, there is nothing in Section 70(8) of the
Madhya Bharat Land Revenue and Tenancy Act 66 of 1950
which may operate as a bar.
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9. The conditions necessary for making out the defence of part
performance to an action in ejectment by the owner are:
"(1) that the transferor has contracted to transfer for
consideration any immovable property by writing signed by
him or on his behalf from which the terms necessary to
constitute the transfer can be ascertained with reasonable
certainty;
(2) that the transferee, has, in part performance of the
contract, taken possession of the property or any part
thereof, or the transferee, being already in possession
continues in possession in part performance of the contract.
(3) that the transferee has done some act in furtherance of
the contract; and
(4) that the transferee has performed or is willing to perform
his part of the contract."
If these conditions are fulfilled then notwithstanding that the
contract, though required to be registered, has not been
registered, or, where there is an instrument of transfer, that
the transfer has not been completed in the manner
prescribed therefor by the law for the time being in force,
the transferor or any person claiming under him is debarred
from enforcing against the transferee any right in respect of
the property of which the transferee has taken or continued
in possession, other than a right expressly provided by the
terms of the contract."
emphasis applied
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25. This Court, in the decision of Balu Baburao Zarole Vs Shaikh
Akbar Shaikh Bhikan7, followed the legal principles settled by the
Hon'ble Apex Court in the decision of Nathulal. This Court, while
dealing with the issue of applicability of the bar under Section 43 of the
Tenancy Act to a contract for purchase of a land under the Tenancy Act
held as under;
"3. Section 43 of the Act provides, in so far as is material that no
land purchased by a tenant inter alia under S. 32 "shall be
transferred by sale, gift, exchange, mortgage, lease or
assignment without the previous sanction of the Collector". The
requirement of taking the previous sanction of the Collector would
apply to a transfer by sale or by any of the other modes specified
therein. In so far as the requirement of taking the sanction of the
Collector under the provisions of S. 43 of the Bombay Tenancy
and Agricultural Lands Act, 1948 is concerned, the Trial Court
and the Appellate Court correctly held that the decree for specific
performance would be subject to the condition of the sanction
being obtained to the sale from the collector under S. 43. In the
event of the Collector not granting sanction, the Plaintiff would be
entitled to a refund of the purchase price together with interest
only as, in the absence of sanction under S. 43 the sale cannot
be concluded. In taking this view, no error has been committed by
the Trial Court and by the appellate Court.
7 2001 SCC OnLine Bom 103
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In Nathulal v. Phoolchand reported in AIR 1970 SC 546, a
Bench of the Supreme Court, consisting of Mr. Justice J.C. Shah
(as the Learned Chief Justice then was) and Mr. Justice K.S.
Hegde held that where by a statute property is not transferable
without the permission of an authority, an agreement to transfer
the property must be deemed to the subject to the implied
condition that the transferor will obtain the sanction of the
authority concerned. While laying down the aforesaid proposition
in paragraph 5 of its Judgment, the Supreme Court referred to
the judgment of the Privy Council in AIR 1930 PC 187 and the
judgment of the Supreme Court in AIR 1964 SC 978.
4. Section 43 of the Act would be attracted at the stage of the
execution of the conveyance since upon the execution of the sale
deed, the property is transferred by sale. An agreement to sell
does not create any interest in property . In this regard, a
reference may be made to a Judgment of a learned single Judge
of this Court, D.K. Deshmukh, J., delivered on 1st October, 1997,
in Appeal from Order No. 713 of 1997. The earlier judgment
delivered by M.F. Saldanha, J. reported in (1994) I Bom. C.R. 715
which was subsequently referred to in the Judgment of V.H.
Bhairavia, J. reported in (1994) 4 Bom. C.R. 575, will have to be
construed with reference to the observations of the learned Judge
in para 9 of the judgment where the Learned Judge clarified that
the observations which were made in the order were for the
limited purpose of the petition before the Court, which arose
against an interim order. Since the Suit was pending before the
Trial Court, the Learned Judge held that it would be open to the
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parties in the said case to urge all contentions before the Trial
Court "without being prejudiced even in the least by any of the
observations made" in that Judgment. In view of the subsequent
Judgment of a learned single Judge, D.K. Deshmukh, J., it would
be clear that the provisions of S. 43 of the Act would be attracted
at the stage of the execution of the conveyance. Before the
conveyance is executed in pursuance of a decree for specific
performance the previous sanction of the Collector under S. 43
would have to be sought and the execution of the conveyance
can only take place after and subject to the grant of sanction by
the Collector, if the Collector grants sanction, the terms and
conditions laid down therein have to be observed. If sanction is
refused, no conveyance can be executed. Section 43 would
unquestionably be attracted to the execution of the conveyance
in respect of the land and it is, therefore, that both the Courts in
the present case came to the conclusion that the decree will have
to be subject to the condition that permission of the Collector
would have to be sought under the provisions of S. 43. The
judgments of both the Courts below do not suffer from any
infirmity. There is, therefore, no merit in the Second Appeal."
emphasis applied
26. Thus, in view of the well-established principles of law settled by
the Hon'ble Apex Court, a contract for the sale of land purchased under
the Tenancy Act would not be invalid in view of Section 23 of the Indian
Contract Act on the ground that it contravenes the provisions of Section
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43 of the Tenancy Act. The bar under Section 43 would apply at the
stage of conveyance and not at the stage of the agreement for sale, in
as much as the sale is barred without prior sanction as contemplated
under Section 43(1) the Tenancy Act. Hence, in view of the legal
principles well-established by the Hon'ble Apex Court in the decision of
Nathulal, followed by this Court in the decision of Balu Baburao Zarole,
the legal proposition laid down by this Court in the case of Himatrao
Ukha Mali, would have no binding effect.
