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2015 DIGILAW 1318 (BOM)

Sitaram Bhaskar Raut v. Hari Ram Gharat

2015-06-18

R.K.DESHPANDE

body2015
Judgment : 1. The trial Court passed a decree in Regular Civil Suit No. 96 of 1978 on 31.03.1987, granting a declaration that the plaintiff is the owner of the suit land Hissa No. 2, admeasuring 1 acre and 10 gunthas out of Survey No. 27, situated at village Betegaon, Tq. Palghar. The defendants are directed to deliver vacant and peaceful possession of the suit land to the plaintiff. The lower appellate Court has concurred with these findings in Civil Appeal No. 179 of 1987, decided on 28.06.1990 which is dismissed. Hence, the original defendants are before this Court in this second appeal. 2. The questions involved before the Courts below was whether the plaintiff has established his ownership over the suit property and whether the defendant No. 2 has proved that she was in possession of the suit property from 24.03.1968 and continued to remain in possession of it by way of part performance of contract under the agreement dated 21.05.1973 at Exh.67. Both the courts below have concurred in recording the finding that the plaintiff has established the ownership over the suit property. The appellants-defendants do not challenge this finding and accept the same. The trial Court has recorded the finding that the defendant No.2 has failed to establish the execution of an agreement at Exh. 67. It is further held by the trial Court that the defendants have failed to establish the possession from the year 1968 till 1978-79. Thus, the defence raised by the defendants was rejected and after holding that the plaintiff has established ownership over the suit property, the decree has been passed. 3. The lower appellate Court reversed the finding of the trial Court on the aspect of proof of agreement dated 21.05.1973 at Exh. 67. It records a finding that the plaintiff has executed an agreement and in lieu thereof, delivered the possession of the suit land to the defendants. The appellate Court relied upon Section 43 of the Bombay Tenancy and Agricultural Lands Act to hold that for sale of this land, permission of the Collector is required and the defendant No.2 has failed to approach the Collector for obtaining such permission. The Court has further held that the agreement to sell does not help the defendant No. 2 to protect her possession. With these findings, the appeal has been dismissed, maintaining the decree passed by the trial Court. 4. The Court has further held that the agreement to sell does not help the defendant No. 2 to protect her possession. With these findings, the appeal has been dismissed, maintaining the decree passed by the trial Court. 4. The second appeal was admitted by this Court on 27.08.1990 and the substantial question of law framed was as under; Whether the appellant could defend his possession under Section 53A of the Transfer of property Act? 5. The learned counsel for the appellants has relied upon the findings recorded by the lower appellate Court holding that the agreement has been proved and submits that, consequently the defendants have established the possession of the suit land from 24.03.1968. He has relied upon the decision of the Apex Court in the case of Rajkishore Giri and ors vrs. Purendra Giri and Ors, decided on 26th September, 1996, and reported in 1997 I OLR 1. In the said decision, the Apex Court has reversed the decision of the High Court which held that the appellants were not entitled to protection of possession under Section 53A of the Transfer of Property Act. The Apex Court has held that the appellants before it have paid full consideration of money and they were put in possession thereof which they continued to be since 1936 for a period of 60 years and therefore, the High Court was not justified in decreeing the suit of the respondents. It was held that the defence under Section 53A of the Transfer of Property Act was available. The another decision relied upon by the learned counsel for the appellants was in the case of Ramesh Chand Ardawatiya vrs. Anijl Panjwani, reported in 2003 AIR (SCW) 2590 in which it has been held that if possession is by way of part performance and the requirement of Section 53A of the Transfer of Property Act are satisfied, the protection of possession is available even against the true owner. 6. Coming to the facts of the present case, even if the finding recorded by the lower appellate Court on the existence of agreement dated 21.05.1973 at Exh. 6. Coming to the facts of the present case, even if the finding recorded by the lower appellate Court on the existence of agreement dated 21.05.1973 at Exh. 67 is accepted to be true and correct, in the absence of permission of the Collector as required under Section 43 of the Bombay Tenancy and Agricultural Land Act, the transfer is impermissible and as has been held by the appellate Court, no steps are taken by the appellants-defendants from the year 1973 till the respondent-plaintiff filed a suit in the year 1978 to ask the plaintiff to obtain such permission. As is clear from the findings recorded by the trial Court, the agreement at Exh. 67 refers to Bhade Patta on 24.03.1968 in respect of the possession. The said document is not placed on record. On the basis of Exh.67, the finding of possession cannot be recorded. There is nothing on record to show that the defendants have paid the entire consideration which is said to be of Rs. 1,718 /- (Rs.1363 + Rs. 415). In view of these facts, the decision of the Apex Court in Rajkishore's case does not apply. The principle laid down in Ramesh Chand Ardawatiya's case cannot be disputed. The appellate Court has ignored the finding of the trial Court. The question of possession is purely a question of fact and the findings recorded by the trial Court are based upon the evidence available on record. The plaintiff examined 3 witnesses, whereas the defendants examined 4 witnesses. The evidence of all these witnesses are taken into consideration. At any rate, it is a possible view of the matter, which does not give rise to substantial question of law as was framed by this Court. The second appeal is dismissed.