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2014 Supreme(Bom) 1522
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
T.V. NALAWADE, J.
The Osmanabad Janata Sahakari Bank Ltd. - Appellant.
Versus
Pandharinath Gyanba Gunale - Respondents.
First Appeal No.1214 of 2003
Decided On : 1st August 2014.
Shri. V.D. Hon, Advocate, for appellant.
Shri. P.M. Shah, Senior Advocate, instructed by Shri. V.D. Gunale, Advocate, for respondent Nos.1A to 1C.
Shri. V.G. Shelke, Assistant Government Pleader, for respondent No.2.
Headnote:Specific Relief Act, 1963 - Chapter II - Transfer of Property Act, 1882, Section 107 - Specific performance of contract. - Since transaction in question itself is invalid in view of Section 107 of Act hence specific performance of contract cannot be granted. - So far as right to get specific performance as mentioned in the proviso is concerned, it can be said that the present transaction of lease does not fall under Chapter II of the Specific Relief Act. By the present transaction, the demise in the property was created and under Section 107 of the T.P. Act it was compulsory to register the document. In view of provision of Section 107 of the T.P. Act the transaction itself was invalid. So, in the present case there was no question of specific performance of contract under Chapter 11 of the Specific. Relief Act. In any case, no such relief was claimed by the defendant under the aforesaid document.
Transfer of Property Act, 1882 - Sections 107 and 53-A - Registration Act, 1908, Section 49 - Protection under Section 53-A. - Since instrument, an unregistered document of lease, is invalid in view of Section 107 of Act hence protection under Section 53-A of Act not available. - The defendant has claimed protection of possession by using Section 53-A of the T.P. Act. The aforesaid provision of Section 49 of the Registration Act and the provision of Section 53-A of the T.P. Act need to be read together.
In the present case transaction mentioned in the instrument is invalid in view of Section 107 of the T.P. Act and so there was no question of transfer of any interest under the document to the defendant. In strict sense it can be said that unregistered document cannot be used to show that the rights, which could not have been transferred under the document, like the lease for a period of ten years, were transferred and for that matter the person who got possession, cannot be treated as transferee under this provision.
1. The appeal is filed against the judgment and decree of Special Civil Suit No.8/2001 (Old Special Civil Suit No.232/1995) which was pending in the Court of the Civil Judge, Senior Division, Ahmedpur, District Latur. The suit filed by the present respondent No.1 for relief of possession of immovable property and mense profit is decided in his favour. Counter claim filed by the appellant, defendant No.1, for specific performance of contract of sale of the same immovable property is dismissed by the trial Court. Both the sides are heard.
2. Municipal House No.9 situated at Ahmedpur having construction of godown of size of 50 x 40 ft and construction of three rooms and also open space surrounding the constriction is the suit property. The size of the plot on which the construction is there is around 8680 square feet (155 x 56 ft). It is the case of the plaintiff-respondent, that the defendant No.1 is in possession of the entire property. It is the case of the plaintiff that he purchased the suit property in auction sale held by the Liquidator of Osmanabad Zilla Audyogik Sewa Sahakari Society Ltd., and the sale deed was executed in his favour on 18-1-1990. He purchased the property for consideration of Rs.3.25 lakhs.
3. It is the case of the plaintiff that the appellant/defendant, got the possession of the suit property under a document of lease dated 14-10-1982 from the previous owner. It is contended that agreement was for the period of ten years. It is contended that the owner society went into liquidation and the Liquidator came to be appointed on 27-9-1984. It is contended that there was public auction held by the Liquidator after following the procedure and the plaintiff was highest bidder in the said auction. It is the case of the plaintiff that sale made in his favour was approved by the Government of Maharashtra on 8-12-1989 and after that the sale deed was executed.
4. It is the case of the plaintiff that the defendant had challenged the legality of the auction by filing proceeding before the authority constituted under the Maharashtra Cooperative Societies Act but it failed in that attempt. It is contended that proceeding filed by the defendant No.1 as against the order made by the authority came to be dismissed in High Court on 25-5-1992. It is contended that Writ Petition No.2779/1993 was also filed by the defendant No.1 but it also came to be dismissed. It is contended that while dismissing the writ petition filed by the defendant No.1, the High Court observed that the plaintiff needs to follow the procedure laid down by law for taking possession as the defendant No.1 was in possession as lessee and so he filed the present suit.
5. It is the case of the plaintiff that he was not aware of the agreement of lease dated 14-10-1982 which was between defendant No.1 and the previous owner. He contended that he is bona fide purchaser without notice for valuable consideration and so the transaction between the defendant No.1 and the previous owner is not binding on him. It is contended that, previous owner had told that after the sale deed the plaintiff would get possession.
6. It is the case of the plaintiff that the Liquidator asked the defendant No.1 to hand over possession to the plaintiff by sending letter but the defendant No.1 did not hand over the possession. It is contended that the defendant No.1 challenged the legality of the auction sale and he also disputed the title of the plaintiff over the suit property. It is the case of the plaintiff that due to such contentions of the defendant No.1 and the aforesaid circumstances, he is not entitled to keep the possession of the property as tenant.
7. It is the case of the plaintiff that under the agreement between the defendant No.1 and the previous owner some period was fixed in respect of lease and after expiry of the period, the defendant No.1 did not exercise option to continue the possession as lessee. It is contended that due to this reason also the defendant i
