1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.198 OF 1987 Ishwar Shriram Garad, age: major, Occ: agriculture, R/o Chinchpur, taluka Paranda, District Osmanabad. Appellant Versus 1 Baban Pandurang Garad, age: 81 years, Occ: Agriculture, R/o Chinchpur (Kh.), taluka Paranda, District Osmanabad. 2 Bhagwan Babu Garad, age: 91 years, Occ: Agriculture, R/o Chinchpur, Taluka Paranda, District Osmanabad. Respondents Mrs.M.A.Kulkarni, advocate for appellant. Mr.S.M.Kulkarni, advocate holding for Mr.H.K.Munde, advocate for Respondent No.1. CORAM: R.M.BORDE, J. DATE : 15 th February, 2010. JUDGMENT: 1 This is an appeal by original defendant no.2 challenging the judgment and decree passed by District Judge, Osmanabad in Regular Civil Appeal No. 104 of 1982 on 18.07.1987, whereby judgment and decree passed by trial Court in Regular Civil Suit No.48 of 1975 came to be reversed and suit presented by Respondent No.1 – original plaintiff came to be decreed by the first appellate Court. 2 2 Respondent No.1 – plaintiff claimed decree of possession in respect of land S.No.29/A situate at village Chinchpur Khurd, Tq.Paranda, District Osmanabad. The land belonged to defendant no.1, whereas plaintiff claims that he was tenant over the land prior to purchase on 29 th May 1958. Plaintiff contends that he was in possession of said land, however, some proceedings were initiated in respect of invalidation of sale under Section 47 of Hyderabad Tenancy and Agricultural Lands Act, 1950. It was the contention of defendant no.1 that sale is in contravention of provisions of Section 47 of the said Act. The tenancy authorities initially held that sale by defendant no.1 in favour of plaintiff is in contravention of provisions of Section 47 of the Act. As such, same was set aside. Defendant No.1 thereafter initiated proceedings for recovery of possession of land by presenting an application to the Naib Tahsildar who ordered restoration of possession in favour of defendant no.1. Defendant No.1, as such, was put in possession over the disputed land which was alienated in favour of plaintiff earlier by him. Plaintiff, however, continued proceedings in respect of challenge raised to the validity of sale under Section 47 of said Act by presenting an appeal. Matter reached up to High Court in Special Civil Application No.782/1963, which came to be allowed and ultimately the case was remitted back to Tahsildar for holding an inquiry as to whether plaintiff Baban was tenant at the time of alienation in his favour by defendant no.1. The tenancy Tahsildar held that sale in favour of plaintiff is perfectly valid and as such, directed issuance of sale certificate under Section 98B of the Act. The order passed by Naib Tahsildar on 24.06.1967 validating the sale has attained finality as same was not challenged by the land owner. Plaintiff thereafter initiated proceedings before tenancy authorities for recovery of possession of land from defendant no.1. In the mean time, defendant no.1 alienated land in 3 favour of defendant no.2 by executing sale deed on 11.02.1971. The proceedings before tenancy authorities in respect of restoration of possession of land were decided against plaintiff. The Maharashtra Revenue Tribunal, while dismissing Revision Application, held that remedy to seek possession of suit land is available to the plaintiff by presenting an application for restitution in the proceedings under Section 98B of the Act and it was held that application under Section 98 before the Assistant Collector is untenable. Plaintiff approached Civil Court by filing instant suit contending that he has become owner of the land and sale effected in his favour has been directed to be validated and as such, Civil Court is competent to direct delivery of possession. 3 Initially defendant no.1 did not file written statement presumably for the reason that plaintiff had instituted suit claiming possession of land S.No.29/B. Plaintiff, however, during pendency of suit, tendered an application seeking amendment to the plaint and sought possession of land S.No.29/A. Defendant No.1 thereafter presented written statement and resisted suit. Defendant no.1 denied all adverse contentions raised by plaintiff. He has denied even the sale in question or that the plaintiff was ever in possession of land as a tenant. He has contended that the land has been alienated in favour of defendant no.2 for valuable consideration and he is put in possession. 4 Defendant No.2 also contested suit by filing written statement and he raised objection in respect of entertainability of the suit on the ground that relief claimed by plaintiff his hit by principle of res judicata. According to him, in earlier round of litigation before tenancy authorities, plaintiff failed to secure relief of possession under Section 98 of the Act and as such, he is not 4 entitled to present suit claiming same relief. It is further contended that boundaries stated in the plaint differ and he cannot seek possession of land possessed by defendant no.2 under the garb of sale in his favour, which was effected in 1958. The third objection raised by defendant no.2 is on account of failure of the plaintiff to seek relief in respect of cancellation of sale deed effected in his favour by defendant no.1. It is contended that as the plaintiff has failed to seek relief in respect of cancellation of sale deed, he is not entitled to claim recovery of possession of the property from him. 5 The trial Court, after receiving evidence led by parties, has come to the conclusion that plaintiff has failed to establish his case, as such, dismissed suit. The first appellate Court, while entertaining appeal presented by plaintiff, reversed the decree passed by trial Court and relief in respect of restoration of possession was granted by first appellate Court in favour of plaintiff. 