Bombay High Court
Laxman S/O Gopa Rathod vs Shantabai W/O Hari Chavan & Ors on 19 September, 2018
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
SA 275/05 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
SECOND APPEAL No. 275/2005
Laxman s/o Gopa Rathod,
aged about 65 years, Agriculturist,
r/o Limbi, Post Pardi, Tahsil Pusad,
District Yavatmal. APPELLANT
.....VERSUS.....
1. Shantabai w/o Hari Chavan,
aged 60 years, Occupation - Household,
r/o Adgaon, Taluq Pusad District Yavatmal.
2. Ramdhan Suka Chavan,
aged 53 years, Occupation : Agriculturist.
3. Yamuna w/o Pralhad Rathod,
aged about 40 years, Occupation : Household.
4. Vimal w/o Dalpat Rathod,
aged 45 years, household work.
5. Kantabai Shriram Rathod (DEAD)
(a) Nitin Shriram Rathod,
aged 30 years, resident of Adgaon.
(b) Manoj Shriram Rathod,
aged about 25 years.
(c) Ranjana Vilas Chavan,
aged about 28 years.
6. Sanjay Hari Chavan,
aged 29 years, Occupation-Labourer.
7. Kalabai w/o Sawai Chavan,
aged about 53 years, Occupation-Household.
8. Pradip Sawai Chavan,
aged about 24 years, Occupation: Labourer.
9. Nanda w/o Ramesh Rathod,
aged about 33 years, Occupation : Household.
10. Gangabai w/o Shriram Rathod,
aged about 33 years, Occupation : Household.
All residents of Adgaon, Post Adgaon,
Tahsil Pusad, district Yavatmal.
11. State of Maharashtra,
through Collector, Yavatmal. RESPONDENTS
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SA 275/05 2 Judgment
Shri A.J. Thakkar, counsel for the appellant.
Mrs. Mrunal Shesh, counsel for the respondent nos.1 to 10.
Shri Shyam Bissa, Assistant Government Pleader for the respondent no.11
CORAM : A.S. CHANDURKAR, J.
DATE : 19 TH SEPTEMBER, 2018.
ORAL JUDGMENT
This appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the defendant no.1 in the suit for possession filed by the original plaintiffs. The trial Court dismissed the said suit but the appeal filed by the original defendant nos.2 and 3 came to be allowed and decree for possession came to be passed.
2. The facts in brief are that it is the case of the plaintiffs that their predecessor Suka Banjari was a landless labourer. He was granted land as Occupancy Class-II in the year 1963. During his lifetime, he cultivated the said land bearing Old Survey No.70-New Survey No.67 admeasuring 2 Hectare 46 R. Said Suka expired in the year 1971 and was survived by the plaintiffs as well as defendant nos.2 to 10. It is further pleaded in the plaint that in the Summer of 1985, the defendant no.1 had taken forcible possession of the suit field and got the revenue entries corrected accordingly. In December-1992, the legal heirs of Suka called upon the defendant no.1 to handover possession but the same was not so handed over. Instead in the reply to the notice it was stated that ::: Uploaded on - 26/09/2018 ::: Downloaded on - 26/09/2018 23:07:56 ::: SA 275/05 3 Judgment on 10.09.1975, the legal heirs of Suka had executed a lease-deed for a period of ninety nine years on payment of Rupees Eight Thousand. According to the plaintiffs, no such lease-deed was executed and hence the possession of the defendant no.1 was illegal. It was thus prayed that the said lease-deed be declared as not binding on the plaintiffs and possession be handed over to them.
3. In the written statement filed by defendant no.1 it was pleaded that in view of the lease-deed dated 10.09.1975, the said defendant no.1 was in lawful possession. The duration of that lease was for ninety nine years and prior to that period it was not open for the plaintiffs to seek possession. The other defendants supported the case of the plaintiffs.
