High Court
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 152 OF 1994WITHCIVIL APPLICATION NO. 6168 OF 1998 IN SA/152/19941.Sonu s/o Laxman Mahajan, age 57 years, occupation agriculture, residing at Raver, Taluka Raver, District Jalgaon. ………….. (deceased died through LRs.)1-A) Rahul prakash mahajan Age: 35 years, Occu.Service1-B) Atul prakash mahajan Age: 25 years, Occu-Agri.1-C) Rajshree Prakash Mahajan Age.27 years Occ. Household1-D) Jayashree Prakash Mahajan Age.30 years Occ. Household R/o Shikrapur Tq. Shirur Dist. Pune.1-E) Seema Prakash Mahajan. Age.28 years Occ. Household. R/o Kurudwadi, Tq. & Dist. Solapur.1-F) Vastalabai Prakash Mhajan Age 60 years. Occ. Household1-G) Sumanbai Pundlik Mahajan Age 65 years Occ. House hold1-H) Shakuntalabai Pundlik Haveliwale Age 70 years Occ. Household.1-I) Kusumbai Narayan Mali Age. 68 years Occ. Household.1-SA-152-1994.odt1 of 12
Legal Reasoning
1-J) Mangalabai Namdev Mahajan Age 62 years Occ. Household.1-k) Nandabai Muralidhar Rajankar Age 58 years. Occ. Household1-L) Sushilabai Sonu Mahajan Age. 80 years. Occ. Household. All R/O Shivaji Chowk, Raver Dist. Jalgaon.2. Muktabai w/o Laxman Mahajan, age 77 years, Occupation-Household, residing as above ……..(Appellants) V_E_R_S_U_SAmrtulal s/o Devlal Lohar,age 47 years, Occupation agriculture,residing at Raver, Taluka Raver, District Jalgaon. ……….(deceased died through LRs.)1) Mansukh Amrutlal Lohar Age: 40 years, Occu. Agri,2) Alpesh Amrutlal Lohar Age: 35 years, Occu.Agri, Both R/O Shivaji Chowk Raver Dist. Jalgaon.3) Maya Laxmikant Lohar Age: 40 years, Occu.household, R/o- pathale galli, Parola Dist. Jalgaon.4) Chaya Deepak Chavan Age: 45 years, Occu.household Plot no, 3 Dhandai nagar, Devpur Dhule. ……...(Respondents)Mr. L. V. Sangit, Advocate for appellantsMr. V. R. Patil, Advocate for respondent1-SA-152-1994.odt2 of 12 CORAM: R. M. JOSHI, J.DATE: 31st January, 2025JUDGMENT :-1. Learned counsel Mr. Vinesh C. Solshe seeks discharge onthe ground that the respondents have engaged learned counsel Mr. V. R.Patil. He stands discharged.2.Original defendants takes exception to the judgment anddecree passed by the Trial Court in Regular Civil Suit No. 93/1977granting decree of specific performance in favour of the plaintiff andconfirmation thereof in Regular Civil Appeal No. 186/1986 by FirstAppellate Court.3.Parties are referred to as “plaintiff and defendants” for thesake of convenience.4.There is no dispute about the fact that plaintiff filed suitbearing Regular Civil Suit No. 93/1977 for seeking specific performanceof the contract on the basis of agreement to sale executed by defendantsdated 20.10.1973 for sale of suit property. There is no dispute about thefact that defendants are the owners and are in possession of the suitproperty. It is a case of the plaintiff that at the time of execution ofagreement dated 20.10.1973, defendants have accepted sum of1-SA-152-1994.odt3 of 12 Rs. 3,500/- and subsequent thereto on 01.12.1973 further amount of Rs.8,000/- was accepted. Parties were to execute sale deed on or before23.05.1977. It was further agreed between the parties that thenecessary permissions for the sale to be obtained by defendants but atthe cost of plaintiff. Since, defendants did not obtain any permission, andthere was no execution of sale deed, plaintiff filed suit for specificperformance of contract.5.Defendants filed written statement denying the contentionsin the plaint. It is specifically claimed that the transaction in question ismoney lending transaction. Defendants admitted signature of defendantNo.2 and thumb impression of defendant No.1 on agreement to sale(Exhibit 32). It is further claimed that the said document came to beexecuted by them without knowing the contents of the document. It