9911796707
TMI Blog2023 (5) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... cree of dismissal of the suit by the trial Court. The stated Regular Civil Suit is one for possession of suit land on the strength of title. 2. Shorn of details, the plaint averments for seeking possession of the suit land, which is a field comprised in Khasra No.20/2, having an extent of 3 Acres and 20 guntas in village Gangalgaon, Taluk Chikhli, District Buldana, are as under: - Original Defendant Nos.1 and 2 viz., Ramakrishna Ganpat Mhaske and Tejra Bajirao Mhaske, have sold the above-described suit field in favour of the plaintiff as per registered sale deed dated 21.04.1979 (Exhibit-128). Soon on its execution the plaintiff was put in possession. On 25.04.1979, the second defendant started disturbing his possession. Suit was then filed on 21.05.1979. In view of the registered sale deed (Exhibit 128) he obtained absolute title over the suit land and in such circumstances, the second defendant who sold the same for discharging debts and family needs got no right or reason to disturb his peaceful possession. The total sale consideration of Rs.10,000/- was given to defendants for the aforesaid entire extent of 3 acres and 20 guntas as the first defendant obtained title over 2 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nths. It is to be noted that in the written statement, the second defendant (the first respondent herein) further contended that the registered sale deed executed in favour of the original first defendant was also of the very same nature. He would further plead that in the said transactions also, in fact there was no passing of sale consideration from the purchasers as in the case of Exhibit 128 sale deed so as to constitute a valid sale and the other such sale deeds were also executed without any intention to effect sale of the properties, at the time of borrowing money. To contend that the plaintiff is disentitled to any relief as sought for, he would also raise two other contentions; firstly, based on the provisions of Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as 'Fragmentation Act') and secondly, in the light of the provisions under Section 10 of the Bombay Money Lenders Act, 1946, which get attracted owing to the facts that he is an original farmer owning only less than 2 hectares of land and that his annual income is less than Rs.1200/-. 4. Based on the rival pleadings, the trial Court formulated the following is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al order. 7. Thus, it is evident that upon finding that the trial Court had virtually ignored the legal impact and effect of registered sale deed (Exhibit 128), in respect of suit land executed in favour of the appellant therein viz., the plaintiff, the First Appellate Court considered the issues formulated by focusing that aspect. True that for upholding the sale deed viz. (Exhibit 128), the First Appellate Court had given due weight to the notice dated 27.04.1979 (Exhibit 113), virtually lawyer notice issued by the second defendant immediately after the transaction, in the name of the plaintiff and held that it would lend support to the factum of sale effected through sale deed (Exhibit 128). The First Appellate Court on such consideration and on appreciation of the materials on record held that the second defendant had failed to prove that the sale transaction was an outcome of money lending transaction and that the sale deed was nominal in nature. Consequently, the appeal was allowed, the judgment and decree of the Trial Court was set aside and the suit for possession on the strength of title was decreed in favour of the plaintiff (the appellant therein). 8. It is feeling agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a collateral security at the time of a money lending transaction). (iii) The second defendant (first respondent herein) has also admitted execution of registered sale deed in favour of defendant No. 1 (earlier in point of time than Exhibit 128) in respect of 2 acres and 20 guntas. (Here also, the second defendant claimed that the sale deed was executed as a collateral security for the money borrowed and therefore repayable to him along with the quantified fixed interest thereon). 11. We have already referred to the issues/points formulated by the courts below and the findings returned by the respective courts which formed the basis for their respective judgments. Bearing in mind the decisions referred supra and also the relevant facts available, as noted above and also the relevant provisions under the relevant enactments, to be referred to hereafter, we may proceed to consider this appeal. 12. As noted earlier, after reversing the judgment and decree of the First Appellate Court, the High Court restored the decree of the trial Court. In this context, it is apt to note the re-framed substantial question of law No. 3 by the High Court, extracted above, that carries the query w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicate upon such a plea in view of the statutory bar of jurisdiction under Section 36A of the Fragmentation Act. In that regard it is noteworthy that nothing was specifically mentioned in paragraph 14 or anywhere else in the written statement filed by the second defendant regarding the violation of the provisions under the Fragmentation Act and, in fact, only vague reference was made on that aspect in paragraph 16 reproduced as under: - "16. ...In event, according to provision of Consolidation of Act and Prevention of Fragmentation Act, the plaintiff not entitled to any relief." 