Bombay High Court
Rajaram Devram Patil vs Fulchand Jasraj Jain on 10 March, 2025
2025:BHC-AUG:6812-DB
1 SA 316.1995+CA.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.316 OF 1995
WITH
CIVIL APPLICATION NO. 4741 OF 1995 IN SA/316/1995
Rajaram Deoram Patil,
age 55 years, Occ. Agriculturist,
R/o Chaugaon, Tq. Chopda,
District Jalgaon.
Deceased through L.Rs.
1. Shantabai w/o Rajaram Patil,
age 79 yrs, Occ. Nil.
2. Vasant s/o Rajaram Patil,
age 56 years, Occ. Agriculture,
3. Suresh s/o Rajaram Patil,
age 53 years, Occ. Agriculture.
4. Sudhakar s/o Rajaram Patil,
age 44 yrs, Occ. Agriculture.
5. Sharad s/o Rajaram Patil,
age 43 yrs, Occ. Agriculture.
6. Mina w/o Kishor Chavan,
age 48 yrs, Occ. Agriculture Daughter
Appellant nos. 1to 6 are
R/o Lasur, Tq. Chopda, Dist. Jalgaon.
7. Laxmibai w/o Shravan Kunbi,
age 53 yrs, Occ. Household. Daughter.
R/o Ward No.6, Behadiya,
Tq. Pansemal, Dist. Khargaon (M.P.).
8. Ushabai w/o Lotan Patil,
age 45 yrs, Occ. Household. Daughter
R/o Maruti Chowk, At Post Morane Pr.
Laling, Tq. & Dist. Dhule.
2 SA 316.1995+CA.odt
9. Shobha w/o Sudhakar Patil, Daughter.
age 49 yrs, Occ Household.
R/o Saitane, Kharde-Khurd,
Tq. Dondaicha, District Nandurbar. Appellants.
Versus.
1. Fulchand Jasraj Jain @ Surana,
age 75 yrs, Occ. Agriculturist and Trade,
R/o Lasur, Tq.Chopda,Dist. Jalgaon.
Died Through L.Rs.
R-1. Galraj Fulchand Jain @ Surana,
age 40 yrs, Occ. Business.
R-2 Suresh Fulchand Jain @ Surana,
age 38 yrs, Occ. Business.
R-3. Naresh Fulchand Jain @ Surana,
age 35 years, Occ. Business.
R-4. Rajendra Fulchand Jain @ Surana.
Age 30 yrs, Occ. Business.
R-5. Shobhabai Jaimal Sancheti,
age 42 yrs, Occ. Household.
R-6. Lalita Vijay Raka,
age 32 yrs, Occ. Household.
All R/o Lasur, Tq. Chopda,
District Jalgaon. Respondents
(Orig plaintiffs)
...
Advocate for Appellant : Mr. S. S. Kulkarni
Advocate for Respondents : Mr. S. T. Mahajan
...
CORAM : S. G. CHAPALGAONKAR, J.
Date : March 10, 2025
3 SA 316.1995+CA.odt
JUDGMENT :
–
1. The appellants/original defendants impugns the
judgment and decree dated 16.6.1995 passed by the Additional
District Judge, Amalner in Regular Civil Appeal No.606 of
1989, thereby upholding the judgment and decree dated
7.10.1989 passed by the Civil Judge J.D. Chopda in Regular
Civil Suit No.28 of 1987 by which suit of respondent/plaintiff
seeking decree of specific performance of contract has been
decreed.
2. Respondent/plaintiff filed R.C.S. No.28 of 1987
seeking relief of specific performance of contract and
possession against appellant/defendant in respect of Survey
No.38/2 situated at Village Chaugaon, Tq. Chopda, District
Jalgaon. It was contention of plaintiff that defendant entered
into an agreement dated 23.4.1974 in respect of suit land for
consideration of Rs.8,000/- (Rs. Eight Thousand). The
agreement was registered on very same day. Defendant agreed
to obtain permission of competent authority for sale of land as
provisions of the Maharashtra Prevention of Fragmentation
and Consolidation of Holdings Act, 1947 (for short
Consolidation Act) were made applicable to the suit land.
4 SA 316.1995+CA.odt
Inspite of execution of agreement to sale, defendant took no
steps to execute the sale-deed. On 21.7.1986 plaintiff sent
registered notice to defendant and called upon him to execute
the sale-deed. Plaintiff was ready and willing to get executed
sale-deed, but, defendant failed to perform his part of contract.
