IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.247 OF 1993
Narayan Madhavrao Warkhinde,
1A: Mathurabai w/o Narayanrao Warkhinde,
VERSUS
Mogiya Lalya,
CORAM: K.U. CHANDIWAL, J.
Citation: 2011(1)BomCR420,2010 (4) MHLJ 986.
Date of pronouncing
the order/judgment:27/4/2010
2. Regular Civil Suit No.3/1989 was decided
1.
by the learned Civil Judge, Senior Division,
Biloli, who partly decreed the suit. Being
aggrieved by the same Regular Civil Appeal No.
179/1992 was preferred before the 4th Additional
District Judge, Nanded, who decreed the suit
accepting entitlement of the plaintiff to recover
entire suit land from the defendant. The first
appellate Court also declared the sale deed in
favour of the defendant dt.17th Sept.,1968,
relating to suit land as illegal.
3.
:FACTS:
The parties are referred with the status
`plaintiff' and `defendant'. Plaintiff sought
possession of suit land based on a sale deed dt.
6th Sept.,1965, having purchased it from Bapurao
and Narsingrao for Rs.2500/ under a valid
permission from the Deputy Collector. The
plaintiff asserted, possession of the land was
taken at the time of execution of the sale deed.
It is alleged, the defendant, in collusion with
Talathi, got his name entered in record of
rights.
From the suit land, 1 acre 20 gunthas is
4.
Madat Mash and 12 acres is Khalasa Inam land, as
is evident from the Deputy Collector's and
5.
Commissioner's orders ( Exhs.122 and 132).
SUBMISSIONS
Mr.Deshmukh submits, original owner was
not made party to the proceedings by the
plaintiffs. There could not be a delivery of
possession in favour of plaintiff ( respondent to
the appeal) on 6.9.1965, as there was no mutation
in revenue record since 1965 and, consequently,
in the year 1968, the defendant/appellant has
purchased the agricultural field. There was a
valid permission in favour of the appellant dt.
30.12.1976 by the competent authority and, in the
light of such permission, the appellant
( defendant) had perfected his title to the suit
property. The title of the plaintiff
( respondent) is restricted title as the pre
requisite of the transaction was a permission
from the competent authorities, it being a Madat
The appeal is admitted on 20th August,
6.
Mash Inam and Khalsa Inam land.
1993, vide ground Nos. 5, 6, 8, 9, 10 and 12
mentioned hereinafter.
"5.
The vendor of the plaintiff has
no absolute title to pass to the
Plaintiff being Inam land.
6.
Since no permission was
obtained by the vendor of the Plaintiff,
the impugned say does not convey any
title to the Plaintiff.
8.
The plaintiff had not sought
for relief of validation certificate
regarding the suit land.
9.
The Civil Courts has no
jurisdiction to decide question as to
whether the sale transaction requires to
be validated.
10.
The Court below had shown
jurisdiction not vested in it to decide
as to which of the two sale deed should
be preferred for validation.
12.
The Court below also travelled
beyond its legal authority to hold that
validation certificate issued in favour
of the Defendant regarding the sale deed
dated 17th June 1968 is illegal."
7.
Mr. Godhamgaonkar, Counsel, appearing
for the respondent ( original plaintiff) asserts,
the transaction of plaintiff is not vitiated even
if no permission was obtained from the competent
authorities. No permission was required for sale
of Khalsa land. The defendant was a Gram Sevak,
he prevailed over the vendor, got saledeed on
17th September, 1968 and successfully tried to
effect mutation, same was questioned before the
Deputy Collector, consequently, possession of the
land was taken over by the Government in terms of
Section 145 of Cr.P.C. The proceedings are
terminated in favour of the respondent
(plaintiff). There was a delivery of possession
in favour of the plaintiff, reflected in the sale
deed. It was so confirmed by the Deputy
Collector in the proceedings.
OBSERVATION :
8.
The sale deed in favour of the plaintiff
( respondent) is at Exh.107. It is attached with
a permission granted by the Deputy Collector,
Degloor, on 3rd Sept.,1965 under Section 47 of
the Hyderabad Tenancy and Agricultural Lands Act
(No.2 of 1950) for alienation. This document
illustrates that the vendor Bapurao Mahadu and
Narsinga Mahadu conveyed absolute title in
favour of the plaintiff for entire 13 acres 20
gunthas of the land, with a recital that its
possession was handed over to the plaintiff as
owner.
9.
On the other hand, the sale deed of the
defendant (appellant) Narayanrao, from the same
vendor Bapurao and Narsingrao, for 13 acres 20
gunthas of the land, for Rs.4,000/, dt.
17.9.1968, is without affording any permission
from the competent authorities with an
inscription that such permission is not
warranted. The fact remains, the sale deed in
respect of the suit land in favour of the
plaintiff ( Exh.107) was first in time than the
sale deed dt.17.9.1968 ( Exh.108) in favour of
the defendant Narayanrao. The defendant, in
arrogance of his power purchased the land already
sold, he cannot be a authority to brand
plaintiffs saledeed to be void and hence to have
a mileage on the situation. Section 48 of
Transfer of Property Act ordains to accept
supremacy of the former sale deed in all the
terms than the later. The transferor cannot
prejudice the rights of transferee by any
subsequent dealing with the property. Section 48
of the Transfer of Property Act reads as under :
"48.PRIORITY OF RIGHTS CREATED BY
TRANSFER:
Where a person purports to
create by transfer at different
times rights in or over the same
immovable property, and such rights
cannot all exist or be exercised to
their full extent together, each
later created right shall, in the
absence of a special contract or
reservation binding the earlier
transferees, be subject to the
rights previously created. "
Now, the submission of Mr.Deshmukh that
10.
the transaction of the plaintiff was devoid of
permission, and could not survive in the eyes of
law, needs again to be evaluated.
