1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.763 OF 2007 WITH CIVIL APPLICATION NO.1433 OF 2007 ALONG WITH SECOND APPEAL NO.456 OF 2008 WITH CIVIL APPLICATION NO.629 OF 2008 Shri Balu Babu Pawar & ors. : Appellants versus Smt.Bayakka Mahaling Keripale deceased by her representatives Sou Anusaya Babso Banasvade & Anr. : Respondents. Shri N.J.Patil for the Appellants. Shri S.S.Patwardhan for the Respondents. CORAM : R.M.SAVANT, J DATED : 22nd July 2008 P.C. 1. The above Second Appeals arise out of the Judgment and Decree dated 25.4.2007 passed by the learned Adhoc District Judge- I, Sangli in Regular Civil Appeal Nos.165 of 2001 and 166 of 2001. Regular Civil Appeal No.165 of 2001 was filed by the Respondent No.1 to the above Second Appeals and Regular Civil Appeal No.166 2 of 2001 was filed by the Appellants above named. 2. The said Regular Civil Appeal Nos.165 of 2001 and 166 of 2001 arose out of the partial decree passed in the said Regular Civil Suit No.312 of 1992 which was filed by Respondent No.1 above named. Respondent No.1 aggrieved by said partial decree passed in the said suit preferred the said Regular Civil Appeal No.165 of 2001 whereas the Appellants above named, aggrieved by the said decree, preferred said Regular Civil Appeal No.166 of 2001. 3. Respondent No.1 Bayakka is the original Plaintiff in the said Regular Civil Suit No.312 of 1992 which was filed by her for perpetual injunction restraining the Defendants/Appellants from interfering in the Plaintiff's peaceful possession over the suit property bearing Gat No. 162/A admeasuring 3 Hector 64 Ares situated at village Takali, Taluka Miraj District Sangli. It was the case of the Plaintiff that her husband one Mahaling Keripale was cultivating the suit land as a tenant. The owner of the suit land was one Hari Govind Gokhale. The said Mahaling died in the year 1953. After the death of said Mahaling, the Plaintiff Bayakka initiated proceedings under Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter 3 referred to as “the said Act”) and, accordingly she was declared as a owner of the said suit land and the certificate to that effect under Section 32-M of the said Act was granted to her. It is the case of the Plaintiff that on account of her old age, she was unable to cultivate the land and, therefore, she desired to sell the said suit land and accordingly she entered into an agreement with Defendant Nos.1 to 4, i.e. the Appellants herein, on 29.12.1989. It was agreed between the parties that the said land would be sold at the rate of Rs.55,000/- per acre. However, since the provisions of the said Act were applicable to the said suit land, the permission of the Collector was necessary for sale of the said suit land. It was, therefore, agreed that the Defendant Nos.1 to 4 would obtain necessary permission of the Collector for sale of the said suit land. It is further case of the Plaintiff that though in the said agreement it was mentioned that Bayakka had received Rs.50,000/- in fact she received only Rs.5,000/- on account of financial stringency that was faced by the Defendants at the time of the said agreement to sale. It is further case of the Plaintiff that Defendant No.1 had taken her thumb impression on various blank papers on the pretext that the same were required for obtaining the 4 permission of the Collector. Some papers were signed by Bayakka in the office of the Tahasildar under the impression that the said documents were required for obtaining sale permission. It is further case of the Plaintiff that in spite of the said agreement, the possession of the said suit land was with Bayakka and she was cultivating various crops like Soyabean, Tur, Groundnut etc. It was the further case of the Plaintiff that at the time of Nagpanchami the Defendants obstructed her possession and told her that they had become the owners of the said suit land and as such Bayakka should vacate the said suit land. In view thereof Bayakka made inquiry with the authorities where upon she got knowledge that the Defendants had fraudulently got executed sale deed in respect of the said suit property on 17.09.1991. The said sale deed was in respect of land admeasuring 1 Hector 21 Ares out of the suit agricultural land and, on the same day the Defendants had also fraudulently got executed another document i.e. the partition