Coming to the facts of the present case, even if the
finding recorded by the lower appellate Court on the existence
of agreement dated 21.05.1973 at Exh. 67 is accepted to be
true and correct, in the absence of permission of the Collector
as required under Section 43 of the Bombay Tenancy and
Agricultural Land Act, the transfer is impermissible and as has
been held by the appellate Court, no steps are taken by the
appellants-defendants from the year 1973 till the respondentplaintiff
filed a suit in the year 1978 to ask the plaintiff to
obtain such permission. As is clear from the findings recorded
by the trial Court, the agreement at Exh. 67 refers to Bhade
Patta on 24.03.1968 in respect of the possession. The said
document is not placed on record. On the basis of Exh.67, the
finding of possession cannot be recorded. There is nothing on
record to show that the defendants have paid the entire
consideration which is said to be of Rs. 1,718 /- (Rs.1363 +
Rs. 415). In view of these facts, the decision of the Apex Court
in Rajkishore's case does not apply. The principle laid down in
Ramesh Chand Ardawatiya's case cannot be disputed. The
appellate Court has ignored the finding of the trial Court. The
question of possession is purely a question of fact and the
findings recorded by the trial Court are based upon the
evidence available on record. The plaintiff examined 3
witnesses, whereas the defendants examined 4 witnesses.
The evidence of all these witnesses are taken into
consideration. At any rate, it is a possible view of the matter,
which does not give rise to substantial question of law as was
framed by this Court. The second appeal is dismissed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(Civil Appellate Jurisdiction)
SECOND APPEAL NO. 418 of 1990
Sitaram Bhaskar Raut,
.. Versus ..
Hari Ram Gharat,
CORAM : R.K.Deshpande, J.
DATED : 18th JUNE, 2015.
Citation; 2015 (5) ALLMR 821
1] The trial Court passed a decree in Regular Civil Suit
No. 96 of 1978 on 31.03.1987, granting a declaration that the
plaintiff is the owner of the suit land Hissa No. 2, admeasuring
1 acre and 10 gunthas out of Survey No. 27, situated at village
Betegaon, Tq. Palghar. The defendants are directed to deliver
vacant and peaceful possession of the suit land to the plaintiff.
The lower appellate Court has concurred with these findings in
Civil Appeal No. 179 of 1987, decided on 28.06.1990 which is
dismissed. Hence, the original defendants are before this
Court in this second appeal.
2] The questions involved before the Courts below was
whether the plaintiff has established his ownership over the
suit property and whether the defendant No. 2 has proved that
she was in possession of the suit property from 24.03.1968
and continued to remain in possession of it by way of part
performance of contract under the agreement dated
21.05.1973 at Exh.67. Both the courts below have concurred
in recording the finding that the plaintiff has established the
ownership over the suit property. The appellants-defendants
do not challenge this finding and accept the same. The trial
Court has recorded the finding that the defendant No.2 has
failed to establish the execution of an agreement at Exh. 67. It
is further held by the trial Court that the defendants have
failed to establish the possession from the year 1968 till 1978-
79. Thus, the defence raised by the defendants was rejected
and after holding that the plaintiff has established ownership
over the suit property, the decree has been passed.
3] The lower appellate Court reversed the finding of the
trial Court on the aspect of proof of agreement dated
21.05.1973 at Exh. 67. It records a finding that the plaintiff
has executed an agreement and in lieu thereof, delivered the
possession of the suit land to the defendants. The appellate
Court relied upon Section 43 of the Bombay Tenancy and
Agricultural Lands Act to hold that for sale of this land,
permission of the Collector is required and the defendant No.2
has failed to approach the Collector for obtaining such
permission. The Court has further held that the agreement to
sell does not help the defendant No. 2 to protect her
possession. With these findings, the appeal has been
dismissed, maintaining the decree passed by the trial Court.
4] The second appeal was admitted by this Court on
27.08.1990 and the substantial question of law framed was as
under;
Whether the appellant could defend his
possession under Section 53A of the Transfer
of property Act?
