Gujarat High Court
Shri Dattatray Ganpatrao Surve vs Heeraben D/O Deceased Bhagvanbhai M ... on 23 December, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SA/408/2019 JUDGMENT DATED: 23/12/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 408 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/SECOND APPEAL NO. 408 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
SHRI DATTATRAY GANPATRAO SURVE
Versus
HEERABEN D/O DECEASED BHAGVANBHAI M PATEL
==========================================================
Appearance:
MR SK PATEL(654) ASSISTED BY MR ADITYA PATEL, ADVOCATE for the
Appellant(s) No. 1
for the Respondent(s) No. 1,2,2.1,2.1.1,2.1.2,3,4,6
MR SP MAJMUDAR(3456) for the Respondent(s) No. 5
SHASHVATA U SHUKLA(8069) for the Respondent(s) No. 5
==========================================================
CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 23/12/2022
ORAL JUDGMENT
1. The present Second Appeal is filed under Section 100 Page 1 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 of the Code of Civil Procedure by the appellant original plaintiff against the judgment and decree dated 14.08.2019 passed by the learned 8th Additional District Judge, Vadodara in Regular Civil Appeal No.173 of 2018, dismissing the Civil Appeal and confirming the judgment and decree passed by the learned 11 th Additional Senior Civil Judge, Vadodara in Regular Civil Suit No.3852 of 2015 (Old Special Civil Suit No.251 of 2007) on 18.04.2018.
2. The appellant is the original plaintiff and the respondents are the original defendants before the trial Court. For the brevity and convenience, the parties are referred to in this judgment as per the character assigned to them before the Trial Court i.e. as "Plaintiff" and "Defendants".
3. The brief facts of the case of the plaintiff is that the father of the defendant No.1 - deceased Bhagvanbhat Mathurbhai Patel was the owner of agricultural land bearing Revenue Survey No.113/1 ad-measuring 0-91-05 H.R.A.Sq. Mtr. of old tenure land situated at Village Atladara. That the deceased was cultivating the said land Page 2 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 by and it was in the ownership and possession of the defendant Nos.1 to 4 after the death of the father of the defendant No.1. That out of this land, the defendant No.1 decided to sell her share of undivided land ad-measuring H.R.A. 0- 22-76 (Sq. Mtr) to the plaintiff on 17.05.2007 by an Agreement to Sell. That the plaintiff had paid a sum of Rs.2 lacs to the defendant No.1 by installments and also given a cheque bearing No.412422 dated 12.05.2007 for Rs.25,000/- drawn on Bank of Baroda, Raopura Branch and has also given another cheque No. 412423 dated 16.05.2007 for Rs.25,000/- drawn on the same Bank at the time of executing the Agreement to Sell.
3.1. It is the case of the plaintiff that thereafter, the plaintiff had inquired at the office of Sub Registrar about this land and he came to know that one Sanjay Chimanbhai Patel, who is the power of attorney holder of defendant Nos.2 to 4, had executed a sale deed on 10.09.2004 in favour of the defendant No.5 - Shri Bharatbhai Parsottambhai Patel and therefore the plaintiff had applied for copy of the said sale deed. That thereafter, the plaintiff also made inquiry to the Talati and he came to know that the defendant No.2 to 4 had prepared the Pedigree after the death of deceased Bhagvanbhai Mathurbhai Patel and inserted their names but the name of the defendant No.1 was not been shown in the said Pedigree. Though the defendant No.1 got Page 3 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 some portion of the said land by hereditary. That the defendant Nos.2 to 4 and defendant No.5 joined together and completed the procedure of selling the disputed land.
3.2. It is the case of the plaintiff that the defendant Nos.2 to 4 have no right to sell the disputed land as the defendant No.1 has share in the disputed land and her share has been sold to the plaintiff by the defendant no.1. Therefore, the plaintiff has filed a suit to separate the share of the defendant No.1 from the shares of defendant No.2 to 4 and for execution of Agreement to Sell which was entered into between the plaintiff and defendant No.1 and for possession of the peace of land thereof to the plaintiff. He has also prayed to direct the office of the Sub Registrar to take a note of the Agreement to Sell executed between him and defendant No.1 with regard to the disputed land and also for permanent injunction. The plaintiff has also prayed to pass an order directing the defendants to accept the remaining amount of sell consideration of the disputed land from the plaintiff and to separate the disputed land between defendant no.1 and defendant nos.2 to 4 and to execute the sale deed in his favour and to handover the possession of a separate land to him. The plaintiff has also prayed to appoint a Commissioner for the said purpose. The plaintiff has also sought for declaration that the defendant nos.2 to 4 have no right or to do anything to deal with the said land Page 4 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 through their power of attorney and the transaction entered into between the defendant Nos.2 to 4 defendant No.5 be declared as null and void and for permanent injunction restraining the defendants for making any change in the suit land.
4. It appears that upon the service of summons the defendant Nos.1 to 4 have appeared but they did not file written statement and therefore their right to file written statement came to be closed on 14.03.2008. Whereas the defendant No.5 appeared and filed his detailed written statement at Exh.14 and denied the contentions of the plaint. He has contended that there is no cause of action arisen to the plaintiff to file the suit against him. He has also contended that the disputed agricultural land is an ancestral property of Bhagvanbhai Mathurbhai Patel and as deceased Bhagvanbhai Mathurbhai Patel got it hereditrily, his sons Ranchodbhai, Ravjibhai and Devjibhai are co-parceners of the disputed land along with their deceased father. According to the defendant no.5, therefore, the deceased was holding only 1/4 share like his three sons. That Bhagvanbhai died on 30.12.1971 before the sale of the disputed land and therefore after his death, his 1/4 share i.e. H.R.A. 0-22-96 (Sq.Mtr.), comes to the ownership of his sons Ranchodbhal, Ravjibhai and Devjibhai and his daughters, Savitaben and Heeraben. It is also contended that as per The Hindu Page 5 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 Succession Act, the daughters are only entitled to the share of their father. Accordingly, since the deceased Bhagvanbhai was having 1/4 of the suit land after his death, out of this 1/4 land, his children were entitled for 1/5th of this 1/4 land, which means, Bhagvanbhai was entitled for 455.25 sq. mtr. land. It is also contended that the share of the defendant No.1 is only 1/5 of 455.25 sq. mtr. of the land in question. It is also contended that she had transferred her share to her brothers permanently and Savitaben had also transferred her share to her brothers and therefore, their names came to be deleted from the Revenue Record i.e. from Village Form No.7/12.
4.1. According to the defendant no.5, therefore the names of three brothers came to be mutated in the revenue records and land was mutated in their name. He has also contended that after verifying all these and having found that defendant nos. 2 to 4 are the owners and occupiers of the disputed land, he has purchased from them and they have executed a registered sale deed in his favour on 10.09.2004 and upon execution of registered sale deed, his name has been reflected in the revenue record at Entry No.2892 on 28.09.2005 which came to be confirmed. He has stated that on the basis of registered sale deed, he has become owner of the land in question and he is in possession of the suit land.
Page 6 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022C/SA/408/2019 JUDGMENT DATED: 23/12/2022 4.2. The defendant no.5 has also submitted that if the defendant No.1 has executed an agreement to sell in favour of the plaintiff on17.05.2007,then also it will be considered to be of 455.25 sq.mtr. only, and the plaintiff is not entitled for more than that land. It is contended that the plaintiff has committed mistake in calculating the share of defendant No.1 and due to that mistake, the alleged agreement to sell of land ad-measuring 0-22-76 Hector-Are-Sq.Mtr. Came to be executed which is not available to him. The defendant has also raised a contention that as per the sale deed, the sale consideration of the said disputed land is shown as Rs.9,10,000/- and accordingly, the plaintiff has not paid proper Court Fees. It is also contended that the plaintiff is not agriculturist and in view of Section 63 of The Bombay Tenancy and Agricultural Land Act, the agricultural land can be sold only to an agriculturist and therefore an agreement to sell itself is void in view of Section 23 of The Indian Contract Act. It is contended that the plaintiff is not entitled to any relief and it is prayed by the defendant to dismiss the suit of the plaintiff.