deed. In the said partition deed it has been stated that the property which was sold by Bayakka and for which permission was granted by the Collector i.e. the land admeasuring 1 Hector 21 R pursuant to the said partition deed was 5 given to the share of Bayakka and remaining land bearing Gat No.162/A was alloted to her daughter Kalavati. It is further case of the Plaintiff that later on Defendant No.5 Kalavati sold 3 Acres of land to Defendant Nos.1 to 4 by sale deed dated 30.10.1991 and that the said document was also got executed by the Defendants by way of practicing fraud. Bayakka, who became the owner of the said land in question under the said Act, had never consented to the said document of sale at any time. It is the case of the Plaintiff that under the pretext of obtaining permission of sale, the thumb impressions obtained on blank papers were misused and all these documents have been got executed by the Defendants. 4. During the pendency of the said Regular Civil Suit No.312 of 1992, Bayakka – the original Plaintiff died on 11.8.1993 as a consequence of Anusaya her elder daughter was brought on record as her heir. 5. It is the case of the Defendants in the said suit that pursuant to the agreement dated 29.12.1989, the Defendants had applied to the Collector for grant of permission for sale of the said suit land. The Collector, however, had granted permission only in respect 6 of land admeasuring 1 Hector and 21 R. According to the Defendants, Bayakka had voluntarily executed the sale deed of the suit land in favour of the Defendants on 17.09.1991 and at the time of sale, they had given Rs.10,000/- to Bayakka and the transaction of sale has been completed. It is further case of the Defendants that Bayakka had executed the document of partition by which she gave remaining 6 Acres of land to her daughter Kalavati and by two agreements of sale the said 6 acres of land have been sold by Kalavati to the Defendants. The Defendants, therefore, have asserted their possession over the entire suit land bearing Gat No.162/A. The Defendants denied the allegations of fraud as contended by the Plaintiff. They averred that the sale transaction was voluntarily entered into by Bayakka and she had voluntarily consented with the sale deed executed by Kalavati in their favour. 6. The parties went to trial. The trial Court on the basis of material that was before it, partly decreed the said suit thereby restraining the Defendants from interfering into the Plaintiff's peaceful possession over the suit land admeasuring 2 Hector and 40 R excluding the portion sold by Bayakka to the Defendants admeasuring 7 1 Hector and 21 R. The trial Court held that Anusaya was entitled to prosecute the said suit on the basis of will deed dated 17.06.1992 executed by Bayakka in her favour. The trial Court on the basis of recitals in the sale deed dated 17.09.1991 for the area admeasuring 1 Hector and 21 R came to a conclusion that the Defendants are in possession of the said area of 1 Hector and 21 R and that the sale deed dated 17.9.1991 executed by Bayakka is a valid document. The trial Court, however, held that the sale deed dated 30.10.1991 executed by Kalavati was invalid on the ground that there was no permission from the Collector to sell the said land and that Kalavati did not have capacity to sell the said property and, therefore, the Defendants could not enter into the said suit land on the basis of the said illegal sale deed. 7. Being aggrieved by the partial decree passed in the said R.C.S. No.312 of 1992, the Appellants above named have filed Regular Civil Appeal No.166 of 2001 and, the Respondent No.1 has filed Regular Civil Appeal No.165 of 2001. In so far as Regular Civil Appeal No.166 of 2001 is concerned, the lower Appellate Court dismissed the same and, in so far as Regular Civil Appeal No. 165 of 8 2001 is concerned, the lower Appellate Court allowed the same and, thereby decreed the said R.C.S. No.312 of 1992 in its entirety . 