1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 389 OF 1989 1. Shivram Kisan Gunjal, died, through Legal heirs: 1(A) Radhesham s/o Shivram Gunjal, age 52 years, occupation :- Medical Practitioner, r/of village Khandgaon, Taluka Sangamner, Dist.Ahmednagar. 1(B) Nanapati s/o Shivram Gunjal age 48 years, occup. Agril. r/of as above. 1(C) Namdeo s/o Shivram Gunjal, age 46 years, occup. Agril. r/of as above. 1(D) Dinkar s/o Shivram Gunjal, age 35 years, occupation : Medical Practitioner, r/o Appellants./No.1 as above. orig. deft.& No. 1-A to 1-E are 1(E) Anil s/o Shivram Gunjal, legal heirs of age 30 years, occup. Agril. appellant No.1. r/of as above. versus 1. Ramesh Vishwanath Gunjal, age 21 years, occupation agriculturist & service, 2 resident of Sangamner, District : Ahmednagar. 2. Bhausaheb Vishvanath Gunjal, age 33 years, occup. Agril. and service, r/of Sangamner, District : Ahmednagar. 3. Sou. Suman w/o Sadashiv Gunjal Respondents/No.1 age 40 years, occup.agril. & 2 ori.pltffs. and household r/o Khandgaon, & No.3 is added Tq.Sangamber,Dist.Ahmednagar. as per the order dtd. 12.1.06 in CA No.11729/05. ----------------------------------------------------------- Shri Babasaheb V. Dhage, Advocate for the appellants. Shri R.L. Kute, Advocate for Respondent Nos. 1 to 3. ----------------------------------------------------------- Coram : P.R. Borkar, J. Judgment reserved on : 13.04.2010 Judgment pronounced on : 16.04.2010 JUDGMENT 01. This second appeal is preferred by original defendant being aggrieved by the judgment and decree passed by the learned Assistant Judge, Ahmednagar on 9.10.1984 thereby allowing Regular Civil Appeal No.420 of 1981 and setting aside the judgment and order of dismissal of R.C.S. No. 238 3 of 1978 passed by the learned Civil Judge, Junior Division, Sangamner, on 18.9.1981 The learned Assistant Judge directed the present appellant- defendant to hand over possession of suit property to the plaintiffs-respondents and also for holding enquiry into mesne profit. 02. Briefly stated, it is no more disputed that survey No.48/1 (which was original survey No. 56/1A) situated at Sangamner (Khurd) Taluka Sangamber, in all admeasuring 3 acres 33 gunthas (1 hectare 51 R.) and situated at Sangamner (Khurd) Taluka Sangamber, was owned by Vishvanath Gunjal-the father of original plaintiffs- Respondent nos.1 and 2. Vishvanath Gunjal expired on 6.10.1967. However, on 8.8.1967, he had executed an agreement for sale in respect of portion of 2 acres out of said survey No.48/1 for Rs.2500/= in favour of the appellant-defendant. On that day, Rs.1600/= were acknowledged to have been paid as earnest money. It is also not disputed that the suit land was Watan land and Watan was abolished under the provisions of the 4 the Maharashtra Revenue Patel (Abolition of Office) Act 1962 and thus the land vested in the Government when the agreement for sale was executed on 8.8.1967. Subsequently, the land was re-granted on 21.1.1975. Present respondents- plaintiffs filed suit for possession on title claiming that the agreement for sale dated 8.3.1967 executed by their father Vishvanath was invalid and illegal and Vishvanath had no right to enter into said agreement for sale until re- grant; and therefore no rights are vested in the appellant-defendant on the basis of the said agreement for sale to retain the suit property. Decree for mesne profit was also claimed. 03. Appellant-defendant appeared in the suit and filed his written statement at Exhibit 13. According to him, the suit is barred by limitation. It is contended by defendant that though suit land was Watan land, the amount of occupancy price was deposited on 18.8.1967 and the land was also re-granted on the same day. Under the circumstances, according to the defendant, 5 date of passing order of re-grant passed was not material. It is further contended by the defendant that he is in possession of the suit land since more than two years prior to the date of execution of the agreement for sale. It is denied that until re-grant, Vishvanath had no right to enter into agreement for sale. In paragraph 9 of the Written Statement, it is stated that the agreement is legal and valid and entire amount as agreed was paid to vishvanath Gunjal from time to time and after his death to Respondent Nos.1 and 2. Thus, according to defendant, entire consideration was paid and only sale deed had remained to be executed. So, the defence of part performance is taken. In the alternative, plea of ownership by adverse possession was also taken. On these grounds, Defendant prayed for dismissal of the suit. 04. It may be stated here itself that in this Second Appeal, Civil Application No.8014 of 2006 is filed for permission to correct the date of payment of occupancy price as "8.8.1967" in stead 6 of "18.8.1967" and the said application is also being disposed of with this second appeal. 