5] The learned counsel for the appellants has relied
upon the findings recorded by the lower appellate Court
holding that the agreement has been proved and submits that,
consequently the defendants have established the possession
of the suit land from 24.03.1968. He has relied upon the
decision of the Apex Court in the case of Rajkishore Giri and
ors vrs. Purendra Giri and Ors, decided on 26th
September, 1996, and reported in 1997 I OLR 1. In the said
decision, the Apex Court has reversed the decision of the High
Court which held that the appellants were not entitled to
protection of possession under Section 53A of the Transfer of
Property Act. The Apex Court has held that the appellants
before it have paid full consideration of money and they were
put in possession thereof which they continued to be since
1936 for a period of 60 years and therefore, the High Court
was not justified in decreeing the suit of the respondents. It
was held that the defence under Section 53A of the Transfer of
Property Act was available. The another decision relied upon
by the learned counsel for the appellants was in the case of
Ramesh Chand Ardawatiya vrs. Anijl Panjwani, reported
in 2003 AIR (SCW) 2590 in which it has been held that if
possession is by way of part performance and the requirement
of Section 53A of the Transfer of Property Act are satisfied, the
protection of possession is available even against the true
owner.
6] Coming to the facts of the present case, even if the
finding recorded by the lower appellate Court on the existence
of agreement dated 21.05.1973 at Exh. 67 is accepted to be
true and correct, in the absence of permission of the Collector
as required under Section 43 of the Bombay Tenancy and
Agricultural Land Act, the transfer is impermissible and as has
been held by the appellate Court, no steps are taken by the
appellants-defendants from the year 1973 till the respondentplaintiff
filed a suit in the year 1978 to ask the plaintiff to
obtain such permission. As is clear from the findings recorded
by the trial Court, the agreement at Exh. 67 refers to Bhade
Patta on 24.03.1968 in respect of the possession. The said
document is not placed on record. On the basis of Exh.67, the
finding of possession cannot be recorded. There is nothing on
record to show that the defendants have paid the entire
consideration which is said to be of Rs. 1,718 /- (Rs.1363 +
Rs. 415). In view of these facts, the decision of the Apex Court
in Rajkishore's case does not apply. The principle laid down in
Ramesh Chand Ardawatiya's case cannot be disputed. The
appellate Court has ignored the finding of the trial Court. The
question of possession is purely a question of fact and the
findings recorded by the trial Court are based upon the
evidence available on record. The plaintiff examined 3
witnesses, whereas the defendants examined 4 witnesses.
The evidence of all these witnesses are taken into
consideration. At any rate, it is a possible view of the matter,
which does not give rise to substantial question of law as was
framed by this Court. The second appeal is dismissed.
(R.K.Deshpande, J.)
Print Page
finding recorded by the lower appellate Court on the existence
of agreement dated 21.05.1973 at Exh. 67 is accepted to be
true and correct, in the absence of permission of the Collector
as required under Section 43 of the Bombay Tenancy and
Agricultural Land Act, the transfer is impermissible and as has
been held by the appellate Court, no steps are taken by the
appellants-defendants from the year 1973 till the respondentplaintiff
filed a suit in the year 1978 to ask the plaintiff to
obtain such permission. As is clear from the findings recorded
by the trial Court, the agreement at Exh. 67 refers to Bhade
Patta on 24.03.1968 in respect of the possession. The said
document is not placed on record. On the basis of Exh.67, the
finding of possession cannot be recorded. There is nothing on
record to show that the defendants have paid the entire
consideration which is said to be of Rs. 1,718 /- (Rs.1363 +
Rs. 415). In view of these facts, the decision of the Apex Court
in Rajkishore's case does not apply. The principle laid down in
Ramesh Chand Ardawatiya's case cannot be disputed. The
appellate Court has ignored the finding of the trial Court. The
question of possession is purely a question of fact and the
findings recorded by the trial Court are based upon the
evidence available on record. The plaintiff examined 3
witnesses, whereas the defendants examined 4 witnesses.
The evidence of all these witnesses are taken into
consideration. At any rate, it is a possible view of the matter,
which does not give rise to substantial question of law as was
framed by this Court. The second appeal is dismissed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(Civil Appellate Jurisdiction)
SECOND APPEAL NO. 418 of 1990
Sitaram Bhaskar Raut,
.. Versus ..
Hari Ram Gharat,
CORAM : R.K.Deshpande, J.
DATED : 18th JUNE, 2015.
Citation; 2015 (5) ALLMR 821
1] The trial Court passed a decree in Regular Civil Suit
No. 96 of 1978 on 31.03.1987, granting a declaration that the
plaintiff is the owner of the suit land Hissa No. 2, admeasuring
1 acre and 10 gunthas out of Survey No. 27, situated at village
Betegaon, Tq. Palghar. The defendants are directed to deliver
vacant and peaceful possession of the suit land to the plaintiff.
