SITARAM ATMARAM RAMTEKE Vs. MAROTI MOTIRAM MESHRAM

JUDGEMENT

(1.) BY this second appeal, the appellant/plaintiff challenges the judgment and decree passed against him by the learned lower Appellate Court in Reg. Civil Appeal No. 420 of 1981. That appeal was filed by the defendant challenging the judgment and decree passed against him by the trial Court in Reg. Civil Suit No. 115 of 1979. The trial Court found that the plaintiff had proved his title and possession over the suit property. As a result, the plaintiffs suit was decreed. In appeal, the lower Appellate Court reversed the said finding of the trial Court holding that the plaintiff was entitled only to the structure standing over the plot in question. In the result, the appeal was partly allowed and the defendant was directed to hand over only the possession of the structure standing on the plot in question to the plaintiff. It is the said order of the Appellate Court which is under challenge in this appeal.

(2.) SHRI Mehadia, learned Counsel for the appellant, submitted that after the defendant had executed the sale-deed in respect of the suit property in favour of one Shiodas, who, in turn, sold the suit property to the plaintiff vide registered sale-deed, then he has no right to challenge the said sale on the ground that permission of the Municipal Council was necessary for transfer of the plot in question. According to the learned Counsel for the appellant, after the defendant had executed the sale-deed in respect of the suit property he could not be a person who could question the sale transaction and, at the most, it was the Municipal Council who could challenge the transaction in question as void. It is also submitted by him that the defendant could not be permitted to take advantage of his own wrong. For this, he placed his reliance on a decision in (Narayan Kisan Gade v. Machchindranath Kundlik Tarade), 1992 (2) Bom. C. R. 61 : 1994 Mh. L. J. 558. It was a case under the Maharashtra Co-operative Societies Act wherein this Court held that once a land which was encumbered to the society was sold by the plaintiff then he cannot claim that the transaction was void under section 48 of the said Act and it was the Society who could challenge the transaction as void and not the plaintiff. In this view of the matter, I find that the aforesaid submission made on behalf of the appellant is well founded.

(3.) A perusal of the record of this case shows that the learned lower Appellate Court without taking into consideration the fact that after the defendant had sold the suit property he cannot challenge the said sale transaction on the ground that the permission of the Municipal Council was not obtained prior to the sale in question. In fact, after the aforesaid sale transaction, it was the Municipal Council which could challenge the transaction as void and not the defendant. Similarly, so far as the question regarding the title of suit property is concerned, it is again the Municipal Council which could challenge it. But it seems that the learned lower Appellate Court has lost sight of this aspect of the case. In this view of the matter, the judgment and decree passed by the lower Appellate Court will have to be set aside and that of the trial Court be affirmed.