8. The lower Appellate Court came to a conclusion that a fraud was practiced on Bayakka by taking her thumb impression on the blank papers on the pretext that the same were required for obtaining permission from the Collector for sale of the said land in question and the said blank papers were misused. In so far as sale deed dated 17.09.1991 is concerned, the lower Appellate Court came to a conclusion that the consideration amount is also not as per the agreement. It has come in the evidence of Balu Pawar (D.W.1 ) that only an amount of Rs.60,000/- was paid to Bayakka. As per the agreement wherein the land was to be sold at the rate of Rs.55,000/- per acre and the amount of consideration comes to Rs.1,65,000/-. However, as per Balu Pawar (D.W.1) only an amount of Rs.60,000/- was paid to Bayakka. The Lower Appellate Court also cast suspicion on the said document i.e. the sale deed dated 17.9.1991 looking to the manner in which it was registered. The partition deed was registered at Sr.No.3388 whereas the sale deed dated 17.9.1991 was registered at Sr.No.3389. It has further come in the cross 9 examination of Balu Pawar (DW 1) that the consideration amount as per agreement was not paid to Bayakka before the Sub-Registrar. The lower Appellate Court was of the view that the Defendants were knowing that the Collector had granted permission only for the sale of 1H and 21 R land out of the whole Gat No.162/A and with a view to grab the entire land of the Bayakka, they decided to obtain her thumb impressions by informing her that the same are required for the purpose of obtaining permission from the Collector. 9. The lower Appellate Court held that the Defendant Nos.1 to 4 had got affixed her thumb impressions on the said document. In so far as sale deed dated 31.10.1991 executed by Kalavati is concerned, the lower Appellate Court came to a conclusion that Kalavati was not having good relations with Bayakka. She had colluded with Defendant Nos.1 to 4 in selling the said balance portion of land out of the Gat No.162/A to the defendants. Though it was the case of the defendants that Kalavati had acquired the portion of 6 acres pursuant to the partition deed, the case of the Kalavati was that she was always in possession of the said land over during the life time of Bayakka. The lower Appellate Court taking into consideration the 10 conduct of Bayakka, after she came to know about the partition deed having been fraudulently executed, came to a conclusion that the said document was fraudulently prepared by the Defendant Nos.1 to 4. The lower Appellate Court observed that Bayakka after coming to know about the partition deed applied for cancellation of the said document and mutation entry No.1645, which was entered in the name of Kalavati in respect of the said balance portion, came to be cancelled. The lower Appellate Court, therefore, held that the transaction entered into by Defendant No.5 Kalavati with the Defendants was also illegal. 10. In so far as Anusaya is concerned who was transposed as Plaintiff on Bayakka's death. The lower Appellate Court held that as per the said will deed, Gat No.162/A admeasuring 2 H and 43 R was given to the said Anusaya. The lower Appellate Court also held that Bayakka during her life time had executed the said will deed in favour of the said Anusaya on 17.6.1992. The lower Appellate court, therefore, decreed the said R.C.S. No.312 of 1992 in its entirety and issued declaration that the sale deed dated 17.09.1991 purportedly 11 executed by Bayakka in favour of the Defendants is illegal and resultantly cancelled the same. The Appellate Court perpetually restrained the Defendants from interfering into the Plaintiff's peaceful possession over the land Gat No.162/A admeasuring 3 H. 64 R. 11. Both the Courts below have, therefore, recorded a finding of fact as regards the area of 2 H and 43 R. Both the Courts below have held that the Defendants did not have any right qua the said area of 2 H and 43 R. In so far as the sale deed dated 17.09.1991 in respect of the land admeasuring 1 H and 21 R is concerned, the lower Appellate Court on a re-appreciation of the evidence that was before it has recorded a finding that the said documents i.e. Exhibits 156 to 158 have been got executed fraudulently by the Defendants. In my view, the findings of fact recorded by the lower Appellate Court are well founded . 12. In my view, the above Second Appeals do not raise any substantial question of law. Both the above Second Appeals are accordingly dismissed. In view of dismissal of the above Second Appeals, the Civil Application Nos.1433 of 2007 and 629 of 2008 do not survive and the same are disposed of as such. 12 [R.M.SAVANT, J]