6 The substantial questions of law, those arise for consideration in the appeal, are: (1) Whether objection raised by defendant no.2 in respect of identity of the property would be an impediment in granting decree of recovery of possession in favour of plaintiff? (2) Whether suit presented by plaintiff is hit by principle of res judicata on the ground that relief claimed by plaintiff in respect of recovery of possession before tenancy authorities has not been granted by said authority? (3) Whether plaintiff can seek relief in respect of recovery of possession without claiming cancellation of sale deed executed by defendant 5 no.1 in favour of defendant no.2? 5 I have heard arguments advanced by Smt.M.A.Kulkarni, learned Counsel for appellant and Shri S.M.Kulkarni, learned Counsel holding for Shri H.K.Munde, advocate for Respondent No.1 – original plaintiff. 6 The main objection raised by defendant no.2 – appellant herein is that the property, in respect of which recovery of possession is sought for, is different than the property alleged to have been alienated in favour of plaintiff. So also, boundaries of agricultural property differ substantially and as such, plaintiff is not entitled to claim relief in respect of recovery of possession. It is also contended that sale deed of the year 1958 placed on record by plaintiff, which has not been admitted by defendants, has not been proved in accordance with provisions of Evidence Act, as such, plaintiff is not entitled to claim relief in respect of recovery of possession. 7 In order to appreciate the contentions raised by appellant – original defendant no.2, it would be appropriate to refer to previous history of litigation. It transpires from perusal of record that sale deed was got executed by plaintiff in respect of land S.No.29/31 admeasuring 3 acres 24 gunthas from defendant no.1 on 23.07.1958. It is the contention of plaintiff that he was tenant in possession over the land prior to his purchase. It cannot be controverted that there was litigation in respect of tenanted property between plaintiff and defendant no.1. Validity of sale in favour of plaintiff was questioned before tenancy authorities and initially it was held that sale effected in favour of plaintiff is in contravention of provisions of Section 47 of Hyderabad Tenancy and Agricultural Lands Act. It also cannot be disputed that initially when tenancy authorities granted declaration in respect of 6 invalidity of sale deed effected in favour of plaintiff, possession of the property was recovered from plaintiff and it was handed over to defendant no.1. A panchanama in respect of delivery of possession is placed on record at Exhibit-100. The panchanama is dated 08.10.1961. Agricultural land admeasuring 3 acres 24 gunthas out of S.No.29 has been taken in possession from plaintiff and same was handed over to defendant no.1. It is also interesting to note that father of minor defendant no.2 was signatory to panchanama in respect of delivery of possession of land in favour of defendant no.1. In this situation, it cannot be validly contended by appellant-defendant no.2, who is represented by his natural guardian father that he was not aware of the litigation in respect of landed property between plaintiff and defendant no.1. Father of defendant no.2 – Sriram, who has represented him in the litigation, was very much aware of tenancy litigation as he himself was signatory to the panchanama in respect of delivery of possession placed on record at Exhibit-100. It transpires that after receiving possession, defendant no.1 has alienated same land, which was received by him, by executing sale deed in favour of minor son of Sriram i.e. defendant no.2 in the year 1971. In the meantime, Special Civil Application, which was presented to the High Court raising challenge to the order in respect of invalidation of sale under Section 47 of the Act, was allowed by the High Court and case was transmitted to tenancy authorities for reconsideration. From perusal of judgment delivered by Naib Tahsildar, Paranda, placed on record at Exhibit-77, it appears that matter was transmitted by High Court to Tahsildar for holding inquiry as to whether Baban, plaintiff was a tenant or not at the time when he effected purchase of suit land. Inquiry was conducted by Tahsildar and order was passed on 23.02.1963. It also appears on perusal of the order placed on 7 record at Exhibit-77 that initially inquiry was made by Tahsildar and order was passed on 23.02.1963 that Baban, the purchaser, has paid Rs.150/- to land holder Bhagwan towards amount of consideration. Hence he is liable to remit so much amount only. It appears that Baban preferred an appeal to Deputy Collector, Land Records, Osmanabad on 07.03.1963. The Deputy Collector, while allowing appeal on 29.09.1965, sent back the matter with direction that Baban, the plaintiff, is tenant and is entitled to get validation certificate under Section 98B of the Act and Sale’s certificate be issued after obtaining copies of holdings register of both the parties and case be decided in accordance with law. The Naib Tahsildar, as such, after conducting inquiry in respect of holdings of each of the parties, recorded a finding