1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Misc. C. A. No. 352/2011 in L. P. A. No. 33/1995 Anil Bapurao Chiddarwar ..vs.. State of Maharashtra and ors. ---------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. ---------------------------------------------------------------------------------------------------------------------------------------- Mr. S. R. Deshpande, Advocate for applicant. Mr. M. K. Pathan, A.G.P. for non applicants. CORAM: S. A. BOBDE AND Mrs. V. K. TAHILRAMANI, JJ DATED : 3 rd May, 2011 1. Heard learned counsel for the parties. 2. This is an application for review preferred by the appellant in respect of a judgment dated 09.02.2011. According to the applicant, he had sought exclusion of two lands from his holdings on the ground that they had been transferred by him before 26.09.1970 when the proscribed period commenced. This Court, by the said judgment, has upheld the inclusion of both the lands. Mr. Deshpande, the learned counsel for the applicant, fairly states that the documents, by which this survey number is purported to have been transferred, is an unregistered document and no contention is being raised in respect of that transfer in this review application. However, as regards the other survey no. 72, Mr. Deshpande submitted that the transfer was made on 31.12.1969 2 and registered on 26.03.1970 i.e. before the proscribed period. This transfer was accompanied by delivery of possession to the purchaser Smt. Snehalata and, therefore, these lands are liable to be excluded from the holdings of the applicant. 3. Mr. Deshpande, the learned counsel for the applicant, further refers to a sale deed dated 20.07.1971 executed by the applicant in favour of two persons i.e. one of them being purchaser under an agreement to sale Smt. Snehalata and other being Shrihari Nanaji Uplanchwar. 4. We have examined these documents along with crop entries for the period subsequent to the agreement to sale. Undoubtedly, an agreement to sale would constitute a transfer within the meaning of the Ceiling Act if it is found that it was coupled with delivery of possession. However, the following factors contraindicate the delivery of possession. Firstly, the crop statements continue to show that the Kabjedar i.e. the person in possession, is the applicant even though they refer to the agreement to sale. Secondly, the sale deed referred to supra contains a recital that the transfer of lands i.e. Chiddarwar, handed over possession of the land in question including survey no. 72 to Smt. Snehalata 3 and Shrihari Nanaji Uplanchwar. The recital expressly shows that the possession was with the applicant. 5. Mr. Deshpande, the learned counsel for the applicant, did contend that the recital about possession must be taken to refer to the delivery of possession by Smt. Snehalata, who had obtained possession from the applicant and, therefore, delivery of possession to Shrihari Nanaji Uplanchwar at the time of execution of sale deed. However, there is no reason to accept this contention. If that was so, there would have been a clear recital that the possession was handed over to Smt. Snehalata at the time of agreement of sale and now at the time of execution of the sale deed she has handed over possession to Shrihari Nanaji Uplanchwar. Thus, the contention on behalf of the applicant is liable to be rejected. Moreover, we find that, in this sale deed, there is no reference at all to the agreement to sale dated 31.12.1969. 6. We, however, find that submission of Mr. Deshpande, the learned counsel for the applicant, is correct to the extent that in the judgment under review, it is wrongly stated that the agreement to sale dated 31.12.1969 was not registered. As may be seen now, the agreement is in fact registered. However, for the reasons stated 4 above, we find that the agreement to sale does not constitute a transfer within the meaning of the Ceiling Act since it was not accompanied by delivery of possession as pointed out above. 7. Mr. Deshpande, faintly submitted that the transfers were entered into bonafidely. We do not see any question of bonafides is being raised at this stage after rejection of this contention by the Commissioner under the Ceiling Act and the learned Single Judge. There is no merit in this contention also. The same is, therefore, rejected. 8. In the circumstances, there is no reason to exclude survey no. 72 and the judgment under review does not suffer from any mistake or error of law apparent on the record. The application for review is, therefore, rejected. At this stage, Mr. Deshpande, the learned counsel for the applicant, prays for stay of this order. In the circumstances, there shall be status quo as regards possession of the land for a period of eight weeks from today. JUDGE JUDGE kahale