Suhas Ganpat Mahajan & Ors. v. Prabhakar Laxman Dhage

1. Heard Mr. Shetye, learned Advocate for Applicants and Mr. Kamble, learned Advocate for Respondent Nos. 1(a) to 1(d).

2. By consent of parties, present Civil Revision Application is taken up for final hearing. Revision Applicants are Defendants before Trial Court. Respondents - Plaintiffs filed Suit being Reg. Civil Suit NO. 53/2014 against original Defendants. Org. Defendant Nos. 1 and 2 expired in the interregnum and their legal heirs are the Revision Applicants before me along with original Defendant No. 3. Original Plaintiff has also expired and legal heirs are the Plaintiffs in the Suit. 1 of 15 Original Defendant No. 1 is the mother of Defendants. Defendants are aggrieved with the rejection of their application filed below Exh. 128 under O. VII R. 11(d) of the CPC. Defendants sought rejection of the Suit plaint in the facts and circumstances governing the dispute between the parties.

3. Learned Trial Court while passing the impugned order rejected the Application despite returning a finding that the contention of Defendants is a valid ground for rejection of injunction. Plaintiff has filed Suit seeking relief of perpetual injunction and nothing more. Suit plaint is annexed at Exh. A to CRA. Prayer clause (a) in paragraph NO. 16 of the Suit plaint seeks perpetual injunction against Defendants from disturbing possession of Plaintiffs or creating any disturbance with possession in respect of Suit property. Prayer (b) is a consequential declaratory relief sought by Plaintiffs seeking injunction against Defendants from dispossessing Plaintiffs from the Suit property. Reliefs prayed for in the Suit are on the premise that Plaintiffs are in possession of Suit lands. Suit lands are described in paragraph No. 2 of Suit plaint being agricultural lands bearing Survey Nos. 75/1 (part) and 75/3 (part) and 75/4, totally ad-measuring 1 H

4. Mr. Shetye, learned Advocate appearing for Defendants would submit that the facts in the present case if seen and appreciated correctly by the Court would clearly reveal that Suit filed by original Plaintiff is simplicitor for injunction and it is not maintainable since original Plaintiff had no legal right of ownership and entitlement to the Suit lands. He would submit that a Suit for injunction is necessarily filed on the basis of legal and juridical title by the owner of Suit lands if he anticipates any threat to his possession. He would submit that in the instant case, the original Plaintiff or his legal heirs are not in possession of Suit lands but on the ground of claiming to be in possession of Suit been filed. He would submit that if original Plaintiff was in possession of Suit lands then his possession has to be qualified by an appropriate document of title in his favour like a sale deed or conveyance but in the present case the Plaintiffs are not in a position to produce any document of title enabling them to claim title to the Suit lands.

4.1. In the above background, Mr. Shetye has argued that the lis between parties dates back to the Defendants’ mother executing an agreement for sale of the Suit lands with the original Plaintiff. He would submit that the said agreement admittedly for sale did not fructify and has remained as it is. He would submit that admittedly no sale deed was ever executed or registered between the parties. He 3 of 15 would argue that admittedly, mother of Defendants was the owner of the Suit lands and after her demise, names of Defendants have been mutated as holders of the Suit lands in the revenue record.

4.2. He would candidly inform the Court that by agreement for sale dated 13.07.1992 mother of Defendants namely Sumati Ganpat Mahajan agreed to sell the Suit lands to original Plaintiff for a total consideration of Rs. 1,76,000/-. He would submit that out of this total consideration, part consideration was paid by original Plaintiff and received by mother of Defendants. He would also candidly inform the Court that the said agreement states that possession of Suit lands is handed over to original Plaintiff but according to Defendants, it is not so. He would submit that this fact is incorrect and can be proved by the fact that from 1992 onwards the suit lands were shown in the name of mother of Defendants and after her demise, in the names of Defendants as holders and not even once the original Plaintiff or his successors took steps for mutating their names as holders of the suit lands. He would submit that Suit lands are as on date in possession of the Defendants and they have their house structure on the Suit lands and they have also demarcated the Suit lands and put up a wire fencing around them since the year 2003 onwards. He would submit that the agreement for sale dated 13.07.1992 clearly states that sale dated deed would be entered into between parties subsequently but 4 of 15 the same never fructified and therefore the agreement between parties remained as an agreement for sale thus implying that the suit lands were never conveyed to original Plaintiff. He would argue that an agreement to sale can never confer any peremptory right of entitlement and title to the original Plaintiff so as to enable him to file the Suit for injunction in respect of the Suit lands. He would submit that the agreement for sale was never registered also but would acknowledge and confirm that an amount of Rs. 92,551/- was paid by the original Plaintiff to the mother of Defendants which was received by her. While admitting the above fact, he would submit that original Plaintiff did not take any steps thereafter to pay the balance amount to the mother of Defendants or file any Suit for specific performance.

4.3. He would submit that original Plaintiff addressed Advocate's notice after a lapse of 11 years in the year 2003 to Defendants. Defendants replied to the said notice taking the stand that the original Plaintiff did not take steps for 11 to 12 years to fructify and specifically perform the agreement for sale dated 13.07.1992.