05. On the basis of pleadings of the parties, the learned trial judge framed various issues and came to the conclusion that the plaintiffs were not the managers of the joint family and had no right to file suit. It is not proved that the deceased Vishvanath had no right to enter into agreement for sale on 8.3.1967. The learned trial judge also held that that the plaintiffs failed to prove that the defendant had not performed his part of the contract. It is further held that the suit is not barred by limitation and that possession of the defendant-appellant is not illegal. Amount of re-grant was not paid on 8.8.1967. It was held that the defendant had not become owner by adverse possession. So far as adverse possession is concerned, it is worth noting that as mentioned in paragraph 12 of the trial court judgment, Advocate of the defendant had specifically stated that he had no case to prove adverse possession and there was no 7 evidence to that effect. Thus, the plea of adverse possession was waived in the trial court. 06. The first appellate court came to the conclusion that the appellant-defendant is a tress-passer and he has no right to hold the suit property on the basis of agreement for sale and that the plaintiffs-respondents were entitled to suit for possession. It is specifically held that defendant is not entitled to protection under Section 53-A of the Transfer of Property Act, 1882 on the basis of the agreement for sale in question as it was not valid. 07. This second appeal is admitted by order dated 23.11.1984 on substantial questions of law as formulated in ground Nos.4,9,10 and 11 of the appeal memo which are as follows; "4. The learned judge erred in construing and interpreting sections 43 and 53 of the Transfer of Property. 9. The learned Assistant Judge has erred in construing provisions of Sec. 5(1) & (3) of Maharashtra Revenue Patels 8 (Abolition of Offices) Act, 1962 in-as- much as he did not take into account that the plaintiffs had obligation to transfer as heirs of ex Watandar suit land and perfect the title of the Appellant. 10. The learned Assistant Judge has erred in construing the provisions of section 5(1)( (3) of the Maharashtra Revenue Patels (Abolition of Offices) Act which permitted the plaintiffs to perfect the title of the suit land after the regrant made in their favour. 11. Whether the agreement of sale of contingent interest is valid in law while considering the provisions of Sec.43 of the T.P.Act read with Sec.5(1)( and (3) of the Maharashtra Revenue Patels (Abolition of Offices) Act." As per the order passed on April 12, 2010, following additional substantial question of law is framed. "Whether the defendant-appellant proved that he was entitled to protection of doctrine of "part performance" inasmuch as he was ready and willing to perform his part of the contract ?" 08. At the time of arguments, Shri B.V. Dhage, learned counsel for the appellant- defendant, did not refer to the provisions of the Maharashtra Patels (Abolition of Offices) Act 1962, but relied upon certain rulings. The 9 arguments were mainly advanced with reference to Sections 43 and 53-A of the Transfer of Property Act. 09. It is vehemently submitted on behalf of the Respondents-plaintiffs that Civil Application No.8014 of 2006 for permission correction in the Writ Petition with regard to the date of payment of occupancy charges as "8.8.1967" in stead and in place of "18.8.1967" is malafide. In support of the contention that there is a clerical mistake in mentioning the date in paragraph 5 of the Written Statement, learned counsel for the appellant- defendant produced the letter bearing No. RTS 77/2005 dated 19.11.2005 which is taken on record and marked "X" for the purpose of identification. The letter is an intimation of decision of the Tahsildar, Sangamner to the present appellant, allowing correction of date mentioned in mutation No.1497 in respect of survey No.56/1 of village Sangamner (Khurd). In stead of date "18.8.1967" date "8.8.1967" was allowed to be read as the date on which 26 times of the assessment i.e. Rs.135.50 10 was paid. Here, we need to refer to mutation No. 1497, the copy of which is produced on record at Exhibit 20. This mutation entry states that the occupancy price was paid on 18.8.1967 and therefore the land was regranted to Vishvanath Gunjal who was erstwhile Inamdar. So, it is argued that the intimation of correction of date clearly shows that the revenue authorities accepted "8.8.1967" as the correct date of payment of occupancy price by Vishvanath Gunjal. 