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2008 Supreme(Bom) 716
2008(4) ALL MR 770
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S. S. SHINDE, J.
Jaywantrao Balawantrao Patil & Anr. – Appellant
Vs.
Sandeep Ramchandra Sapakal & Ors. – Respondent
Second Appeal No.478 of 1999
Decided on 3rd June, 2008.
ADVOCATE APPERARED
Mr. B. R. PATIL, for the Appellants.
Mr. TANAJI MHATUGADE i/by Mr. A. V. ANTURKAR, for the Respondents.
Headnote:Maharashtra Resettlement of Project Displaced Persons Act, 1976 - Sections 11 and 12-Sale deed-Validity of-A piece of agricultural land alleged to be plaintiff’s ancestral property, sold by plaintiff’s father-Sale deed executed on 31.8.1978 after issuance of Notification dated 13.5.1977 by State Government-Village wherein suit land situated, included in affected and benefited zone by Notification-Execution of sale deed in 1978 without obtaining prior permission from competent authority is illegal and void ab initio- Said illegality cannot be cured by obtaining subsequent permission in 1993.-So far as the case in hand is concerned, sale deed was executed by the father of the appellants/ plaintiffs on 31.8.1978 in favour of the respondents/defendants. The notification under Section 11 was issued by the State Government in the official gazette on 13.5.1977. By the said notification the Government included the village Aitwade and the lands or areas falling in village Aitwade as affected and benefited zones. As per the case of the respondents/defendants, necessary permission from the competent authority was obtained by them subsequently in the year 1993. Therefore it is crystal clear that in the year 1977 itself the Government, by issuing notification dated 13.5.1977 under the provisions of Section 11, put restrictions on transfer by way of gift, exchange, lease or others, sub-division, or partition of lands of village Aitwade were falling in the affected and benefited zone.
For the reasons stated above, in my view, the lower appellate Court erred in allowing the appeals filed by the respon- dents/defendants. The lower appellate Court without properly appreciating the provisions of Sections 11 and 12 of the said Act and only relying upon the subsequent permission granted on 8th April, 1993 by the competent authority, Sangali permitting to effect the mutation entry in respect of the sale and purchase of 80R of land from Gat No. 195 of village Aitwade i.e. the suit land, came to the wrong conclusion that the said sale deed is valid and legal. The lower Court i.e. the Civil Judge Junior Division, Sangli is perfectly justified in decreeing the suit of the plaintiffs. Therefore, the judgment and order dated 9.9.1999 passed by the Addl. District Judge, Sangli in Regular Civil Appeal No. 462 of 1997 and Regular Civil Appeal No. 511 of 1997 is quashed and set aside. The judgment and order passed by the Civil Judge, Junior Division Islampur on 30.9.1997 is upheld and confirmed.
2. While admitting the appeal on 9th March, 2000 this Court recorded the following substantial question of law which arises in this Second Appeal :-
"Whether the sale deed dated 11.8.78 is legal and valid in view of the provisions of Section 12(1)(d) and 12(3) of the Maharashtra Project Affected Persons Rehabilitation Act, 1986?"
FACTUAL MATRIX :-
3. The present appellants/original plaintiffs instituted a suit for perpetual injunction against the respondents/original defendants in respect of one piece of agricultural land from village Aitwade-Khurd, Tal. Walwa, Dist. Sangli bearing Regular Civil Suit No.33/ 1994 in the Court of Civil Judge (Jr.Division), Islampur, District Sangli.
4. It was the case of the appellants/ plaintiffs that the agricultural land bearing Gat No.195/l, admeasuring 3-H-17R situated at village Aitwade-Khurd, Tal. Walwa, District Sangali is their ancestral property. Plaintiff No. 1 is the father of Plaintiff No.2. On 31st August 1978, the father of plaintiff No.2 executed a sale deed in favour of the respondents/original defendants. According to the plaintiffs, the said sale deed was a hollow document and it was brought in existence as a security for the loan obtained from the father of defendant Nos.1 and 2. It was the contention of the plaintiffs that the said document was not acted upon by the parties and the possession of the suit property was never delivered to the defendants. It was the averment of the plaintiff that the sale deed dated 31.8.1978 was/is an unlawful document as the suit land was then mortgaged with the land development bank and the co-operative society, Aitwade Khurd. Therefore, according to the appellants/original plaintiffs, the respondents/original defendants do not get any right or title under such sale deed. It is averred by the plaintiffs in the plaint that the defendants had agreed for not claiming any right under the said sale deed and, the plaintiffs had, therefore, continued to remain in possession of the suit land.
5. It was the case of the plaintiffs that in the year 1984 some portion of the suit land from western side was acquired by the Rehabilitation Officer. It is further averred by them that as village Aitwade-Khurd falls under the affected area, the transfers of the lands could not be effected without the permission of the concerned authorities and. neither the plaintiffs nor the defendants had obtained any such permission and. therefore, the alleged transaction of sale and purchase is badly affected.
6. It was also contended by the plaintiffs that the defendants, with some malafide intention, were trying to mutate their names in the revenue records in respect of the suit land and trying to create some false documents though the plaintiffs have repaid the loan amount. As the defendants are trying to obstruct the possession of the plaintiffs in respect of the suit land, the plaintiffs have filed the aforesaid civil suit for perpetual injunction against the defendants.
7. The defendant Nos.1 and 2 have filed their written statement and denied the case of the plaintiffs in toto. According to them, the plaintiffs were in a need of money and had requested their uncle Narayan Ganpati Sapkal to purchase two acres i.e. 81 R of agricultural land from Gat No.195 of village AitwadeKhurd, Tal. Walwa. Finally, the Defendant Nos.1 and 2, after clearing the encumbrances over the land and removing other legal impediments, had purchased 81 R land out of Gat No.195 for a consideration of Rs.10, 000/-. According to them, a sale deed to that effect was got executed and registered on 31st August, 1978. Portion of 47 R of the said land from Western side was kept reserved for acquisition by the Government under the Rehabili
