PARSHURAM KATHOD GAIKAR Vs. PANDU MAHADU HARD

JUDGEMENT

(1.) A short but interesting issue arises in this petition concerning the applicability of section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948. The section in effect, prescribes a bar on alienation of agricultural lands in respect of which the tenant has been conferred ownership, save and except in a situation where the previous sanction of the Collector has been obtained. In these circumstances, the question arises as to what is the remedy available if an arrangement has been entered into in breach of the provisions of law.

(2.) THE petitioner before me is the original defendant in Regular Civil Suit No. 221 of 1991 filed in the Court of the Civil Judge, Senior Division, Kalyan by the tenant plaintiff. The plaintiff had approached the Court for the relief which was confined to an injunction restraining the defendant from obstructing/disturbing the peaceful possession and occupation of the plaintiff. The dispute concerns two pieces of land and it is admitted that in or about the year 1981 the plaintiff borrowed a sum of Rs. 6000/- from the defendant ostensibly for the purpose of paying the purchase price of those lands. It is not in dispute that the plaintiff-tenant is the owner of those lands and further that they are agricultural lands. The plaintiff entered into and executed a document in the year 1981 which purportes to be an agreement of sale in respect of two pieces of land it is also indicated from the record that the defendant had at that time paid a sum of Rs. 6000/ -. The agreement inter alia states that the requisite permissions are to be asked for and that the tenant had agreed to sell the land to the defendant. In the year 1991 the defendant who states that he had been in possession of the lands for a long period of 10 years and was cultivating the same, served a notice on the tenant-plaintiff calling upon him to complete the sale and execute the sale deed. The tenant refused to do this and thereafter filed the present suit wherein he contended that there was an understanding between the parties that in return for the payment of Rs. 6000/- in the year 1981 that the defendant would be permitted to cultivate the land in question for a period of 10 years by which time he would recover the return of his payment. The tenant contended that the period of 10 years had elapsed and that the defendant was wrongfully insisting on cultivating the lands and obstructing his user of the same and consequently the Court ought to restrain the defendant from interfering with the peaceful possession of the tenant. The trial Court after hearing the parties passed an order on Exhibit 5 holding that no case for injunction had been made out and rejected the prayer for interim relief. The matter was carried in Appeal and the Appeal Court after examining the material placed before it by order dated 16-7-1992 granted interim relief. Briefly stated, the Appeal Court proceeded on the footing that it was not permissible for the tenant to have parted with possession of the agricultural lands by virtue of the provisions of section 43 of the Act and secondly that the 7/12 extracts of the year 1990-91 very clearly indicated that the possession of the lands was with the tenant-plaintiff in so far as his name appeared in the cultivators column apart from the owners column. It is against this appellants order, that the present petition came to be filed.

(3.) THIS petition was admitted on 7-9-1992 and by way of interim relief, the order of the Appeal Court was stayed. After service on the respondent his learned Counsel applied to this Court that having regard to the fact that the respondent is a very poor person who has wrongfully been deprived of the use of his lands and virtually driven to starvation, that the matter should be heard out of turn. It was for this reason that the petition was taken up for early hearing.