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Gujarat High Court
Judgename :D.C.Srivastava
Girdharbhai V.Patil - Appellant
Versus
Ganpatbhai Kalubhai - Respondent
SECOND APPEAL 283 of 1979
Decided On : 04/23/1998
The two courts below have rightly held that the Agreement to Sell did not require any permission of the Collector even if it was in respect of new tenure land. The provision of Sec. 43(1) of the Bombay Tenancy and Agricultural Land Act was properly interpreted by the two courts below. Hence the finding of the two Courts below that the Agreement to Sell is not void for want of permission of the Collector requires no interference.
[Para 7]
There is clear recital in Ex. 58 that possession was delivered four years before the execution of this Agreement. Thus, even if under some mis-conception the plaintiff-appellant claimed possession through Agreement to Sell, it has no effect inasmuch as even Tukaram Kalu in the witness box admitted that the plaintiff was in possession since four years before the execution of Agreement to Sell.
[Para 9]
It further observed that this admission does not show that the defendant No. 1 admits that he has no interest in the Suit land. It is at this juncture that the lower Appellate Court committed error of law in interpreting clear and unambiguous admission of defendant No. 1 in its own way. Such explanation of admission of a party by a Court is hardly permissible. Such admission could be explained to be erroneous only by the defendant No. 1.
[Para 11]
The lower Appellate Court had forgotton that by virtue of Agreement to Sell the appellant did not become owner of the property.
[Para 12]
From their statements it is clear that the appellant was in possession since before the execution of Agreement to Sell. Even the defendant No. 1 has admitted that he is in possession of half share of the property. He is not asserting his possession over the entire property. He has not led any reliable evidence to believe ouster of possession of the appellant or that the appellant was never in possession of the Suit land. The findings of the lower Appellate Court in these circumstances are based on surmises and conjectures and not on proper appreciation of evidence on record. As such interference in this Second Appeal on such conjectural finding is definitely required.
[Para 13]
The question of co-ownership or joint ownership can be left open for adjudication in a separate suit inasmuch as the plaintiff-appellant has not come on the basis of title. If a separate suit for cancellation of Agreement to Sell is filed, such question can be looked into whether the executant was competent to execute such agreement or not and what was the nature of the property comprised in the Agreement. Likewise this question can be agitated and decided in a Suit for specific performance.
[Para 14]
( 1 ) THIS is plaintiffs Second Appeal.
( 2 ) THE brief facts are that Kalu Laxman had two sons, viz. Tukaram Kalu and respondent No. 1 Ganpatbhai Kalubhai. Survey No. 18/2, Area 10 Acres 22 Guntha situated in Hathoda was joint Hindu Family property. Kalu Laxman was karta. After the death of Kalu Laxman the joint family property was partitioned amongst his two sons, viz. , the plaintiff appellant and the defendant respondent No. 1. Plot No. 18/2 went to the share of Tukaram Kalu. Defendants No. 2 to 4 are sons of defendant No. 1. In view of the said partition Tukaram Kalu became owner of the disputed property in which the defendant No. 1 had no right title or interest. Tukaram Kalu, on account of his inability, shifted to village Ashta. He executed a registered Agreement to Sell on 10. 5. 1969 in favour of plaintiff-appellant agreeing to transfer the aforesaid land for Rs. 29,000/ -. The possession was also transferred under the said Agreement to sell, It is also mentioned in the Agreement that the plaintiff-appellant was in possession of the disputed land since four years before the execution of agreement to sell. On 12. 5. 1976 the defendant tried to obstruct the plaintiffs occupation over the land in dispute and further obstructed the appellant from entering the said land. Accordingly the Suit for permanent injunction was filed.
( 3 ) THE Suit was resisted by the defendants on the ground that no doubt the property was entered in the name of Tukaram Kalu as Manager of joint Hindu Family of Kalu laxman, yet inspite of this entry Tukaram Kalu could not be absolute owner of the property and he had no right to execute the Agreement to Sell in favour of the appellant. The said Agreement to Sell is said to be invalid inasmuch as no permission of the collector was obtained for executing the Agreement to Sell in respect of new tenure land, the Agreement to Sell was thus alleged to be void. It was also pleaded that Tukaram Kalu admitted in the Partition Deed Dted 26. 4. 1976 that the defendant No. 1 has half share. Hence the Suit was liable to be dismissed.
( 4 ) THE Trial Court decreed the Suit for permanent injunction. An Appeal was preferred which was allowed. The lower Appellate Court held that the Suit property was joint Hindu Family property in which the defendant No. 1 has one share and other defendants being sons of defendant No. 1 have also share in the same. As such the Suit for permanent injunction by one co-sharer against the other, in the opinion of the lower appellate Court, was liable to be dismissed. Accordingly the Appeal was allowed and after setting aside the Judgment and Decree of the Trial Court the Suit was dismissed by the first Appellate Court. Hence, this Second Appeal.
( 5 ) FOLLOWING substantial question of law was formulated in this Appeal :"in view of the recitals contained in Exh. 58 and the admission made by defendant No. 1 in his deposition, whether the courts below were justified in dismissing the plaintiffs Suit. "
( 6 ) NONE appeared from the side of the respondent at the time of hearing of this appeal. Hence the learned Counsel for the appellant was heard and the Judgment of the two Courts below were examined.
( 7 ) THE two Courts below have rightly held that the Agreement to Sell did not require any permission of the Collector even if it was in respect of new tenure land. The provision of Sec. 43 (1) of the Bombay Tenancy and Agricultural Land Act was properly interpreted by the two Courts below. Hence the finding of the two Courts below that the agreement to Sell is not void for want of permission of the Collector requires no interference.
( 8 ) THE only substantial question, of law for consideration in this Appeal is whether the lower Appellate Court ignored the recital in the Agreement to Sell Ex. 58 and admission of the defendant No. 1 in his deposition in the Trial Court.
( 9 ) IT may be mentioned that it was not a suit where declaration of title was involved. It was a simple su
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