Second Appeal No.247 of 1993

27th April, 2010

Petitioner Counsel: Mr. S. P. DESHMUKH
Respondent Counsel: Mr. P. G. GODHAMGAONKAR

JUDGMENT

JUDGMENT :- Heard.

2. Regular Civil Suit No.3/1989 was decided by the learned Civil Judge, Senior Division, Biloli, who partly decreed the suit. Being aggrieved by the same Regular Civil Appeal No.179/1992 was preferred before the 4th Additional District Judge, Nanded, who decreed the suit accepting entitlement of the plaintiff to recover entire suit land from the defendant. The first appellate Court also declared the sale-deed in favour of the defendant dt.17th Sept., 1968, relating to suit land as illegal.

3. FACTS :

The parties are referred with the status 'plaintiff' and 'defendant'. Plaintiff sought possession of suit land based on a sale-deed dt.6th Sept., 1965, having purchased it from Bapurao and Narsingrao for Rs.2,500/- under a valid permission from the Deputy Collector. The plaintiff asserted, possession of the land was taken at the time of execution of the sale-deed. It is alleged, the defendant, in collusion with Talathi, got his name entered in record of rights.

4. From the suit land, 1 acre 20 gunthas is Madat Mash and 12 acres is Khalasa Inam land, as is evident from the Deputy Collector's and Commissioner's orders (Exhs.122 and 132).

5. SUBMISSIONS

Mr. Deshmukh submits, original owner was not made party to the proceedings by the plaintiffs. There could not be a delivery of possession in favour of plaintiff (respondent to the appeal) on 6.9.1965, as there was no mutation in revenue record since 1965 and, consequently, in the year 1968, the defendant/appellant has purchased the agricultural field. There was a valid permission in favour of the appellant dt.30.12.1976 by the competent authority and, in the light of such permission, the appellant (defendant) had perfected his title to the suit property. The title of the plaintiff (respondent) is restricted title as the pre-requisite of the transaction was a permission from the competent authorities, it being a Madat Mash Inam and Khalsa Inam land.

6. The appeal is admitted on 20th August, 1993, vide ground Nos.5, 6, 8, 9, 10 and 12 mentioned hereinafter.

"5. The vendor of the plaintiff has no absolute title to pass to the Plaintiff being Inam land.

6. Since no permission was obtained by the vendor of the Plaintiff, the impugned say does not convey any title to the Plaintiff.

8. The plaintiff had not sought for relief of validation certificate regarding the suit land.

9. The Civil Courts has no jurisdiction to decide question as to whether the sale transaction requires to be validated.

10. The Court below had shown jurisdiction not vested in it to decide as to which of the two sale-deed should be preferred for validation.

12. The Court below also travelled beyond its legal authority to hold that validation certificate issued in favour of the Defendant regarding the sale-deed dated 17th June, 1968 is illegal."

7. Mr. Godhamgaonkar, Counsel, appearing for the respondent (original plaintiff) asserts, the transaction of plaintiff is not vitiated even if no permission was obtained from the competent authorities. No permission was required for sale of Khalsa land. The defendant was a Gram Sevak, he prevailed over the vendor, got sale-deed on 17th September, 1968 and successfully tried to effect mutation, same was questioned before the Deputy Collector, consequently, possession of the land was taken over by the Government in terms of Section 145 of Cr.P.C. The proceedings are terminated in favour of the respondent (plaintiff). There was a delivery of possession in favour of the plaintiff, reflected in the sale deed. It was so confirmed by the Deputy Collector in the proceedings.

8. OBSERVATION :

The sale-deed in favour of the plaintiff (respondent) is at Exh.107. It is attached with a permission granted by the Deputy Collector, Degloor, on 3rd Sept., 1965 under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act (No.2 of 1950) for alienation. This document illustrates that the vendor Bapurao Mahadu and Narsinga Mahadu conveyed absolute title in favour of the plaintiff for entire 13 acres, 20 gunthas of the land, with a recital that its possession was handed over to the plaintiff as owner.

9. On the other hand, the sale-deed of the defendant (appellant) Narayanrao, from the same vendor Bapurao and Narsingrao, for 13 acres, 20 gunthas of the land, for Rs.4,000/-, dt.17.9.1968, is without affording any permission from the competent authorities with an inscription that such permission is not warranted. The fact remains, the sale-deed in respect of the suit land in favour of the plaintiff (Exh.107) was first in time than the sale-deed dt.17.9.1968 (Exh.108) in favour of the defendant Narayanrao. The defendant, in arrogance of his power purchased the land already sold, he cannot be a authority to brand plaintiffs sale-deed to be void and hence to have a mileage on the situation. Section 48 of Transfer of Property Act ordains to accept supremacy of the former sale-deed in all the terms than the later. The transferor cannot prejudice the rights of transferee by any subsequent dealing with the property. Section 48 of the Transfer of Property Act reads as under :

"48. PRIORITY OF RIGHTS CREATED BY TRANSFER :

Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created."