The lower appellate Court has concurred with these findings in
Civil Appeal No. 179 of 1987, decided on 28.06.1990 which is
dismissed. Hence, the original defendants are before this
Court in this second appeal.
2] The questions involved before the Courts below was
whether the plaintiff has established his ownership over the
suit property and whether the defendant No. 2 has proved that
she was in possession of the suit property from 24.03.1968
and continued to remain in possession of it by way of part
performance of contract under the agreement dated
21.05.1973 at Exh.67. Both the courts below have concurred
in recording the finding that the plaintiff has established the
ownership over the suit property. The appellants-defendants
do not challenge this finding and accept the same. The trial
Court has recorded the finding that the defendant No.2 has
failed to establish the execution of an agreement at Exh. 67. It
is further held by the trial Court that the defendants have
failed to establish the possession from the year 1968 till 1978-
79. Thus, the defence raised by the defendants was rejected
and after holding that the plaintiff has established ownership
over the suit property, the decree has been passed.
3] The lower appellate Court reversed the finding of the
trial Court on the aspect of proof of agreement dated
21.05.1973 at Exh. 67. It records a finding that the plaintiff
has executed an agreement and in lieu thereof, delivered the
possession of the suit land to the defendants. The appellate
Court relied upon Section 43 of the Bombay Tenancy and
Agricultural Lands Act to hold that for sale of this land,
permission of the Collector is required and the defendant No.2
has failed to approach the Collector for obtaining such
permission. The Court has further held that the agreement to
sell does not help the defendant No. 2 to protect her
possession. With these findings, the appeal has been
dismissed, maintaining the decree passed by the trial Court.
4] The second appeal was admitted by this Court on
27.08.1990 and the substantial question of law framed was as
under;
Whether the appellant could defend his
possession under Section 53A of the Transfer
of property Act?
5] The learned counsel for the appellants has relied
upon the findings recorded by the lower appellate Court
holding that the agreement has been proved and submits that,
consequently the defendants have established the possession
of the suit land from 24.03.1968. He has relied upon the
decision of the Apex Court in the case of Rajkishore Giri and
ors vrs. Purendra Giri and Ors, decided on 26th
September, 1996, and reported in 1997 I OLR 1. In the said
decision, the Apex Court has reversed the decision of the High
Court which held that the appellants were not entitled to
protection of possession under Section 53A of the Transfer of
Property Act. The Apex Court has held that the appellants
before it have paid full consideration of money and they were
put in possession thereof which they continued to be since
1936 for a period of 60 years and therefore, the High Court
was not justified in decreeing the suit of the respondents. It
was held that the defence under Section 53A of the Transfer of
Property Act was available. The another decision relied upon
by the learned counsel for the appellants was in the case of
Ramesh Chand Ardawatiya vrs. Anijl Panjwani, reported
in 2003 AIR (SCW) 2590 in which it has been held that if
possession is by way of part performance and the requirement
of Section 53A of the Transfer of Property Act are satisfied, the
protection of possession is available even against the true
owner.
6] Coming to the facts of the present case, even if the
finding recorded by the lower appellate Court on the existence
of agreement dated 21.05.1973 at Exh. 67 is accepted to be
true and correct, in the absence of permission of the Collector
as required under Section 43 of the Bombay Tenancy and
Agricultural Land Act, the transfer is impermissible and as has
been held by the appellate Court, no steps are taken by the
appellants-defendants from the year 1973 till the respondentplaintiff
filed a suit in the year 1978 to ask the plaintiff to
obtain such permission. As is clear from the findings recorded
by the trial Court, the agreement at Exh. 67 refers to Bhade
Patta on 24.03.1968 in respect of the possession. The said
document is not placed on record. On the basis of Exh.67, the
finding of possession cannot be recorded. There is nothing on
record to show that the defendants have paid the entire
consideration which is said to be of Rs. 1,718 /- (Rs.1363 +
Rs. 415). In view of these facts, the decision of the Apex Court
in Rajkishore's case does not apply. The principle laid down in
Ramesh Chand Ardawatiya's case cannot be disputed. The
appellate Court has ignored the finding of the trial Court. The
question of possession is purely a question of fact and the
findings recorded by the trial Court are based upon the
evidence available on record. The plaintiff examined 3
witnesses, whereas the defendants examined 4 witnesses.
The evidence of all these witnesses are taken into
consideration. At any rate, it is a possible view of the matter,
which does not give rise to substantial question of law as was
framed by this Court. The second appeal is dismissed.
(R.K.Deshpande, J.)
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