5. On the basis of the pleadings of the parties, the Trial Court has framed 11 issues at exhibit 13. After full fledge hearing the Trial Court has decided issue nos.1, 2, 3, 8 and 10 in negative and issue nos.4, 5, 6, 7 and 9 in Page 7 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 affirmative and ultimately passed the judgment and decree dismissing the suit of the plaintiff. The Trial Court found that the plaintiff has failed to prove the factum of agreement to sell as well as payment of consideration of Rs.2 lacs by him to the defendant no.1 and the fact that the transaction entered into between the defendant nos.2 to 4 and 5 is illegal and void. The Trial Court has also observed that the plaintiff is not entitled for any relief. The Trial Court has also held in favour of the defendant no.5 that he is in possession thereof and the suit is bad for non joining of necessary party and misjoining of parties as well as it is bad by law of limitation and the suit is also bad for non payment of Court fees and that as the plaintiff is not agriculturist, the agreement to sell in question is illegal and void.
6. Being aggrieved by the judgment and decree of the dismissal of the suit, the plaintiff has preferred the Regular Civil Appeal No.173 of 2018 before the District Court, Vadodara, the same came to be heard by the learned 8th Additional District Judge, Vadodara. The learned Additional District Judge, Vadodara has heard both the learned advocates appearing for the respective parties and has raised the following questions for determination of the First Appeal in para no.13 of its judgment to the following effect:-
Page 8 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022C/SA/408/2019 JUDGMENT DATED: 23/12/2022 "13.Now the following points arise for my consideration and determination of this Regular Civil Appeal:
1) Whether the appellant proves that the impugned Judgment and Decree are illegal and perverse and is against the settled principles of law and it requires interference of this first appellate Court?
2) What order?"
7. The First Appellate Court on the submissions of both the sides and considering the material placed on record has ultimately decided the point no.1 in negative and has dismissed the appeal filed by the plaintiff by its impugned judgment and decree dated 14.08.2019.
8. Being aggrieved with both these judgment and decree of both the Courts below, the original plaintiff has preferred this Second Appeal raising various substantial questions of law in the appeal memo.
9. Heard learned counsel Mr.S.K.Patel assisted by Mr.Aditya Patel for the plaintiff/ appellant and Mr.S.P.Majmudar assisted by Mr.Shaswata Shukla for Page 9 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 respondent no.5 at length. Perused the material placed on record and the decisions cited at bar. None has appeared for the respondents.
10. Considering the oral submissions made on both the sides, the present appeal has been heard for the following substantial questions of law:-
(1) Whether the Trial Court and the Appellate Court are justified in confirming the finding as to the appellant being non agriculturist without referring such issue to the tenancy Code under Section 85 (a) of the Bombay Tenancy and Agriculture Act, 1948?
(2) Whether the right, title or interest in the involved property can be relinquished without registered document under Section 17 of the Registration Act?
11. Learned Counsel Mr.S.K.Patel for the plaintiff has vehemently submitted the same facts which are narrated herein above in the pleadings of the parties. He has submitted that Hiraben has executed the agreement to sale in favour of the plaintiff and the same was registered one. He has submitted that the property was ancestral property and therefore Hiraben being a daughter has equal share in the property and therefore she has every right to sell his share in the land in question and Page 10 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 therefore the agreement to sale executed between the plaintiff and her, which is registered one, is liable to be executed. He has submitted that both the Courts below have non suited the plaintiff only on the ground that the plaintiff is not agriculturist in Gujarat and that Hiraben has relinquished her share in the land in question. According to him, there is no relinquishment as per Section 17 of the Registration Act and only on the basis of entry in the revenue record, relinquishment of share of Hiraben has been accepted by the Courts below.
12. Learned counsel Mr.Patel has also submitted that the Trial Court has raised issues regarding the facts that the agreement to sale is void as the plaintiff is not agriculturist. According to him, the question that whether a person is agriculturist and entitled to purchase agriculture land under the Tenancy Act is to be decided by the revenue authority and Civil Court has no jurisdiction to decide the same. He has submitted that only the Tenancy Court established under the Tenancy Act has authority to decide the same. It is submitted that the question of whether the plaintiff is agriculturist or not is not decided by the Courts below in accordance with law. He has submitted that the Trial Court ought to have referred the matter to the Mamlatdar under the Tenancy Act for such decision. He has submitted that no such Page 11 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 procedure has been adopted by the Court below and therefore there is a clear cut breach of the provisions of the Gujarat Tenancy and Agricultural Lands Act, 1948.
13. Learned counsel Mr.Patel has also submitted that for relinquishment of any right title and interest on the immovable property there must be registered relinquishment deed as per Section 17 of the Registration Act. He has submitted that in the present case, there is no such deed produced by the defendant in respect of the relinquishment of the right, title of the land by the Hiraben.
14. Learned counsel Mr.Patel has submitted that both the Courts below have committed the serious error of law and, therefore, the impugned judgment and decree of both the Courts below are liable to be set aside. He has prayed to allow the present appeal. He has relied upon the following decision in support of his submissions.
1. Yellapu Uma Maheshwari & Anr Vs. Buddha Jagadheeswararao & Ors, (2015) 16 SCC 787, in para 8 has observed as under:-
"8. The plaintiff/respondent No.1 took objection with regard to admissibility of Exhibits B-21 and B-22 on the ground that whole contents referred to in the Page 12 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 Memorandum dated 05/6/1975 discloses that the second party thereto relinquished her right through the said documents.
Therefore, the Agreement dated 04/06/1975 and Memorandum dated 05/06/1975 have to be construed as relinquishment deeds. A relinquishment deed which is compulsorily registerable document under Sec 17 (b) of the Registration Act, 1908 and hence, the unregistered document is not admissible in evidence. The plea of the defendants is that the recitals of the said document discloses past transaction with reference to division of property and further it discloses the intention of the parties to enter into a separate agreement for sharing the properties and that the terms therein have to be implemented in future."
2. Sita Ram Bhama Vs. Ramvatar Bhama, 2018 AIR (SC) 3057, in para 11 and 13 has observed as under:-
"11. Pertaining to family settlement, a memorandum of family settlement and its necessity of registration, the law has been settled by this Court. It is sufficient to refer to the judgment of this Court in Kale and others vs. Deputy Director of Consolidation and others, (1976) 3 SCC 119. The propositions with regard to family settlement, its registration were laid down by this Court Page 13 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 in paragraphs 10 and 11:
"10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case no registration is necessary;
(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for Page 14 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;
(5) The members who may be
parties to the family arrangement
must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.Page 15 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022
C/SA/408/2019 JUDGMENT DATED: 23/12/2022
11. The principles indicated above have been clearly enunciated and adroitly adumbrated in a long course of decisions of this Court as also those of the Privy Council and other High Courts, which we shall discuss presently."
13. There is only one aspect of the matter which needs consideration, i.e., whether the document dated 09.09.1994 which was inadmissible in evidence could have been used for any collateral purpose. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. Further, an unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. A two Judge Bench judgment of this Court in Yellapu Uma Maheswari and another vs. Buddha Jagadheeswararao and others, (2015) 16 SCC 787, is appropriate. In the above case also admissibility of documents Ext. B 21 dated 05.06.1975 a deed of memorandum and Ext. B 2 dated 04.06.1975 being an agreement between one late Mahalakshamma, respondent No.1 plaintiff and appellant No.1 defendant came for consideration. Objection Page 16 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 was taken regarding admissibility which was upheld both by the High Court and trial court. Matter was taken up by this Court. In the above case, this Court held that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents. This Court after considering both the documents, B 21 and B 22 held that they require registration. In paragraph 15 following was held:
"15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B 21 and B22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Page 17 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 Act. Hence, Exts. B21 and B22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition.""