4.4. After the above notice was issued by original Plaintiff, he applied to the Tahsildar for mutation of his name in the revenue extract of the suit lands in the year 2005. Application of the Plaintiff was resisted by Defendants. Claim for mutation of Plaintiff's name was allowed by Tahsildar and upheld by the SDO. However in 5 of 15 Revision proceedings filed by Defendants before the Addl. Commissioner Konkan Division, orders of Tahsildar and SDO was set aside.

4.5. He would next submit that after losing the aforesaid time and realizing fully well that a Suit for specific performance would be barred by limitation, original Plaintiff filed the present Suit being RCS No. 53/2014 seeking permanent injunction on the basis of claiming to be in possession of Suit lands on the strength of the agreement for sale dated 13.07.1992. He applied for interim relief in the Suit, which was rejected.

4.6. Mr. Shetye would therefore vehemently submit that such a Suit for injunction is clearly not maintainable on the basis of the agreement to sale. He would submit that remedy of the original Plaintiff was to file a Suit for specific performance of the agreement to sale dated 13.07.1992 he has not derived any title to the Suit lands under the Agreement. He would submit that Plaintiff, instead of filing a Suit for specific performance has mischievously filed Suit for injunction claiming to be in possession of Suit lands. He would submit that such a Suit is not maintainable in the facts of the present case and is clearly barred by the provisions of S. 41(h) of the Specific Relief Act, 1963. He would submit that Plaintiff is clearly aware of the fact that if he files a Suit for specific performance of agreement to sale dated 6 of 15 13.07.1992, the same would be clearly barred and hence he has mischievously filed the present Suit for injunction without having any title to Suit lands. He would submit that there is one more reason to disqualify the Plaintiff’s claim of he claiming to be in possession of suit lands. According to Defendants, Suit lands came to the ownership of their mother under the provisions of the then Bombay Tenancy and Agricultural Lands Act, 1948 [now Maharashtra Tenancy and Agricultural Lands Act, 1948] (for short “the said Act”) as she was a protected tenant of the Suit lands. Hence he would submit that for conducting any sale of such lands received by a protected tenant, permission of the Competent Authority under Section 43 of the said Act is required. He would submit that without obtaining such permission from the Competent Authority possession cannot be never be transferred or given as it would amount to an illegality. Hence he would submit that on both counts case of the original Plaintiff fails miserably.

4.7. He would submit that in this background, Plaintiff approached the Trial Court for rejection of suit plaint under O. VII, R. 11(d) of the CPC. He would submit that Plaintiff’s Suit is not maintainable even otherwise under the law of limitation. Hence, he would submit that rejection of Application by the impugned order on the ground that original Plaintiff had come into possession of the Suit lands under the 7 of 15 agreement for sale without a sale deed being registered and executed is clearly not maintainable. Hence he prays for setting aside the impugned order and rejection of the Suit plaint.

5. PER CONTRA, Mr. Kamble learned Advocate for Plaintiffs would at the outset submit that the agreement to sale dated 13.07.1992 is a registered agreement between parties i.e. original Plaintiff and mother of Defendants. He has drawn my attention to the registered agreement dated 13.07.1992 and would contend that the Agreement apart from being registered was also acted upon by issuing a public notice in the local newspapers regarding the sale of Suit lands. Next, he would submit that as per the terms and conditions stated in the agreement, the seller was to obtain the requisite sale permission from the Competent Authority i.e. Mamlatdar, Dahanu. He would submit that as stated in the said agreement, possession of the Suit lands was handed over to Plaintiff on the date of agreement to sale against receipt of part consideration of Rs. 96,255/- and it was agreed between parties that the balance consideration would be paid at the time of execution of sale deed.

5.1. On the aspect of possession, Mr. Kamble has drawn my attention to the agreement to sale which is appended at Exh. A to the affidavitin-reply of Defendants and persuaded me to read the same. He would submit that registration fee has been paid as also the stamp duty has 8 of 15 been paid on the amount of Rs. 1,76,000/- by original Plaintiff as stated therein. He has specifically drawn my attention to internal page No. 6 thereof and would contend that it was agreed between the parties that mother of Defendants was not in a position to cultivate the Suit lands and therefore agreed to sell the Suit lands at the rate of Rs. 22,000/- per Acre and agreed to receive the amount of Rs. 1,76,000/for the entire Suit lands as per the then prevailing market rate on the basis of the oral agreement between the parties dated 14.04.1988.

5.2. He would submit that on 14.04.1988, mother of Defendants had received an amount of Rs. 12,551/- in cash which she has admitted in the said agreement.

5.3. Thereafter Mr. Kamble would draw my attention to one more clause therein which states that on 25.04.1988, a further amount of Rs. 50,000/- was received by the mother of Defendants by demand draft which is also stated and acknowledged by her in the agreement. Thus receipt of amount of Rs. 62,551/- is specifically acknowledged by the mother of Defendants in the said agreement. Next, he would submit that on the date of execution of agreement i.e. on 13.07.1992, a further amount of Rs. 30,000/- has been received by mother of Defendants by cheque No. 236585 drawn on Bharatiya State Bank, Vasai which has also been acknowledged. Thereafter the mother of 9 of 15 Defendants has agreed that the balance amount will be paid to her by original Plaintiff on execution of sale deed.