GANPAT Vs. NANAJI

JUDGEMENT

(1.) Field Survey No. 407/4 measuring 9 acres and 23 gunthas of Malkapur, Tahsil Malkapur, District Buldana, is the bone of contention in the present petition. A registered document dated 20-6-1958 Described ad lease deed te executed by the second, respondent, the father of the first respondent on his behalf as he was then a minor, in favour of the petitioner. About the execution and so also about the terms contained in the document, there is no dispute, as the common case has been that the document correctly represents the terms as agreed upon between the parties. However, the dispute is about what flows from the same and so also from surrounding circumstances which throw light on the relationship between the parties. The petitioners who claimed to be the tenants, contend that from the description as well as receipts (recitals?) of the document itself, it is nothing but a lease; whereas the respondents' case is that it is anything but a lease. The reason for the latter contention is that consideration of Rs. 700/- mentioned in the document is referable to a previous transaction of sale dated 1-2-1958 in respect of this very property, between the parties. ,On the basis of that agreement, it appears, that the respondents had to pay back a sum of Rs. 700/- which they had received as earnest money, and in discharge of that liability, it is clear that the disputed document came to be executed, as on some grounds the agreement of sale did not materialise. As the whole controversy revolves round interpretation of this document, the translation of which is annexed to the petition, it is necessary to reproduce the same. "Lease Deed for five crops of immoveable property for Rs. 700/- received in advance, in favour of ftanpat and Supada, sons of Ragho Dhangar, residing at and Taluq Malkapur, District Buldana by Nana Raoji, minor by guardian father Raoji Sonu Dhangar, resident at Shirsal, Taluq Bhusaval, Disrtict East Khandesh in consideration ;-- I had executed in your favour on 1-2-1958, an agreement of sale. I have to pay in respect thereof Rs, 700/- (seven hundred) which I accept without any grievance and accordingly J have received full consideration in respect of which, there is no dispute. Description of the immovable property:- Survey No. 407/4, 9 acres and 23 gunthas, land revenue Rs. 20/- entire field with one mango 'tree at Kasba Malkapur, Pareana and Taluq Malkapur, District Buldana. The aforesaid immoveable property is of my absolute ownership and in my possession which I have for the aforesaid consideration - given to you for cultivation for five years from 1958-59 to 1962-63 end, and I have placed you in possession thereof. You should maintain the Bandh Warulis as required in proper state of repairs. If you do not do so and some penalty is imposed, you will have to pay the same. You should maintain the trees in proper state and care and without my permission you should not cut them. The land revenue is to be paid by the lessee. The field should be maintained in the very same state as it is at present. The aforesaid immoveable property has not been mortgaged, sold, gifted by me. and no document is executed in respect thereof. If so found, and a civil suit is filed as a result of which any obstruction is made with respect to the crop of yourself, I will be responsible in all respects and whatever loss is suffered by you will be made good by the guardian of the executor, personally and from the estate from which it is liable. After five crops are fully taken, the aforesaid land should immediately be placed in my possession. You should not object to delivering possession. This lease deed is binding on the heirs of my estate. Accordingly, the lease deed has been executed. Signed this 20-6-1958 by the hand of K. A. Saokal. Malkapur. Sd/- Nana Raoji, Minor by guardian father Raoji Sonu by the hand of self. Witnesses: Sampat Dagdu Kawade, by the hand of self. Rupchand Bhawani, Malkapur, by the hand of self."

(2.) Undisputed position seems to be that after the execution of this document, the petitioners entered into possession of the property ' and continue to do so. It is described as a lease deed commencing from a period 1958-59 till the end of 1962-63. Crop statements for all the relevant years as well as the re-cord-ofright Purcha, record the names of the petitioners as cultivator-tenants. The land revenue in respect of the field is also paid by the petitioners. The admitted position is that no attempt till this day was made to challenge these entries. It appears that the agreement of sale dated 1-2-1958 was for a consideration of Rs. 3,800/- and as the party involved was a minor, required permission from - the Additional District Judge, Khamgaon, was obtained on 25-4-1958. The agreement of sale was cancelled by mutual consent as there was a failure of depositing Rs. 3,800/- in the Court and also a failure to purchase some field from village Sirsoli at the first instant as per one of the terms of the agreement of sale. The petitioners (?) thus became liable to pay back the earnest money of Rs. 700/- which admittedly they had received. In order to discharge completely this liability, the aforesaid document came to be executed.

(3.) As the petitioners did not deliver possession of the property after the lease period was over, the respondents filed an application under Section 100 (2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1953 (hereinafter called as "the Act") for a declaration that the petitioners' possession over the property was illegal and that they were not lessees vis-avis the said field. The petitioners contended that the agreement was nothing hut a lease and inasmuch as the Act has intervened before the agreement period of lease was over, they have become the protected lessees by virtue of the operation of the Act. Oral evidence was recorded and documents were filed. Though there has been some controversy about the transactions prior to the one dated 20-6-1958, the common case has been that such a lease deed was executed and it records real terms between the parties. The main contention, however, is that the consideration was not paid in cash but it was a past liability arising out of an agreement of sale.