3. Roshanben Hajibhai Deraiya W/O Ganibhai Sorathiya Vs. State of Gujarat, 2021 LawSuit (Guj) 1986, in para 9 has observed as under:-
"[9] Admittedly, the affidavit/consent does not meet the requirement of Section 49 of the Registration Act, capable to transfer a right, hence cannot be treated to be a relinquishment deed and therefore, the right of the petitioner on the basis of this document cannot be treated to have extinguished. It was such document even if is to be used as a basis for relinquishment, it has to be appreciated by establishing the same by cogent evidence. Non-registration of the document is an impediment for straightway making such document admissible.Page 18 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022
C/SA/408/2019 JUDGMENT DATED: 23/12/2022 [9.1] Another aspect to which due regards will have to be given is that consent/affidavit was at the time when the father was alive and in the revenue record with the name of the father, C/SCA/10065/2020 JUDGMENT DATED:
09/07/2021 names of three brothers were mutated vide entry No.5697. However, after the death of father on 14.10.2010, in the revenue record, the names of father and three brothers were reflected. Even after the death of the father, right of the petitioner on account of the succession for her share in the father's share of the land in question was required to be examined. The document consent/affidavit could not be treated to have extinguished the right of the petitioner in the share of the father after his death. The order of the Deputy Collector is therefore faulted on the ground of not considering the relevant material. The authorities specifically also have not taken into consideration this aspect."
4. Kale Vs. Deputy Director of Consolidation, 1976 (3) SCC 119, i n para 9 has observed as under:-
"9. Before dealing with the respective contentions put forward by the parties, we would like to discuss in general the effect and value of family arrangements entered into between the parties with a view to resolving disputes once for all. By virtue of a family Page 19 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 settlement or arrangement members of a family descending from a common ancestor or a near relation seek to sink their differences and disputes, settle and resolve their conflicting claims or disputed titles once for all in order to buy peace of mind and bring about complete harmony and goodwill in the family. The family arrangements are governed by a special equity peculiar to themselves and would be enforced if honestly made. In this connection, Kerr in his valuable treatise "Kerr on Fraud" at p. 364 makes the following pertinent observations regarding the nature of the family arrangement which may be extracted thus;
"The principles which apply to the case of ordinary compromise between strangers, do not equally apply to the case of compromises in the nature of family arrangements. Family arrangements are governed by a special equity peculiar to themselves, and will be enforced if honesty made, although they have not been meant as a compromise, but have proceeded from an error of all parties, originating in mistake or ignorance of fact as to that their rights actually are, or of the points On which their rights actually depend."
The object of the arrangement is to protect the family from long drawn litigation cr perpetual strifes which mar the unity and solidarity of the family and create hatred and bad blood between the various members of the family. Today when we are striving to build up an egalitarian society and are trying for a complete reconstruction of the society, Page 20 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 to maintain and uphold the unity and homogeneity of the family which ultimately results in the unification of the society and, therefore, of the entire country, is the prime need of the hour. A family arrangement by which the property is equitably divided between the various contenders so as to achieve an equal distribution of wealth instead of concentrating the same in the hands of a few is undoubtedly a milestone in the administrating of social justice. That is why the term "family" has to be understood in a wider sense so as to include within its fold not only close relations or legal heirs but even those persons who may have some sort of antecedent title, a semblance of a claim or even if they have a spes successions so that future disputes are sealed for ever and the family instead of fighting claims inter se and wasting time, money and energy on such fruitless or futile litigation is able to devote its attention to more constructive work in the larger interest of the country. The Courts have, therefore, leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. Where the Courts find that the family arrangement suffers from a legal lacuna or a formal defect the rule of estoppel is pressed into service and is applied to shut out plea of the person who being a party to family arrangement seeks to unsettle a settled dispute and claims to revoke the family arrangement under which he has himself enjoyed some material benefits. The law in England on this point is almost the same. In Halsbury's Laws of England, Vol. 17, Third Edition, at pp. 215-216, the following apt Page 21 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 observations regarding the essentials of the family settlement and the principles governing the existence of the same are made:
"A family arrangement is an agreement between members of the same family, intended to be generally and reasonably for the benefit of the family either by compromising doubtful or disputed rights or by preserving the family property or the peace and security of the family by avoiding litigation or by saving-its honour.
The agreement may be implied from a long course. Of dealing, but it is more usual to embody or to effectuate the agreement in a deed to which the term "family arrangement"
is applied.
Family arrangements are governed by principles which are not applicable to dealings between strangers. The court, when deciding the rights of parties under family arrangements or claims to upset such arrangements, considers what in the broadest view of the matter is most for the interest of families, and has regard to considerations which in dealing with transactions between persons not members of the same family, would not be taken into account. Matters which would be fatal to the validity of similar transactions between strangers are not objections- to the binding effect of family arrangements"."
5. Subraya M N Vs. Vittala M N & ORS, (2016) 8 SCC 705.
Page 22 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022C/SA/408/2019 JUDGMENT DATED: 23/12/2022
6. Roshan Singh VS. Zile Singh, 1988 AIR (SC) 881.
7. State of Rajasthan & Ors. Vs. Shiv Dayal and Anr, 2019 LawSuit (SC) 1470.
8. Hasmat Ali Vs. Amina Bibi & Ors, 2021 LawSuit (SC) 778.
9. Nazir Mohamed Vs J Kamala and Ors, 2020 AIR (SC) 4321, in para 29, 30 & 37 has observed as under:-
"29. The principles for deciding when a question of law becomes a substantial question of law, have been enunciated by a Constitution Bench of this Court in Sir Chunilal v. Mehta & Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. 1, where this Court held:-
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion,
1. AIR 1962 SC 1314 be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general Page 23 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
30. In Hero Vinoth v. Seshammal2, this Court referred to and relied upon Chunilal v. Mehta and Sons (supra) and other judgments and summarised the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law.
37. The principles relating to Section 100 CPC relevant for this case may be summarised thus :
(i) An inference of fact from the recitals or contents of a document is a question of fact, but the legal effect of the terms of a document is a question of law.
Construction of a document, involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a Page 24 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue.
(iii) A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered 5 AIR 1963 SC 302 on a material question, violates the settled position of law.
(iv) The general rule is, that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-
recognised exceptions are where
(i) the courts below have ignored material evidence or acted on no evidence;
(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or
(iii) the courts have wrongly cast the burden of proof. A decision based on no evidence, does not refer only to cases Page 25 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 where there is a total dearth of evidence, but also refers to case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
10. Syeda Rahimunnisa Vs. Malan Bi (DEAD) BY L RS & ANR ETC, 2016 AIR(SC) 4653, in para 24 has observed as under:-
"24. A three-judge Bench of this Court in the case of Santosh Hazari vs. Purushottam Tiwari (Deceased) by LRs. reported in (2001) 3 SCC 179 speaking through R.C. Lahoti J (as His Lordship then was) examined the scope of Section 100 of CPC in detail and laid down the following propositions in paragraphs 9, 10, 12 and 14 as under:
"9. The High Court cannot proceed to hear a second appeal without formulating the substantial question of law involved in the appeal and if it does so it acts illegally and in abnegation or abdication of the duty cast on Court. The existence of substantial question of law is the sine qua non for the exercise of the jurisdiction under the amended Section 100 of the Code. (See Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438, Panchugopal Barua v. Umesh Chandra Goswami (1997) 4 SCC 413 and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar Page 26 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 (1999) 3 SCC 722)
10. At the very outset we may point out that the memo of second appeal filed by the plaintiff-appellant before the High Court suffered from a serious infirmity.
