Bombay High Court
Sukumabai vs Chandgonda Kalgonda Patil on 25 February, 2002
Equivalent citations: AIR2003BOM131, 2002(5)BOMCR641, AIR 2003 BOMBAY 131, (2002) 5 BOM CR 641
Author: R.J. Kochar
Bench: R.J. Kochar
JUDGMENT
1. The appellant, the original plaintiff, is aggrieved by the judgment and order passed by the lower appellate Court in the regular civil appeal No. 44 of 1985 filed by the original defendant who was ' aggrieved by the judgment and order passed by the trial Court which decreed the suit filed by the plaintiff. In appeal the lower appellate Court has quashed and set aside the said judgment and decree of the trial Court and allowed the appeal filed by the defendant No. 1. The defendant No. 2 who was the original land owner did not contest the suit, and appeal and her name was deleted. The present second appeal is filed by the original plaintiff who is aggrieved by the order passed by the lower appellate Court.
2. The facts and contentions in both the above appeals are identical except the name of the defendant No. 1, and therefore, both the appeals are being disposed of by the present common judgment, and order. For sake of convenience, the parties would be referred to as the plaintiff and defendant as referred before the trial Court.
3. A part of the suit land was allegedly purchased by the defendant No. 1 in the S.A. 249 of 1987 and the remaining part of the suit land was allegedly purchased by the defendant No. 1 in the companion S.A. No. 386 of 1987. One Dada Bala Magdum was the original tenant of the defendant No. 2. the land lady prior to 1957. He expired in the year 1964 leaving behind him his widow Rukabai and the present plaintiff. The plaintiff filed the present suit for possession of the suit land from the defendant No. 1 and alternatively she also prayed for possession of 1/2 share from the suit land after partition. She has also prayed for mesne profits and costs. According to the plaintiff, the suit land S. No. 245 was 3 acre and 21 gunthas which was owned by the landlady the defendant No. 2. The deceased father of the plaintiff was her tenant for many years and he was in possession of the suit land. The said Dada Balu expired in the year 1964 and thereafter, the plaintiff and her mother were cultivating the land as tenants by inheritance. Since the deceased tenant had no son and the plaintiff was the only daughter, she became the legal heir along with her surviving mother. Since her mother was very old, she could not cultivate the land, and therefore, the plaintiff was carrying on the work of cultivation.
4. The plaintiff has further averred that on 1st April 1957 and thereafter, her father was in possession and was cultivating the suil land as on that date the land lady being a widow could not sell the land to the tenant under Section 32G of the Bombay Tenancy and Agricultural Lands Act. 1948 (hereinafter referred to as "the Act"). It is alleged by the plaintiff that her mother was bed ridden and she could not personally do anything and she was helped by the defendant No. 1. In the aforesaid circumstances, the plaintiff alleged that with a view to grab the said land, the defendant No. 1 in both the above appeals made the landlady to enter into a sale deed between the landlady and the mother of the plaintiffs. The alleged sale of the suit land was for a nominal purchase price and under the guise of the said sale deed between the landlady and the plaintiffs mother, the defendant No. 1 got entered into the said sale deed at the first instance between the landlady and the mother of the plaintiff and on the very same day, the defendant No. 1 in both the appeals got entered into another sale deed between the plaintiffs mother and the defendant No. 1. whereby the suit land appeared to have been purchased by both of them from the mother of the plaintiff. At that time, the plaintiffs mother was not able to understand any transaction. According to the plaintiff, after the death of her father she along with her mother inherited the suit land but without her consent, the defendant No. 1 purchased the entire suit land unlawfully. The said sale deed and the sale transaction was not binding on the plaintiff and that her rights could not be extinguished. The plaintiff has further alleged that her mother could not have sold the suit land to the defendant No. 1 in contravention of the mandatory provisions of the Act and. therefore, the sale deed was invalid and void ab initio and, therefore, the defendant No. 1 in both the appeals did not and could not get any ownership or any other rights in the suit land. The defendant No. 1 after the death of the plaintiffs mother forcibly entered the suit land and took possession unlawfully and he started enjoying the land, The plaintiff has therefore, prayed for possession of the entire suit land. In the alternative, she has also prayed for 1/2 share in the suit land as the legal heir of the deceased tenant artd;as her mother could not have sold plaintiffs share without her consent to the defendant No. 1 the said sale deed was not binding on her to that extent. She has therefore, alternatively prayed for partition of the suit land and possession of 1/2 share of the suit land.
