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2015 DIGILAW 1702 (BOM)

Arif v. Motiram

2015-07-28

A.P.BHANGALE

body2015
JUDGMENT : 1. Heard learned counsel for the rival parties. 2. This appeal is preferred against the revision of interim injunction passed on 8.11.2012, by learned 3rd Joint Civil Judge Senior Division, Nagpur, in Special Civil Suit No.153 of 2012. It appears that the appellant/plaintiff had filed the suit for specific performance of contract dated 18.10.2000 and modified on 27.2.2007. The suit property i.e. agricultural land bearing Khasara No.51 P.H. No.75 admeasuring 9.00 HR (22.50 Acres) of Mouza Sindhiwihiri, Tahsil and District Nagpur was agreed to be sold in favour of the appellant/plaintiff pursuant to the aforesaid agreement to sale the property. It is contended that the price agreed was Rs.50,000/- per acre and earnest money by way of installment in the sum of Rs.75,000/was paid until the agreement dated 27.2.2007. 3. It is his grievance of the appellant/plaintiff that defendant Motiram Kodse sold the same land in favour of Shri Neelkanth Koram for sum of Rs.32,40,000/- under sale deed dated 14.3.2008. It is the grievance of the appellant/plaintiff that the decree was passed in RCS No.587 of 2008 in favour of the appellant/plaintiff for declaration that he is entitled to purchase the suit property pursuant to agreement dated 27.2.2007. Thus, the defendants, agents, servants and the representatives etc. claiming under the original defendants were permanently restrained from selling, transferring or dispossessing of the suit property. It is under these circumstances that sale deed dated 14.3.2008 between respondent Nos.1 and 2 needs to be considered. Learned trial Judge referred to decree passed in RCS No.587 of 2008 in paragraph No.12 of the impugned order. However, it was observed that there was no injunction order against defendant Nos.1 and 2 restraining them to execute sale deed dated 14.3.2008. Learned trial Judge observed that order in RCS No.587 of 2008 was frustrated because sale deed is executed. 4. Prima facie considering the entire facts and circumstances, one cannot ignore or overlook the fact that the agreement between the appellant/plaintiff and respondent No.1/defendant Motiram was entered into on 18.10.2000. The fresh modified agreement was also entered between them on 27.2.2007 before news paper notice to public was published. That being so, the fact of sale deed executed on 14.3.2008 needs to be examined in the facts and circumstances revealed. 5. Learned counsel for respondent No.1 remains absent. 6. The fresh modified agreement was also entered between them on 27.2.2007 before news paper notice to public was published. That being so, the fact of sale deed executed on 14.3.2008 needs to be examined in the facts and circumstances revealed. 5. Learned counsel for respondent No.1 remains absent. 6. According learned counsel for respondent No.2 under Section 36 of the Maharashtra Land Revenue Code, 1966 occupancy i.e. land in the possession of the tribal can be transferred only to tribal and previous sanction of the Collector is necessary. Section 36 (supra) no doubt expresses control of the competent Authority in respect of transfer of the land from tribal to tribal or tribal to non-tribal. However, if permission from the competent Authority is granted to transfer the property from tribal to non-tribal the sale deed may be executed in respect of transfer of the agricultural land from tribal to non-tribal. The provisions do not indicate that it would operate notwithstanding any valid contract binding between the parties to the contract. Of course, the Collector as competent Authority is required to hold enquiry and pass judicious order before granting sanction to transfer the land from tribal to non-tribal in such cases. 7. Be that as it may, while special civil suit remains pending for final decision on merits and according to law between the parties, irreversible situation can not be allowed to be created by the party effecting means of the transfer of the suit land in favour of the third party. 8. In that view of the matter, I think the impugned order requires modification that respondent No.2, who claims as transferee under the sale deed dated 14.3.2008, shall not create any third party interest. Such order is necessary in view of the decree passed in RCS No.587 of 2008 apart from the agreement to sell the deed executed between the appellant/plaintiff and the defendants dated 18.10.2000 and 27.2.2007 respectively. Hence, this Court passes the following order : ORDER 1. The respondents shall not create any third party interest in respect of the suit land pending hearing and disposal of Special Civil Suit No.153 of 2012 before learned 3rd Joint Civil Judge Senior Division, Nagpur. 2. The parties shall appear and cooperate with the trial Court for expeditious final disposal of the pending suit. 3. The respondents shall not create any third party interest in respect of the suit land pending hearing and disposal of Special Civil Suit No.153 of 2012 before learned 3rd Joint Civil Judge Senior Division, Nagpur. 2. The parties shall appear and cooperate with the trial Court for expeditious final disposal of the pending suit. 3. The trial court shall endeavour to dispose of the suit finally as expeditiously as possible on its own merits according to law.