Section 100 of the Code, as amended in 1976, restricts the jurisdiction of the High Court to hear a second appeal only on "substantial question of law involved in the case". An obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the High Court. The High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. Such questions or question may be the one proposed by the appellant or may be any other question which though not proposed by the appellant yet in the opinion of the High Court arises as involved in the case and is substantial in nature. At the hearing of the appeal, the scope of hearing is circumscribed by the question so formulated by the High Court. The respondent is at liberty to show that the question formulated by the High Court was not involved in the case In spite of a substantial question of law determining the scope of hearing of second appeal having been formulated by the High Page 27 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 Court, its power to hear the appeal on any other substantial question of law, not earlier formulated by it, is not taken away subject to the twin conditions being satisfied: (i) the High Court feels satisfied that the case involves such question, and
(ii) the High Court records reasons for its such satisfaction.
12. The phrase "substantial question of law", as occurring in the amended Section 100 is not defined in the Code. The word substantial, as qualifying "question of law", means -- of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with -- technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. In Guran Ditta v. T. Ram Ditta (AIR 1928 PC 172), the phrase "substantial question of law" as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973) came up for Page 28 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mfg. Co. Ltd.(AIR 1962 SC 1314) the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subba Rao v. Noony Veeraju (AIR 1951 Mad 969):
"When a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law." and laid down the following test as proper test, for determining whether a question of law raised in the case is substantial:
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be Page 29 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial" a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before Page 30 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis"."
11. Gurnam Sinh (D) by LRS & Ors. VS.
Lehna Singh (D) By Lrs, 2019 (1) GLH 682.
12. Dahiben D/o Mulchandbhai Makanbhai And W/o Maganbhai Dalpatbhai Patel Vs. Collector, 2019 (JX) (GUJ)1253, in para 5 & 6 has observed as under:-
"5. Before us, Shri Vakil has vehemently contended that once the appellant had set up her case to the effect that she had never signed any consent document giving up her rights, the revenue entry No.9577 ought to have been cancelled and further the name of the appellant ought to have been recorded along with her brothers or at least the said entry could have been put in the register of disputed entries.
6. On the face of it, the arguments of Shri Page 31 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 Vakil are very innocuous and acceptable but under the settled law the mutation entries are only for fiscal purpose and do not confer any title. Even otherwise, they are summary in nature and now the matter is pending before the Civil Court wherein the issue as to whether the appellant had given up her rights or not or that any document had been fabricated by forging her signatures, would be relevant issue and would be appropriately decided by the Civil Court after leading evidence by both sides. As such, we are not inclined to accept the said submission. We do not find any fault with the reasonings given by the learned Single Judge."
13. Jitendra Singh Vs. State of Madhya Pradesh And Ors, 2021 LawSuit (SC) 488, in para 6 has observed as under:-
"6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137 , this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 , it is Page 32 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70."
14. Prahlad Pradhan & Ors. Vs. Sonu Kumhar & Ors, 2019 (10) SCC 259.
15. Bhikhumiya Gurumiya Vs. Usmankhan Misrikhan Pathan Since Decd, 2013 (2) GLR 1281, in para 5 & 7 has observed as under:-
"5. The case of the defendant-petitioner while contesting the plaintiff s suit is that Page 33 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 he was a tenant under cultivation on the tillers day and was entitled to purchase the land under the provisions of the Bombay Tenancy Act. It is undoubtedly a claim of tenancy arising with reference to the relevant provisions contained under the Bombay Tenancy Act. In view of the defence raised, Issue No.2A is framed in the suit which reads as under:
Whether the defendant proved that they are doing the agriculture work on the suit land i.e. Survey No. 238/3 admeasuring 0- 19 Guntha and S.No. 238/5 admeasuring 0-31 Guntha of Village Chaklasi as the tenant before the date of the deed dated 28-4-78 and on the date of the tillers day and therefore, they are entitled to purchase the land as per the Bombay Tenancy Act.
5.1. Adverting to section 85 and 85-A of the Bombay Tenancy Act, section 85 contains bar of jurisdiction on the civil courts, which reads as under:
85.Bar of jurisdiction. - (1) No civil court shall have jurisdiction to settle, decide or deal with any question (including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him) which is by or under this Act required to be settled, decided or dealt Page 34 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 with by the Mamlatdar or Tribunal, a manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any civil or criminal court.
Explanation.
- For the purposes of this section a civil court shall include a Mamlatdar's Court constituted under the Mamlatdars' Courts Act, 1906.
85A. Suits involving issues required to be decided under this Act.
1. If any suit instituted, whether before or after the specified date, in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or dealt with such issues under this Act (hereinafter referred to as the `competent authority ) the Civil Court shall stay the suit and refer such issues to such competent authority for determination.
2. ON receipt of such reference from the Civil Court, the competent authority Page 35 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.
Explanation.- For the purposes of this section a Civil Court shall include a Mamlatdar s court constituted under the Mamlatdar s Courts Act, 1906.
5.2 In Sau. Saraswatibai Trimbak Gaikwad v. Damodhar D. Motiwale 2002 4 SCC 481, the defendant, who was a woman, was granted to her by her brother in lieu of maintenance for life time, her authority to lease out the land which was challenged in a suit for recovery. The suit was decreed on the basis of previous admission on her part that she could not lease out the land. In the meantime, the appellants, who were her lessees had applied under the Bombay Tenancy Act claiming a status of deemed tenants and were granted certificate to that effect. The contention about bar of jurisdiction of civil court in view of the said certificate of tenancy status was raised in the proceedings of execution of decree which was finally passed in the suit. The court negatived the contention that as appellants were earlier declared to be tresspassers of the land and therefore they were precluded from claiming rights Page 36 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 as tenants. It was observed that the conclusion that the appellant was a trespasser is de hors the rights of the appellant under the Bombay Tenancy Act. In the context of such factual background, the Apex Court observed:
It is clear from Section 85 of the Bombay Tenancy and Agricultural Lands Act, 1948, that a civil court does not have jurisdiction to decide matters which are required to be dealt with by the Tribunal under the said Act. Thus it is only the Tribunal which can decide whether a person is deemed to be a tenant and whether he is entitled to purchase the land held by him. The civil court has no jurisdiction to decide such a question. Even if such a question was to be raised in a proceeding before it, the civil court would have to refer the issue to the authority under the said Act. The suit would then have to be disposed of in purchase price and issues a certificate then that certificate would be conclusive proof of purchase. The civil court would then be bound to give effect tot he certificate and cannot ignore it.
5.3. In Parmar Kanaksinh Bhagwansinh (supra) it was reiterated that if any question of tenancy of present or past is involved in any suit before the civil court, the same would have to receive consideration by the competent authority and the provisions of Bombay Tenancy Act Page 37 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 give no scope or room to them that the plea of tenancy if raised by the defendants in a civil suit the same could be decided by civil court.
5.4 In Maganbhai Madhavbhai Patel (supra) it was held that in view of mandate of section 17(b) and 85A the civil court cannot try any issue regarding past tenancy, but after mandate section governing the pending suits and decree under the appeal passed earlier would be considered to have been passed without jurisdiction. This only shows the rigour of the mandate under the Bombay Tenancy Act requiring the question of tenancy to be decided under that law only.
5.5 In Gundaji (supra), the suit was for specific purpose of contract which was resisted by the defendant contending that the land which was subject matter of contract was covered by the provisions of Bombay Tenancy Act and as the intending purchaser, the plaintiff was prohibited from purchasing the land. The Supreme Court observed that combined effect of section 70, 85 and 85A of the Act is that where in a suit properly constituted and congnizable by the civil court, upon a contest and issue arises which is required to be decided or dealt with by a competent authority under the Bombay Tenancy Act, the jurisdiction of the civil court to settle, decide or deal with the same is not only Page 38 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 ousted, but the civil court is under a statutory obligation to refer the issue to the competent authority under the Tenancy Act to decide the same and upon reference is being answered back to dispose of the suit in accordance with the decision of the competent authority under the Tenancy Act.