27. In the present case, there is no proof that the defendants were
put in possession in furtherance of the contract claimed by the
defendants to be allegedly executed by the tenant purchaser. Hence, in
view of the facts of the present case, the legal principles settled in the
decision of the Hon'ble Apex Court in the case of Nanjegowda, relied
upon by the learned counsel for the respondents(plaintiffs) would apply.
The well-established legal principles for applicability of the protection
under Section 53A of the Transfer of Property Act are summarised as
under in paragraph 9 of the decision of Nanjegowda:
"9. From a plain reading of the aforesaid provision, it is evident that a
party can take shelter behind this provision only when the following
conditions are fulfilled. They are:
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(i) The contract should have been in writing signed by or on
behalf of the transferor;
(ii) The transferee should have got possession of the immovable
property covered by the contract;
(iii) The transferee should have done some act in furtherance of
the contract; and
(iv) The transferee has either performed his part of the contract or
is willing to perform his part of the contract.
A party can take advantage of this provision only when it satisfies
all the conditions aforesaid. All the postulates are sine qua non
and a party cannot derive benefit by fulfilling one or more
conditions."
emphasis applied
28. In the decision of Vijay Gaikwad, this court held that the aspect of
oral admission cannot be placed at a higher pedestal than the
substantive evidence and that the endeavour of the Court should be to
find out the truth and that an alleged stray admission cannot be utilised
to throw out the plaintiff from the Court. In the decision of Lalitkumar
Grover, this Court held that de jure possession has to be established
on the basis of title to the property. This Court disbelieved the
contentions of the defendant society in the said case, seeking right over
the plaintiff's property by parking cars of the members, and thus
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granted an injunction restraining the members of the defendant society
from parking vehicles in the plaintiff's property.
Conclusions:
29. In the present case, the Trial Court accepted execution of the
agreements by Dattatray but disbelieved that the defendants paid the
consideration amount as they claimed or were put in possession of the
suit property in pursuance of the alleged contract. The first appellate
court recorded findings disbelieving the execution of the agreements,
the theory of defendants being put in possession and payment of
consideration amount. I have recorded reasons to confirm the findings
disbelieving execution of the contract and payment of consideration as
claimed by the defendants, and I have confirmed the concurrent
findings that the defendants failed to prove that they were put in
possession in pursuance of the alleged contract. I have also confirmed
the findings that the plaintiffs are in possession of the eastern part of
the suit property.
30. The defendants failed to prove the valid execution of the
agreements for sale, payment of consideration amount and theory of
being in possession pursuant to the alleged agreements. Learned
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counsel for the respondents is right in submitting that only a stray
admission from the cross-examination of PW 1 cannot be picked up to
conclude that defendants are in possession of the eastern side of the
suit property. Even otherwise, mere storing any heaps of rubble in an
area that is in possession of the owners of the property would not mean
that the defendants are in possession of the said area. One wrongful
act on the part of the defendants to store heaps of rubble in an area
occupied by the owners of the property cannot be accepted as any
proof of them being in possession of the suit property.
31. In the present case, none of the conditions contemplated under
Section 53A of the Transfer of Property Act are fulfilled by the
defendants. Thus, the legal principles settled by the Hon'ble Apex
Court in the decision of Nanjegowda and the decisions of this Court in
the cases of Vijay Gaikwad and Lalitkumar Grover squarely apply in
favour of the respondents (plaintiffs).
32. I do not find any illegality or perversity in the reasons recorded by
both the Courts. The findings recorded by both the Courts on
possession of the plaintiffs on the eastern side of the suit property
amounts to correct appreciation of the entire evidence on record. Both
the Courts also considered the admissions given by PW 1 and have
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arrived at the correct conclusion on possession of the eastern side of
the suit property. In the second appeal, re-appreciation of evidence is
not permissible for arriving at a different conclusion unless any
perversity is found in the reasons recorded by both the Courts. Hence,
the question of law is accordingly answered in favour of the
respondents (plaintiffs). I do not see any reason to interfere in the
concurrent findings of facts recorded by both the Courts.
33. The second appeal is accordingly dismissed. The impugned
judgments and decrees in favour of the plaintiffs are thus confirmed.
[GAURI GODSE, J.]
IRESH Digitally signed by
IRESH MASHAL
MASHAL Date: 2025.02.18
14:37:35 +0530
