Bombay High Court
Lotan Ramchandra Shimpi And Ors. vs Shankar Ganpat Kayasth And Ors. on 4 August, 1994
Equivalent citations: 1994(4)BOMCR575, (1994)96BOMLR1
JUDGMENT V.H. Bhairavia, J.
1. Being aggrieved by the judgment and order dated 21st October, 1982 passed by the learned Assistant Judge, Dhule, in Civil Appeal No. 266 of 1981 confirming the judgment and decree dated 9th July, 1981 passed by the learned Civil Judge, Junior Division, Sakri, in Regular Civil Suit No. 60 of 1977, the appellants-plaintiffs have preferred this appeal.
The suit was filed for recovery of possession of the suit lands, being gat No. 56 (survey No. 35/2 and get No. 60 (survey No. 36/1), situated at village Bhadane, under the Specific Relief Act. It was alleged that the defendants have forcibly dispossessed the plaintiffs from the suit lands. The suit was contested by the defendants contending that the possession of the suit lands has been lawfully given to the defendants by the deceased father of the plaintiffs under an agreement to sell (Exh. 55), which is a registered document. After framing issues and recording evidence, the learned trial Judge dismissed the suit by his judgment and order dated 9th July, 1981. Appeal preferred by the plaintiffs against the said order came to be dismissed by the learned appellate Judge by his judgment and order dated 21st October, 1982. Hence this appeal.
2. Since an important question of law is involved in this appeal, it is necessary to state a few facts of this case. It is the case of the plaintiffs that the suit lands, being gat No. 56 (survey No. 35/2) and gat No. 60 (survey No. 36/1) were purchased by their predecessor Ramchandra Shimpi i.e. husband of plaintiff No. 2 and father of plaintiffs Nos. 1 and 3, under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948. Accordingly, mutation entry No. 260 was effected and the name of deceased Ramchandra Shimpi continued as cultivator of these lands in 1976-77. On the death of Ramchandra, the plaintiffs as the heirs of deceased Ramchandra got entered their names in the revenue record. It reveals from the record that deceased Ramchandra in his life time executed an agreement to sell (Exh. 55) in favour of the defendants in 1975 for the consideration of Rs. 25,000/- and at the time of executing the agreement to sell, which is a registered document, Rs. 23,000/- were paid to deceased Ramchandra by the defendants and possession of the suit lands was simultaneously handed over to the defendants. It is the further case of the plaintiffs that the suit lands were purchased under section 32-G of the Tenancy Act by deceased Ramchandra. By virtue of the operation of the Tenancy Act, deceased Ramchandra had no right to sell or transfer these lands. Therefore, possession of the suit lands with the defendants is unauthorised and illegal and the plaintiffs are entitled for restoration of the possession of the suit lands. The trial Court, after framing issues and recording evidence, dismissed the suit by its judgment and order dated 9th July, 1981 and in appeal, the said judgment and order of the trial Court was confirmed by the appellate Court by its judgment and order dated 21st October, 1982. Both the courts below held that the plaintiffs have failed to prove that the defendants have forcibly dispossessed them from the suit lands and further held that the defendants are not in unauthosied or illegal possession of the suit lands. Both the courts below further held that it is an admitted fact that deceased Ramchandra had executed an agreement to sell, a registered document, and received Rs. 23,000/- and parted with possession of the suit lands. The remaining amount of Rs. 2,000/- was agreed to be paid on executing a sale deed after obtaining the necessary permission for sale from the competent authority. It reveals from the record that no such permission was obtained till the suit came to be filed. It also reveals from the record that notice was issued by the plaintiffs to the defendants. It is further held that the defendants are entitled for protection under section 53-A of the Transfer of Property Act. It is submitted that though the appellate Court discussed the arguments regarding the statutory bar under section 43 of the Tenancy Act, the learned appellate Judge has failed to appreciate the legal consequences of the agreement to sell in question. This being the factual position of the suit lands, the question is as to whether the defendants are entitled for protection under section 53-A of the Transfer of Property Act? And whether the appellants-plaintiffs are entitled for restoration of possession of the suit lands?
3. Heard both the learned Counsel for the parties. Mr. M.V. Sali, learned Counsel appearing for the appellants-plaintiffs, emphatically submitted that both the courts below have wrongly relied on the document (Exh. 55), the agreement to sell, without applying their mind to the bar of transfer under section 43 of the Tenancy Act, and held that the defendants are not in unauthorised or illegal possession of the suit lands. The learned Counsel for the appellants has relied upon section 43 of the Tenancy Act, which reads thus :-
43(1) : "No land purchased by a tenant under sections 32-F, 32-I, 32-O, 33-C or 43-ID or sold to any person under section 32-P or 64 shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances, and subject to such conditions, as may be prescribed by the State Government :
Provided that, no such sanction shall be necessary where the land is to be mortgaged in favour of Government or a society registered or deemed to be registered under the Bombay Co-operative Societies Act, 1925, for raising a loan for effecting any improvement of such land.
(2) Any transfer of land in contravention of sub-section (1) shall be invalid."
