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In the High Court of Bombay at Aurangabad
THE HONOURABLE MR. JUSTICE SHRIHARI P. DAVARE
Kashinath s/o Haribhau Shitole, (since died), through original legal representatives: & Others
Versus
Vaijinath s/o Gena Shinde
SECOND APPEAL NO. 210 OF 1990
Decided On : 17-01-2011
Maharashtra Co-operative Societies Act, 1960 - Section 47(2)-Transfer of Property Act, 1882, Section 54-Sale of property- Property mortgaged with bank-Property sold by plaintiff without prior permission of bank-Recitals in sale deed- Property free from encumbrances and if any encumbrance, plaintiff responsible for-Validity of sale cannot be challenged by plaintiff.-The plaintiff herein made representation to the defendant that the suit property was free from all encumbrances and relying upon the said representation, the defendant purchased the suit property and the said aspect has been substantiated by recitals in the sale deed (Exh. 31) to the effect that the suit property is owned by the plaintiff and that the same is free from all encumbrances. Further, it is also recited in the sale deed to the effect that if there is any encumbrance or arrears in respect of the suit land, may be of the Government or semi-government, the plaintiff will be responsible for the same and the defendant will not be put to any loss and, accordingly, the said recital is also in favour of the defendant and consequently, the plaintiff will be estopped from raising the contention that the property is encumbered with the bank and since such prior permission of the bank is not obtained before execution of the sale-deed, the said transaction is void. Thus, the plaintiff cannot be permitted to blow hot and cold at the same time and he cannot be allowed to take advantage of his own wrong and consequently, there is substance in the submission advanced by the counsel for the defendant that the plaintiff is estopped from challenging the validity of the sale transaction between the plaintiff and the defendant.
Maharashtra Co-operative Societies Act, 1960 - Section 47(2)-Transfer of Property Act, 1882, Section 54-Sale of property-Property mortgaged with bank-Property sold by plaintiff without prior permission of bank-Sale transaction void only to extent of bank with which property mortgaged prior to sale transaction in favour of defendant.-However, there is another alternative angle that, assuming without admitting that the sale transaction is void, it could be void only to the extent of the Land Development Bank in whose favour the plaintiff had executed mortgage in respect of the suit property prior to the sale transaction in favour of the defendant and the plaintiff will not get any benefit of it, as claimed by him.
Shrihari P. Davare, J.
1. Heard Shri Milind Patil, learned Advocate, for the appellant and Shri M.M. Patil (Beedkar), learned Advocate for the Respondent. Parties are hereinafter referred to as per their original status i.e. Plaintiff and Defendant.
2. Present appeal is directed against the judgment and order dated 3.1.1990 rendered by the learned District Judge, Osmanabad, in Regular Civil Appeal No. 246 of 1982, thereby allowing the said appeal and setting aside the judgment and decree passed on 30.9.1982 by the learned Joint Civil Judge, Junior Division, Osmanabad, in Regular Civil Suit No.156 of 1978, and consequently, dismissing the said suit filed by the plaintiff.
3. The case of the plaintiff is that he is the owner of survey No. 66/2 of village Singoli, Taluka and District Osmanabad, in all admeasuring 13 acre 4 guanthas. He obtained loan of Rs.4000/= from Maharashtra Land Development Bank, Osmanabad, by mortgaging the said survey No.66/2 with the said bank. It is further averred by the plaintiff he had not paid the said loan and, therefore, the bank authorities were pressing hard for recovery of the said amount. It is further averred by plaintiff that on 29.6.1972, he agreed to sell northern side portion of 2 acres 1 guntha land from the said survey No.66/2 to the defendant, for Rs. 4000/=. It is the contention of the plaintiff that he also made the defendant aware about encumbrances on the said property. Thereafter, the transaction was completed and the defendant purchased the suit land for Rs.4000/= for which the plaintiff executed registered sale deed dated 29.6.1972 (Exh.31) before the Sub Registrar, Osmanabad, in presence of the witnesses. it is also averred by the plaintiff that the defendant was aware about the mortgage deed executed by plaintiff in respect of the suit land in favour of the said bank, but still no prior permission was obtained from the bank authorities by the plaintiff or defendant before completion of sale transaction between them. Therefore, according to the plaintiff, the sale is void, in view of Section 47(2) and (3) of the Maharashtra Cooperative Societies, Act, 1960 ("MCS Act" for short). Moreover, according to the plaintiff, no title has been passed in favour of the defendant in respect of the suit land and, therefore, possession of the defendant over the suit land is that of tresspasser. Hence, the plaintiff requested the defendant to hand over possession of the suit land to him, however, the defendant avoided to do the same and, therefore, plaintiff had no option, but to file the suit for declaration that the sale deed dated 29.6.1972 between him and the defendant is void and defendant be directed to deliver possession of the suit land back to the plaintiff and also for consequential reliefs as stated in the plaint, on 18.8.1978.
4. The defendant filed Written Statement (Exh.13) and resisted the suit claim, contending that he was not aware that the plaintiff had obtained loan from the Land Development Bank, by mortgaging the suit property with the said bank. It is also contended that, in fact, the plaintiff represented and assured the defendant that the land was free from all encumbrances, at the time sale transaction and the defendant believed in the words of the plaintiff and proceeded to complete the said sale transaction. it is further contended that the plaintiff is estopped from challenging the alienation. According to the defendant, provisions of Sections 47 and 48 of the MCS Act are not applicable. It is further stated that the defendant has paid various amounts to the banks on different occasions, which were accepted by the bank without any objection. Accordingly, defendant prayed that the suit of the plaintiff be dismissed with costs.
5. After considering the evidence adduced by the plaintiff and the defendant and considering rival submissions, learned Joint Civil Judge, Junior Division, Osmanabad, decreed the suit in favour of the plaintiff on 30.9.1982 and direct
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