Even, he retained possession of the suit property after receiving
entire amount of consideration. Eventually, suit was instituted
for specific performance of contract and possession.
3. Defendant refuted plaintiff’s claim denying
agreement to sale. He pleaded that land is his ancestral joint
family property. His brother Vishram and others are not added
as party to the suit. According to him, valuation of suit land in
the year 1974 was more than Rs.60,000/- and it is highly
improbable that defendant would agree to sell the land for
Rs.8,000/-. Defendant further contend that in the year 1967
he had obtained loan from the bank for excavation of well.
Land was mortgaged to the Bank and it was at the verge of
auction. Defendant approached plaintiff and obtained hand
loan of Rs.5,500/- to satisfy bank loan. Agreement to sale was
executed by way of security for hand-loan. Plaintiff took
income from land for the year 1974-1975 to 1977-1978 and
5 SA 316.1995+CA.odt
same has been adjusted towards loan amount. Agreement to
sale has been misused for filing the present suit. It is further
contended that the suit is barred by limitation.
4. Trial Court framed issues, recorded evidence of the
parties, finally decreed the suit of the plaintiff directing
defendant to execute sale-deed in favour of the plaintiff and
also hand over possession of suit property. Plaintiff is further
held entitle for mesne profit from date of filing of the suit.
5. Aggrieved defendant filed Regular Civil Appeal
No.606 of 1989 before the District Judge, who dismissed
appeal upholding decree of the Trial Court.
6. Defendant filed present second appeal. It has
been admitted vide order dated 10.4.1996 observing that
ground no.9 in appeal memo involves substantial question of
law, which reads thus :-
“9. Whether the learned Judge failed to
see that the suit itself is barred by
limitation, as the alleged transaction is
dated 23.4.1974, and the suit has been
filed for specific performance in the year
1987.?”
6 SA 316.1995+CA.odt
7. When second appeal was placed for final hearing
before this Court on 17.2.2025, learned advocate appearing for
the appellant pressed into service three additional substantial
questions of law, which reads thus :-
“i. Whether the plaintiff and the defendant
could have entered into an agreement to sell
during the consolidation scheme in view of the
bar under section 31 of the Bombay Prevention
of Fragmentation and Consolidation of Holdings
Act, 1947 ?
ii. Whether the bar on transfer of holdings
under Section 31 of the Bombay Prevention of
Fragmentation and Consolidation of Holdings
Act, 1947 also puts an embargo on the parties to
enter into an agreement to sell ?
iii. Whether the word ‘Transfer’ in Section 31
of the Bombay Prevention of Fragmentation and
Consolidation of Holdings Act, 1947 includes an
agreement to sell ?
8. In light of the aforesaid questions of law parties
were put to notice that the appeal will be heard on in all four
substantial questions of law, one that was framed at the time of
admission with additional substantial questions of law and
appeal was posted for hearing on 24.2.2025. Accordingly,
learned Advocates for respective parties advanced their
submissions.
7 SA 316.1995+CA.odt
9. In the aforesaid background, Mr. S.S. Kulkarni,
learned advocate appearing for the appellants invites attention
of this Court to the agreement to sale dated 11.4.1974 which is
registered on 23.4.1974. It is specifically stipulated in the
agreement that provisions of Consolidation Act are
implemented at village and plaintiff would obtain necessary
permission for sale of land from competent authority.
According to Mr. Kulkarni, in view of section 31 of
Consolidation Act bars any transfer of the Land once provisions
of Consolidation Act are impleaded. According to him,
agreement to sale would amount to sale for purpose of section
31 of Consolidation Act. In support of his contentions, he
relies upon observations of this Court in case of Vinayakrao Vs.
State of Maharashtra reported in 1975 Mh.L.J. 566 and Lataru
Sapaku Thakur Vs. Hansram Sakharam Pardhi reported in
1983 Mh.L.J. 423. He would submit that expression “or
otherwise” used in section 31 (1)(a) of the Consolidation Act
would cover an agreement to sale. According to him, if effect
of passing of a decree for specific performance of contract
inevitably is to result in bringing about transaction of sale, it
would also be covered by expression “or otherwise” appearing
in section 31(1)(a) of the Act. Therefore, passing a decree for
8 SA 316.1995+CA.odt
specific performance of contract would be contrary to the
provisions of the Act.