14. In view of the aforementioned facts as also taking note of the contentions raised on behalf of the contesting respondents, in support of the impugned judgment, that the First Appellate Court failed to consider at all the voidness of the sale transaction of 2 acres and 20 guntas between original defendants 1 and 2, its impact on the sale of consequentially created 'fragmentation' of one acre by the second defendant and the whole sale transaction effected under Exhibit 128 sale deed by operation of the Fragmentation Act and further that the said aspect was rightly considered by the High Court, we t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be effected by a registered deed. Therefore, transfer of a land worth more than Rs.100/- by a registered deed implies transmutation of all rights as the vendor possessed in the property concerned. We are not oblivious of the fact the mere registration of a document is no proof of its execution. We will deal with this aspect a little later. It will not be inappropriate to look into the object of the Fragmentation Act, in the context of the contentions. It runs as under:- "Whereas it is expedient to prevent the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof;" 18. Thus, obviously, it is not the object or purpose of the Fragmentation Act to totally prohibit or prevent transfer of land within any notified 'local area', but it is only aimed at preventing the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof. 19. In the context of the above mentioned rival pleadings, contentions and the position revealed from the facts and the provisions, the question to be considered is whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remedy contemplated under the Fragmentation Act, going by the materials on record. At any rate, there is no such case for him. We made this statement because the first proviso to Section 9(3) of the Fragmentation Act would reveal that the automatic voidness would not be attracted to a transfer of land contrary to the provisions of the Fragmentation Act, if it was made on or after 15th day of November, 1965 and before the date of commencement of Maharashtra Prevention of Fragmentation and Consolidation of Holdings (Amendment) Act, 2017 and that apart, Section 31, referred therein, which puts bar for sale, makes it clear under clause (iii) Sub-section (3) thereof, that the said bar would not apply to any land which is to be transferred to an agriculturist, in its entirety provided such transfer is not creating a fragment. We may hasten to add here that we shall not be understood to have held that the subject suit involves any issue(s) which is required to be settled, decided or dealt with any authority competent to settle, decide or deal with such issue under the Fragmentation Act. As a matter of fact, the very applicability of the Fragmentation Act itself on sale transactions would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mamlatdar's Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or dealt with under this Act. The words 'if any suit, instituted in Civil Court' and 'involves any issues' employed in Section 36B of the Fragmentation Act would undoubtedly point to the fact that involvement or otherwise of such issues mentioned under the section in 'the suit instituted in a Civil Court' is the factor deciding the applicability of the procedures prescribed under Section 36B, of the Fragmentation Act. Therefore, the question whether such issue(s) falling under Section 36B of the Fragmentation Act is involved or not was to be decided with reference to the averments in the plaint. On their own the plaint averments did not disclose involvement of any such issue(s) requiring a reference to a competent authority under the Fragmentation Act. Since the issue is whether the suit involves such issue(s), we will refer to the written statement as well. We have already referred to the sole, vague averment in the written statement filed by the second defendant in the suit referring to the Fragmentation Act, which in no way could construe as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , ignoring the statutory bar of jurisdiction to go into and decide, issue No.9 framed by the trial Court, as extracted in paragraph 4 hereinabove and issue No. 2 re-framed by the High Court, as extracted in paragraph 9 hereinabove. 