that plaintiff Baban is tenant in possession and as such, tenant Baban is entitled to receive sale certificate and issued direction under Section 98B of the Act for issuing Sale certificate. The order passed by Naib Tahsildar directing issuance of sale certificate has not been challenged and same attained finality. It also transpires on perusal of said order that there is a finding already recorded by tenancy authorities in respect of Baban’s tenancy over the suit land. Thus, on perusal of the orders issued by tenancy authorities, it goes without saying that Baban, the plaintiff, was tenant prior to his purchase and purchase effected by him on 29.05.1958 has been validated by tenancy authorities. On the face of proceeding, which was opposed by defendant no.1, it is not open for him to contend that he has not effected any sale in favour of plaintiff or that plaintiff Baban has no concern with the land. The question of proof of sale will not arise in the matter for the reason that defendant no.1 was, all the while, contested litigation which reached up to the High Court and after remittance of matter back to the tenancy authorities also, defendant no.1 has contested the litigation. It also cannot be disputed that on consideration of objection raised by defendant no.1 only, 8 sale effected by him has been declared to be in contravention of Section 47 of the Act initially by tenancy authorities and that possession of said land was delivered to him by recording a panchanama on 08.10..1961, copy of which, is placed on record at Exhibit-100, which bears signature of defendant no.1 as well. On the face of series of litigation wherein question of validity of sale was the matter of consideration and which has attained finality in view of order passed by Naib Tahsildar, Revenue, on 26.04.1967, it is not open for defendants to raise objection in respect of sale effected in favour of plaintiff. The objection raised by defendants to sale in question on the ground that sale deed has not been proved in accordance with provisions of law assumes no merit. 8 Another objection raised by defendant no.2 – appellant herein is in respect of identity of the property. It is vehemently contended that the property sold in favour of defendant no.2 is different from the property in respect of which possession has been asked for by the plaintiff. It is contended that initially possession of land S.No.29/B was asked for, whereas, by making amendment to the plaint, plaintiff is seeking possession of land S.no.29/A. It is contended by defendant no.2 that boundaries mentioned in the plaint also differ from the sale deed, which is got executed in favour of defendant no.2 and as such, no order in respect of delivery of possession can be issued. 9 In order to understand the controversy, it is worthwhile to first take note of previous litigation. As stated in earlier paragraph, that validity of sale deed was the matter of consideration before tenancy authorities at the instance of defendant no.1 Defendant no.1 never raised any challenge in respect of identity of the property before tenancy authorities. It also cannot 9 be controverted that during pendency of proceedings, when order was issued for delivery of suit property in favour of defendant no.1, he received possession thereof under panchanama executed on 08.10.1961. Panchanama at Exhibit-100 is not disputed by defendants. Defendant no.1 has received possession of the property, which was alienated by him in favour of plaintiff under panchanama to which father of defendant no.2 was signatory. It is, thus, clear that tenanted property, which was in possession of plaintiff and which was also alienated in his favour by defendant no.1, was in fact redelivered in favour of defendant no.1 under the panchanama. An important admission in the evidence of defendants no.1 and 2 also disproves their own contention. Defendant no.1 Bhagwan is examined as witness no.1 for defendant no.2. He has categorically stated in his deposition that, “It is true that I sold same land which was restored to me by Tahsildar, Paranda to defendant no.2.” In similar fashion, father of defendant no.2 Sriram, who was examined as witness on behalf of defendant no.2, has stated during his cross examination that, “It is true to say that I purchased same land which was restored to defendant no.1 from the plaintiff under panchanama vide Exhibit-99.” As stated earlier, the witness himself, who is father of defendant no.2, was signatory to the panchanama at Exhibit-100. The tenanted property, which was initially in possession of plaintiff, was handed over to defendant no.1 under panchanama Exhibit-100 and very property is purchased by defendant no.2. It also cannot be disputed that the litigation, all along fought by defendant no.1, is in respect of validation of sale of tenanted property, which was alienated by him in favour of plaintiff. Defendants, in these circumstances, cannot be allowed to defeat claim of 10 plaintiff under the pretext that boundaries mentioned in the sale deed executed in favour of defendant no.2 substantially differ. It cannot be controverted that plaintiff is asking for possession of tenanted property, which, ultimately, was handed over in possession of defendant no.1 under panchanama and which was admittedly sold in favour of defendant no.2. The identity of property, on the ground of mis-description, will not be a matter of consideration for defeating rights of erstwhile tenant i.e. plaintiff. 