Bombay High Court
Yeshodabai W/O Batukji Devani vs Nandkishor S/O Gopaldas Sharma on 12 June, 2025
2025:BHC-NAG:6149
Judgment sa296.14.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 296 OF 2014.
Corrected as per Yashodabai w/o Batukji Devani,
Courts order Aged about 51 years, Occupation
dt.12.06.2025. Household and Agriculturist, resident
of Kapdia Cottage Room No.08,
Mahadeo Desai Road, Kandiwali (W),
Mumbai. ..... APPELLANT.
VERSUS
Nandkishor s/o Gopaldas Sharma,
Aged about 28 years, Occupation
Agriculturist, resident of Kavthal,
Tahsil Sangrampur, District Buldhana. ... .RESPONDENT.
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Mr. S.R. Deshpande, Advocate for the Appellant.
Mr. N.S. Warulkar, Advocate for the Respondent.
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CORAM : ROHIT W. JOSHI, J.
CLOSED FOR JUDGMENT ON : 09.05.2025
JUDGMENT PRONOUNCED ON : 23.05.2025
Rgd.
Judgment sa296.14.odt
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JUDGMENT :
The appellant in the present Second Appeal is aggrieved
by the concurrent decrees for possession passed against her. The
appellant is the original defendant and the respondent is the original
plaintiff. The plaintiff is owner of the suit property which is an
agricultural land bearing Gut No.131, ad-measuring 2.72 HR, situated
at village Kavthal, Tahsil Sangrampur, District Buldhana. The
defendant had entered into an agreement of sale dated 18.04.2006
with the plaintiff, inter-alia agreeing to sell the suit property for a total
consideration of Rs.3,50,000/-. The plaintiff has placed the
defendant in possession of the suit property on the date of execution of
the agreement of sale. Out of the total sale consideration of
Rs.3,50,000/-, the defendant has paid an amount of Rs.3,00,000/- to
the plaintiff on the date of execution of the agreement. It is also
necessary to state that the suit property was situated in benefit zone of
Jeegaon Resettlement Project, as per the provisions of the Maharashtra
Project Affected Persons (Rehabilitation) Act, 1999 (hereinafter
referred to as “the 1999 Act” for short), and resultantly there was a
prohibition on sale of the suit property in view of Section 12 of the
Rgd.
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1999 Act.
2. In view of the aforesaid, sale-deed could not be executed.
The plaintiff has issued legal notice dated 03.05.2008 and 17.07.2008
to the defendant calling upon her to execute the sale-deed with respect
to the suit property. Since the sale-deed was not executed, the plaintiff
has filed a suit for possession against the defendant, which came to be
registered as Regular Civil Suit No.120/2008. The case of the plaintiff
is that since the defendant did not execute sale-deed with respect to the
suit property, he was entitled for possession of the same being true and
lawful owner. The defendant filed her written statement in the suit
claiming that the sale-deed could not be executed in view of the bar
under the 1999 Act. The defendant claimed shelter under Section
53A of the Transfer of Property Act to oppose the suit. The defendant
also claimed that she was always ready and willing to perform her part
of the contract, and therefore, the suit for possession was liable to be
dismissed.
3. It will be pertinent to mention here that the defendant
has raised a contention that she came to know that the prohibition
against alienation of the properties covered under the Jeegaon Project
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was lifted, and therefore, she was present in the Office of the Sub-
Registrar, Sangrampur for execution of sale-deed along with two
witnesses on 17.10.2006. She however claimed that the plaintiff did
not turn up for execution of the sale deed.
4. The learned trial Court has framed the issues, recorded
evidence of both the parties on the same, and thereafter on hearing the
respective submissions has decreed the suit by a decree for possession
with respect of the suit property in favour of the plaintiff. The learned
trial Court has held that since the agreement was unregistered,
protection under Section 53A of the Transfer of Property Act could
not be claimed. It is also held that the agreement was unenforceable
since it was not registered. As regards readiness and willingness, the
learned trial Court has recorded findings against the defendant.
5. Aggrieved by the decree for possession passed against her,
the defendant preferred First Appeal under Section 96 of the Code of
Civil Procedure being Regular Civil Appeal No.39/2010. The said
appeal came to be dismissed vide judgment and order dated
25.04.2014. The learned First Appellate Court has held that the
defendant has pointed out breach of agreement and was therefore, not
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entitled for protection of possession under Section 53A of the Transfer
of Property Act. The learned First Appellate Court has also held that
since the agreement was unregistered, the defendant could not have
invoked Section 53A of the Transfer of Property Act, in view of the
provisions contained in Section 17-A of the Registration Act. In this
backdrop, the present Second Appeal came to be filed.
6. The Second Appeal came to be admitted vide order dated
26.08.2014 on the following questions of law :
“(i) Whether the findings of the District Court
recorded in paragraph 15 casting negative burden on
the appellant to show that in addition to the
Government resolution dated 29th June, 2006 it was
necessary for the appellant to show that the ban
continued further, is unsustainable in law ?
(ii) The appellant having paid Rs.3,00,000/- out of
total amount of Rs.3,50,000/- to the respondent can
it be said in the facts of the case that the appellant was
ready and willing to perform her part of contract ?
(iii) In view of the ban imposed by the
Government resolution dated 29th June, 2006 can it
be said that the sale deed was required to be executed
within the stipulated period ?”
Rgd.
