TMI Blog1994 (3) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... ied aspect of the matter and one of some importance is raised in the companion Civil Application whereby the appellants who lost their appeal principally on the ground that the original order dated 9-10-1964 whereby permission for non-agricultural use was granted had not been produced before either the trial Court or the Appeal Court, made an application on the basis of a certified copy of that order that the same be considered by this Court and further that additional evidence in the matter be recorded. Whether, at the stage of Second Appeal such an addition to the record should at all be permitted, is the subsidiary aspect of the matter. First, however the relevant facts. 2. This litigation pertains to a small plot of land measuring 36 gunthas bearing Survey No. 54/11 situated at village Loni Kalbhor, Taluka - Haveli, District - Pune. The original holder of the land was one Bajirao Sitaram Kalbhor. Bajirao was an agriculturist and there is no dispute about the fact that the lands in question were assessed as agricultural lands though the relevant revenue records indicate that it was designated as Kharwatpad even though it is pointed out that the land was obviously unfit for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned trial Judge answered all the issues in favour of the original plaintiffs. He held that the registered sale dated 20th March, 1965 was valid one, that plaintiffs had therefore derived a valid title in law and consequently decreed the suit with costs and perpetually restrained the defendants Nos. 2 to 6 (defendant No. 1 having died) from interfering with the peaceful possession of the plaintiffs over the suit land. The defendant No. 6 carried the matter in Appeal and the learned Extra Assistant Judge, Pune, allowed the Appeal being Civil Appeal No. 297 of 1980, by his judgment and order dated 12th August, 1982. A perusal of the appellate order will indicate that the learned Judge has basically proceeded on a two-fold footing. Firstly, he has upheld the contention that the original or for that matter certified copy of the N.A. order dated 9-10-1964 on which the plaintiffs placed strong reliance has not been produced by anybody before the trial Court or before the Appeal Court. In the absence of this document, merely because there is some indirect reference in the Mutation Entry No. 6328 dated 23rd November, 1965 the Appeal Court has come to the conclusion that it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was the plaintiffs who required this particular document as a pre-condition for establishing their title. The learned Appellate Judge was, therefore, fully justified in having non-suited the plaintiffs on the ground that this all important document had not been produced and the learned Appellate Judge has also answered the difficulty pleaded namely that the original document was with Bajirao and could not have been produced by the plaintiffs, by recording that nothing prevented the plaintiffs from applying for a certified copy thereof and bringing the same on record. It was also open to the plaintiffs to have summoned the concerned authority and asked him to produce a certified copy of the permission in question. Since the document was not produced either before the trial Court or before the Appeal Court, the question arises as to whether this Court should permit the production at this late point of time because one cannot over look the fact that the parties are now at the stage of second appeal and are confined purely to agitating a substantial point of law. Undoubtedly, for the purpose of deciding even a point of law, the record is relevant but the question arises as to whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s there on record and he submits that, therefore, there was no warrant whatsoever for the learned Judge to have proceeded on the footing as though the non-agricultural order was not in existence. Undoubtedly the original or a copy thereof had not been produced. Mr. Divekar also relies on the fact that the factum of take over of possession has been disbelieved by the Appeal Court and he submits that it is quite unthinkable when a registered sale deed for due consideration has been executed, that the plaintiffs would not take over possession of the land in question. Mr. Divekar has also attacked the argument that the defendant No. 6 could not have had notice of the earlier transaction of sale. He points out and rightly to my mind, that since it was a registered sale deed, the defendant No. 6 cannot be heard in law to say that he had no notice because all he had to do was to enquire with the registering authorities. Consequently, Mr. Divekar submits that the interference by the Appeal Court was wholly unjustified and that the appellate order is liable to be set aside. 6. Mr. Nakhawa learned Counsel, appearing on behalf of the defendant No. 6 has vehemently contested this position. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llacious and wrong and that the change or transformation can only take place when the conditions specified in the order are complied with. The learned Counsel is right as far as this submission is concerned in so far as grant of permission is only in the form of no objection or consent from the authorities. It is, therefore, open to the party to whom the permission is granted to put the lands to N.A. use and if the party decides to do so, there are subsequent requirements under the provisions of the Land Revenue Code namely that an official intimation in this regard is required to be given through the Village Officer to the Mamlatdar whereupon a Sanad will be issued designating the lands as Non-agricultural lands. Mr. Nakhawa appears to be right in this submission for the simple reason that under the provisions of the Maharashtra Land Revenue Code, the assessment payable on agricultural and non-agricultural lands is different. When the N.A. permission is granted, there is no alterations made in the assessment but it is only if and when the lands are in fact put to N.A. use and this fact is officially communicated to the notice of the authorities that the assessment will change. Und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect of the matter was argued before this Court, Mr. Divekar raised a very serious objection because he submitted that the validity of the N.A. permission was never called into question before the trial Court. Mr. Divekar submitted that it is unfair to him that this aspect of the matter is now taken up particularly the aspect of lack of evidence because he submits that he is virtually caught on the wrong foot in so far as if any grievance along these lines had been made to the trial Court that he would have had an opportunity of meeting it firstly in the course of the pleadings while leading evidence as also in the course of the conduct of the trial and the appeal. In this regard, Mr. Divekar canvassed a strong plea that if this aspect of the matter is to be held against him that the proceeding must be remanded to give his clients a fresh opportunity to lead the requisite evidence. 8. As regards this aspect of the matter, I have already had an occasion to deal with in the sense that I have pointed out that it was the plaintiff who came to the Court and that burden of proof rests with him. It may be that the defendants had not agitated this issue in so many words before either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the N.A. permission was acted upon within the prescribed time, and that it had not lapsed nor was it revoked, that it was a valid order as late as on 23-3-1966, and therefore, that the sale deed entered into by his client on 20-3-1965 is unquestionable. As regards this aspect I only need to record that there are requirements under the Land Revenue Code which I have referred to and which are independent of the evidence that has come before the Court. In keeping with those requirements it was specified in condition No. (iv) and specifically brought to the notice of the land holder that even though he was given an outer limit of six months to commence the N.A. use of the land, that he was obliged in law to intimate to the Village Officer the date of such commencement. The reason for this was obvious namely that on such intimation being received, the Village Officer would communicate the same to the higher authorities who would issue a Sanad to the land holder evidencing that the land is no longer agricultural land and further that the assessment is raised by virtue of its being put to N.A. use. The fact that the assessment was never raised is the strongest evidence before the Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period of six months. What is of consequence is as to whether the order had become operational within that period or at any point of time prior to the execution of the sale. On the basis of the present record, I am constrained to hold that though the order had been applied for and issued to the land holder that it was virtually a still-born order that had not commenced any legal existence. It is for this reason that the findings of the Appeal Court to the effect that the sale in question is hit by the provisions of the Tenancy Act will have to be upheld. 12. In support of his submissions, Mr. Nakhwa drew my attention to a decision of this Court reported 41 Bom. L.R. page 1077 in the case of Raichand Gulabchand Accha v. The Secretary of State for India. The point involved in that case was slightly different as it concerned a dispute with regard to raising of the assessment by virtue of the holder having constructed certain godowns on agricultural land though permission was granted to him. Mr. Nakhwa has relied on this judgment because the issue involved in this case is a slightly unusual point which does not seem to have been decided in any proceeding before and hence he draws ..... X X X X Extracts X X X X X X X X Extracts X X X X
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