DAGADU DHONDU PATIL Vs. TRAKADU MOTIRAM PATIL

JUDGEMENT

(1.) THE petitioner Dagdu Dhondu Patil filed Miscellaneous Application No. 2775 of 1945 under the Bombay Agricultural Debtors' Relief Act 1939, in the Court of the Civil Judge, Junior Division, Chalisgaon, alleging that an oral sale by him of S. No. 5/5a of the Village of Sarwe Budruk, Taluka Pachora to one Sampat Supdu for a consideration of Rs. 550/- by a yardi given to the village officers, was in the nature of a mortgage and that the debt due thereunder had been satisfied and praying an order for return of the land. Sampat Supdu died during the pendency of the application and his heirs were brought on the record. The heirs of Sampat Supdu, whom I will hereafter refer to as the opponents, contended that the land was sold on 9th June 1935, by an oral sale to Sampat Supdu by the petitioner Dagdu Dhondu and that the transaction was not in the nature of a self redeeming mortgage as alleged by the petitioner. They also denied that there was an agreement to return the land after seven years. They submitted that the petitioner Dagdu Dhondu was not a debtor within the meaning of the B. A. D. 11. Act and that in any event the application having been filed more than 12 years after the date of the sale, Sampat Supdu had become owner of the land by adverse possession.

(2.) THE learned trial judge held that Dagdu Dhondu was a debtor within the meaning of the B. A. D. R. Act and that his debts did not exceed Rs. 15,000/-and that he was qualified to obtain the benefit of the B. A. D. R. Act. In the view of the learned judge, it was unnecessary to enter upon an enquiry whether the transfer, dated the 9th June, 1933, was in the nature of a mortgage as alleged by Dagdu Dhondu. Following the decision of this court in Jibhaoo Harising v. Ajabsing Fakira 54 Bom LR 971: (AIR 1953 Bom 145) (A) the learned judge held that where immoveable property is alleged to have been sold by An oral sale and an application is filed by the vendor for adjustment of debts under the B. A. D. R. Act the vendor is entitled to obtain an order for return of the property and the consideration received by him will be treated as a debt due to the buyer and liable to be adjusted under the Act. The learned Judge was of the view that the land was orally sold on 27th September 1934, when a Vardi (Intimation to effect mutation entry) was given to the village officer and an entry was made in the record of rights, and as be application for adjustment of debts was filed on the 6th October 1945 the buyer was not in possession adverse!; for a period exceeding 12 years and had not acquired title to the land. He observed:

(3.) THE learned Judge made an award declaring that nothing was due to the buyer under the statutory charge for price paid under the oral sale, and he directed the opponents to deliver possession of the land in dispute and also directed an enquiry about future mesne profits.