1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Second Appeal No. 656/2006 (Ramji Namdeo Gawande VERSUS Sumanbai wd/o Vithal Gawande & another) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Shri B.N. Mohta, counsel for the appellant. Shri S.D. Chopde, counsel for the R-1 & 2. CORAM : SMT. VASANTI A. NAIK, J. DATE : JULY 2, 2008. Heard the learned counsel for the parties. The appellant is the original plaintiff. He claims to be the son of one Namdeo. The suit property was transferred to the father of the appellant under the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 in tenancy case No. 1365/59(13)/63-64, Bhendgaon Case No.78. According to the plaintiff, his father had paid price for purchase of the property on 23.03.1973 and since then, was cultivating the suit field. It is further pleaded by the plaintiff that his father had sold the suit field to the defendants by a registered sale-deed dated 16.01.1992. According to the plaintiff, the sale dated 16.01.1992 was void ab- initio in view of Section 57 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 . 2 The defendants denied the claim of the plaintiff and further denied that the plaintiff was the son of Namdeo who had purchased the suit property under the provisions of the Act of 1958. It was the case of the defendants that Namdeo had only one wife by name Shantabai and she was still alive. It was the case of defendants that Shantabai did not have any living issue, from the wedlock. According to the defendant no.1, her husband had purchased the suit property for a valuable consideration of Rs.9000/- on 16.01.1992. Both the Courts concurrently held that the plaintiff had failed to prove that he was the son of Namdeo. The trial Court held that the sale-deed executed by Namdeo in favour of the defendant was not void under the provisions of Section 57 of the Act. In view of the aforesaid findings, the trial Court dismissed the suit of the plaintiff. In an appeal filed by the plaintiff, the finding on the question of relationship of the plaintiff with Namdeo was confirmed. The first appellate Court, however, held that the sale-deed executed by Namdeo on 16.01.1992 was not void ab-initio but, was voidable. It is submitted on behalf of the appellant that the Courts had not properly appreciated the evidence to hold that the plaintiff failed to prove that he was the son of Namdeo. The counsel for the appellant submitted that under the provisions of 3 Section 57 of the Act of 1958, any transfer of land without seeking the sanction from the Collector was invalid, and hence, the defendants could not have claimed the ownership to the property in pursuance to the sale-deed dated 16.01.1992. It is submitted on behalf of the respondents that both the Courts have, on a proper appreciation of the material evidence on record, held that the plaintiff had failed to prove his relationship with Namdeo. It is further submitted on behalf of the respondents that having failed to prove his relationship, the plaintiff could not have claimed the ownership over the property by seeking the declaration that the sale-deed 16.01.1992 was void and invalid. I have perused the provisions of Section 57 of the Act of 1958. In view of the provisions of Section 57 of the Act of 1958, any transfer of land purchased by a tenant under Section 41 or 46 of the Act cannot be transferred without the sanction of the Collector and in the absence of sanction, the transfer would be invalid. A perusal of Section 122 of the Act, however, shows that the Tahsildar is the authority under the Act to declare that the transfer or acquisition of land is invalid under the provisions of the Act after holding an enquiry in that regard. The Tahsildar can make an enquiry under Section 122 of the Act on an application filed by the interested person or the Tahsildar can suo motu initiate the 4 enquiry. In the instant case, no such application is filed before the Tahsildar by the plaintiff or any other interested person. In the instant case, the plaintiff cannot be said to be a person interested as he had failed to prove his relationship with Namdeo. The question of validity or otherwise of the transfer dated 16.01.1992 could have been decided by the tenancy authorities and not by the civil Court. Even otherwise, the plaintiff would not be entitled to seek the reliefs sought in the suit as the plaintiff has failed to prove that he is the son of Namdeo and he would have acquired title to the suit property if the transfer dated 16.01.1992 is held to be invalid. Both the Courts have, on a proper appreciation of the evidence on record, recorded a finding that the plaintiff had failed to prove his relationship with Namdeo. Since no substantial question of law arises for consideration in this second appeal, the same is dismissed with no order as to costs. At this juncture, the counsel for the appellant, submits that the appellant may be permitted to withdraw the suit and file appropriate proceedings as the findings recorded by both the Courts in regard to the relationship of the plaintiff with Namdeo would cause prejudice to the plaintiff throughout his life. The request made on behalf of the appellant is queer and unreasonable. Such a request for withdrawal of the suit, cannot be granted 5 when a finding is recorded in favour of the defendants and the counsel for the defendants opposes the prayer made on behalf of the appellant. Even otherwise, it would not be legally permissible to grant liberty to a party, who has been throughout unsuccessful on a finding of fact, to withdraw the suit and file appropriate proceedings, to in effect, challenge the same finding which has been recorded against him. JUDGE APTE