5.6 In Bhimaji Shankar Kulkarni v.
Dundappa Vithappa Udapudi 1966 AIR (SC) 166 the Supreme Court was beset with nearly identical facts and held as under:
4. With regard to suits and proceedings by a landowner for possession of agricultural lands, the combined effect of Ss. 29, 70, 85 and 85A of the Act is as follows: The Mamlatdar has exclusive jurisdiction to entertain an application by a landlord for possession of agricultural lands against a tenant, and the Civil Court has no jurisdiction to entertain and try a suit by a landlord against a tenant for possession of agricultural lands. The Mamlatdar has no jurisdiction to try a suit by a landowner for recovery of possession of agricultural lands from a trespasser or from a mortgagee on redemption of a mortgage, and the Civil Court has jurisdiction to entertain such a suit; but if the defendant to the suit pleads that he is a tenant or a protected tenant or a permanent tenant and an issue arises whether he is such a Page 39 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 tenant, the Court must refer the issue to the Mamlatdar for determination, and must stay the suit pending such determination, and after the Mamlatdar has decided the issue, the Court may dispose of the suit in the light of the decision of the Mamlatdar.
5. Section 85A was introduced by Bombay Act XIII of 1956, which came into force on March 23, 1956 during the pendency of the second appeal in this case. The suit out of which this appeal arises was governed by the law as it stood before the introduction of S. 85A. But independently of S. 85A and before it came into force, the Bombay High Court in Dhondi Tukaram v. Hari Dadu, 1954 AIR (Bom) 100, held that the effect of Ss. 70 (b) and 85 read in the light of the other provisions of the Act was that if in a suit filed against the defendant on the footing that he is a trespasser he raises the plea that he is a tenant or a protected tenant the Civil Court had no jurisdiction to deal with the plea, and the proper procedure was to refer the issue to the Mamlatdar for his decision and not to dismiss the suit straightway.
7. The contention that the defendant has to show a prima facie right as tenant and only thereupon the civil court would be justified in referring the issue to the competent authority, cannot be Page 40 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 countenanced. Once the issue is framed about the tenancy on the basis of pleadings of the case, it is the mandate flowing from section 85 read with section 85A of the Bombay Tenancy Act that the trial court shall refer the issue to the authority under the Bombay Tenancy Act for his decision. In Joshi Chaganlal Garbaddas v. Raising Khodasing 1986 1 GLR 69 it was observed by this court that civil court has to open to refer the issue regarding tenancy and court cannot insist that party must first establish a prima facie case in support of its plea. The following observations in the decision is a direct answer of contention raised by learned advocate for the respondent In this regard.
Moreover, the question regarding prima facie case of tenancy does not arise for consideration of the civil court. If an issue arises, which is required to be decided by a tenancy court, the civil court has no jurisdiction to decide the same even in going into that question.
7. For the for foregoing reasons, the order dated 07.01.2006 passed by the 9th Additional Senior Civil Judge, Nadiad, below application Exh.152 in Civil Suit No.193 of 1993 as well as order below application Exh. 161 dated 15.11.2006 Page 41 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 passed by the learned 7th Additional Senior Civil Judge in Civil Suit No. 193 of 1993 are set aside. As a consequence of setting aside those orders, the application below Exh.152 stands allowed in terms of the prayer made in that application. Rule is made absolute."
16. Gundaji Satwaji Shinde Vs. Ramchandra Bhikaji Joshi, 1979 AIR (SC) 653, in para 19 has observed as under:-
"If plaintiff sued for specific performance of a contract for sale of agricultural land governed by the provisions of the Tenancy Act in the Civil Court and the defendant appeared and raised a contention that in view of the provisions contained in s. 63 of the Tenancy Act the plaintiff being not an agriculturist he is barred from purchasing the land, the issue would arise whether the plaintiff is an agriculturist. Such an issue being within the exclusive jurisdiction of the Mamlatdar, it is incumbent upon the Civil Court to refer the issue to the competent authority under the Tenancy Act and the civil Court has no jurisdiction to decide or deal with the same. That issue arises in the suit from which the present appeal arises and both the trial Court and the High Court were in error in clutching at a jurisdiction which did not vest in them and, therefore, on this ground alone this appeal will succeed."Page 42 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022
C/SA/408/2019 JUDGMENT DATED: 23/12/2022
17. Ishverlal Thakorelal Almaula Vs. Motibhai Nagjibhai, 1966 AIR (SC) 459, in para 19 & 20 has observed as under:-
"[19] the benefit of the proviso to sec. 43C of the Act would be available only to a person who is or claims to be a tenant or protected tenant under the Act. That in tum would depend upon the effect of the various amendments to the Act made after its enactment in 1948 till the date of suit, including the effect of sec. 89(2)(h) of the Act. Section 70 of the Act, however, provides that one of the duties to be performed by the Mamlatdar (who acts as a revenue court) is to decide whether a person is a tenant or a protected tenant Obviously this must mean a claim to be a tenant or a protected tenant under the Act, Section 85[1] provides No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control."
[20] I would be seen from the two aforesaid provisions that no sooner such a claim is made before a Civil Court it must Page 43 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 stay its hands and refer that question to the Mamlatdar, acting as a revenue court for his decision [see Paika Dasaru Bhongle v. Rajeshwar Balaji Awari (1958) 60 Bom. L. R. 8]. In order to answer it, the Mamlatdar will have to adjudicate on the facts in issue between the parties as well as to determine the effect of the various provisions of law bearing on the point. He gets exclusive jurisdiction to do so by the combined operation of the two provisions aforesaid in view of the fact that a person claims to be a tenant or protected tenant. If the Mamlatdar finds that he is a tenant or a protected tenant he has to send his finding to the Civil Court which has to decide the suit in the light of that finding. If, on the other hand, his finding is to the contrary, the Civil Court will have to decide the suit on the basis that the person does not possess the status claimed by him. Initially, therefore, the matter has to be decided by the Mamlatdar and subject to the result of any appeal or revision under the Act his decision will be final, I would, however, make it clear that when I say this I am not considering whether finality attaches to a decision of the Mamlatdar as to a jurisdictional fact."
15. Learned Counsel Mr.S.P.Majmudar for the respondent/ defendant No.5 has vehemently Page 44 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 submitted that there is concurrent findings of facts by the two Courts below regarding the facts that Hiraben has relinquished her right in favour of her brothers and there was a prior sale transaction between the defendant whereas alleged agreement to sale of the plaintiff is subsequent in point of time and the plaintiff is not agriculturist. He has submitted that this Court being a Second Appellate Court cannot disturb such concurrent findings of facts. He has submitted that in reality there is no substantial question of law involved in the present appeal.
15.1. Learned counsel Mr.Majmudar has also submitted that the prayer for specific performance for agreement to sale is equitable relief and it cannot be claimed as of right. He has submitted that the earlier sale was executed in the year 2004. Learned counsel Mr.Majmudar has also submitted that there was oral voluntarily family settlement and on that basis, necessary revenue entry was made regarding relinquishment of the share of the daughter in favour of their brother. He has further submitted that there is no need of any registration in case of any family settlement regarding the agricultural land and by mere kabulat or oral family settlement, any family member can relinquish his Page 45 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 right in the agricultural land for property thereof.