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7. It will be pertinent to mention that although the
defendant has raised a contention in the civil suit that she had learnt
that the bar for execution of sale-deeds was lifted and remained present
in the office of the concerned Sub-Registrar for execution of the sale-
deed on 17.10.2006. She has filed two applications under Order 41
Rule 27 of the Code of Civil Procedure being Civil Application (S)
Nos.280/2022 and 1324/2023 in this appeal, seeking permission to
lead additional evidence with respect to Certificate dated 06.12.2021
issued by the Deputy Executive Engineer, Jeegaon Project Dam and
Resettlement Department, Shegaon which records that the suit
property is covered under the benefit zone of Jeegaon Project under
1999 Act, and Government Resolution dated 29.07.2006 to
demonstrate that the prohibition under Section 12 of the 1999 Act is
continuing.
8. It is undisputed that the agreement in question is an
unregistered document. The agreement is dated 18.04.2006. Section
17[1-A] came to be introduced in Registration Act, 1908 by way of an
amendment, which came into force w.e.f. 24.09.2001. The agreement
is executed after the said amendment has come into force. In view of
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Section 17[1-A], the agreement of sale cannot have any effect for the
purpose of Section 53A of the Transfer of Property Act. It is therefore,
obvious that the defendant cannot seek to protect her possession over
the suit property by placing reliance on Section 53A of the Transfer of
Property Act, even if it held that she was all throughout ready and
willing to perform her part of the contract.
9. It is well settled that when the plaintiff in a suit for
possession proves his title over the suit property, a decree for
possession normally needs to be passed in his favour. It is undisputed
that the plaintiff is the owner of the suit property. The only defence
raised was opposing the claim of possession which is based on Section
53A of the Transfer of Property Act. However, since the agreement is
unregistered, the protection under Section 53A cannot be claimed by
the defendant. In that view of the matter, the suit filed by the plaintiff
is rightly decreed.
10. The questions of law framed in the present appeal, even if
they are answered in favour of the defendant/appellant, the final
outcome of the suit will remain the same, inasmuch as even if it is
held that the plaintiff was all the while ready and willing to perform
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her part of the contract, and the sale-deed could not be executed only
in view of the bar under Section 12 of the 1999 Act, the suit for
possession will have to be decreed. In this regard, it needs to be stated
that a substantial question of law is a question which if answered in
favour of the appellant, must have the effect of overturning the
decision of the suit in favour of the appellant. A substantial question of
law is different from mere a question of law. If a question of law does
not affect merits of the matter and its final outcome is merely a
question of law and not a substantial question of law. Reference can
profitably made in this regard to the judgment of this Court in cases of
Ramratan Pandurang Sunwani .vrs. Maya Ramratan Sunwani reported
in (2010 [4] Mh.L.J. 154 and judgment of Hon’ble Supreme Court in
case of Chandrabhan through L.Rs. .vrs. Saraswati and others reported
in [2022] 20 SCC 199.
11. In the present case, even if the questions of law which are
framed in the appeal are answered in favour of the
appellant/defendant, the final outcome of the suit will not undergo any
change. The questions framed in the appeal therefore, cannot be said
to be substantial questions of law. In this regard, reference needs to be
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made to Section 100[5] of the Code of Civil Procedure, which
provides that a Second Appeal shall be heard on question/s formulated
in the appeal, and further, that at the stage of hearing of the appeal it
will be open for the respondent to argue that the question of law so
formulated is not involved in the appeal. The Hon’ble Supreme Court
has in the matter of Kiccha Sugar Company Ltd. .vrs. Roofrite Private
Limited reported in [2009] 16 SCC 280, held that if at the stage of
final hearing of the appeal, the Court is of the opinion that the
substantial question of law framed at the time of admission is not
involved in the appeal, or does not arise for consideration, it will be
open for the Court to hold so, however, a duty is cast on the Court to
record reasons for the same. Similar view is taken by the Hon’ble
Supreme Court in its judgment in case of K.K. Kannan through
L.Rs. .vrs. Koolivathukkal Karikkan Mandi reported in [2010] 2 SCC
239. The above judgment is referred and explained in the judgment
in case of Tertuliano Renato de Silva .vrs. Francisco Lourenco reported
in 2018 [1] Mh.L.J. 135.
12. The two Civil Applications filed under Order 41 Rule 27
of the Code of Civil Procedure being Civil Application (S)
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Nos.280/2022 and 1324/2023, seeking permission to lead additional
evidence with respect to Certificate dated 06.12.2021 issued by the
Deputy Executive Engineer, Jeegaon Project Dam and Resettlement
Department, Shegaon which records that the suit property is covered
under the benefit zone of Jeegaon Project under 1999 Act, and
Government Resolution dated 29.07.2006 to demonstrate that the
prohibition under Section 12 of the 1999 Act is continuing, even if
they are allowed and permission is granted to the appellant to lead
additional evidence with respect to the said documents and contents of
documents are read in evidence, the final outcome of the suit will
remain the same, the documents are therefore not relevant for
adjudication of the suit, as also the present appeal, Civil Applications
are therefore, rejected.
13. In that view of the matter, in the considered opinion of
this Court, the substantial questions of law framed while admitting the
present appeal are infact not involved, inasmuch as even if they are
answered in favour of the appellant, the final outcome of the suit will
remain the same. The Appeal is therefore, dismissed with no order as
to costs.
Rgd.
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14. It is informed by the learned Counsel for the appellant
that the appellant has filed a suit for specific performance of the
contract. The said suit shall be decided on its own merits and in
accordance with law.
Sd/-
JUDGE
Note : Judgment corrected in view of Courts order dated 12.06.2025.
JUDGE
Signed by: R.G. Dhuriya (RGD)
Designation:Rgd.
PS To Honourable Judge
Date: 02/07/2025 10:16:03