isalso claimed that the plaintiff has mis-represented them about thecontents and as such said document is not binding upon him.6.Before the learned Trial Court, evidence was led. Plaintiffexamined himself. Whereas defendant no. 2 examined himself and alsoled evidence of two other witnesses who were the ad-joining owners ofthe suit property. Learned Trial Court decreed the suit and directedexecution of the sale deed by defendants in favour of the plaintiff subjectto permission granted by the Competent Authority in the said sale under1-SA-152-1994.odt4 of 12 the Bombay Agricultural and Tenancy Act, 1948 (for short “the Act”).This judgment was taken exception before the First Appellate Courtunsuccessfully. Hence, this appeal.7.Learned counsel for the appellant/original defendants submitsthat this Court by order dated 29.07.1994 has admitted the appeal onthe grounds which are reproduced herein below :-II) Whether the Courts below should have grantedperformance in favour of the plaintiff when the verydocument itself is not at all proved by the plaintiffsconclusively as neither the scribe nor other witnesseshave deposed in support of the plaintiff.VII) Whether the specific performance of the tenantedland under the provisions of the Bombay Tenancy andAgricultural Lands Act, 1948 can be granted in favour ofthe plaintiff ?VIII) Whether a decree of performance can be granted,when there is a clear-cut bar under the provisions ofthe Bombay Fragmentation and Consolidation Act, sincethe suit land is a fragment ?8.It is his submission that when the defendants havespecifically come out with the case that the contents of the saiddocument were not known to the defendants at the time of an executionof document. The burden is on the plaintiff to prove not only execution ofdocument but also contents of the document to support said submission.He has placed reliance on the judgment of Kamlabai W/O Ishwar1-SA-152-1994.odt5 of 12 Pujari and others Versus ShantiraI w/o Lalitmohan Rai andothers 1983 Mh.L.J. 221. It is further argued that the defendants haveled evidence of two ad-joining owners who have specifically stated aboutplaintiff in possession of the suit property for the year 1973-1974, 1974-1975 and 1975-1976 and having cultivated the said land. It is hissubmission that in the cross examination nothing is elicited to discardtheir testimony. He has also drew attention of the Court to the provisionsof the Act in order to submit that the purpose and intention of thelegislature is clear under Section 32 is to transfer the ownership of theland to the tenant and to protect his interest who personally cultivatedthe land. It is his contention that no decree could have been passed bythe Trial Court owing to the provisions of the said Act.9.The scope of Section 100 of the Code of Civil Procedure islimited to the extent that second appeal can be entertained only if thereinvolves substantial question of law. It would not be permitted for thisCourt to re-appreciate the evidence as if First Appellate Court and torecord any finding contrary to the findings recorded by the Court below.Only in case such findings are perverse, it may be open to causeinterference therein.10.As far as instant case is concerned, plaintiff’s case is ofexecution of agreement to sale dated 20.10.1973 by defendants.1-SA-152-1994.odt6 of 12 Defendants do not dispute the execution of the document. It is howeverclaimed that the document was executed but without knowing thecontents of the same. It is however necessary to take note of theimportant fact that though defendants have filed written statement, nocounter claim was filed to seek declaration of the said document to beinvalid and not binding upon the them. Apart from this, though in thewritten statement it is