1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD REVIEW PETITION NO.100 OF 2009 IN SECOND APPEAL NO. 304 OF 2008 1. Joint Family Manager, Tajkha Sulemankhan R/o Nagardeola,Tq. Pachaora District Jalgaon. 2. Jahirkha Sulemankha Since deceased L.Rs. : 2/1.Alimunnisa Jabirkhan, 2/2.Raziyabee Jabirkhan, 2/3.Yusufkhan Jabirkhan, 2/4.Shahurkha Jabirkhan, 2/5.Farukhakhan Jabirkhan, 2/6.Salmankhan Jabirkhan, 2/7.Makasudkhan Jabirkhan, 2/8.Rubinabee Jabirkhan, 2/9.Shabinabee Jabirkhan, All R/o Nagardeola,Ta.Pachora, District Jalgaon. 3. Sabirkha Sulemankha. 4. Amrutabi Sulemankha, All R/o Nagardeola,Ta.Pacnhora, District Jalgaon. ...APPLICANTS. (Ori.Defendants) VERSUS Mehboobkha Alanurkha Pathan R/o Shivaji Nagar, Pachora, Tq. Pachora, District Jalgaon. ...RESPONDENT. (Ori.Plaintiff) 2 ... Shri M.M.Bhokarikar,Advocate for Applicants. Shri.B.R.Warma, Advocate for Respondent. .... CORAM: K.K. TATED, J. DATE : 6th AUGUST, 2010. PER COURT : 1. Heard learned counsel for the parties. 2. The present review petition is filed by the respondents-original defendants for review of the Judgment and order dated 8th May 2009, in Second Appeal No. 304 of 2008 on several grounds. A FEW FACTS OF THE MATTER ARE AS BELOW: 3. The respondent filed Regular Civil Suit No. 108 of 1999 in the Court of Civil Judge Junior Division, Pachora for specific performance of contract. It is the case of respondent that applicants-original defendants agreed to sell the suit property mentioned in para No.1 of the 3 plaint. The respondent agreed to purchase the suit property for consideration of Rs.80,000/-, an earnest amount of Rs.50,000/- was paid by the respondent to the applicants, on the date of agreement to sell i. e. 30th November, 1999. It is the case of the respondent that on 2nd December, 1999 possession of the land along with possession receipt handed over by the applicants to the respondent. The respondent is in possession of the suit property. As no sale deed was executed, the name of the applicants are mentioned in 7/12 extract of the suit property. Therefore, respondent filed Regular Civil Suit no. 108 of 1999. The said suit came to be decreed, by the Civil Judge Junior Division, Pachora on 20th September, 2003. The operative part of the said order reads as under : 1] Suit is decreed. 2] The plaintiff Mehbubkha Alanurkha Pathan shall deposit Rs.20,000/- (Rs. Twenty Thousand) in Court on or before 20.10.2003. 4 3] The defendants shall obtain the permissions and execute a sale deed of suit property in favour of plaintiff on or before 20.11.2003. If the defendants failed, the plaintiff shall execute said deed through Court. 4] The defendants shall pay costs and bear their own. 4. Being aggrieved by the order dated 20th September, 2003, passed by the Trial Court the applicants-original defendants preferred Regular Civil Appeal No. 254 of 2003 in the Court of District Judge, Jalgaon. The said appeal came to be allowed by the Ad-hoc District Judge-2, Jalgaon, on 16th August, 2007. The operative part of the said Judgment reads as under : [1] Appeal is allowed. [2] The judgment and decree passed by the lower Court in Regular Civil Suit No. 108/1999, is setaside. By setting aside the judgment and decree of the lower Court following order is passed:- (i) The defendants are directed 5 to repay the amount of Rs. 60,000/-to the plaintiff, which is paid by him to them, within two months from the date of this order. (ii) If the defendants fail to repay the amount, then plaintiff will be entitled to recover it from the defendants by instituting legal proceedings against them. [3] Considering the facts of the appeal, the parties should bear their own costs in suit as well as in Appeal. [4] Decree be drawn up accordingly. 5. Being aggrieved by the Judgment and decree dated 16th August, 2007, passed by the Adhoc District Judge Jalgaon, in Regular Civil Appeal No. 254 of 2003 the respondent-original plaintiff preferred Second Appeal No.304 of 2008, in this Court. On 14th July, 2008, issued notices to the respondents - original defendants returnable within four weeks with indication that second appeal will be considered for disposal at the stage of admission. This Court also called Record 6 and Proceedings from the trial Court. At the time of issuance of notice this Court framed substantial question of law, reads as under :- “For grant of decree of specific performance no previous sanction is necessary U/s.43 of the Bombay Tenancy and Agricultural Lands Act. Agreement of sale is first document of contract i. e. acceptance of offer for valuable consideration. On the basis of agreement of sale decree of specific performance ought to have been granted. Previous permission is necessary for execution of sale, which can be obtained at the time of execution of sale deed. The parties to the contract can apply for permission for execution of sale deed after securing decree of specific performance. The Apex Court has laid down law in case of Manzoor Vs. Gulam reported in A.I.R.200(S.C.) P.No.191 and AIR 1964 SC 978. There is consistent view of our High Court in that respect, which are reported in 2001-3-All M.R.95 & 2001-4-All M.R.116.” 