15.2. Learned counsel Mr.Majmudar has also submitted that defendant no.1 did not challenge the sale deed executed in favour of defendant no.5 which was of the year 2004. He has also submitted that the defendant no.1 has never claimed her ownership or share in the land in question. He has submitted that the alleged agreement to sale is dated 17.05.2007 which is after two years of registered sale deed executed in favour of defendant no.5. He has also submitted that the suit has been filed within ten days of execution of agreement to sale and no prior notice was served to defendant no.1 or anyone. While referring to the documentary evidence, learned counsel has also submitted that entry no.2892 in the revenue record has not been challenged. He has also submitted that no suit of partition is filed by the defendant no.1. He has also submitted that during the course of evidence, the plaintiff/appellant has not produced any document to show that he is an agriculturist of the State of Maharashtra. He has also submitted that there is no pleading of the plaintiff that he is an agriculturist. He has also submitted that the plaintiff has not filed any application for referring the matter to the Tenancy Court and no such stand has been taken Page 46 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 before the two Courts below by the plaintiff/ appellant. He has also submitted that both the Courts below have not gone into decide the status of the plaintiff as to whether he is an agriculturist or not. He has also submitted that so far as the question as to the plaintiff being an agriculturist is ancillary point and not main question. He has submitted that the main question is regarding registration of the agreement to sale and earlier registered sale deed. He has submitted that registration is only required if it is in writing for transfer of one's property in favour of other, but, in case of family settlement, either oral or on single paper, thre is no need of registration. He has further submitted that the oral relinquishment is permissible. He has also referred to Section 63 (c) of the Tenancy Act. Learned counsel Mr.Majmudar has also submitted that both the Courts below have considered all the aspects of the plaintiff's case and therefore this Court is not required to interfere with the impugned judgment and decree passed by both the Courts below. He has prayed to dismiss the present appeal. He has relied upon the following decisions:-
(i) Rameshbhai Chaturbhai Prajapati Vs. Minaxiben Wd/o. Rasiklal Tilakram Page 47 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 reported in 2011 (2) GLH 760, in para no.19 has held as under:-
"19. The above paragraph 40 of the order impugned passed by the learned Judge takes note of the consent terms produced on record between the plaintiffs and defendant No.2 and objection to the said consent terms raised by plaintiff No.5. In addition to the above, the learned Judge has further noticed the fact about grant of stay by the High Court to the order passed by the Gujarat Revenue Tribunal by which the Tribunal had given certain directions to regularize the transaction which had taken place between the parties on payment of an amount of premium. Even the contention of the plaintiffs about execution of the consent terms by fraud is not believed on the ground that the consideration was paid and it was signed by the plaintiffs voluntarily and a declaration was also made before a Notary. Thereafter, the nature of the consent terms was also examined by the learned Judge in the context of Section 43 of the Tenancy Act whether a decree could be passed under Order XXIII Rule 3 of the Code of Civil Procedure. While examining the above aspects, the learned Judge has also found that the subject land was restricted land under section 43 of the Tenancy Act and, Page 48 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 therefore, the agreement was not lawful and any agreement whether void and/or voidable under the Indian Contract Act for which recourse cannot be taken to Order XXIII Rule 3 of the Code of Civil Procedure and the above view and reasoning of the learned Judge cannot be said to be contrary to law or illegal in any manner since Explanation to proviso to Order XXIII Rule 3 of the Code of Civil Procedure clearly provides that the agreement or compromise which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of this Rule. Thus, if the above Explanation to proviso to Order XXIII Rule 3 of the Code of Civil Procedure is construed in juxtaposition to Sections 23 and 24 of the Indian Contract Act, 1872, it defines unlawful contract/agreement forbidden by law and, therefore, when, admittedly, subject land of the consent terms is 'restrictive tenure land' and governed by the restriction imposed under section 43 of the Tenancy Act, viz. 'without previous sanction of the Collector, no such land shall be alienated/transferred' rejection of the prayer to draw a decree in terms of the consent terms/agreement forbidden by law as above cannot be said to be illegal, which deserves any interference by this Court in exercise of the jurisdiction under Page 49 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 Article 227 of the Constitution of India. The Trial Court has neither failed to exercise jurisdiction nor illegally exercised jurisdiction warranting any interference at the hands of this Court in exercise of extraordinary jurisdiction."
(ii) Hasvantbhai Chhanubhai Dalal Vs. Adesinh Mansinh Raval & 7 reported in 2019 (2) GLH 357, in para no.111 has held as under:-
"[111] My final conclusions on the points framed for determination are as under:
[1] The suit for specific performance of contract based on an invalid agreement of sale hit by Section 43 of the Tenancy Act, 1948, is not maintainable in law. If the agreement is rendered invalid under Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948, such agreement is incapable of being specifically enforced. If the agreement of sale itself is invalid, no decree for specific performance can be passed by the Trial Court. Section 14(1)(c) of the Specific Relief Act provides inter alia that a contract, which is in its nature determinable, cannot be specifically enforced. In such circumstances, the suit for specific performance of agreement of sale has rightly not been decreed.Page 50 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022
C/SA/408/2019 JUDGMENT DATED: 23/12/2022 [2] Even otherwise, independent of the issue of Section 43 of the Act, 1948, the plaintiff has not been able to make out any case for grant of decree of specific performance of contract based on an invalid agreement of sale."
He has also submitted that against this judgment Special Leave to Appeal (Civil) No.3972 of 2019 has been filed before the Hon'ble Supreme Court but no stay is granted and therefore the judgment of this Court holds the filed. He has produced the copy of Records and Proceedings for perusal of this Court.
(iii) Hargovan Keshav Vs. Mansing Thakorbhai & Ors., reported in 2000 SCC OnLine Guj 534, in para no.6 has observed as under:-
"6. On plain reading of section 85,it is clear that the Civil Court is bound to refer the issue regarding tenancy to Mamlatdar and cannot insist that the party must establish prima facie case. That does not mean that as and when such a plea is raised, the Court, without applying mind must refer the same to the Mamlatdar. Before referring the issue to be decided or to be dealt with by the revenue Page 51 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 authorities, the civil court is required to frame the issues on the basis of particulars regarding the claim of tenancy. The party who claims to be the tenant is under an obligation to furnish the particulars so that the civil court can form an opinion that the tenancy is created in favour of a party which is required to be decided by the Competent Authority. Those particulars can be of the time when the tenancy was created; the person by whom it was created and the terms on which it was created. This is the minimum requirement for the party who claims tenancy. If this is not insisted upon, an unscrupulous party may make a frivolous claim and retain the possession of the land to which such party is not entitled for years to come, after successfully getting the issue referred to the Mamlatdar. Thus, when a claim of tenancy is made in written statement without supplying any particulars, civil court cannot be expected to refer to the same,just by asking, in a routine manner."
(iv) Thulasidhara Vs. Narayanappa reported in 2019 (6) SCC 409, in para nos.9 and 10 has observed as under:-
"9.4. It is required to be noted that the deed dated 23.04.1971, under which the suit property had gone /devolved in favour Page 52 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 of the Krishnappa, was reduced in writing before the Panchayat and Panchas, and the same was signed by the village people/ panchayat people and all the members of the family including even the plaintiff. Though the plaintiff disputed that the partition was not reduced in writing in the form of document Exhibit D4, on considering the entire evidence on record and even the deposition of plaintiff (cross- examination), he has specifically admitted that the oral partition had taken place in the year 1971. He has also admitted that he has got the share which tellies with the document dated 23.04.1971 (Exhibit D4). Execution of the document/ Partition Deed/ Palupatta dated 23.04.1971 has been established and proved by examining different witnesses. The High Court has refused to look into the said document and/or consider document dated 23.04.1971 (Exhibit D4) solely on the ground that it requires registration and therefore as it is unregistered, the same cannot be looked into. However, as observed by this Court in the case of Kale (Supra) that such a family settlement, though not registered, would operate as a complete estoppel against the parties to such a family settlement. In the aforesaid decision, this Court considered its earlier decision in the case of S. Shanmugam Pillai and Others v. K. Shanmugam Pillai and Others (1973) 2 SCC 312 in which it was observed as under:Page 53 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022
C/SA/408/2019 JUDGMENT DATED: 23/12/2022 "13. Equitable, principles such as estoppel, election, family settlement, etc. are not mere technical rules of evidence.
They have an important purpose to serve in the administration of justice. The ultimate aim of the law is to secure justice. In the recent times in order to render justice between the parties, courts have been liberally relying on those principles. We would hesitate to narrow down their scope.
