JAMUNABAI PARMANANDDAS SHAH Vs. BAJIRAO SEETARAM KALBHOR

JUDGEMENT

(1.) A next question of law has been posed for determination in this Second Appeal which basically calls for determination of the issue as to when and under what circumstances can it be said that the character and definition of agricultural land stand altered to non-agricultural land pursuant to permission being granted by the Collector for non-agricultural use. In other words, whether on the passing of an order granting such permission for N. A. use, the lands ceased to be agricultural lands, and therefore, the bar of alienation under section 43 of the Bombay Tenancy and Agricultural Lands Act or for that matter the requirements under section 63 of the that Act which prescribes that permission to purchase by a non-agriculturist will cease to be applicable, are the points in issue. The allied aspect of the matter and one of some importance is raised in the companion Civil Application whereby the appellants who lost their appeal principally on the ground that the original order dated 9-10-1964 whereby permission for non-agricultural use was granted had not been produced before either the trial Court or the Appeal Court, made an application on the basis of a certified copy of that order that the same be considered by this Court and further that additional evidence in the matter be recorded. Whether, at the stage of Second Appeal such an addition to the record should at all be permitted, is the subsidiary aspect of the matter. First, however the relevant facts.

(2.) THIS litigation pertains to a small plot of land measuring 36 gunthas bearing Survey No. 54/11 situated at village Loni Kalbhor, Taluka - Haveli, District - Pune. The original holder of the land was one Bajirao Sitaram Kalbhor. Bajirao was an agriculturist and there is no dispute about the fact that the lands in question were assessed as agricultural lands though the relevant revenue records indicate that it was designated as "kharwat-pad" even though it is pointed out that the land was obviously unfit for agricultural purposes and was therefore not in actual cultivation, that aspect of the matter is irrelevant because as far as the type of the land is concerned, the records very clearly designated them as agricultural lands. Under these circumstances, the land would be governed by the provisions of the Bombay Tenancy and Agricultural Lands Act.

(3.) THE original plaintiffs, who are the appellants before me, purchased the land through a registered sale deed dated 20th March, 1965. Prior to this, on the basis of an application from Bajirao, the Mamlatdar, Haveli, had granted N. A. permission under section 65 of the Land Revenue Code by an order dated 9-10-1964. The plaintiffs contended that by virtue of this order, that there was no legal bar to the alienation of the lands in question and that he had acquired a valid title to the same by virtue of the registered sale deed dated 20th March, 1965. It was also the plaintiffs case that pursuant to the registered sale deed that the possession of the land had been handed over and that the land was in the plaintiffs possession. Thereafter the plaintiffs came to know that the original holder, taking advantage of the fact that the plaintiffs had not got their names entered in the relevant records had decided to sell the same land to the defendant No. 6. They, therefore, issued a public notice in the daily "prabhat" whereupon it is alleged that the defendants Nos. 1 to 5 started threatening them and interferring with the plaintiffs possession. Civil Suit No. 1064 of 1970 was therefore filed in the Court of the 3rd Joint Civil Judge, Junior Division, Pune, against the defendants Nos. 1 to 4 praying for perpetual injunction against those defendants and the subsequent transferee. It transpired that defendant No. 6 had entered into an agreement to sell dated 3-4-1968 and had entered into a registered sale deed in respect of this very land on 14-4-1970. On 19-7-1972, the defendant No. 6 who is a subsequent purchaser was impleaded as a party defendant to the suit and by an amendment to the plaint carried out on 5-10-1978, the cause of action was altered and a prayer for possession was also included. I need to mention here that the plaintiffs have placed strong reliance on Mutation Entry No. 6328 dated 23rd November, 1966 which does in terms refer to the non-agricultural order dated 19-10-1964 which is of some consequence. The learned trial Judge answered all the issues in favour of the original plaintiffs. He held that the registered sale dated 20th March, 1965 was valid one, that plaintiffs had therefore derived a valid title in law and consequently decreed the suit with costs and perpetually restrained the defendants Nos. 2 to 6 (defendant No. 1 having died) from interferring with the peaceful possession of the plaintiffs over the suit land. The defendant No. 6 carried the matter in Appeal and the learned Extra Assistant Judge, Pune, allowed the Appeal being Civil Appeal No. 297 of 1980, by his judgment and order dated 12th August, 1982. A perusal of the appellate order will indicate that the learned Judge has basically proceeded on a two-fold footing. Firstly, he has upheld the contention that the original or for that matter certified copy of the N. A. order dated 9-10-1964 on which the plaintiffs placed strong reliance has not been produced by anybody before the trial Court or before the Appeal Court. In the absence of this document, merely because there is some indirect reference in the Mutation Entry No. 6328 dated 23rd November, 1965 the Appeal Court has come to the conclusion that it would be impermissible to hold that the plaintiffs were legally permitted to purchase the lands in question or for that matter, that the bar of alienation in respect of agricultural lands and that too to the plaintiffs who are non-agriculturists in the absence of permission from the competent authorities did not affect the validity of the sale transaction dated 20th March, 1965 in favour of the plaintiffs and that consequently, that sale would have to be ignored. As a necessary result, the sale transaction between the original vendors and the defendant No. 6 who was the appellant before that Court, which was the subsequent sale, was upheld. The Appeal Court also examined the evidence with regard to the aspect of possession and came to the conclusion that the evidence was unworthy of acceptance and, therefore, that the plaintiffs had failed to prove that possession was either handed over to them or that they continued to be in possession. It is against this appellate order, that the present Second Appeal has been filed.