1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.511 OF 1989 Vishwanath Ganpat Hase .. APPELLANT (orig.deft.no.1) VERSUS 1) Sambha Sitaram Kharat 2) Indumati Murlidhar Pokharkar. .. RESPONDENTS (No.1 orig.pltff. no.2 orig.deft.2) ***** Mr.Shahaji K.Shinde,Advocate for Appellant; Mr.H.U.Dhage, Adv. h/for Mr.S.T.Shelke, Advocate for Respondent No.1.; Respondent No.2 served. ----- CORAM : K.U.CHANDIWAL, J. DATE : 15th June, 2009. ORAL JUDGMENT : Heard both Counsel extensively. 2) The plaintiff sued for declaration, injunction and for possession of the suit property, staking his claim that it was an 2 Inferior Village Watan Land Class 6B and so the transaction for such land without previous sanction of Collector is void and illegal. RCS No. 111/1978 moved before CJJD, Sangamner came to be partly decreed, restraining the appellant herein (original deft.no.1) permanently injuncting from transferring or selling in any manner the suit property. The sale-deed is declared as illegal and void. The aggrieved deft.no.1 challenged the same before the learned District Judge, Ahmednagar in RCA No. 398/1984 and the learned District Judge confirmed the decree of the Court of first instance, hence the deft.no.1 is in Second Appeal. 3) The parties are referred by their status as plaintiff and defendant. 4) On 15.12.1989, while admitting the appeal, following points were formulated as substantial questions of law between the parties: “1] Whether both the lower courts were misread and misconstrued the provisions of Section 3 of 6 of Inferior Village Watan Abolition Act, 1958 in holding that Civil Court has jurisdiction to entertain and try the suit under the said Act. 2] Whether both the courts have not taken into 3 consideration the entire scheme of the said Act and the circulars issued thereunder, therefore have erroneously held that it has jurisdiction; 3] Whether in view of erroneous decree the Appellant is debarred from regularizing the sale as the Competent Authority can ignore the decree of Civil Court; 4] Whether both the court ought to have held that in this suit prior to sale-deed no sanction of Collector was necessary because on the date of sale (i.e. 30th June, 1972) the land was granted on “Old Tenure” basis. 5] Whether both the lower Courts erred in law in holding that, as the previous order of “Old Tenure” is quashed and fresh order of “New Tenure” will have retrospective effect; 6] Whether both the Courts below ought to have held that, considering the policy of the State to regrant the Watan land to the Ex-Watandar on payment of Nazarana the granting of permission by the Collector was formal and it was not the intention of the Legislature that the drastic step under Section 59(b) of the Maharashtra Land Revenue Code should be taken in the matter for non- compliance, and it has no jurisdiction; 4 7] Whether the learned Judge should have held that, High Court of Bombay has already held in some cases that, if payment of ten times of the assessment is made, then the Collector bound to pass the necessary orders, and if he fails to do so and is requested by an application, but does not take cognizance of request in our view, a mandamus can be issued by this Court directing him to grant appropriate sanction, and it appears to be the statutory duty of the Collector to grant the sanction, the moment, the requisite payment is made.” 5) The plaintiff is Ex-Watandar of the suit land. It was held by him as Inferior Village Watandar and by virtue of the Bombay Inferior Village Watan Abolition Act, 1958, inferior village watans were abolished and by virtue of Section 5 to regrant of watan land to holders of watandar was accorded. It was basically on making the payment of occupancy price equal to three times of full assessment of the land, such arrangement was approved. 6) The plaintiff moved the concerned revenue authorities for grant on old tenure basis. He paid amount as per rules equal to thirteen times of assessment. The Tahsildar, based on the application of the plaintiff and revenue record, accepted his contention in 5 December, 1968. The net effect of such transfer by the Tahsildar was there existed eligibility in the plaintiff to alienate or dispose of the property in the capacity as owner. It was in this scenario, the plaintiff entered into sale transaction with deft.no.1 and executed sale- deed, Exh. 45 on 30th June, 1972by receiving sale consideration of Rs. 1,000/-. However, in the suit the plaintiff came with the theory that the transaction was mere a mortgage than absolute sale and he was entitled for re-conveyance of the property. The plaintiff’s assertion of the transaction to be mortgage or providing any right of re-purchase was negatived by the courts. 7) The plaintiff succeeded before the Court on the ground of his making application to SDO of considering his case on the new grant basis. The authorities concerned quashed the earlier order, as was sought by the plaintiff and it was re- granted on new tenure. The plaintiff, being armed with new tenure order with him, claimed that since there was no permission in favour of the plaintiff to alienate the property, the transaction of sale in favour of the deft.no.1 being without a valid title, and also in contravention of the provisions of Bombay Inferior Village Watan Abolition Act, 1958, staked claim for possession thereof by seeking declaration that the sale deed was void. 6 9) The short controversy that needs to be looked into is, the parties cannot travel beyond the scope and purview of section 5 of the said Act. Taking recourse to Section 5 and also putting it in juxtaposition to Section 9, it is more than clear that the deft.no.1’s possession over the suit property could not have been termed to be of unauthorized holder and that the eviction was the fallout of the situation. There could not have been retrospective application to new grant tenure since there was already an old grant tenure, entitling the plaintiff to alienate the property and the deft.no.1, having paid valuable consideration in the capacity as bona fide purchaser for value, purchased the property, got possession thereof and enjoyed the same as owner. 10) The plaintiff cannot be allowed to take recourse to the provisions of Section 9(1) to claim new tenure and consequently get the sale deed declared as void. The order of the learned CJJD speaks that the deft.no.1 was restrained from selling or transferring in any manner the suit land. However, the Court dismissed the suit for possession and for declaration regarding satisfaction if Rs. 1,000/- from the income of suit land is to be paid by the deft.no.1. 7 11) The observations of the learned Additional District Judge, Ahmednagar, while dismissing the appeal dated 18th February, 1989, in paragraph nos. 6 and 7, are contrary to the legal position. The findings definitely require interference and since the deft.no.1 has entered into the transaction of purchase of the property, got the sale deed from the plaintiff, based on the grant from competent revenue authorities, new colour and complexion to the matter cannot be allowed to be given by the plaintiff to stake the claim. The impugned judgment and order under challenge are set aside. The appeal allowed. No costs. ( K.U.CHANDIWAL ) JUDGE bdv/sa511.89