4. The learned Counsel for the appellants has submitted that even the agreement to sell is also barred by section 43 of the Act. The learned Counsel, in support of his argument, relied on a ruling in Parshuram Kathod Gaikar v. Pandu Mahadu Hard & another, 1993 M.L.J. page 1570, wherein it has been observed thus :-
"There is total and complete bar on alienation of agricultural lands in question without previous sanction of Collector. The bar includes any attempt of doing so or execution of document in pursuance thereof."
5. The learned Counsel further emphatically submitted that the pleadings of the plaintiffs in the plaint might not have been happily worded but justice should not be defeated on such technical wrong notion of law. In support of his submission, the learned Counsel has relied on a ruling in Bhagwati Prasad v. Chandramaul, , wherein it has been observed thus :-
"Uudoubtedly if a party asks for a relief on a clear and specific ground, and in the issues or at the trial, no other ground is covered either directly or by necessary implication, it would not be open to the said party to attempt to sustain the same claim on a ground which is entirely new. But in considering the application of this doctrine to the facts of a particular case, Court must bear in mind the other principle that considerations of form cannot over-ride the legitmate considerations of substance."
"If a plea is not specifically made and yet it is covered by an issue by implication and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particluar matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : Did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations and in doing justice to one party, the Court cannot do injustice to another."
6. The learned Counsel further submitted that though admittedly there is an agreement to sell, the defendants are not entitled for the protection under section 53-A of the Transfer of Property Act as the said agreement to sell (Exh. 55) itself is barred by section 43 of the Act. The author of the agreement to sell deceased Ramchandra had no right to transfer the suit lands without the permission of the competent authority under section 43 of the Tenancy Act. In support of his argument, he has relied on a ruling in Meram Pocham and another v. The Agent to the State Government (Collector), District Adilabad, and others, , wherein it has been observed thus :-
"Held that possession given to the petitioners in pursuance of the contracts of sale, without obtaining previous sanction of the Tahsildar under section 47, Hyderabad Tenancy Act, was unlawful and section 53-A T.P. Act would not safeguard that possession."
The facts of the abovecited case are almost identical to the facts of the present case. The relevant provision governing the tenancy rights in that area is similiar to the provision governing the tenancy rights in the instant case. In view of the settled legal position, the judgments and order of both the courts below, in my opinion, are unsustainable. However, Mr. L.V. Kapse, learned Counsel for the respondents, submitted that there was no complete transfer of the suit lands as defined under the Act. He vehemently submitted that the view taken by the courts below is correct and need not be disturbed in this second appeal. In this connection, the learned Counsel has cited the commentary on Bombay Tenancy and Agricultural Lands Act at page 420, wherein the requisites for valid transfer have been discussed. Relying on this commentary, the learned Counsel has tried to convince this Court that the view taken by the appellate Court holding that there was no complete sale and transfer and, therefore, the bar of section 43 of the Tenancy Act does not come into play. With respect, it is not possible to accept this argument in view of the above observations supported by two authorities cited above. It is an admitted fact that there is an agreement to sell executed by deceased Ramchandra in favour of the defendants and possession of the suit lands was also delivered simultaneously. However, the agreement to sell (Exh. 55) itself is without authority, is an invalid document and is incapable of its execution by any competent Court and on the strength of the invalid and illegal document, the possession parted with would be illegal and the defendants are held to be in unauthorised and illegal possession of the suit lands right from the execution of the agreement to sell and delivery of possession. It reveals from the records that on 26th November, 1976, agreement to sell (Exh. 55) was executed by deceased Ramchandra without authority. Therefore, the plaintiffs being the heirs of Ramchandra are entitled for recovery of possession of the suit lands from the defendants. It does not matter if the plaintiffs have not specifically pleaded in the plaint and even if there is failure in proving that possession of the suit lands had been taken forcibly from the plaintiffs by the defendants, the appellants-plaintiffs are entitled for restoration of possession of the suit lands because the defendants have no right to retain possession of the suit lands.
7. Having regard to the above observations, the appeal is allowed. The judgments and order of both the Courts below are set aside and the suit is decreed. The respondents-defendants are directed to hand over the vacant and peaceful possession of the suit lands without any encumbrance to the appellants-plaintiffs on or before 31st December, 1994.
8. Mr. Kapse, learned Counsel for the respondents, has submitted that in view of the consideration of Rs, 23,000/- which the defendants have admittedly paid to deceased Ramchandra, the plaintiffs must be directed to refund the same to defendant No. 1 with interest. The law of equity is the essence of justice. In view of the admitted fact that deceased Ramchandra had received Rs. 23,000/- from the defendants at the time of executing the agreement to sell, it is the legal and moral obligation of the plaintiffs to refund this amount to defendant No. 1 without interest. Therefore, the appellants-plaintiffs are directed to deposit in the trial Court Rs. 23,000/- on or before 15th December, 1994. On depositing this amount, the plaintiffs shall file darkhast for possession. After restoration of possession of the suit lands to the appellants-plaintiffs, the respondents-defendants will be at liberty to withdraw that amount.
Certified copy expedited.