4. The trial Court after considering the evidence on record held that the plaintiffs had failed to prove that the defendant no.1 had taken forcible possession. By relying upon the document at Exhibit 58, it was pleaded that the plaintiffs had no legal right to claim possession. The suit was accordingly dismissed. Appeal was filed challenging the aforesaid judgment by the defendant no.2. The appellate Court allowed that appeal by holding the same to be maintainable. It was further held that there was a restriction on the alienation of the land which was Occupancy ::: Uploaded on - 26/09/2018 ::: Downloaded on - 26/09/2018 23:07:56 ::: SA 275/05 4 Judgment Class-II land and therefore the said lease-deed was void ab-initio. The suit was accordingly decreed and the defendant no.1 was directed to handover possession to the legal heirs of Suka. Being aggrieved, the defendant no.1 has filed the present appeal.
5. The following substantial question of law was framed while admitting the Second Appeal:-
"Whether the appellate Court was justified in granting a relief of possession in favour of the plaintiffs when the appellate Court had clearly recorded that the plaintiffs were taking benefit of their own wrongs and had refused to grant a decree for recovery of mesne profit on the aforesaid ground ?"
6. Shri A.J. Thakkar, learned counsel for the appellant, submitted that the land in question was granted to said Suka in the year 1963 when the field was governed by the provisions of the Madhya Pradesh Land Revenue Code, 1954 (for short, 'the Code of 1954'). Relying upon the provisions of Section 145 as well as Section 152 of the Code of 1954, it was submitted that said Suka held the land as a Bhumidhari and therefore the only restriction on transfer was against mortgaging any interest in the suit land. It was submitted that grant of lease on 10.09.1975 by the legal heirs of Suka was not prohibited as it was not in the nature of mortgage. The execution of the lease-deed was admitted and therefore the defendant no.1 was entitled to continue in ::: Uploaded on - 26/09/2018 ::: Downloaded on - 26/09/2018 23:07:56 ::: SA 275/05 5 Judgment possession for a period of ninety nine years. Non registration of the said lease-deed did not affect its legality and for that purpose he referred to the provisions of Section 106 and Section 117 of the Transfer of Property Act, 1882. It was thus submitted that possession of the defendant no.1 was not wrongful and the declaration as sought by the plaintiffs as to invalidity of the lease-deed was beyond the jurisdiction of the Civil Court. The learned counsel placed reliance on the decisions in Vinod Harikishan Gupta Versus Minister for Revenue, State Government & Others [2006 (6) All MR 217] and Gangabisan Mayaramji Paliwal Versus Gulabrao Pandurang Khode [1971 Revenue Rulings 172]. It was thus submitted that the suit was liable to be dismissed.
7. Smt. Mrunal Shesh, learned counsel for the original plaintiffs, supported the impugned judgment. It was submitted that as the lease was granted after the Maharashtra Land Revenue Code, 1966 (for short, the Code of 1966') came into force, the rights ought to be determined on that basis. Referring to the provisions of Section 29(3)(a) of the Code of 1966 it was submitted that transfer by way of lease without due permission was barred and therefore the appellate Court rightly decreed the suit. Moreover, the said lease-deed was unregistered and hence in view of provisions of Section 49 of the Registration Act, 1908 that aspect affected the validity of the lease-deed. It was thus submitted that the decree as passed deserves to be maintained.
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SA 275/05 6 Judgment
8. I have heard the learned counsel for the parties at length and I have also perused the records of the case. The factual aspects that are not in dispute are that on 10.11.1963, the land in question was allotted to Suka and he occupied the same as occupant Class-II. According to the defendant no.1 on 10.09.1975, the lease-deed in question was executed by the plaintiffs. Execution of that lease has been duly proved and it is at Exhibit 58. The only question is with regard to validity of that lease-deed.