10. Mr. Kulkarni, would further submit that agreement
to sale has been registered on 23.4.1974. Suit has been
instituted in the year 1987. Therefore, the suit is hopelessly
barred by limitation. The Courts below failed to appreciate the
aspect of readiness and willingness to perform contract and
erroneously decreed the suit.
11. Per contra, Mr. Mahajan, learned advocate
appearing for respondent nos.1 to 6 vehemently submit that
section 31 of Consolidation Act would have no application in
facts of present case. To buttress his submissions, he relies
upon language of section 31 itself, which is made applicable to
the holdings which are allotted under that act. He would
further invite attention of this Court to Section 31 (AB) which
nullified effect of section 31 for transactions made on or 15 th
Day of November, 1965 till date of Amendment Act of 1977.
12. Having considered submissions advanced on
substantial questions of law framed in this appeal, apparently,
first contention relates to effect of section 31 of the
9 SA 316.1995+CA.odt
Consolidation Act on subject transaction. Section 31 of the
Consolidation Act puts restriction on alienation and sub-
division of consolidated holdings. It reads thus :-
31. [Restrictions on alienation and sub-division of
consolidated holdings.](1) Notwithstanding anything contained in any law for the
time being in force, no holding allotted under this Act,
nor any part thereof shall save as otherwise provided in
this section–
(a) be transferred, whether by way of sale (including sale in
execution of a decree of a Civil Court or for recovery of
arrears of land revenue or for sums recoverable as arrears
of land revenue) or by way of gift, exchange, lease, or
otherwise; or
(b) be sub-divided, whether under a decree or order of a Civil
Court or any other competent authority, or otherwise, so
as to create a fragment, without the previous sanction of
the Collector. Such sanction shall be given by the
Collector in such circumstances and subject to such
conditions as may be prescribed.
(2) Nothing in sub-section (1) shall apply to any land–
(a) which is situated in any area for which–
(i) a municipal corporation is constituted under the
8Bombay Municipal Corporation Act (Bom. III of 1888),
the 9Bombay Provincial Municipal Corporations Act,
1949 (Bom. LIX of 1949) or the 1City of Nagpur
Corporation Act, 1948 (C. P. and Berar Act II of of 1950);
or
(ii) a municipal council is constituted under the
2Maharashtra Municipalities Act, 1965 1965 (Mah.XL of
1965); or
(iii) a cantonment is constituted under the Cantonments Act,
1924 (II of 1924); or
10 SA 316.1995+CA.odt
(b) which is situated in a notified area for which a Special
Planning Authority is constituted or appointed under
section 40 of the Maharashtra Regional and Town
Planning Act, 1966 (Mah. XXXVII of 1966); or
(c) which is situated in an area designated as a site for a new
town for which a Development Authority is constituted
under section 113 of the Maharashtra Regional and Town
Planning Act, 1966 (Mah. XXXVII of 1966); or
(d) which is situated in any area specified by the State
Government, by notification in the Official Gazette, as
being reserved for non-agricultural or industrial
development.
(3) Nothing in sub-section (1) shall also apply to any land
which is to be transferred–
(i) to the tenant of the holding or his heir; or
(ii) to the owner of the adjoining holding who cultivates his
land personally; or
(iii) to an agriculturist or agricultural labourer, in its entirety;
or
(iv) to a person who is rendered landless by reason of
acquisition of his land for a public purpose; or
(v) to a co-operative society; or
(vi) by way of gift (whether by way of trust or otherwise)
bona fide made by the owner in favour of a member of
his family; or
(vii) by way of exchange, where such land is cultivated
personally by the holder, for any other land allotted
under this Act, which is also likewise cultivated
personally by its holder :
Provided that, no such transfer shall be made so as to
create a fragment.
13. Section 31AB has been introduced for validation of
certain transfer or subdivision made after 15 th November, 1965
and before commencement of the Maharashtra Amendment
Act of 1977, which reads thus :-
11 SA 316.1995+CA.odt
31AB. Validation of certain transfers or sub-divisions made
on or after 15th November 1965 and before
commencement of Mah. XLI of 1977.–
(1) No transfer or sub-division of any land in
contravention of section 31 as it stood immediately
before the date of commencement of the Bombay
Prevention of Fragmentation and Consolidation of
Holdings (Amendment) Act, 1977 (Mah. XLI of 1977),
made on or after the 15th day of November 1965 and
before the date of such commencement shall be
deemed to be void or ever to have become void merely
on the ground that such transfer or sub-division is
effected in contravention of the provisions of that
section as it stood before such commencement and
shall be deemed to be valid if such transfer or sub-
division is in accordance with the provisions of section
31 as substituted by the said Act.
