2009(2) ALL MR 183
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

D.G. KARNIK, J.

Janglu S/O. Pandurang Mali Vs. Shahaji S/O. Narayanrao Mali & Anr.

Second Appeal No.197 of 1988,Second Appeal No.204 of 1988

5th September, 2008

Petitioner Counsel: Mr. C. G. SOLSHE
Respondent Counsel: Mr. S. S. SHETE

(A) Bombay Prevention of Fragmentation and Consolidation of Holdings Act (1947), S.31 - Restriction for transfer - Restriction contained under S.31 of Act would not apply when merely survey numbers were converted into gat number after consolidation by allotting same land to the same person.

Restriction for the transfer contained under Section 31 of the Consolidation Act would not apply when merely survey numbers were converted into the gat number after consolidation by allotting same land to the same person.

In the present case, the appellant was previously owner of land bearing survey No.61 in its entirety. The same land bearing survey No.61 and consisting of 4 Hissas was given a new gat No.99 and allotted to the appellant. No land which was owned by somebody else formed a part of gat No.99. The land of appellant was converted into a gat number and the very same land was allotted to him. Except that change of survey No.61 to gat No.99 there was no change in the holding. In view of the decision of this Court in Putalabai Vs. Shiva the prohibition against the transfer contained in Section 31 of the Consolidation Act would not be applicable for transfer of the suit land. AIR 1981 Bombay 9 - Rel. on. [Para 10,11]

(B) Specific Relief Act (1963), S.38 - Perpetual injunction - Grant of - S.38 not exhaustive - S.38 does not restrict power of court to grant perpetual injunction only in cases mentioned in it - It only recognizes power of the Court to grant injunction in the cases covered by it - An owner of property can always claim injunction against a stranger who is attempting to disturb his possession, though such a suit is not strictly covered by S.38 of Specific Relief Act.

Section 38 of the Specific Relief Act relates as to when perpetual injunction can be granted and says that the perpetual injunction can be granted to the plaintiff to prevent breach of an obligation existing in his favour, whether expressly or by implication. Section 38 is not exhaustive and there would also be cases which are not covered by Section 38 when a perpetual injunction can be granted. Section 38 does not restrict the power of the court to grant perpetual injunction only in the cases mentioned in it. It only recognises power of the court to grant injunction in the cases covered by it. An owner of a property can always claim injunction against a stranger who is attempting to disturb his possession, though such a suit is not strictly covered by Section 38 of the Specific Relief Act. Similarly, a person who is lawfully in possession of the property can also claim injunction for protection of his possession. There are cases wherein the Court had even granted injunction in favour of a tress-passer who is in settled possession of a property. In the present case, according to the respondents, they were put in the possession of the suit property in pursuance of the agreement of sale. The two courts below have recorded concurrent finding of fact that the respondents were in possession of the suit property. Consequently, they were entitled to an injunction restraining the appellant who is owner, not to dispossess them except by due course of law. The lower appellate court was, therefore, right in granting the injunction in favour of the respondents. Appellant not being in possession was not entitled to the relief of injunction and consequently his suit was also liable to be dismissed and has rightly been dismissed by the lower Appellate Court. [Para 13]

Cases Cited:
Putalabai Lakhu Pawar Vs. Shiva Dhondi Pawar, AIR 1981 Bombay 9 [Para 10,11]


JUDGMENT

JUDGMENT :- These two appeals relate to the same piece of land bearing Gut No.99, admeasuring 1 Hector 94 R of village Chilwadi, Taluka and Dist.-Osmanabad. Appellant and respondents in both the appeals are also the same persons. Hence, both these appeals are decided by this common Judgment.

2. The facts giving rise to the appeals are common and briefly stated below.

The appellant is the owner of the suit land bearing Block No.99 of village Chilwadi, Taluka and Dist.-Osmanabad. By an agreement of sale dated 2nd August, 1976 the appellant agreed to sell to the respondents the suit land for a consideration of Rs.6,000/- by accepting earnest amount of Rs.5,000/-. The sale was to be executed after the permission under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short, the "Consolidation Act") was obtained. According to the respondents in pursuance of the said agreement of sale the appellant also handed over possession of the suit land to them. Respondents issued a notice to the appellant on 8th of April, 1978 calling upon him to execute the sale deed in their favour. He neither replied, nor complied with the notice. The respondents, therefore, filed a suit bearing Regular Civil Suit No.65/1978 against the appellant for specific performance of the agreement of sale dated 2nd of August, 1976 and for an injunction restraining the appellant from disturbing their possession of the suit land. Appellant resisted the suit by filing the written statement contending that he had never agreed to sell the suit property to the respondents. He denied the execution of the agreement of sale dated 2nd of August, 1976. In the alternative, he pleaded that the alleged transaction between him and the respondents was a money lending transaction and he had never agreed to sell the suit property to the respondents.