10. On the other hand, Shri R.L.Kute, learned Advocate for the Respondents produced letter dated 18.7.2009 issued by the office of Tahsildar in response to the application dated 7.2.2009 of present respondent No.2-plaintiff for getting copy of file No. RTS 77/2005, which is taken on record and marked "Y" for the purpose of identification. Letter gives intimation that the Tahsil office took search of record of RTC 77/2005, but could not trace said record and so the application for getting copies of the same was disposed of. It is worth noting that letter marked "Y" does not show 11 that there were no proceedings before the Tahsildar. It only indicates that the record was not traceable. It is argued before this court at length that the application for correction of date of payment of occupancy price should be rejected. However, at the same time, it is admitted, on instructions, by learned Advocate Shri R.L.Kute that recently the appeal against the order of the Tahsildar correcting the date in mutation was decided. Therefore, it is argued that the very filing of appeal against the order of the Tashildar allowing the correction of the date in mutation itself shows that the proceedings were going on and such correction in the date was made. However, learned Advocate Shri Kute added that his client had preferred said appeal by way of precautionary measure. In my opinion, we need not go into all these things as there is better evidence available on record and the agreement for sale, certified copy of which is produced on record at Exhibit 19, clearly indicates that as per the government rules, occupancy price which was 26 times of the assessment was paid. This 12 admission in the agreement for sale dated 8.8.1967 clearly shows that the amount must have been paid on 8.8.1967 and not on 18.8.1967. 11. In the circumstances, civil application No.8014 of 2006 deserves to be and is accordingly allowed. However, in my opinion, even such formal correction of date of payment of occupancy price is not necessary in view of the fact that mentioning of wrong date in the written statement is nothing, but a clerical/inadvertent error which was pointed out even before the trial court and issue No. 6 was also framed on that aspect but was wrongly answered in the negative. Above said discussion settles the issue of date of deposit of amount of regrant. 12. Shri B.V. Dhage, learned counsel for the appellant relied upon the case of Pradeeprao vs. Sidappa Girappa 2004 Mh.L.J. 75 wherein, in paragraph 8, it is laid down that where landlord himself had paid the occupancy price in respect of the land in question within the specified time, by 13 happening of the said event, the landlord being Watandar, by operation of law, the watan land stood re-granted in his favour on and from that date itself and the tenure is thus deemed to have been converted into Rayatwari tenure on the same date. It is also held that plea, therefore, cannot be accepted that in absence of formal order of regrant, land still continued to vest in the State Government. So, relying on this authority, in present case it was submitted that it cannot be said that on the date of agreement for sale Vishvanath Gunjal had no right to enter into the said agreement. 13. In the alternative, learned Counsel for the appellant submitted that under Section 43 of the Transfer of Property Act, even assuming that as on the date of agreement for sale Vishvanath Gunjal had no right to sell the property, still he had acquired such right by reason of subsequent re-grant and, therefore, the agreement for sale is binding on him. In my opinion, in view of the law laid down in the case of Pradeeprao (supra) we 14 need not consider this argument. However, to make the things clear, I refer to Section 43 of the Transfer of Property Act which reads thus; "43. Transfer by unauthorized person who subsequently acquires interest in property transferred.- Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option." 