( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 423 OF 1993 Samiulla Khan s/o Ahmed Khan Since deceased, by L.Rs. 1A. Altaf Elahi Khan s/o Ahmed Khan, R/o Mandhai Mohalla, Nanded APPELLANT VERSUS Shamim Ahmed s/o Haji Mohd. Sarwar, Since deceased, by L.Rs. (A) Khairunissa Begum w/o Shamim Ahmed, R/o Nanded. (B) Aizaf Ahmed s/o Shamim Ahmed, R/o Nanded. (C) Mustaq Ahmed s/o Shamim Ahmed, R/o Nanded. (D) Mohd. Sarwar s/o Shamim Ahmed, R/o Nanded. (E) Anwar Ahmed s/o Shamim Ahmed, R/o Nanded. (F) Masud Ahmed s/o Shamim Ahmed, R/o Nanded. (G) Naser Ahmed s/o Shamim Ahmed, R/o Nanded. (H) Idris Ahmed s/o Shamim Ahmed, Minor u/g of Khairunissa Begum, R/o Nanded. (I) Shahada Begum w/o Iqbal Ahmed, R/o Killa road, Nanded. (J) Khaleda Begum w/o Hamidoddin, R/o Bodhan, Dist. Nizamabad. (K) Farida, Minor u/g of Khairunissa Begum, R/o Nanded. ( 2 ) (L) Sahiuda d/o Shamim Ahmed, Minor u/g of Khairunissa Begum, R/o Nanded. (2) Mohd. Goouse s/o Haji Abdul Salim, R/o Killa Road, Nanded. RESPONDENTS ..... Smt. S.G. Chincholkar, advocate holding for Mr. Vinesh Solshe, advocate for the appellant. Mr. J.H. Deshmukh, advocate for respondents No. 1A to 1K. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 24th November, 2009] ORAL JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by learned 4th Additional District Judge, Nanded, in an appeal (R.C.A. No. 89/1987) whereby the first Appellate Court reversed judgement rendered by the trial Court in suit (R.C.S. No. 145/1983). 2. Subject matter of the suit is an agricultural land bearing Survey No. 25, admeasuring 5 acres 5 gunthas (2 Hectares and 7 Ares), situated in the outskirts of Nanded city. ( 3 ) 3. The deceased appellant was the original plaintiff. He had filed suit for perpetual injunction alongwith declaration that sale-deed dated 02-05-1980 executed by defendant No. 2 in favour of defendant No. 1 is not binding on him. Admittedly, the land survey No. 5, admeasuring 5 acres 5 gunthas was previously owned by defendant No.2 Mohammad Gaus. It is also an undisputed fact that said Mohammad Gaus alienated the land to the extent of 3 acres 26 gunthas in favour of defendant No. 1 by virtue of sale-deed dated 02-05-1980 vide Exh-53. 4. The plaintiff’s case, in short, is that he agreed to purchase the entire land from the defendant No. 2. He had paid Rs. 4000/- by way of earnest amount and, therefore, defendant No.2 Mohammad Gaus had executed an agreement of sale dated 27-11-1978 (Exh-41) in his favour. He was inducted in actual possession of the suit land as a prospective purchaser. He alleged that subsequently, the defendant No. 2 sold middle portion consisting of 3 acres 26 gunthas land in favour of defendant No. 1 Shamim Ahmed vide registered sale- ( 4 ) deed dated 11-08-1982. Said Shamim Ahmed thereafter started obstruction in the lawful possession of the plaintiff. Consequently, he sought declaration to the effect that sale-deed executed by defendant No. 2 in favour of the defendant No. 1 was ineffective and inoperative against his rights. 5. The contesting defendant No.1 (respondent) resisted the suit by filing written statement (Exh-28). He denied all the material averments made in the plaint. He denied that there was agreement of sale between the plaintiffs and the defendant No. 2. He contended that on 11-08-1982, the defendant No. 1 had no transferable title in respect of the middle portion of 3 acres 26 gunthas area out of the suit land. He submitted that the plaintiff has relied upon the sale-deed which was never to be acted upon. He also contended that he is a bonafide purchaser for valuable consideration. 6. The parties went to trial over the issued framed below (Exh-29) by the learned Civil Judge (J.D.). It was found by the trial Court that the plaintiff could ( 5 ) prove his title in respect of the disputed land. It is further held that the sale transaction between the defendant No. 1 and defendant No. 2 is legal and valid. Obviously, it was held that the sale-deed dated 02-05-1990 cannot be deemed as inoperative against rights of the plaintiff (appellant). The dismissal of the suit was confirmed by the first Appellate Court. 7. In this second appeal, the grounds No. (a) to (d), (g), (h), (k), (o) and (r) were treated as substantial questions of law when the appeal was admitted. They are reproduced as follows : (a) Whether the lower appellate court has properly exercised the discretion when it had set aside the judgement and decree passed by the trial court in favour of the appellant-plaintiff ? (b) Whether the lower appellate Court, having held that the agreement for sale dated 27/11/1978 Exhibit 41 as also the sale-deed dated 11/08/1982 Exh. 53 executed by defendant No. 2 in favour of the plaintiff, proved, was right in law in holding that the sale deed dated 02-05-1980 Exh. 57 executed by defendant No. 2 in favour ( 6 ) of defendant No. 1 will prevail over the documents of title in favour of the plaintiff ? (c) When a sale-deed is executed by the vendor in pursuance of an earlier agreement for sale, would not the sale-deed executed at later date relate back to the date of an agreement for sale ? (d) The lower appellate Court should have held that