As observed by this Court in T.V.R. Subbu Chetty's Family Charities case, that if a person having full knowledge of his right as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that agreement when reversion actually falls open."
9.5 As held by this Court in the case of Subraya M.N. (Supra) even without registration a written document of family settlement/family arrangement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. In the present case, as observed hereinabove, even the plaintiff has also categorically admitted that the oral partition had taken place on 23.04.1971 and he also admitted that 3 to 4 punchayat Page 54 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 people were also present. However, according to him, the same was not reduced in writing. Therefore, even accepting the case of plaintiff that there was an oral partition on 23.04.1971, the document Exhibit D4 dated 23.04.1971, to which he is also the signatory and all other family members are signatory, can be said to be a list of properties partitioned. Everybody got right/share as per the oral partition/partition. Therefore, the same even can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties. Therefore, in the facts and circumstances of the case, the High Court has committed a grave/manifest error in not looking into and/or not considering the document Exhibit D4 dated 23.04.1971.
9.6 So far as the Sale Deed dated 18.05.1973 (Exhibit P2) executed by Siddalingappa in favour of the plaintiff is concerned, as there was a categorically finding by both the Courts below that the same document was sham. It is required to be noted that in the cross-examination, the plaintiff has stated that he paid Rs. 3000 to 4000 to Siddalingappa and the said property was purchased by him in the year 1973. However, in the document, the sale consideration is stated to be Rs.200/-. Even PW2 Siddalingappa has stated that he purchased the suit schedule property Page 55 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 for Rs.200/- and he sold the suit schedule property to the plaintiff for Rs.600/- Therefore, it is a serious dispute with respect to consideration paid by the plaintiff and received by the Siddalingappa.
10. In the aforesaid facts and circumstances of the case, the High Court was not justified in interfering with the findings recorded by both the Courts below. For the reasons stated above, the impugned Judgment and Order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside and is accordingly quashed and set aside. The Judgment and Order passed by both the Courts below dismissing the suit, are hereby restored and consequently the suit filed by the original plaintiff is dismissed. No costs."
(v) Meman Mamad Haji Abdul Sakur Vs. Abdul Gafar Haji Abdul Sakur reported in 1993 (1) GCD 350, in para no.10 has observed as under:-
"(10.) The argument that the Family arrangement being unregistered could not be looked upon at all is required to be rejected The factum of the Family arrangement is not in dispute; that the Page 56 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 Family arrangement has been acted upon is not again in dispute and it is only by way of collatoral use that the document envisaging the Family arrangement has been relied upon Therefore that Family arrangement can be looked into notwithstanding the document containing it having not been registered The twin attack by the appellant against the contention of the contesting respondents when the contesting respondents relied upon the Family arrangement has therefore no substance That being the position the appeal should fail The same is therefore rejected. As the parties are inter-related they should bear their own costs of this appeal."
(vi) Subraya M.N. Vs. Vittala M.N. And Others reported in (2016) 8 SCC 705, in head note A and B as under:-
"A. Family and Personal Laws Partition/Family Arrangement/ Settlement-
Concept, Effect of and Mode of
effectuating Partition or Family
Arrangement-When amounts to transfer of property/Need for Registration/ Page 57 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 Requirements/Validity/Oral partition
-Family arrangement/settlement-In respect of joint family immovable property worth more than Rs 100-Probative value - When orally made, no registration is required and would be admissible in evidence But - when reduced in writing, registration is essential, without which it is not admissible in evidence- But even without registration, written document - of family settlement can be used as corroborative evidence as explaining the arrangement made thereunder and conduct of the parties-Registration Act, 1908- Ss. 17 and 49-Evidence Act, 1872 S. 91 - Property Law - Transfer of Property Act, 1882, S. 9 B. Family and Personal Laws Partition/Family Arrangement/ Settlement Revocation/Cancellation/Reunion/Blending /Surrender/ Relinquishment/Renunciation- Relinquishment of right in respect of joint family property-Proof
-Unregistered document of family arrangement by way of corroborative evidence explaining nature of arrangement arrived at between parties, conduct of plaintiff members in receiving money from defendant members of the family in lieu of relinquishing their interest in certain family properties and oral evidence considered Having regard to Page 58 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 the aforesaid evidence and material facts and circumstances, held, relinquishment of rights by plaintiffs made out"
(vi) Vishwasrao Satwarao Naik And Others Vs. State of Maharashtra reported in (2018) 6 SCC 580, has held in para no.6 as under:-
"6. The main ground urged is that since in the earlier proceedings held under the Act, the extent of pot kharab land was found to be 106.24 acres, then in the second ceiling proceedings the extent of pot kharab land could not come down to 28.20 acres. In this behalf, it is urged that the revenue authorities have relied upon the revenue entries with regard to the classification of the land and have not actually visited the land to determine which land is cultivable and which land is not cultivable. In ceiling proceedings, it is the duty of the owner of the land to show which portion of his land is exempt from ceiling proceedings. In this case, in the return filed on behalf of the owner it was mentioned that only 11.10 acres of land is pot kharab. However, on the basis of the revenue record, the officer assessed the pot kharab land as 28.20 acres. The appellant led no evidence and has not even placed on record the revenue records prior to the earlier ceiling proceedings or Page 59 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 the revenue record thereafter, to support his claim that even earlier the land which was declared to be pot kharab, was actually not classified as such in the revenue record. Presumption of truth is attached to the revenue record. No doubt, this is a rebuttable presumption, but it is for the party who alleges that the entries in the revenue record are wrong to lead evidences to rebut this presumption. This, the appellants have miserably failed to do. The appellants have also failed to lead any evidence to show that the revenue entries are wrong."
(viii) Padmakumari And Others Vs. Dasayyan And Others reported in (2015) 8 SCC 695.
16. In rejoinder, learned counsel Mr.Patel for the plaintiff appellant has submitted that there is no concurrent findings. He has submitted that the finding dehors law cannot be treated as a findings. He has submitted that the Trial Court has specifically raised issue regarding the plaintiff's status as to whether he is an agriculturist or not. According to him therefore, it is incumbent on the part of the Civil Court to refer the issue to the Mamlatdar under the Tenancy Act for his decision and till then the suit ought to have been stayed. It is submitted that therefore both the decrees passed by the Page 60 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 Courts below needs to be set aside and the matter needs to be remanded back. He has prayed to allow the present appeal.
17. Having considered the submissions made on behalf of both the sides coupled with copy of the paper book and the decisions cited at bar, it emerges from the record that there is concurrent findings of facts by both the Courts below to the effect that the defendant no.1 has relinquished her share in land in question in favour of her brother and thereafter their brother has sold the land in question to the defendant no.5 in the year 2014. Both the Courts below have also held that the plaintiff has failed to prove that he has paid consideration amount of Rs.2 lacs as averred in the plaint. However, the Courts below have also held that the plaintiff is not agriculturist and therefore the transactions between him and defendant no.1 is illegal and therefore the plaintiff is not entitled for the relief sought for in the suit.
18. Now, so far as the question of deciding as to whether the plaintiff is agriculturist is concerned, this is a substantial question of law, to decide this point, it is necessary to refer to the provisions of the Gujarat Tenancy And Agricultural Lands Act, 1948. the provisions Page 61 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 of Section 70(a) is a material one which reads as under:-
"70. Duties of the Mamlatdar:- (a) to decide whether a person is an agriculturist;"
Section 85 & 85(A) of the Gujarat Tenancy And Agricultural Lands Act, 1948 reads as under:-
"85. Bar of jurisdiction. (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the mamlatdar or Tribunal, a manager, 2 [the Collector, the Gujarat Revenue Tribunal or the State Government] in appeal or revision or the 4 [State] Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collector or the 3 [Gujarat Revenue Tribunal] or the [State] Government made under this Act shall be questioned in any civil or criminal court.