28. As relates issue No. 9, framed by the trial Court, at the risk of repetition, we will state that in regard to 'the Fragmentation Act' only a very vague plea was taken in the written statement by the second defendant viz., "In event, according to the provisions of Consolidation of Act and Prevention of Fragmentation Act, the plaintiff is not entitled to any relief." Thus, when the indisputable position is that no counter-claim, within the meaning of Order VIII Rule 6A, CPC was made by the second defendant and no averment whatsoever was made specifically in the written statement filed by him how such an issue as to whether 'he had proved to be a marginal owner' in the light of the 'Fragmentation Act' arise for consideration. This is because the well-nigh settled position of law is that one could be permitted to let in evidence only in tune with his pleadings. We shall not also be oblivious of the basic rule of law of pleadings, founded on the principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 of the said Act, and such sale becomes, therefore, void under sub-section (1) of the Section 9 therein. The second portion of the substantial question of law at Serial No. [2] is answered accordingly. The plaintiff cannot, therefore, seek possession on the basis of such sale-deed. 30. Thus, a careful scanning of the impugned judgment would reveal that virtually, the High Court considered the validity of the sale deed dated 04.07.1978 executed by the second defendant in favour of the first defendant under 'the Fragmentation Act', without directly framing an issue precisely on the same and then, decided the validity of the sale deed dated 21.04.1979 executed by the second defendant in favour of the plaintiff. We have already taken note of the decision of this Court in Rohit Singh's case (supra), wherein it is observed that a defendant could not be permitted to raise counter-claim against co-defendant because by virtue of Order VIII Rule 6A, CPC it could be raised by a defendant against the claim of the plaintiff. Be that as it may, in the instant case, no such counter-claim, which can be treated as a plaint in terms of the said provision and thereby, enabling the court to pronounc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 32. Having held as above, we will now proceed to consider the question whether the upturning of the judgment and decree of the First Appellate Court, which held the sale deed dated 21.04.1979 (Ext.128) as one transferring ownership of the suit land by the plaintiff, by the High Court can be sustained. There can be no doubt with respect to the position that where a deed of sale had been duly executed and registered, its delivery and payment of consideration have been endorsed thereon it would amount to a full transfer of ownership so as to entitle its purchaser to maintain a suit for possession of the property sold. The very object of the mandate for registration of transfer of an immovable property worth more than Rs. 100/- under Section 54 of the Transfer of Property Act, 1882, read with Section 17 of the Indian Registration Act, is primarily to give certainty to title. When execution is challenged, registration by itself is no proof of execution and proof of complying with Section 67 of the Evidence Act is necessary. There can be no reason to disbelieve a recital contained in a registered sale deed regarding payment of consideration, executed by the vendor. Hence, if it is sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his readiness and willingness to deliver the possession of it to the plaintiff. Paragraph 26 of the impugned judgment would show that while rejecting the finding of the First Appellate Court on the inconsistency of the stand of the second defendant the High Court held thus:- "There is no inconsistency in the stand taken by the defendant No. 2 either in the written statement or in the notice at Exhibit 113. The defendant No. 2 is consistent in his stand that he has sold one acre of land by the sale-deed at Exhibit 128 for a total consideration of Rs. 3000/-, but has denied to have sold 2 acres and 20 guntas of land to the plaintiff." When that be the indisputable factual position all the other contentions raised by the second respondent against the plaintiff, including money lending, non-passing of sale consideration in respect of the said extent of one acre would all become inconsequential and unsustainable and unnecessary to be gone into. Even otherwise, in view of the factum of registration of Ext.128 and admission of its execution and the recording of payment of consideration thereon, the second respondent was not justified in raising grievance, initially, even against the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defendant got no case that he had assailed the validity of the sale deed dated 04.07.1978 either before any competent authority or competent Civil Court this question needs no further elaboration. An inter-se dispute on the validity of the sale deed dated 04.07.1978, if at all between the second and first defendants, could not have been considered in the subject-suit, for the reasons already mentioned as it would amount to adjudication of right or a claim, by way of counter-claim by one defendant against his co-defendant. Finding on its voidness under the Fragmentation Act was already held as unsustainable by us. 35. In the context of the contentions of the second defendant/the first respondent herein against Ext. 128, taking note of its registration and the admission of its execution it is only proper to refer to Sections 91 and 92 of the Evidence Act. Certainly, parol evidence is admissible to show that a contract embodied in a document was never intended to be acted upon but was made for some collateral purpose. But, in view of the specific finding in the judgment of the High Court, which is in favour of the second defendant, that the consistent stand of the second defendant is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