5. The defendant No. 1 appeared and contested the suit by filing his written statement. The defendant No. 2 did not appear and contest the suit claim. The defendant No. 1 has generally denied the allegations made by the plaintiff. He, however, mainly pleaded that he was the tenant of the suit land and that the deceased Dada Bala was a tenant only for 1 or 2 years and that he had left the suit land to the original landlady. According to him, he has cultivating the suit land as a tenant, though his name did not enter in the 7/12 extracts. He further pleaded that he was paying rent to the landlady and who had agreed to sell the land to him and that the mother of the plaintiff had no objection for the said transaction. He. however, got the landlady and the said Rukumabai to have a sale deed and thereafter another sale deed was entered into between the said Rukumabai and the defendant No. 1. The defendant No. 1 has asserted that the sale deed dated 12th June 1967 between them was legal and valid. He. therefore, prayed for dismissal of the suit as he was in the possession of the suit land under the said legal, valid and registered sale deed as the purchaser of the suit land.
6. It appears from the record that the point in respect of the tenancy of the defendant No. 1, was referred by the Civil Court under the provisions of the Act to the tenancy authority, which decided against him holding that he was not the tenant of the suit land. After the said finding by the Tahsildar, the defendant No. 1 by additional written statement contended that his possession was not as a tenant but was as a trespasser and that the plaintiff could get possession back only under the provisions of the Act and that, that issue also could not be decided by the civil Court. He, therefore, again prayed that the said issue should be referred to the Tahsildar under Section 40 of the Act.
7. On the basis of the pleadings of both the parties, the learned trial Judge framed issues and recorded his findings after receiving evidence, oral and documentary, adduced by both the parties. The trial Court positively held that the plaintiff had proved her title to the suit land. He also held on the basis of the findings of the tenancy Court that the defendant No. 1 had not proved that he was the tenant of the suit property. The learned Judge answered the issue to say that the plaintiff was entitled to possession of the suit property and the mesne profits. On the issues after the additional written statement the trial Court held that it had jurisdiction to try the suit and the sale deed dated 12th February 1967 was invalid. It was further held that the plaintiff was entitled to claim possession and partition of the entire suit land. The learned Judge on the aforesaid findings decreed the suit.
8. The defendant No. 1 was aggrieved by the aforesaid judgment and order of the trial Court. He preferred a appeal before the lower appellate Court. The learned lower appellate Court, framed six points for determination on the basis of the pleadings and the impugned judgment. The lower appellate Court held that the plaintiff had not proved the sale deed dated 13th February 1967 executed by the defendant No. 2 in favour of the plaintiff's mother was not sham and hollow. He also held that the plaintiff had not proved the sale deed executed by her mother in favour of the defendant No. 1 in both the appeals to be illegal and void. He also found that the plaintiff had not acquired the right of the tenant in the suit land as she was not actually cultivating the suit land and that she was not entitled to get even 1/2 share in the suit land and that she was not entitled to the partition and possession of the half of the share in the suit land. In the aforesaid circumstances, the lower appellate Court quashed and set aside the impugned order passed by the trial Court by his judgment and order dated 22nd September 1986.
9. The plaintiff has preferred the present second appeal challenging the legality and validity of the impugned judgment and order of the lower appellate Court on various grounds. During the pendency of the appeal, the defendant No. 1 appears to have expired and therefore, his legal heirs have been brought on record. The second appeal was admitted on 25th November 1987 as per the following order :--
"Admit. Expedited, Approach of the lower appellate Court on several important issues calls for scrutiny in the High Court. Leave to apply for fixed date after paper book is supplied."
10. According to me, the following substantial question of law has arisen and the same requires consideration by this Court.
(i) Whether the sale deed dated 13th February 1967 is invalid and void ab initio for want of previous sanction or permission of the authorities under Section 43 of the Act?