(2) For the purpose of this section, a certificate granted by
the Collector, after holding such inquiry as he deems
fit, that any transfer or sub-division of any land is valid
under this section shall be final and conclusive
evidence in that behalf. Any holder may apply to the
Collector for such certificate.]
14. Plain reading of aforesaid scheme indicates that
Act itself was brought into existence to prevent fragmentation
of agriculture holdings to provide for consolidation of
agriculture holdings for purpose of better cultivation thereof.
Consolidation of holdings is defined as the amalgamation and
where necessary the redistribution of holdings or portions of
holdings in any village, mahal or taluka or any part thereof so
as to reduce the number of plots in holdings. In light of the
object of legislation, section 31 seeks to prevent creation of
12 SA 316.1995+CA.odt
fragment by any mode of transfer and bans for transfer of
holdings allotted under this act. However, section 31AB
introduced vide amendment of 1977 protects transfers effected
from 15th day of 1965 till commencement of amendment Act of
1977 although, such transfers violates provisions of section 31.
In present case, subject transaction would not be affected in
light of protection incorporated under section 31AB. Even
otherwise as rightly pointed out by Mr.Mahajan, nothing in
Sub-Section(1) of Section 31 applies to the land which is to be
transferred to an agriculturist on agriculture labour in its
entirety as prescribed under sub-clause (iii) of clause 3 of
section 31. It is not disputed that plaintiff is an agriculturist
and transfer is in its entirety. It is nobody’s case that it would
be a fragment of holding allotted under this Act. Therefore,
bar under section 31 of Consolidation Act would not vitiate
subject agreement to sale. Hence, additional substantial
questions of law as framed under order dated 17.2.2025 are
answered accordingly.
15. Mr. Kulkarni, raises contention that present suit is
barred by limitation as transaction is dated 24.04.1974 and
suit has been instituted in the year 1987. Appellate Court has
13 SA 316.1995+CA.odt
considered aspect of limitation. The point no.5 was specifically
framed for that purpose. Section 54 of the Limitation Act deals
with the Limitation for filing the suit for specific performance
of agreement to sale, which reads thus :-
54. For specific performance of a contract :-
Article 54 of the Limitation Act, 1963 states that the time
limit to file a suit for specific performance is three years.
This time limit starts from the date set for performance,
or if no date is set, from the date when the plaintiff is
notified that performance has been refused.
16. Admittedly, in present case date for execution of
the sale-deed is not fixed under agreement. On the other
hand, defendant was put under obligation to obtain necessary
permission for execution of the sale-deed from competent
authority under consolidation Act. There is nothing on record
that defendant communicated his refusal to execute the sale-
deed expressly or impliedly till service of legal notice by
plaintiff seeking specific performance, which was served upon
him just prior to filing of the suit. It is, therefore, difficult to
accept contention of defendant that suit is barred by limitation.
17. Lastly, it is argued on behalf of the appellant that
assuming that suit is within limitation, 13 years long delay in
instituting suit dis-entitles plaintiff from seeking specific
14 SA 316.1995+CA.odt
performance of contract and seek grant of discretionary relief
of specific performance of contract.
18. It has come in the evidence that entire amount of
consideration i.e. Rs.8,000/- was parted by the plaintiff to
defendant at the time of execution of agreement to sale. Even
thereafter, defendant continued in possession of suit land.
Nothing was remained to be performed by plaintiff towards
part of his contract. Defendant after receipt of entire
consideration amount, enjoyed possession of the property
without taking necessary steps towards execution of sale-deed
by obtaining requisite permission from competent authority.
Therefore defendant cannot be given premium over his own
wrong. Relief of specific performance being discretionary, this
Court finds that refusing to grant specific performance on the
ground of delay of 13 years to institute suit would cause
greater hardship to the plaintiff. Perusal of the agreement to
sale show that it has been registered on 23.4.1974. Both the
Courts have concurrently recorded finding that plaintiff proved
the agreement to sale and rejected defendants case that it was
the document of security towards loan. The Courts below have
exercised discretion keeping in mind all relevant aspects.
15 SA 316.1995+CA.odt
Concurrent finding so recorded need not be disturbed in
Second Appeal. In the result, Second Appeal sans merit, hence
dismissed. Pending civil application, if any, also stands
disposed of.
( S. G. CHAPALGAONKAR )
Judge.
…
aaa-