SITARAM GANU MHASKAR Vs. KESHAV RAMCHANDRA SHELOR

JUDGEMENT

(1.) THIS appeal is not on the board for final hearing. However, by consent of the parties it is taken up for final hearing and heard finally.

(2.) THE order that is challenged in this appeal is dated 13. 2. 1997 passed by the Civil Judge, S. D. , Panvel, below Exh. 5 in S. C. Suit No. 52/1996. The admitted position is that the plaintiff who is respondent in this appeal is owner of Survey No. 89. It is the case of the plaintiffs that he has entered into an agreement to purchase Survey No. 90, which is admittedly owned by the appellant. In that suit, the trial court has passed an order, restraining the appellant from interfering with the right of way of the appellant over Survey No. 90 to approach the Survey No. 89. The learned counsel appearing for the appellant urged firstly before me that the agreement of sale is not a genuine document. He submitted that it was the case of the appellant before the trial court also that the agreement of sale does not bear his signature. This aspect of the matter has been considered by the trial court. It is pertinent to note here that the appellant has himself stated in his affidavit filed before the trial court that he has signed some blank papers at the behest of the plaintiff. Therefore, in my opinion, he cannot say that the signature on the agreement of the sale is not his. It is further pertinent to note here that it is not in dispute between the parties that on the date on which the suit was filed the right of way was being exercised by the plaintiffs. Therefore, in my opinion, the trial court has not committed any error in maintaining the position, that was in existence on the date on which the suit was filed, during the pendency of the suit.

(3.) THE learned counsel for the appellant further submitted that as he has purchased the suit land as a tenant in terms of provisions of section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948, he could not have executed even the agreement of sale without obtaining previous sanction of the Collector. Therefore, the suit filed for specific performance of that agreement of sale is not maintainable, as the agreement itself is invalid. The learned counsel also relied on, the observation of this case in its judgment in the case of Shri. Parshuram Kathod Giakar Vs. Pandu Mahadu Hard and another (1994 (1) Bom. C. R. 715 ). For appreciating this contention urged on behalf of the respondent by the learned counsel, it is necessary to refer to the provisions of Section 43 of the Act. Section 43 reads as under :-