3. After consideration of the oral and documentary evidence adduced by the parties, the trial court held that the appellant had agreed to sell the suit property to the respondents by executing an agreement of sale dated 2nd of August, 1976 and further held that the appellant had also accepted Rs.5,000/- as an earnest money and had refused to execute the sale deed when called upon to do so by the respondents. The trial court also held that the respondents had proved that they were in possession of the suit land in pursuance of the agreement of sale. The trial court rejected the defence of the appellant that the suit transaction was a money lending transaction and that the appellant had never intended to sell the suit property to the respondents. The trial court further held that respondents had not proved that they were ready and willing to perform their part of the contract and, therefore, dismissed the suit for specific performance and only directed refund of earnest money of Rs.5,000/-.

4. Aggrieved by the decision of the trial court, the respondents filed an appeal bearing Regular Civil Appeal No.193/1982 in the District Court at Osmanabad. The lower appellate court confirmed all the findings of the trial court which were recorded in favour of the respondents. Lower appellate court however reversed the findings regarding readiness and willingness recorded by the trial court and held that the respondents were ever ready and willing to perform their part of the contract. In this view of the matter, the lower appellate court reversed the ultimate decision of the trial court and passed a decree for specific performance of the agreement of sale. It also granted a perpetual injunction restraining the appellant from disturbing the possession of the respondents. Aggrieved by the decision, the appellant has filed Second Appeal No.204/1988 before this Court.

5. In the mean while and after the decision of the trial court in Suit No.65/1978 refusing the relief of specific performance of agreement to sell, the appellant filed a suit bearing Regular Civil Suit No.341/1983 for injunction restraining the respondents from disturbing the possession of the appellant of the suit land. The trial court decreed the suit. Aggrieved by the said decision the respondents filed an appeal bearing Regular Civil Appeal No.75/1986. By its judgment and order dated 19th of February, 1988 the lower appellate court allowed the Appeal and dismissed the suit holding that the appellant was not in possession of the suit land on the date of the suit. Aggrieved by the said decision the appellant has filed Second Appeal No.197/1988 before this Court.

6. By an order dated 19th of September, 1988 this Court (Coram : B. N. Deshmukh, J.) admitted Second Appeal No.204/1988 as to the grounds Nos.(S) & (V) mentioned in the appeal memo. By an order passed on the same day, this Court also admitted appeal No.197/1988 mentioning to be heard along with Second Appeal No.204/1988.

7. Ground Nos.(S) & (V) of the appeal memo are quoted below :

"(S) Whether permission of the alleged suit transaction was to be obtained under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, at the relevant time ?

(V) Whether the lower appellate court was right in considering the provisions of Section 38 of the Specific Relief Act, to grant injunction against the defendants ?"

8. As the appeals have been admitted only as to the two grounds mentioned above, it is not necessary to consider the other grounds raised in the appeal memo.

Regarding Ground No.(S) :

9. Learned counsel for the appellant submitted that since the suit land was allotted to the appellant under the Consolidation Scheme, it could not be sold without the prior permission of the Collector in view of Section 31 of the Consolidation Act. The permission from the Collector was not obtained before the filing of the suit and, therefore, no decree for specific performance could be passed without such permission. Section 31 of the Consolidation Act, as substituted by Maharashtra Act of 41 of 1977 reads as under :

"Section 31.- (1) Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof shall save as otherwise provided in this section-

(a) be transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, lease, or otherwise; or

(b) be sub-divided, whether under a decree or order of a Civil Court or any other competent authority, or otherwise, so as to create a fragment, without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed.

(2) Nothing in sub-section (1) shall apply to any land-

(a) which is situated in any area for which-

(i) a municipal corporation is constituted under the Bombay Municipal Corporation Act, the Bombay Provincial Municipal Corporations Act, or the City of Nagpur Corporation Act, 1948; or

(ii) a municipal council is constituted under the Maharashtra Municipalities Act, 1965; or

(iii) a cantonment is constituted under the Cantonments Act, 1924; or

(b) which is situated in a notified area for which a Special Planning Authority is constituted or appointed under section 40 of the Maharashtra Regional and Town Planning Act, 1966; or

(c) which is situated in an area designated as a site for a new town for which a Development Authority is constituted under section 113 of the Maharashtra Regional and Town Planning Act, 1966; or

(d) which is situated in any area specified by the State Government, by notification in the Official Gazette, as being reserved for non-agricultural or industrial development.