10 Another objection raised by defendant no.2 to the effect that plaintiff cannot claim recovery of possession unless he impeaches sale effected by defendant no.1 in favour of defendant no.2 is also without substance. In fact, it is not open for defendant no.1 to alienate tenanted property to third party except the tenant. Secondly, there was already a sale in respect of tenanted property in favour of plaintiff and there was no subsisting title on the date of subsequent sale i.e. In the year 1971 in favour of defendant no.2. The sale deed executed by defendant no.1 in favour of defendant no.2 shall have, therefore, to be ignored. It is not necessary for plaintiff to raise challenge and seek relief in respect of cancellation of such sale, which, in fact, is effected by a person who did not have a subsisting title on the date of execution of sale. 11 Apart from this aspect, defendant no.2 also cannot claim to be a bona fide purchaser for value without notice of right of third party, for the simple reason that father of minor defendant no.2 who represented him while executing sale deed as well as in the instant litigation was signatory to the panchanama at Exhibit-100 in respect of delivery of possession by plaintiff in favour of defendant no.1. The father of defendant no.2/guardian was posted with knowledge in respect of pendency of litigation and he has taken up a 11 risk of purchasing disputed property. Defendant no.2, therefore, in these circumstances, cannot claim that he is a bona fide purchaser for value without notice of right of plaintiff. 12 Another aspect, of which a reference is required to be made, is that although defendant no.2 claims to have purchased land S.No.29/A and although copy of mutation register placed on record at Exhibit-40 indicates that mutation entry no.139 is sanctioned by revenue authorities on 29.07.1971 in respect of land S.No.29/A, admeasuring 4 acres 25 gunthas having revenue assessment of Rs.4.80 paise, however, in the 7/12 extracts, mutation entry no. 139 in respect of sale effected in favour of defendant no.2 is recorded as regards S.No.29/B. Exhibit-98 is the 7/12 extract in respect of land S.No.29/B. The owner of land was initially one Trimbak Ramji Garad, whose name was recorded in view of mutation entry no.118. The name of Ishwar Sriram, defendant no.2, is recorded in respect of land S.No.29/B, area 4 acres 25 gunthas, assessment Rs.4.80 and Mutation Entry number is 139. It transpires that in pursuant to sale effected in 1971, name of defendant no.2 is recorded in respect of land S.No.29/B and entry is continued even upto 1973-74 and thereafter. On the face of this record, case put up by defendant no.2 that he is in possession over land S.No.29/A in pursuance to sale effected in 1971 does appear to be shaky. 13 Similarly, 7/12 extracts presented before appellate Court along with list at Exhibit-7/1 in respect of land S.No.29/B shows, name of defendant no.2 in ownership column and entry is recorded in pursuance to Mutation Entry No.139, in respect of 4 acres 25 gunthas land having assessment of Rs. 4.80. Thus, it transpires that case put up by defendant no.2 that he purchased land S.No.29/A and that his name is recorded in pursuance to 12 mutation entry no.139 dated 29.07.1971 appears to be contrary to the record. 14 For the reasons stated above, I am of the view that there is no merit in the appeal. 15 Learned Counsel appearing for appellant – original defendant no.2 has sought leave to place reliance on the judgments in the matter of (i) Gopal Balcrishna Fallary & another Vs. State of Goa & others, reported in 2004 B.C.I. 635; (ii) in the matter of Manoramabai Amrutrao Deshmukh & another Vs. Laxman Atmaram Kathale, reported in 2005 (2) Bom.C.R. 353; and judgment of the Apex Court in the matter of Smt.Rati Devi Vs. Union of India, reported in 1995 (1) BCJ 410 (SC). 16 I am of the view that facts and circumstances arising in the reported judgments are different and for the reasons recorded above, ratio laid down in those authorities does not apply to the instant case. The case reported in 2004 B.C.J. 635, is in respect of dispute about boundaries. On going through facts of the case, the Court in reported matter opined that the property has not been properly identified and as such, plaintiff has not made out a case for grant of decree in his favour. In the instant case, as stated in sufficient details, objection to the identity of property cannot be raised in the peculiar facts and circumstances and on the face of previous litigation. The second reported judgment in 2005 (2) Bom.C.R. 353 is in respect of questioning validity of sale and of proof of document. The ratio laid down in the said authority also will not apply to the facts of instant case, as the question of validity of sale and proof of document stands answered in view of the reasons recorded above. 13 The judgment of Apex Court reported in 1995 (1) BCJ 410 (SC) is relating to interpretation of Article 59 of the Limitation Act. In the instant matter, as stated above, sale effected by defendant no.1 in favour of defendant no.2, shall have to be overlooked for the simple reason that on the date of execution of sale deed, defendant no.1 had no subsisting title in respect of suit land. The ratio laid down in the judgment is, therefore, not attracted to the facts of instant case. 17 For the reasons stated above, I am of the view that there is no force in the appeal and same deserves to be dismissed. Appeal, therefore, stands dismissed. However, in the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/sa19887