As the outset I may mention that the sale deed dated 13th February 1967 between the landlady and the deceased mother of the plaintiff. Rukabai is not under challenge and, therefore I have not considered the legality and validity of the said sale deed. What is under challenge before me is the other sale deed dated 13th February 1967 between the deceased mother of the plaintiff and the defendant No. 1 in both the appeals. It is factually not disputed that the landlady had sold the suit land to the deceased Rukabai under the first separate registered sale deed dated 13th February 1967 for valuable consideration. It is also factually borne out from the record that on the very same date, the deceased Rukabai and the defendant No. 1 entered into another sale deed for sale of the very suit land by the deceased Rukabai to the defendant No. 1 in both the appeals. There is no dispute that both the sale deeds were registered in accordance with law.
11. As far as the status of the plaintiff is concerned, there is no dispute that she was and she is the married daughter of the deceased Dada Bala who was the tenant of the suit land. The tenancy rights of the deceased Dada Bala were inherited by the plaintiff and her mother Rukabai. It has been laid down by a division bench of this Court that every tenancy whether contractual or statutory is ordinarily heritable, heritability being an incident of tenancy and one has to examine the statute to ascertain whether it is destructive of the same. . It was further held by the division bench that Section 40 was not a source of right of inheritance. It is merely restrictive of right of inheritance to a few out of the many heirs. In application of Section 40 to lands of Public Trusts results merely in opening succession to all the heirs of the deceased tenant and not destroying the inherilability itself. Both, the widow of the deceased Dada Bala and the plaintiff as his daughter, have inherited the tenancy rights of the deceased. During the lifetime of her mother, the plaintiff was entitled to half share in the suit land. After the death of her mother in the year 1968. the plaintiff became the legal heir of the share of her mother also. The plaintiff, therefore, became entitled to get the entire suit land, half in her own legal right as the daughter of the deceased and the remaining as the daughter of the deceased mother by inheritance. It is not material whether the daughter was actually cultivating the suit land or not. She had become entitled to get inheritance of the tenancy rights of the deceased father and thereafter, she became entitled to get the full share in the suit land after the mother had purchased the suit land from the landlady. After the death of the mother, the plaintiff naturally became entitled to get full share in the whole suit land. The plaintiff has averred that she was in possession of the suit land along with her mother after the death of her father,
12. The next, question which acquires importance is that of validity of the sale deed dated. 13th February 1987 between the plaintiffs mother and the defendant No. 1, There is no dispute that there was no previous sanction of the Collector taken under Section 43 of the Act before the aforesaid registered sale deed was entered into between the plaintiffs mother and the defendant No. 1. Section 43 reads as under ;--
"No land purchased by a tenant under Ss. 32. 32F, or sold to any person under Section 32-P or 64 shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector, Such sanction shall be given by the Collector in such circumstances, and subject to such conditions, as may be prescribed by the State Government :--
Provided that, no such sanction shall be necessary where the land is to be mortgaged in favour of Government or a society registered or deemed to be registered under the Bombay Co-operative Societies Act. 1925 for raising a loan for effecting any improvement of such land.
(2) Any transfer of land in contravention of Sub-section (i) shall be invalid.
This provision mandates that no land purchased by a tenant can be transferred in any manner without the previous sanction of the Collector. Section 43(2) declares that any transfer of land in contravention of Sub-section (1) shall be invalid. Similarly, there is a total prohibition under Section 64 of the Act. Sub-section (8) of Section 64 also declares that any sale made in contravention of that Section shall be invalid. The intention of the legislature to put such an embargo on sale of agricultural land is clearly to prevent exploitation of the agriculturists. It is not that there is absolute prohibition for the sale of the agricultural land but the law requires a deliberate consideration of the tenancy authorities under Sections 43 and 64 of the Act. In the face of the aforesaid mandatory provisions of the Act. I am not able to accept the findings of the lower appellate Court that the sale deed between the mother of the plaintiff and the defendant No. 1 was not illegal and or was not invalid or was not void ab inltio. It is clear from the findings of the learned Judge that he has not considered the aforesaid mandatory provisions of the Act that any transfer of land by sale or otherwise without the previous sanction of the tenancy authorities is Invalid. In my opinion, the sale deed entered between the parties is directly hit by the mandatory provisions of Ss. 43 and 64 of the Act. There is no dispute that no previous sanction of the authorities was taken by the parties before entering into the sale deed or before transfer of the suit land pursuant to the sale. The aforesaid sale deed, therefore, has to be held to be invalid and non est in the eyes of law. The defendant No. 1 in both the appeals had not acquired any legal right or title in the suit land under the aforesaid sale deed, which is invalid. The net outcome or the consequence of this finding of mine would be that the possession of the suit land will have to be handed over to the plaintiff. The plaintiff being the legal heir of not only the deceased tenant inheriting the tenancy rights but also as a legal heir of the deceased mother. There is no dispute that the plaintiffs mother had purchased the suit land from the landlord. There is no challenge to the validity of the said sale. The mother of the plaintiff, therefore, had become the absolute owner of the suit land and. therefore, the plaintiff being her daughter was the only legal heir to get the ownership and possession of the whole suit land.