sought to be claimed that without knowingcontents of document it is executed, however, at the first availableopportunity in the defendants reply (Exhibit 30) to notice exhibit 24issued by the plaintiff before filing of the suit. No suit plea is raised. Suchplea must have been raised as first available and, it was absolutelynecessary for the defendants at that stage itself to state that thoughdocument is executed without knowing contents therein. On the contrarynotice reply indicates that contents of the document were very muchwithin the knowledge of the defendants. It is specifically stated in thereply that :-^^uksVhlhps mRRkjJh ve`ryky nsokyky yksgkj eq-iks-jkosj rk- jkosj] ft-tGxkao ;kalh 1½ Jherh eqDrkckbZ Hkz- y{e.k egktu 2½lksuq y{e.k egktu nks?kkaph oLrh jkosj rk- jkosj ft- tGxko;kaps rQsZ Jh ,e-th- HkksGs vWMOgksdsV] tGxkao ;kaaaaaaaapsdMwuvkeps vf’kykauh fnysY;k ekfgrho:u uksVhlhps mRrj ns.;kr;srs dh (rqeph Jh Ogh- vkj- ok.kh vWMOgksdsV]1-SA-152-1994.odt7 of 12 tGxkao ;kapsdMwu rk- 5@5@77 jksth fyghysyh uksVhlvkeps vf’kykl feGkyh- R;k uksVhlhrhy etdqj [kjk ukgho rks vkeP;k vf’kykauk dcwy ukgh- rqeps uksVhlhrEgVysizek.ks vkeps vf’kykps ekydhps o dctkrhy ekStsjkosj ;sFkhy ‘ksr losZ ua- 27@1@1+3@1 {ks= ,dj 1&21xqaBs vkdkj :i;s 2&62 iSls gs fod.;kpk lkSnk rqepsvf’kykl :i;s 8000@& oj rk- 20&10&1973 jksthvkeps vf’kykauh dsyk gs Eg.k.ks [kjs ukgh- lnj ‘ksr feGdrfod.;kckcr dks.kR;kgh izdkjps cksy.ks >kysys ukgh ofod.;kpk gsrqgh vkeps vf’kykpk uOgrk o ukgh o rqEgklgh lnjps ‘ksr fodr ?;ko;kps uOgrs- [kjh ifjfLFkrh v’khvkgs dh( vkeps vf’kykl eqyhP;k yXukdfjrk iS’;kaph t#jhgksrh Eg.kwu rqEgh ?kjksC;kps Eg.kwu rqepsdMwu jks[k jDde :i;s3500@& vkeps vf’kykauh rk- 20&10&1973 jksth ?ksrysgh xks”V [kjh vkgs] ijarq rqEgh lnj jdesP;k ^^/kj** lkBhEg.kwu ‘ksrkph lkSnsfpðh ukWfeuy d:u ?;k vlk vkxzg/kjY;ko:u lnj ‘ksr feGdr :i;s 15000@& P;kfdaerhP;k oj vlrkauk rqEgh fygwu vk.kysY;k lkSnsfpðh ojvkeps vf’kykauh HkhMsus lgh dsyh o R;kpk rqEgh QlosxhjhusxSjQk;nk ?ks.ks;s gsrqusa lnjph [kksVh uksVhl nsmu ‘ksr [kjsnhd:u ?;k vls fyghr vkgkar rlsp rqEgh Eg.krka R;kizek.kstknk c;k.kk Eg.kwu :- 1800@& iqUgk rkjh[k 1&12&73jksth rqEgh fnys gs rqePks Eg.k.ks [kjs ukgh- ojhy ifjfLFkrhrrqeps lnjps vU;k;dkjd] Qlosxhjhus fnysY;k [kksV;kuksVhlhao:u dkagh nkok /kksdk dsY;kl R;kps gks.kk&;k loZ[kpZ ifj.kkekl rqEgh tckcnkj jkgkyk- rkjh[k 28&5&77**Thus, the knowledge of the contents of document is notdenied so also execution.11.In this regard, defendant No.2 is cross-examined who admitsto have given instructions to his lawyer while giving reply to the noticeby the plaintiff. Moreover, there is no explanation from him that he never1-SA-152-1994.odt8 of 12 gave any instructions with regard to the knowledge of the contents of thedocument. In such circumstances there was no burden on the plaintiff toprove the contents of the document. This Court, therefore, finds nosubstantial question of law in ground No. II of the appeal memo, asreproduced herein above.12.It is the contention of the defendants about the intention ofthe legislature in enacting relevant provisions of the Tenancy Act is toprotect the interest of the tenant. There cannot be any dispute withregard to the said proposition sought to be canvased by the learnedcounsel for the defendants. However, at the same time, relevantprovisions of the said act clearly indicate that it is the Collector who isthe Competent Authority to decide as to whether sanction to be grantedfor sale of the property covered by the provisions of the Act. Civil Courtcannot assume such jurisdiction even indirectly. Here, in this case,learned Trial Court has rightly considered the said provisions and,therefore, decree has passed, operative part reproduced herein below :-ORDER1) The defendants are hereby directed to