MOHIUDDIN SHAIKH CHAND Vs. GULAM GHOUSE GULAM JILANI

JUDGEMENT

(1.) THE petitioner on February 9, 1954, agreed to purchase from opponent No. 1 a land Survey No. 168 at the village Bhokerdhan in the Auran -galmd district for an amount of Rs. 5,000. On the same day he paid Rs. 1,000 to opponent No. 1 under an earnest receipt or Visar -Pavati, wherein the terms of the agreement were set out. In pursuance of the agreement the petitioner was placed in possession of the land. On August 11, 1956, the petitioner paid to opponent No. 1 Its. 4,000 being the balance of the purchase -price, and obtained a receipt for the amount. Then on July 12, 1958, the petitioner and opponent No. 1 jointly filed an application before the Tahsildar, from which the present proceeding has arisen, praying that the transaction between them be declared valid under Section 98A of the Hyderabad Tenancy and Agricultural Lands Act. During the pendency of the matter before the Tahsildar, opponent No. 1 resiled from the position taken by him in the joint application and alleged that he did not enter into an agreement of sale with the petitioner, and did not execute the earnest receipt. The Tahsildar found that the agreement was entered into and the earnest receipt executed by opponent No. 1. Accordingly he granted a certificate Under Section 98A. that the transfer was not invalid. In an appeal filed by opponent No. 1, the Deputy Collector set aside the Tahsildar's order on the ground that opponent No. ,1 was unwilling to sell the land. The Deputy Collector also observed incidentally that there was no adequate proof of the execution of the earnest receipt. The petitioner went in revision to the Maharashtra Revenue Tribunal. The case was heard by a Full Bench of the Tribunal. On the fads, the Full Bench were of the view that the agreement of sale was entered into between the parties as alleged by the petitioner, that the earnest receipt was duly executed, and that the petitioner was in possession of the laud in part performance of the agreement. The Fall Bench, however, held, disagreeing with the contrary view earlier held by a Division Bench of the Tribunal, that transfer of possession under an agreement of sale was not 'a permanent alienation or transfer' of the land, and could not be validated under Section ,98A. On this ground the Revenue Tribunal confirmed the order of the Deputy Collector. This decision of the Revenue Tribunal is challenged before us by the petitioner under Article 227 of the Constitution.

(2.) THE question which falls for determination is whether transfer of possession of agricultural land in pursuance of an agreement of sale amounts to 'a permanent alienation or transfer' within the meaning of that expression in Section 98A of the Hyderabad Tenancy and Agricultural Lands Act, 1950. ft appears from the impugned judgment of the Revenue Tribunal, and from what we were told at the Bar, that this question is involved directly or indirectly in a number of other matters pending before Tenancy Courts. We have, therefore, considered the question with a good deal of care.

(3.) SECTION 98A applies in terms to permanent alienations or transfers which have taken place in contravention of the provisions of Section 38D or of Chapter V of the Act. The scope of Section 98A, which is a validating section, necessarily depends on the scope of these provisions, under which alienations and transfers are rendered invalid. Section 381) provides that, if a landholder at any time intends to sell the land held by a protected tenant or an ordinary tenant, he shall give notice in writing of his intention to such protected tenant or ordinary tenant and offer to sell the land to him. Chapter V of the Act is comprised of Sections 47 to 50C. Of these, Sections 47 to 50 are material for the present purpose. Section 47, in so far as it is relevant, provides: -