(3) Nothing in sub-section (1) shall also apply to any land which is to be transferred-

(i) to the tenant of the holding or his heir; or

(ii) to the owner of the adjoining holding who cultivates his land personally; or

(iii) to an agriculturist or agricultural labourer, in its entirety; or

(iv) to a person who is rendered landless by reason of acquisition of his land for a public purpose; or

(v) to a co-operative society; or

(vi) by way of gift (whether by way of trust or otherwise) bona fide made by the owner in favour of a member of his family; or

(vii) by way of exchange, where such land is cultivated personally by the holder, for any other land allotted under this Act, which is also likewise cultivated personally by its holder :

Provided that no such transfer shall be made so as to create a fragment."

10. Sub-section (1) of Section 31 says that no holding alloted under the Consolidation Act shall be transferred without the permission of the Collector. This section has been interpreted by this Court in Putalabai Lakhu Pawar and others Vs. Shiva Dhondi Pawar and others, AIR 1981 Bombay 9. This Court has held that in order to attract the bar of section 31 the holding must be allotted under the Act. Where the Consolidation Scheme has been made applicable and the land which was previously owned by a person and was bearing a survey number and was given a gat number (block number) under the Consolidation Scheme and remained with the same owner, it can not be said that the holding was allotted to the person under the Consolidation Act. However, the land which was not previously owned by a person is allotted to him in lieu of his some other land held by him under the Consolidation Scheme, the new land which is allotted to the person will be holding allotted under the Act. This Court held that restriction for the transfer contained under Section 31 of the Consolidation Act would not apply when merely survey numbers were converted into the gat number after consolidation by allotting same land to the same person.

11. In the present case, the appellant was previously owner of land bearing survey No.61 in its entirety. The same land bearing survey No.61 and consisting of 4 Hissas was given a new gat No.99 and allotted to the appellant. No land which was owned by somebody else formed a part of gat No.99. The land of appellant was converted into a gat number and the very same land was allotted to him. Except that change of survey No.61 to gat No.99 there was no change in the holding. In view of the decision of this Court in Putalabai Vs. Shiva (supra) the prohibition against the transfer contained in Section 31 of the Consolidation Act would not be applicable for transfer of the suit land. The lower appellate court relying upon the decision of this Court in the case of Putalabai Vs. Shiva (supra) has held that the permission under Section 31 of the Consolidation Act was not necessary. I see no error in the view taken by the learned District Judge, in this regard.

12. Even otherwise permission was not necessary for sale in view of sub-section (3) of Section 31 of the Consolidation Act. Sub-section (3) of Section 31 of Consolidation Act, specifically says that nothing in sub-section (1) shall apply to any of the land which is transferred to an agriculturist or agricultural labourer in its entirety. The appellant had agreed to transfer whole of the gat No.99. The sale was in favour of an agriculturist. It was never disputed by the appellant that respondents were not agriculturists. In fact, if they were not agriculturist, the sale was not permissible at all in view of Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948. No defence was taken up by the appellant that respondents were not agriculturist and, therefore, they were not entitled to purchase the suit land. In view of sub-clause (iii) of sub-section (3) of Section 31 the bar contained in sub-section (1) of Section 31 of the Consolidation Act, is not applicable to the proposed sale by the appellant to the respondents. In this view of the matter, no permission was required under the Consolidation Act. The decree for specific performance, therefore, can not be challenged on the ground that permission under Consolidation Act was not obtained.

Regarding Ground No.(V) :

13. Section 38 of the Specific Relief Act relates as to when perpetual injunction can be granted and says that the perpetual injunction can be granted to the plaintiff to prevent breach of an obligation existing in his favour, whether expressly or by implication. Section 38 is not exhaustive and there would also be cases which are not covered by Section 38 when a perpetual injunction can be granted. Section 38 does not restrict the power of the court to grant perpetual injunction only in the cases mentioned in it. It only recognises power of the court to grant injunction in the cases covered by it. An owner of a property can always claim injunction against a stranger who is attempting to disturb his possession, though such a suit is not strictly covered by Section 38 of the Specific Relief Act. Similarly, a person who is lawfully in possession of the property can also claim injunction for protection of his possession. There are cases wherein the Court had even granted injunction in favour of a tress-passer who is in settled possession of a property. In the present case, according to the respondents, they were put in the possession of the suit property in pursuance of the agreement of sale. The two courts below have recorded concurrent finding of fact that the respondents were in possession of the suit property. Consequently, they were entitled to an injunction restraining the appellant who is owner, not to dispossess them except by due course of law. The lower appellate court was, therefore, right in granting the injunction in favour of the respondents. Appellant not being in possession was not entitled to the relief of injunction and consequently his suit was also liable to be dismissed and has rightly been dismissed by the lower Appellate Court.

14. For these reasons, in my view the decision of the lower appellate court is in consonance with the law. There is no merit in the appeals. Hence, both the appeals are dismissed with costs.

Appeals dismissed.