A buyer who acquires title to land by adverse possession after an oral sale is not liable to return the land to the seller under the Bombay Agricultural Debtors Relief Act, and the charge for the price paid by the buyer under Section 55(6)(b) of the Transfer of Property Act is merged in the buyer's title upon the extinction of the seller's title by adverse possession.

Headnote:
BOMBAY AGRICULTURAL DEBTORS RELIEF ACT - ORAL SALE OF PROPERTY - ADVERSE POSSESSION - CHARGE FOR PRICE PAID - EXTINCTION OF TITLE - RIGHT TO POSSESSION - LIMITATION ACT - SECTION 55(6)(B) OF THE TRANSFER OF PROPERTY ACT - SECTION 32(5) OF THE BOMBAY AGRICULTURAL DEBTORS RELIEF ACT - SHAMBHU BIN HANMANTA V. NAMA BIN NARAYAN - JIBHAOO HARISING V. AJABSING FAKIRA - LALCHAND MOTIRAM V. LAKSHMAN SAHADU - DEWAL PIRANSIAH V. DHARMA RAJARAM - SHAMBHUBHAI KARSANDAS V. SHIVLAL-DAS SADHASHIVDAS DESAI.
Fact of the Case:

Petitioner Dagdu Dhondu Patil filed an application under the Bombay Agricultural Debtors Relief Act 1939, alleging that an oral sale of his land to Sampat Supdu was in the nature of a mortgage and sought return of the land. The heirs of Sampat Supdu, who died during the pendency of the application, contended that the land was sold orally in 1933 and that the transaction was not a mortgage. The trial court held that Dagdu Dhondu was a debtor within the meaning of the Act and that the land was orally sold in 1934, but that the buyer had not acquired title by adverse possession as the application was filed within 12 years from the date of sale. On appeal, the District Court held that the oral sale was effected in 1933 and that the buyer had acquired title by adverse possession. Dagdu Dhondu filed a revision application in the High Court.
Finding of the Court:

The High Court held that the oral sale was effected in 1933 and that the buyer had acquired title by adverse possession. The court held that the principle in Jibhaoo Harising v. Ajabsing Fakira, which allows a debtor to obtain an order for return of property transferred under an oral sale and treats the consideration received by the buyer as a debt due to the buyer, is not applicable where the buyer has acquired title by adverse possession. The court also held that the charge for the price paid by the buyer under Section 55(6)(b) of the Transfer of Property Act is merged in the buyer's title upon the extinction of the seller's title by adverse possession.
Issues: 1. Whether the buyer acquired title to the land by adverse possession. 2. Whether the principle in Jibhaoo Harising v. Ajabsing Fakira applies where the buyer has acquired title by adverse possession. 3. Whether the charge for the price paid by the buyer under Section 55(6)(b) of the Transfer of Property Act survives the extinction of the seller's title by adverse possession.
Ratio Decidendi: 1. The court held that the buyer acquired title to the land by adverse possession because he had been in possession for more than 12 years and the seller had not filed a suit for possession within that time. 2. The court held that the principle in Jibhaoo Harising v. Ajabsing Fakira does not apply where the buyer has acquired title by adverse possession because the seller's title is extinguished and there is no longer a subsisting charge to be adjusted under the Bombay Agricultural Debtors Relief Act. 3. The court held that the charge for the price paid by the buyer under Section 55(6)(b) of the Transfer of Property Act is merged in the buyer's title upon the extinction of the seller's title by adverse possession.
Final Decision: The High Court dismissed the revision application with costs.

Judgment -

1. The petitioner Dagdu Dhondu Patil filed Miscellaneous Application No. 2775 of 1945 under the Bombay Agricultural Debtors Relief Act 1939, in the Court of the Civil Judge, Junior Division, Chalisgaon, alleging that an oral sale by him of S. No. 5/5A of the Village of Sarwe Budruk, Taluka Pachora to one Sampat Supdu for a consideration of Rs. 550/- by a yardi given to the village officers, was in the nature of a mortgage and that the debt due thereunder had been satisfied praying an order for return of the land. Sampat Supdu died during the pendency of the application and his heirs were brought on the record. The heirs of Sampat Supdu, whom I will hereafter refer to as the opponents, contended that the land was sold on 9th June 1935, by an oral sale to Sampat Supdu by the petitioner Dagdu Dhondu and that the transaction was not in the nature of a self redeeming mortgage as alleged by the petitioner. They also denied that there was an agreement to return the land after seven years. They submitted that the petitioner Dagdu Dhondu was not a debtor within the meaning of the B. A. D. 11. Act and that in any event the application having been filed more than 12 years after the date of the sale, Sampat Supdu had become owner of the land by adverse possession.

2. The learned trial judge held that Dagdu Dhondu was a debtor within the meaning of the B.A. D.R. Act that his debts did not exceed Rs. 15,000/-and that he was qualified to obtain the benefit of the B.A.D.R. Act. In the view of the learned judge, it was unnecessary to enter upon an enquiry whether the transfer, dated the 9th June, 1933, was in the nature of a mortgage as alleged by Dagdu Dhondu. Following the decision of this court in Jibhaoo Harising v. Ajabsing Fakira 54 Bom LR 971: (AIR 1953 Bom 145) (A) the learned judge held that where immoveable property is alleged to have been sold by An oral sale and an application is filed by the vendor for adjustment of debts under the B.A.D.R. Act the vendor is entitled to obtain an order for return of the property and the consideration received by him will be treated as a debt due to the buyer and liable to be adjusted under the Act. The learned Judge was of the view that the land was orally sold on 27th September 1934, when a Vardi (Intimation to effect mutation entry) was given to the village officer and an entry was made in the record of rights, and as be application for adjustment of debts was filed on the 6th October 1945 the buyer was not in possession adverse!; for a period exceeding 12 years and had not acquired title to the land. He observed: "that being so, there had been no transfer of interest in the property in dispute in favour of the creditor, and the creditor gets a charge for the purchase-money paid by him which becomes a debt that can be adjusted in the present case in view of the ruling in Jibhaoo Harising v. Ajabsing Fakira (A)."

3. The learned Judge made an award declaring that nothing was due to the buyer under the statutory charge for price paid under the oral sale, and he directed the opponents to deliver possession of the land in dispute and also directed an enquiry about future mesne profits.

4. Against the award made by the trial Judge an appeal was preferred to the District Court of East Khandesh at Jalgaon. In appeal the learned Assistant Judge held that the petitioner Dagadu Dhondu had orally sold S. No. 5/5A to Sampat Supdu on June 9, 1933, for Rs. 550/- and had delivered possession, by that sale accompanied by possession of the land Sampat Supdu had become owner of the land by virtue of his adverse possession for a period exceeding 12 years prior to the date of the application. The learned Judge also held that the petitioner Dagadu Dhondu was not a debtor within the meaning of the Bombay Agricultural Debtors Relief Act. On the view taken by him, the learned appellate Judge reversed the order passed by the trial Court and dismissed the application with costs throughout. The petitioner Daga

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