11.
Based on the controversies raised by the
parties in Special Civil Suit No.58/1975, learned
Civil Judge, Senior Division, has referred the
issues to the learned Deputy Collector (LR),
Nanded, under Section 2A of Hyderabad Abolition
of Inams and Cash Grants Act, 1954, formulating
following three issues:
"(1) What is the nature of Inam of
the suit land survey No.53
admeasuring 13 acres 20 gunthas of
Goundgaon.
(2) Whether this land may be
alienated with or without permission
of the Collector.
(3) Whether the plaintiff was
entitled
to
the
validation
certificate in preference to that of
the defendants."
12.
On analysis of the evidence and the
legal position, the learned Deputy Collector,
crystallized the issues answering that only 1
acre 20 gunthas of land out of survey No.53,
situate at Goundgaon, taluka Degloor, is Madat
treated as Khalsa land.
Mash and the remaining area ( 12 acres) can be
So far as issue
No.2 is concerned, he has observed, that the
ownership of the Inam land, which is re=granted
to the occupant, dt.1.7.1960 is restricted; he
cannot sale, transfer or mortgage or partition
without prior permission of the Collector, the
occupancy of the Inam lands have been regranted
to the occupants on the nominal price i.e. six
times of assessment to the Inamdars and, KabijE
Kadim, eight times of the assessment of the
assessment to the protected tenant and 12 times
of the assessment to the ordinary tenant.
According to the learned Deputy Collector, hence,
Inam lands regranted to the occupant under
Section 6 of the Hyderabad Abolition of Inams and
Cash Grants Act, 1954, can be sold with prior
permission of the Collector under Section 6(3) of
the Hyderabad Abolition of Inams and Cash Grants
Act, 1954 and the land other than the Inam can be
sold to any person with permission of the
competent authorities under Section 47 of the
Hyderabad Tenancy and Agricultural Lands Act,
1950. After amendment of the Section, no
permission now is required to be obtained for
sale of agricultural lands. The learned Deputy
Collector has also observed that, the case of
plaintiff can be regularized after obtaining
In the present case, both the purchasers
13.
amount of 20 times of assessment as NAZARANA.
have not obtained permission from the Collector.
The regularization in the year 1976 by the
subsequent purchaser Narayanrao is without title
or interest in the land. Hence, the
transaction between the land holders and Shri
Narayanrao (appellant) is itself illegal. On the
other hand, the sale transaction with permission
of Deputy Collector, Degloor, in favour of Shri
Mogiya Lalya (plaintiff) can be held as lawful
and legal. The regularization can be made to
the extent of 1 acre 20 gunthas which has been
amount of
treated as Inam land after obtaining
NAZARANA of 20 times of assessment of the land
revenue.
14.
This order of the learned Deputy
Collector was questioned by defendant/appellant
Narayanrao before the Appellate forum Additional
Commissioner, Aurangabad, however, before the
appellate forum present appellant Narayanrao
lost. Thus, the permission in favour of the
plaintiff by the Deputy Collector, under Section
47 of the Hyderabad Tenancy and Agricultural
Lands Act was treated to be valid. This order
of the learned Additional Commissioner has
reached finality as it has answered the issue
formulated by the learned Civil Judge, Senior
The permission subsequently sought by
15.
Division.
the defendant dt.30.12.1976 under the banner of
validation certificate was not at all required
and it could not prevail upon the original
permission in favour of the plaintiff having been
confirmed by the Deputy Collector and by the
Section 29 of Maharashtra Land Revenue
16.
Additional Commissioner on 9.2.1987.
Code, 1966, conceive occupants as (a) Class I ,
(b) Class II and (c) Government lessee. The
Class I occupants shall consist of persons who
(a) hold unalienated land in perpetuity and
without any restrictions on the right to transfer
and (b)
immediately before the commencement of
this Code hold land in full occupancy or
Bhumiswami rights without any restrictions on the
right to transfer in accordance with the
provisions of any law relating to land revenue in
force in any part of the State immediately before
such commencement.
Under Section 58 of the Hyderabad Land
Revenue Act, occupancy right to land shall be
deemed to be heritable and transferable ( Act No.
9 of 1309 Fasali).
17. CONCLUSIONS:
Taking survey of above facts, it could
not be said that the plaintiffs vendor had no
absolute title to pass to the plaintiff, it
being an Inam land or that for want of permission
by the vendor, the transaction of the plaintiff
is without any title. It is not necessary that
the plaintiffs should have sought declaration of
validation certificate regarding the suit land,
as it is beyond the scope of Civil Court. The
Civil Court justifiably referred the matter about
requisition of permission, for adjudication to
the competent authorities. The finding of the
Court about not accepting the so called
validation certificate in favour of the defendant
was based on the findings recorded by the learned
Deputy Collector and the Additional Commissioner,
consequently, the so called validation of 1976 in
favour of the defendant for sale deed dt.17th
June, 1968, was rightly declared as illegal.
There is no deflection of main issues by the
courts.
The substantial questions of law
formulated from the grounds referred above are
answered against appellant (defendant). Second
Appeal lacks merit, dismissed, with costs.
(K.U.CHANDIWAL)
JUDGE
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