6. It is to be noted that at the time of hearing of second appeal the learned counsel appearing for the applicants specifically stated 7 that he restricts his submission only to the point that in view of two different views taken by the two learned Single Judges of this Court on the same point, the matter to be referred to the Larger Bench, as per the High Court, Appellate Side Rules. Para No. 9 of the said judgment reads as under : "9. On the other hand, learned counsel for Respondent restricted his submission only to the point that in view of two different views taken by two learned Single Judges of this Court on the same point, the matter to be referred to the Larger Bench as per High Court Appellate Side Rules. Learned counsel for Respondent submitted that Bombay High Court in the matter of Shri Parashram Kathod Gaikar Vs. Pandu Mahadu Hard (supra) held that under Section 43 of the Act the legislature restricted total ban and complete bar on alienation of agricultural land in order to protect tenant agriculturists interest. If any transaction took place contrary to the provisions of Section 43 of the Act then the same is held as in valid. Learned counsel for respondent mainly relied on Para 7 of the said Judgment which reads as under: "7.Section 43 of the Act reads as follows : 8 (1) No land purchased by a tenant under section 32 32F(321,320,(330or 431D) or sold to any person under section 32P or 64 shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector(Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed the State Government) Provided that no such sanction shall be necessary where the land is to be mortgaged in favour of Government or a society registered or deemed to be registered under the Bombay Co- operative Societies Act. 1925, for raising a loan for effecting any improvement of such land. It is abundantly clear from a plain reading of this section, and to my mind for very good reason, that the legislature has prescribed a total and complete bar on alienation of the agricultural lands in 9 question without the previous sanction of the Collector. There is no dispute about the fact that the intention behind the promulgation of this provision of law was in order to completely protect the tenant agriculturists who were not only poor but invariably illiterate and therefore extremely valuable to all sorts of methods whereby they would be divested of the lands that had been conferred on them by operation of law. The reform in question would have been totally frustrated if what the legislature was to give with one hand was permitted to be taken away by the other and it was for very good reason therefore that the previous sanction of the Collector was made a condition precedent. By this it would mean that there was a total prohibition or a legal bar on alienation of the lands in question if one were to red the wording of the section, more carefully, it would include any attempt of doing so or for that matter the execution of any document in pursuance thereof. It is in these circumstances that I am unable to draw a distinction between the agreement to sell and the conclusion of the sale. Though under normal circumstances, the argument 10 canvassed by Mr. Mundergi is a perfectly justifiable one, in the present case however, we do have a specific statutory bar that prohibits any transaction in relation to alienation. In these circumstances, it would be extremely difficult too impart even the slightest garb of legal validity to the transaction entered into in the year 1981. a detailed analysis of this aspect of the matter however will be undertaken by the trial Court when the suit is heard but for the purposes of deciding the present petition, which is no more than an interim relief, it will have to be held prima facie that the plaintiff dehors the transaction of 1981 has made out a prima facie case for grant of relief." 7. This issue was considered in detail in para Nos 14 to 17 of the order dated 8th May, 2009 and it was held that it was not necessary to refer the issue to the Larger Bench and Second Appeal was allowed. 8. I have heard the learned counsel appearing for the applicants/original defendants in support 11 of various grounds which are urged in the review application. He relied on the following judgments in support of his contention. A] Parashram Kathod Gaikwar Vs. Pandu Mahadu Hard and another reported in 1994(10BomCR 715) B] Lotan Ramchandra Shimpi and others Vs. Shankar Ganpati Kayasth and others reported in 1994(4) Bombay CR 575 C] Moran Mar Basselios Chatholicos and another Vs.Most Rev.Mar Poulose Athanasius and others, reported in AIR 1954 Supreme Court 526. D] Nathu Yeshwantroa Bhusari since decased by Lrs and others Vs. Sonabai Wd/o Jagannath Ganar and others reported in (1994)96 Bom L.R.397 E] Board of Control of Cricket Vs. Netaji Cricket Club, reported in AIR 2005 SC 592(1). F] Rajendra Singh vs. Lt. Governor Andaman and Nicobar Islands and others reported in AiR 2006 Supreme Court 75. G] Mohd Sultan Zargar Vs. Custodian General E.P. and others reported in Air 1960 Jammu and kashmir 125. 12 H] The Selection Committee for Admission to the Medical and Dental College Bangalore Vs. M.P.Nagaraj reported in AIR 1972 Mysore 44 (V.59 C.18) I] State of Rajasthan V/s M/s Metha Chetan Das Kishandas reported in AIR 1981 Rajasthan 36. J] Yvenkatanna chowdary Vs. The Special Depyt Collector,Land Acquisition (General) Hyderabad District and others reported in AIR 1981 Andhra Pradesh 232. K] Shikshan Prasarak Mandal and others Vs. Laxmikat Balkrishna Joshi and others FB reported in 2004(3) Bombay C.R.85. 9. The Second Appeal was decided on 8th May, 2009. The learned counsel appearing on behalf of the applicants had restricted himself only on the ground mentioned above, and as that point was decided against the applicants, the second appeal was allowed. Now, in this Review Petition, the applicants want to reopen the matter by urging other grounds, which learned counsel at the time of hearing of the second appeal stated that he did not want to urge. This is beyond the scope of 13 Review jurisdiction. The authorities cited by the learned counsel have no bearing on the issue urged and decided, while deciding the second appeal. There is no apparent error on the face of the record in the decision under review justifying invocation of the review jurisdiction. Hence, the Review Petition is dismissed with costs, quantified at Rs.2500/- (Rs. Two Thousand Five Hundred only). [K.K. TATED, J.] SUT/AUG10/RA100.07