LOTAN RAMCHANDRA SHIMPI Vs. SHANKAR GANPAT KAYASTH

JUDGEMENT

(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) :