13. It was urged by Shri Patil, the learned Advocate for the respondent that the dispute regarding the defendant No. 1 being a trespasser ought to have been referred by the trial Court to the tenancy authority. The civil Court has declined to once again send back the parties to the tenancy Court. In my opinion, the trial Court has rightly refused to refer the dispute to the tenancy Court as the defendant No. 1 was trying to approbate and reprobate. At the first instance, he had taken the defence that he was a tenant and thereafter, he took entirely different plea of he being a trespasser and that the tenancy Court should decide the same question. In my opinion, the trial Court has rightly turned down the said plea as the alternative plea of the defendant No. 1 was totally contrary to the earlier plea of being a tenant of the suit land. He could either be a tenant or trespasser. He knew his status and, therefore, could not be allowed to approbate or reprobate by taking inconsistent pleas as per his whim to prolong the litigation. The trial Court has accepted the findings of the tenancy Court that the defendant No. 1 was not a tenant and had proceeded, to decide the issues thereafter.
14. Shri Patil has further submitted that the question of validity of the sale deed should be referred to the tenancy Court under Section 84(c) of the Act. According to Shri Patil it was the Mamlatdar alone who could have decided the question of validity of the sale deed and that the civil Court will not have jurisdiction. It is indeed provided under Section 84(C) of the Act that any transfer or acquisition becoming invalid under the provisions of this Act the Mamlatdar has to hold an enquiry as provided under Section 84(B) of the Act and decide whether the transfer or acquisition is valid or invalid. The Supreme Couri has in the recent judgmeni in the case of Thomas Antony v. Varkey Varkey, has held in paras 23 and 24 as under (at pages 2-3 of AIR) :--
Para 23. "The civil Court can consider whether the plea raised by the party that he is a tenant or a kudikidappukaran is a bona fide contention. If there is not even a remote possibility of the said plea being upheld by the Land Tribunal the civil Court can conclude that the question does not reasonably arise in the case. Such an unreasonable plea would be raised with the idea to procrastinate or prolong the litigation. The civil Court cannot afford to aid such sinster tactics."
Para 24 "......If the civil Court is of the opinion that there is no even a remote possibility of the plea being upheld the Court can proceed to dispose of the suit without resorting to the circumlocuted route via the land tribunal........"
In the present case, the sale deed and the transaction ex facie is illegal and invalid as admittedly there was no previous sanction taken by the parties before such transfer of the suit land. According to me, it was, therefore, not necessary for the civil Court to have once again sent the matter back to the tenancy authorities to consider the question of validity of the sale deed. The illegality and validity is ex facie clear and, therefore, it is not necessary for the civil Court to refer such issues as there is on the face of the record no remotest possibility that the tenancy authority would hold that the sale transaction was valid. The sale deed is straight hit by the absolute ban provided under the aforesaid Sections 43(2) and 64(8) of the Act. To decide such a simple issue no greater wisdom is required and the simple wisdom of the civil Court should be enough even under the law as explained by the Supreme Court in the above judgment.
15. In the aforesaid circumstances, the impugned judgments and orders of the lower appellate Court in both the above appeals are quashed and set aside and the orders passed by the civil Judge, Junior Division dated 13th December 1984 in the suit are restored. The second appeals are allowed with no costs. Shri Patil, the learned Advocate for the respondent in both the appeals prays for stay of the order since his clients may approach the Supreme Court. This order is stayed for a period of eight weeks. C.C. expedited.