14. In this case, assuming for a moment that the amount of occupancy price was not paid on 8.8.1967, but it was paid on 18.8.1967, still the very representation in the agreement for sale that the amount of occupancy price was paid as per the government rules would attract Section 43 of the Transfer of Property Act and such representation would be a fraudulent representation within the meaning of Section 43 of the Transfer of Property 15 Act. The case Jote Singh vs. Ram Das Mahto 1997 (1) Mh.L.J. 520 relied upon by the Respondents would not be applicable to the facts of the present case. In that case, it is held that involuntary transfer, such as court auction, is not covered by Section 43 of the Transfer of Property Act. 15. That takes us to the next question whether the appellant having obtained agreement for sale is entitled to protect his possession under Section 53-A of the Transfer of Property Act. The learned counsel for the appellant relied upon two cases. First is Shrimant Shamrao Suryavanshi vs. Pralhad Bhairoba Suryavanshi (2002) 3 SCC 676. In paragraph 16 of the said case, following conditions are laid down as conditions required to be fulfilled if a transferor wants to defend or protect his possession under Section 53A of the Transfer of Property Act. 16 "16. .................................... The necessary conditions are:- (1) there must be a contract to transfer for consideration of any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf. (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part- performance of the contract take possession of the property or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract." The Supreme Court has also laid down that even in case transferee has not filed suit for specific performance and even if filing of such suit was barred by limitation, the transferee would be entitled to protection of Section 53A of the Transfer of Property Act. I quote paragraph 20, which is relevant for the purpose. 17 "20. It is,therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part-performance of the contract to protect his possession, though he may not be able to enforce that right through a suit or action." Narasimhasetty vs. Padmasetty AIR 1998 Karnataka 389 is cited on same point. 16. Shri R.L.Kute, learned counsel appearing for Respondents submitted that in the present case there are no specific pleadings regarding readiness and willingness to perform his part of the contract by the appellant-defendant. He submitted that though in paragraph 9 of the written statement it is stated that entire agreed price was paid to Vishnu Gunjal (father of plaintiffs) and thereafter to the plaintiffs and their brothers Sampat and Bhaskar from time to time, no details were given in the written statement so as enable the plaintiffs to meet the said contention in the written statement. 18 17. Shri B.V. Dhage, learned counsel for the appellant-defendant drew my attention to the deposition of appellant Shivram Gunjal at Exhibit 24. Shivram stated that he had paid some amounts to Bhausaheb and Sampat after death of Vishvanath. He produced receipt of payment of Rs.500/= passed by Sampat. It is further stated by appellant Sampat that the receipt is in respect of suit land. One Madhav Gunjal was the witness on the said receipt. Sampat signed the receipt in his presence. On 8.2.1975, Bhausaheb had given one chit and asked him to pay to Sampat the amount of his share. In paragraph 1 of his deposition, appellant Shivram has stated that he had paid the amount of re-grant and he repaid the amount of Tagai loan. He referred to demand letters regarding Tagai loan. He also produced Challan regarding payment arrears of "Bhuimoog Pendh Baki" (arrears of groundnut cake) and also receipt for payment of assessment tax of suit land. In paragraph 3 of his deposition, defendant Shivram deposed that Punjabai had taken amount of Rs. 300/= from him for funeral expenses of Vishvanath. 19 He also stated that he made expenses in the marriage of Hirabai-the daughter of Vishvanath, which took place 2 years after death of Vishvanath. According to the appellant-defendant he has already paid entire amount of sale. 18. In the cross examination, the appellant stated that the agreement was executed as per the terms and conditions as settled between him and Vishvanath. He also stated that as per the agreement, the land was to be purchased within three months after re-grant. The land was regranted 2 to 3 years after the execution of document. He further admitted that since the time of regrant till his deposition, he had not issued any written notice for execution of the sale deed. He also stated that he had maintained "Tipan" regrading amounts paid to Vishvanath till agreement for sale. He has specifically admitted that after regrant of the suit land, he did not approach heirs of Vishvanath within three months and demanded sale deed. He also admitted that the agreement for sale was prepared only in 20 respect of shares of Ramesh and Bhaskar. He has stated that he has paid Rs.500/= more in addition to the agreed amount to Ramesh, but there was no document of agreement of sale in respect of land of the shares of Bhausaheb and Sampat. 