1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 153 OF 1990 Bhaskar Bhanudas Patil - - Appellant (Orig. Defendant) Versus Dashrat Amruth Waghmare Since died his Legal Representatives : 1. Mankabai w/o Dashrath Waghmare 3. Bhimrao Dashrath Waghmare, 4. Bhimrao Dashrath Waghmare, 5. Baliram Dashrath Waghmare, 6. Bapu Dashrath Waghmare, 7. Bhamabai Sopan Surwase. - - Respondents (Orig. Plaintiffs) Shri D. S. Mali, Advocate h/f Shri S. B. Talekar Advocate for the Appellant. None for the Respondents. CORAM : K. U. CHANDIWAL, J. DATE : 19TH JUNE, 2009. 2 ORAL JUDGMENT : 1. The unsuccessful defendant at both the Court is in the second appeal. On 18.06.1990 the appeal was admitted without formulating any substantial question of Law. 2. The parties are referred at their status as plaintiff and defendant. Now in order to deal with the appeal, following substantial question of Law is formulated. (1) Whether, the plaintiff having dispossessed on 17th August, 1974 from the land could demand sale consideration beyond three years by virtue of bar created under Article 47 of Limitation Act ? 3. The plaintiff purchased survey No. 161 from the defendant under sale deed dated 17.06.1970. At the material time in the area there was operation of Maharashtra Agricultural Lands (Ceiling of Holdings) Act 1961. By virtue of Section 8 thereof, from the appointed date 26th January, 1962 there could not be any transfer of title in the notified area and the land determined in excess under the Ceiling Act. Section 8 also contemplate no person on or after appointed day holds land in excess of the sale or shall on or after notified transfer any land in excess of ceiling is determined under the Act. 4. The defendant while entering in the sale transaction was conscious 3 that there were impediments created to the transaction under the said Ceiling Act, which is prominently surfaced in the recitals recorded in Exh. 18 the sale deed in Marathi as under, " ". 5. It is thus obvious, there was indemnity clause in the sale deed Exh. 18, in the event of any loss to the purchaser/the plaintiff, it was defendant who was to make good the title or was to make substitute land for the purchaser/the plaintiff. There is no controversy on the terms of contract between the parties. Added to it is the plaintiff's assertion was that there was an undertaking between parties, as to the defendant will reimburse the consideration if the plaintiff suffers any loss due to application of the Ceiling Act. This has been supported by himself, P.W. Kulkarni and P.W. Mahadev who were present at the material time of actual negotiations and participated in it. 6. The controversy however started when on 17th August, 1974 pursuant to the ceiling proceedings the land in possession of the plaintiff was determined to be excess holding of defendant, affected by the provisions of Ceiling Act, and consequently, the Government took its possession from the plaintiff, he was dispossessed. The defendant, conspicuously, by his conduct did not show any other land to the 4 authorities as surplus, and meekly, without exercise of option correctly, allowed Government to treat suit land as surplus. A suit was filed by the plaintiff bearing suit No. 18/1976, whereby he sought injunction against the State not to disturb his possession, however on trial the plaintiff has lost suit on 27.06.1977. 7. The contention that the plaintiff should have made his claim of refund in the said suit though appear cozy, is difficult to be acted upon, as the said proceeding was between plaintiff and the Government and more particularly was dealing with the proceeding of Ceiling Act. The defendant as owner was not party to the said proceeding. Consequently, there was no prayer by the plaintiff nor he could seek, reimbursement of the amount as against the Government. The principles of res-judicata, will not be attracted. It is in fact a case of fraud as has been played by the defendant upon the plaintiff. As the defendant was aware at the material time on dated 17.06.1970 that there was impediment and fetters for the defendant entering in to transaction of sale of property. The transaction was basically hit by virtue of Section 53 of Transfer of Property Act. Since the plaintiff lost possession and lost suit, there was no other option for him to demand the amount which he has done by virtue of demand notice dated 07th February 1978 demanded the amount of said consideration. The defendant has replied the same on 28.02.1978 and it was within the span of three years from the date of demand, the suit came to be filed. The action of plaintiff in initiating recovery proceeding 5 is definitely in tune to the Article 47 of Limitation Act that there was demand made for existing consideration which subsequently has failed due to efflux of situation. 8. The nature of evidence adduced does not indicate that it was speculative purchase by the plaintiff on certain happening. It was a out right purchase transaction of plaintiff, he was to be indemnify in the event of defect in vendor's title. The cause of action to the plaintiff was, apparently, when he lost suit against Government on 27th June, 1977. 9. The contention that plaintiff has enjoyed the possession from 07.06.1970 till he was dispossessed in the year 1974 while making good the said consideration, is incorrect at least no such case is formulated, nor an evidence is given. Without going in to any speculation or surmises, it is difficult to consider that since plaintiff was in possession over last four years, he should forgo the amount of sale consideration. In the set of above facts, the appeal lacks merit. The substantial question of law formulated hereinabove is answered in the negative. Appeal dismissed. [ K. U. CHANDIWAL ] JUDGE bsb/June 09/CA 4440.09