9. When the land in question was allotted to Suka, the provisions of Code of 1954 were operating. As per Section 145 Suka was a tenure holder from the State and was called a Bhumidhari. Under Section 152 of the Code of 1954, the Bhumidhari had a right of transfer otherwise than by way of mortgage of his interest in the land. The Code of 1966 came into force with effect from 15.08.1967. As per provisions of Section 29 of the Code of 1966, the classes of persons holding land have been specified. It is not in dispute that the holding of Suka and thereafter of his legal representatives was as occupant Class-II. As per provisions of Section 29(3)(a) of the Code of 1966, persons who are occupants Class-II can hold unalienated land in perpetuity subject to restrictions on the right to transfer. The lease-deed in question has been executed on 10.09.1975 when the Code of 1966 was operating.
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SA 275/05 7 Judgment
10. According to the defendant no.1 since land in question was allotted in the year 1963 and there was no restriction to lease out that land as per Section 152 of the Code of 1954, the execution of the lease-deed on 10.09.1975 was legal and there was no bar on such alienation. This submission however overlooks the provisions of Section 29(3)(c) of the Code of 1966. As per that provision if prior to the commencement of the Code of 1966, any rights have been granted to hold land in perpetuity or for a period not less than fifty years under any law relating to land revenue which was in force before the commencement of the Code of 1966, then all provisions of the Code of 1966 relating to the rights, liabilities and responsibilities of Occupants Class-II would apply as if they were Occupants Class-II under the Code of 1966. In the light of this provision and the fact that the lease has been created on 10.09.1975 which is after the Code of 1966 came into force, the provisions of Section 29(3)(a) of the Code of 1966 would apply. On that basis, there was a restriction on the right to transfer and this restriction is to the right to transfer in any manner whatsoever. Viewed thus, it is clear that execution of the lease-deed was in contravention of the provisions of Section 29(3)(a) of the Code of 1966. The appellate Court therefore rightly found said lease-deed to be void ab- initio.
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SA 275/05 8 Judgment
11. Another aspect that requires consideration is the effect of the grant made to Suka under the Code of 1954. While repealing the provisions of the Code of 1954, Section 336 of the Code of 1966 alongwith its first proviso stipulates that such repeal shall not affect right or liability acquired or incurred under the law so repealed. However, the third proviso requires such rights acquired or liabilities incurred not to be inconsistent with the provisions of the Code of 1966. The provisions of Section 29(3) would have to be construed accordingly and hence provisions of said Section would govern the rights and liabilities of Occupants - Class II as if they were under the Code of 1966. Under Section 29(3)(a) of the Code of 1966, there would be a restriction on the right to transfer. Undisputedly, the lease was created after the Code of 1966 came into force. On this count, the ratio of the decisions in Vinod Harikishan Gupta and Gangabisan Mayaramji Paliwal (supra) cannot be applied to the facts of the present case.
12. At the same time, it cannot be lost sight of that the legal heirs of the plaintiff executed that lease-deed also in contravention of provisions of Section 29(3)(a) of the Code of 1966. It is therefore for the respondent no.11 to take appropriate action against the legal heirs of the plaintiff especially when respondent no.11 was impleaded in the second appeal to consider that aspect.
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SA 275/05 9 Judgment
13. Accordingly, the substantial question of law is answered by holding that the appellate Court was justified in granting the relief of possession in favour of the plaintiffs. In view of that answer, the judgment of the appellate Court in Regular Civil Appeal No.30 of 1995 dated 13.04.1995 does not call for any interference. The said judgment is accordingly confirmed. The respondent no.11 through the Collector shall consider further course to be adopted in the light of provisions of Section 29(3)(a) of the Code of 1966 against the legal heirs of the original plaintiff in view of lease-deed dated 10.09.1975. A copy of this judgment be forwarded to the respondent no.11 to consider the aforesaid aspect. The Second Appeal is accordingly dismissed with no order as to costs.
14. At this stage, learned counsel for the appellant prays that the effect of this judgment be stayed for a period of six weeks from today. This request is opposed by the learned counsel for the original plaintiffs. As the interim relief was operating since the year 2005, the said interim relief shall continue to operate for a period of eight weeks only from today and shall cease to operate thereafter.
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