19. It is argued before this court on behalf of the respondents, and in my opinion rightly so, that all the details of alleged payments were given by appellant Shivram for the first in his deposition at Exhibit 24 and not in his written statement. On behalf of the plaintiffs- respondents, Respondent 1 Ramesh was examined at Exhibit 18. He stated in his cross examination that in 1979, for the first time, he came to know about the agreement for sale. At that time, they had given application to the revenue authorities for entering their names as heirs of Vishvanath. According to Ramesh, though mutation entry No.1494 was not correct, they did not make any complaint regarding the same. He further stated that he was not Karta of the family. He was not knowing whether his brothers Sampat and Bhausaheb accepted 21 any amount from the appellant-defendant after 1970. He did not know signature of his brother Sampat and also could not identify signature of Bhausaheb. He further stated that he was not knowing whether his brother was paid any amount or not. He was also not in a position to tell whether his father had taken Tagai loan. So, payments which were stated by Shivram in his deposition at Exh.24, were not put to plaintiff Ramesh examined at Exh. 18. Only after evidence of the plaintiff was closed by pursis Exhibit 23-A on 18.8.1981, the details of alleged payments by appellant-defendant were disclosed for the first time and this has definitely caused serious prejudice to the plaintiff. In view of this conduct of the appellant-defendant, his evidence will have to be taken with a pinch of salt, inasmuch as by such belated disclosure of alleged payments, the defendant has deprived the plaintiffs of their right to meet the oral evidence of the defendant regarding alleged payments by him. 22 20. On behalf of Defendant-appellant, one Madhav Laxman Gunjal is examined as DW-2 at Exhibit 25. Madhav is cousin of deceased Vishvanath. He deposed that he had signed on receipt of Rs.500/= executed by Sampat-the brother of the plaintiffs. He proved receipt at Exhibit 26. It is argued before this court on behalf of respondents that if we consider the contents of Exhibit 26, it would be evident that the same are not in respect of the suit transaction i.e. the agreement for sale between deceased Vishvanath and appellant Shivram, but the same was in respect of remaining portion of property out of survey No. 48/1. My attention was drawn to the cross examination of Madhav wherein he has stated that the amount was paid in respect of half share of Sampat in the suit land. He admitted that it was settled that Sampat had 1/2 share in the suit land.He then stated that he could not tell whether the receipt (Exh.26) was for transfer of another land which was not subject-matter of the previous agreement. Madhav also admitted that Respondent No.2 Bhausaheb (Orig.pltff.No.1) was not present 23 at the time of transaction. 21. Shri R.L.Kute, learned counsel for the Respondents, drew my attention to the said receipt Exhibit 26. The receipt clearly shows that already 1/2 of the land which was 2 acres out of survey No.48 in all admeasuring 3 acres 33 gunthas, was agreed to be sold for Rs.2500/= and in which transaction Rs.1600/= were paid as earnest money. The transaction under receipt was regarding remaining 1/2 share owned by Respondent Bhausaheb and his brother Sampat as they also wanted to sell the remaining 1/2 share and towards that transaction amount of Rs.500/- was paid. So, payment shown in Exhibit 2 is not towards transaction dated 8.8.1967 between deceased Vishvanath and appellant Shivram. The document Exh.26 itself falsifies the claim of appellant Shivram that the amount of Rs.500/= was paid towards suit transaction dated 8.8.1967 between deceased Vishvanath and appellant Shivram. 24 22. There is one letter referred to by appellant Shivram in his deposition saying that it was a chit given by Bhausaheb for making payment to Sampat, but it chit is of Rs.150/=. The chit is dated 8/2/1975. It is neither exhibited nor admitted in evidence. So far as Tagai loan is concerned, one original Challan dated