though the sale-deed dated 11/08/1982 Exh. 53, it was in pursuance of the agreement for sale dated 25/11/1978 Exh. 41 and therefore, the sale deed would relate back and vest title with the plaintiff from the date of agreement for sale namely 27/11/1978. (g) What is the effect in law of the finding recorded by the lower appellate court to the effect that the agreement for sale Exh. 41 was proved by the plaintiff ? (h) It may be seen that the legal effect would be that the contents of the agreement for sale Exh. 41 would be binding on the persons claiming rights over the suit land or part of the suit land owning a document for sale. (k) The lower appellate Court should have seen that on the basis of the said theory of relation back the sale-deed dated 11/08/1982 Exh. 53 would in fact and in ( 7 ) law be of the date 27/11/1978 i.e. the date of the agreement for sale Exh. 41 and the agreement for sale would be a document as if registered on 27/11/1978. (o) The lower appellate court should have seen that in the facts and circumstances of the present case the agreement for sale Exh. 41 would have to be treated as a special contract on the basis of the theory of relation back pointed out above. 8. The only substantial question of law, in my opinion, is as follows : “Whether, in the facts and circumstances of the present case, the trial Court and the first Appellate Court committed patent error while holding that the agreement of sale would stand merged in the sale-deed dated 27-11-1978 and that the plaintiff could be regarded as lawful possessor of the suit land ?” 9. Heard learned counsel for the parties. 10. At the outset, it is important to notice that the defendant No. 1 had filed suit against the defendant ( 8 ) No. 2 for perpetual injunction. In that suit (R.C.S. No. 57/1983), the defendant No. 1 was the plaintiff and the present defendant No.2, as a purchaser of the suit land to the extent of 3 acres 26 gunthas, was the defendant. That suit was decreed. Thus, the plaintiff’s vendor i.e. defendant No. 2 was under spell of prohibitory injunction when the sale-deed dated 11-08-1982 (Exh-53) was executed by him. 11. What transpires from the record is that though the plaintiff was not a party to earlier litigation (R.C.S. No. 57/1983), yet, the suit was decreed in favour of defendant No. 1 i.e. plaintiff in the earlier suit. The findings of facts recorded in earlier suit were operative and effective against the defendant No. 2 herein. For, he was a party to that suit. The sale-deed executed by the defendant No. 2 in favour of defendant No. 1 is much prior in time. The sale-deed obtained by the defendant No. 1 on 11-08-1982 (Exh-53) is executed after about two years after the sale-deed (Exh-57) dated 02-05-1980 executed by him in favour of the defendant No.1. Obviously, in view of section 48 of the Transfer ( 9 ) of Property Act, the defendant No. 1 acquired title in respect of the suit land to the extent of purchased portion of 3 acres 26 gunthas. The said land could not have been sold again by the defendant No. 2 in favour of the plaintiff. 12. Though the plaintiff asserted that he was inducted into possession of the entire suit land, yet, except his vague testimony and recitals of the agreement of sale (Exh-41), there is hardly any evidence to infer that he was put in possession. The entries in the 7/12 extracts (Exh-60 and Exh-61) stand in the name of the defendant No.1. There is no scintilla of evidence on record to show that the plaintiff made attempt to get his name mutated on basis of the agreement of sale dated 11-08-1982 (Exh-41). In fact, the said agreement of sale did not see day of the light till the instant litigation was commenced by the plaintiff. It is argued on behalf of the plaintiff (appellant) that in the sale-deed dated 02-05-1985 (Exh-57), the property is referred as open space (----------) and, therefore, it could not be treated as sale of agricultural land. It ( 10 ) is pointed out that the defendant No. 1 did not seek any permission for non-agricultural use of the suit land. The reference to the middle suit property as “open space” does not mean that the defendant No. 1 purchased an open plot and there was need to obtain permission for effecting the alienation. For, no lay-out plan of the land in question was drawn. Nor it was case of the defendant No. 1 that he purchased a particular number of plots. 13. It is more probable, in view of the material placed on record, that the agreement of sale dated 27-11-1978 (Exh-41) was prepared by the plaintiff and the defendant No. 2 in connivance with each other. It is significant to note that the defendant No. 2 did not resist the suit, but had filed consent written statement. The conduct of the defendant No. 2 would show that because he had lost the earlier suit (R.C.S. No. 57/1983), he was irked and had antipathy towards the defendant No. 1. Having regard to the attending circumstances and the nature of transaction, the first Appellate Court rightly dismissed the suit by allowing ( 11 ) the appeal preferred by the contesting defendant No.1. 14. In the result, the second appeal is dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/sa423-93