Explanation.--For the purposes of Page 62 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 this section a Civil Court shall include a Mamalatdar's Court constituted under the mamlatdar's Courts Act, 1906.
85(A) Suits involving issues required to be decided under this Act.
(1) If any suit 6 [instituted, whether before or after the specified date in any Civil Court] involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or dealt with such issues under this Act (hereinafter referred to as the "competent authority") the Civil Court shall stay the suit and refer such issues to such competent authority for determination.
(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the Page 63 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 procedure applicable thereto.
Explanation.--For the purpose of this section a Civil Court shall include a Mamalatdar's Court constituted under the mamlatdar's Courts Act, 1906.]"
19. Now, considering the aforesaid provisions of the Gujarat Tenancy And Agricultural Lands Act, it clearly reveals that under the said Act, if there is a question as to whether the person is an agriculturist or not is to be decided by the concerned mamlatdar. As per Section 85 of the Gujarat Tenancy And Agricultural Lands Act, the jurisdiction of the Civil Court to decide any question which is by or under the Act required to be settled, is decided or dealt with by the mamlatdar or tribunal. Therefore when a is a question of deciding the status of any person as to whether he is an agriculturist or not, is within the duties and powers of mamlatdar under the aforesaid Act and therefore to decide such question, the jurisdiction of the Civil Court is barred.
20. Further, in view of Section 85(a) of the Gujarat Tenancy And Agricultural Lands Act, if in a suit any issue which is required to be settled, decided or dealt with by any competent authority to settle, decide or dealt with such issues under the aforesaid Act, the Civil Court has to Page 64 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 stay the suit and refer such issues to such competent authority for determination. Thus, it is the bounden duty of the Civil Court to refer the issue as to the status of the person as to whether he is agriculturist or not.
21. Now, considering the facts of the present case, it appears that there is no pleading of the plaintiff that he is an agriculturist. The issue which was framed by the Trial Court has placed burden on the defendant to prove that the agreement to sale entered into between the plaintiff and the defendant no.1 was not valid as the plaintiff is not agriculturist. Now, considering the evidence produced on record, the suit of the plaintiff is not based on the fact that he is an agriculturist of State of Maharashtra and has entered into agreement with the defendant no.1 for the purchase of the share of the defendant no.1 from the agricultural land in question. It appears from the judgments of both the Courts below that the plaintiff has not produced nor pleaded that he is an agriculturist.
22. Even if the question of deciding status of the plaintiff as an agriculturist or not needs to be decided by the mamlatdar under the Tenancy Act, even in that case, the legal provision is only as to stay of the suit and after getting the decision from the mamlatdar the suit has to be proceeded further and it has to be decided by the Page 65 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 concerned Civil Court on its own merits. Thus, the Civil rights of the parties are to be decided only by the Civil Court, therefore, in the present case, considering the facts and circumstances of the case, when on other legal issues like no averment as to readiness and willingness to perform his part of contract as well as the facts that other heirs have not been joined in a suit wherein prayer of partition has been sought for and the facts that the plaintiff has not made any inquiry prior to entering into the agreement of sale with the defendant no.1 and the point of relinquishment of her share by defendant no.1 in favour of her brothers, disentitle the plaintiff from getting any decree of specific performance of contract, therefore not following the procedure as envisaged in the Tenancy Act, 1948 itself does not affect in any manner the ultimate result of the suit.
23. Thus, considering the facts of the case, it appears that though there is a provision of the Tenancy Act to refer the point as to whether the person is agriculturist or not, considering the pleading of the plaintiff and evidence on record, it clearly appears that the both the Courts below have not committed any error of law in deciding the question of illegality of the agreement to sale on the ground of no evidence as to the plaintiff being an agriculturist. Therefore, this Court is of the considered Page 66 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 view that the substantial question of law raised in this regard needs to be answered in affirmative.
24. Now, so far as the substantial question of law in respect to necessity of registration of relinquishment of any right, title or interest involved in the property is concerned, it is worthwhile to refer Section 17 of the Registration Act which provides as under:-
"17. Documents of which registration is compulsory.--(l) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;Page 67 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022
C/SA/408/2019 JUDGMENT DATED: 23/12/2022
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
Provided that the 25 [State Government] may, by order published in the 26 [Official Gazette], exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.
(1A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they have been executed on or after the commencement of the Registration and Other Related laws (Amendment) Act, 2001 and if such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.
(2) Nothing in clauses (b) and (c) of sub-section
(l) applies to--
(i) any composition deed; or
(ii) any instrument relating to shares in a joint stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it Page 68 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) [any document other than the documents specified in sub-section (1A)] not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court [except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding]; or
(vii) any grant of immovable property by Government; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871, or the Land Improvement Loans Act, 1883; or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or (xa) any order made under the Charitable Endowments Act, 1890, vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property;Page 69 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022
C/SA/408/2019 JUDGMENT DATED: 23/12/2022 or
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer.
[Explanation.--A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the 1st day of January, 1872, and not conferred by a will, shall also be registered.
25. Considering the aforesaid provisions, it is clear that in case of transfer of any right, title or interest in the immovable property, then the document needs to be registered under this Section. However, if any person relinquishes his rights in the immovable property, in a family arrangement, there is no need of such registration. The family arrangement in the shape of partition can also be oral. Therefore, if there is a oral partition between the parties and the same is acted upon by all the concerned, on that basis, if there is relinquishment of right in the Page 70 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022 C/SA/408/2019 JUDGMENT DATED: 23/12/2022 property by one of the family member in favour of the other family member, that relinquishment action does not require and registration. Therefore, the substantial question raised in this Second Appeal is answered to the effect that in case of relinquishment of ones right, in a family partition, does not require any registration under Section 17 of the Registration Act.
26. Now, considering the facts and circumstances of the case, it emerges from the record that after execution of the agreement to sale, the plaintiff has made inquiry in the sub-registrar regarding the suit land and he came to know that there is a prior sale transaction already entered into between the defendants no.2-4 with defendant no.5. Thus, the plaintiff has not taken care to make necessary inquiry, which ordinary prudent man would make, before entering into the sale transaction and getting executed agreement to sale from the defendant no.1. Thus, the plaintiff was not vigilant enough in regard to verifying the legal title of the defendant no.1 pertaining to the land. It is also emerges from the record that according to the plaintiff himself, the decease Bhagwandas had two daughters namely Savitaben and Hiraben and three sons. Now, admittedly the plaintiff has not joined Savitaben or his legal heirs in the present suit though he has sought for partition of the entire property.
Page 71 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022C/SA/408/2019 JUDGMENT DATED: 23/12/2022
27. Moreover, it also emerges from the records that the plaintiff has not sought for any alternative relief of requiring the defendant no.1 to repay the earnest money paid by him to her. Not only that, but the plaintiff has also not made any averment in his plaint regarding his readiness and willingness to perform his part of agreement to sale. All these facts dis-entitle him to get any decree of specific performance of the contract.
28. Now, considering the impugned judgment of the Courts below, it is crystal clear that both the Courts below have not committed any error of facts and law in passing the judgment and decree whereby the suit of the plaintiff came to be dismissed. Therefore, considering the facts and circumstances of the case, the present Second Appeal deserves to be dismissed. Hence, I pass the following final order in the interest of justice.
ORDER
(i) The present Second Appeal stands dismissed.
(ii) Considering the facts and circumstances of the case, parties are directed to bear respective cost of this appeal.
Page 72 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022C/SA/408/2019 JUDGMENT DATED: 23/12/2022
(iii) Decree to be drawn accordingly in this appeal.
(v) Along with the copy of this judgment and decree, Records and Proceedings be sent back to the Trial Court.
In view of the order passed in the main matter, Civil Application for stay stands disposed of accordingly.
Sd/-
(DR. A. P. THAKER, J) URIL RANA Page 73 of 73 Downloaded on : Sat Dec 24 04:49:00 IST 2022