makenecessary application to the Collector within one monthof this order for getting the necessary sanction forexecution of registered sale deed.2) In case, the defendants fail, the plaintiff will be atliberty to make the necessary application to theCollector and the defendants should bear the expensesfor getting the said permission.1-SA-152-1994.odt9 of 12 3)In case the Collector gives necessary permissionfor effected sale, the defendants are hereby directed toexecute the registered sale deed in respect of the suitproperty in favour of the plaintiff within one month ofthe receipt of the said permission and the plaintiffshould bear the expenses of registration and stamps forexecution of said sale deed.4)The plaintiff should deposit the amount of Rs.2,700/- in Court as remaining consideration within onemonth of getting necessary permission from Collector.5)The defendants are hereby directed to deliverythe possession of suit filed to plaintiff after execution ofsale deed.6)In case, the defendants fail to execute registeredsale as per above directions, the plaintiff will be atliberty to get the executed register sale deed throughCourt.7)In case the necessary permission is refused bythe Collector, the defendants pay the amount of Rs.7587.50 and interest at the rate of Rs. 12% per annumon the amount of Rs. 5,300/- from the date of suit tillrealization to plaintiff.8)The defendants should bear their own costs andthe costs of the plaintiff.9)The decree be drawn up accordingly.13.The afore-stated operative part, therefore, makes it clearthat defendants are directed to make necessary application to theCollector and if they fail to do so liberty is granted to the plaintiff tomake such application. The execution of sale deed would be only subjectto the Collector giving necessary permission for the sale. If no1-SA-152-1994.odt10 of 12 permission is granted by the Collector then direction is issued for refundof amount of Rs. 7587.50/- along with the interest at the rate of 12percent per annum on the amount of Rs. 5300/- till realization. All theseclauses of the operative part of the order pertinently make it clear thatthe Trial Court was conscious of the provisions of the Act and accordinglythe decree is passed. No fault can be found, therefore, with the decreepassed by the Trial Court for granting specific performance subject to thepermission granted by the Collector. 14.It is also sought to be argued on behalf of the defendantsthat the sale transaction is barred by the provisions of Prohibition ofFragmentation and Consolidation Act. Though, such submission is madebefore this Court, no pleadings are found in that regard in the writtenstatement. This plea sought to be raised is not pure question of law but amixed question of fact and law as such, the same cannot be allowed tobe raised in second appeal for first time. To permit such plea now willlead to denying opportunity to meet the same to plaintiff during trial.15.Trial Court and the First Appellate Court have rightly takeninto consideration pleadings and evidence on record and for want ofperversity therein no interference is called in this appeal. Appeal isdismissed. In any case, no substantial question of law is involved in thisappeal. Consequently, appeal stands dismissed. Pending Civil Application,1-SA-152-1994.odt11 of 12 if any, stands disposed of.16.Learned counsel for the appellant/defendants seekscontinuation of the interim relief for a period of 3 months.17.None for the respondent/plaintiff.18.Though the appellant is entitled to challenge order passed bythis Court before the Hon’ble Supreme Court, the time of three monthssought is not reasonable. Hence, interim order to continue for a period of6 weeks from today.(R. M. JOSHI, J.)bsj1-SA-152-1994.odt12 of 12