10. Now, the submission of Mr. Deshmukh that the transaction of the plaintiff was devoid of permission, and could not survive in the eyes of law, needs again to be evaluated.

11. Based on the controversies raised by the parties in Special Civil Suit No.58/1975, learned Civil Judge, Senior Division, has referred the issues to the learned Deputy Collector (LR), Nanded, under Section 2-A of Hyderabad Abolition of Inams and Cash Grants Act, 1954, formulating following three issues :

"(1) What is the nature of Inam of the suit land survey No.53 admeasuring 13 acres, 20 gunthas of Goundgaon.

(2) Whether this land may be alienated with or without permission of the Collector.

(3) Whether the plaintiff was entitled to the validation certificate in preference to that of the defendants."

12. On analysis of the evidence and the legal position, the learned Deputy Collector, crystallized the issues answering that only 1 acre, 20 gunthas of land out of survey No.53, situate at Goundgaon, taluka Degloor, is Madat Mash and the remaining area (12 acres) can be treated as Khalsa land. So far as issue No.2 is concerned, he has observed, that the ownership of the Inam land, which is re-granted to the occupant, dt.1.7.1960 is restricted; he cannot sale, transfer or mortgage or partition without prior permission of the Collector, the occupancy of the Inam lands have been regranted to the occupants on the nominal price i.e. six times of assessment to the Inamdars and, Kabij-E-Kadim, eight times of the assessment of the assessment to the protected tenant and 12 times of the assessment to the ordinary tenant. According to the learned Deputy Collector, hence, Inam lands re-granted to the occupant under Section 6 of the Hyderabad Abolition of Inams and Cash Grants Act, 1954, can be sold with prior permission of the Collector under Section 6(3) of the Hyderabad Abolition of Inams and Cash Grants Act, 1954 and the land other than the Inam can be sold to any person with permission of the competent authorities under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. After amendment of the Section, no permission now is required to be obtained for sale of agricultural lands. The learned Deputy Collector has also observed that, the case of plaintiff can be regularized after obtaining amount of 20 times of assessment as NAZARANA.

13. In the present case, both the purchasers have not obtained permission from the Collector. The regularization in the year 1976 by the subsequent purchaser Narayanrao is without title or interest in the land. Hence, the transaction between the land holders and Shri. Narayanrao (appellant) is itself illegal. On the other hand, the sale transaction with permission of Deputy Collector, Degloor, in favour of Shri. Mogiya Lalya (plaintiff) can be held as lawful and legal. The regularization can be made to the extent of 1 acre, 20 gunthas which has been treated as Inam land after obtaining amount of NAZARANA of 20 times of assessment of the land revenue.

14. This order of the learned Deputy Collector was questioned by defendant/appellant Narayanrao before the Appellate forum Additional Commissioner, Aurangabad, however, before the appellate forum present appellant Narayanrao lost. Thus, the permission in favour of the plaintiff by the Deputy Collector, under Section 47 of the Hyderabad Tenancy and Agricultural Lands Act was treated to be valid. This order of the learned Additional Commissioner has reached finality as it has answered the issue formulated by the learned Civil Judge, Senior Division.

15. The permission subsequently sought by the defendant dt.30.12.1976 under the banner of validation certificate was not at all required and it could not prevail upon the original permission in favour of the plaintiff having been confirmed by the Deputy Collector and by the Additional Commissioner on 9.2.1987.

16. Section 29 of Maharashtra Land Revenue Code, 1966, conceive occupants as (a) Class I, (b) Class II and (c) Government lessee. The Class I occupants shall consist of persons who - (a) hold unalienated land in perpetuity and without any restrictions on the right to transfer and (b) immediately before the commencement of this Code hold land in full occupancy or Bhumiswami rights without any restrictions on the right to transfer in accordance with the provisions of any law relating to land revenue in force in any part of the State immediately before such commencement. Under Section 58 of the Hyderabad Land Revenue Act, occupancy right to land shall be deemed to be heritable and transferable (Act No.9 of 1309 Fasali).

17. CONCLUSIONS :

Taking survey of above facts, it could not be said that the plaintiffs vendor had no absolute title to pass to the plaintiff, it being an Inam land or that for want of permission by the vendor, the transaction of the plaintiff is without any title. It is not necessary that the plaintiffs should have sought declaration of validation certificate regarding the suit land, as it is beyond the scope of Civil Court. The Civil Court justifiably referred the matter about requisition of permission, for adjudication to the competent authorities. The finding of the Court about not accepting the so-called validation certificate in favour of the defendant was based on the findings recorded by the learned Deputy Collector and the Additional Commissioner, consequently, the so-called validation of 1976 in favour of the defendant for sale-deed dt.17th June, 1968, was rightly declared as illegal. There is no deflection of main issues by the courts.

The substantial questions of law formulated from the grounds referred above are answered against appellant (defendant). Second Appeal lacks merit, dismissed, with costs.

Second appeal dismissed.