In four writ petitions, the Court dismissed challenges to a Trial Court order impounding an agreement to sell. The Court held that where possession was transferred clauses indicated convertibility to non-agricultural land for a sell deed, the document was deemed a conveyance under Article 25, justifying impounding.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
38-wp5266-2019+++.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5266 OF 2019
Balaso Ganapati Varekar… Petitioner
V/s.
Savkar Raoso Magdum & Ors.… Respondents
Digitally signed by ATUL ATUL GANESH GANESH KULKARNI KULKARNI Date: 2023.12.05 17:59:26 +0530
WITH WRIT PETITION NO.5267 OF 2019
Balaso Ganapati Varekar… Petitioner
V/s.
Dada Alias Anna Bharama
Magdum & Anr.
… Respondents
WITH WRIT PETITION NO.5268 OF 2019
Balaso Ganapati Varekar… Petitioner
V/s.
Neminath Tatoba Magdum & Ors.… Respondents
WITH WRIT PETITION NO.5269 OF 2019
Balaso Ganapati Varekar… Petitioner
V/s.
Indumati Appaso Magdum & Ors.… Respondents
Mr. Prasad B. Kulkarni for the petitioner.
Mr. Akshay A. Kulkarni for respondent Nos.1 to 4 in all
the writ petitions.
CORAM:AMIT BORKAR, J.
DATED:DECEMBER 5, 2023
1
38-wp5266-2019+++.doc
P.C.:
1.The petitioner/original plaintiff is challenging order passed
by the Trial Court impounding agreement dated 13 December
2006 produced by the petitioner before the Trial Court.
2.The petitioner is original plaintiff who filed suit for specific
performance. For seeking such relief, the petitioner relied on the
agreement to sell. On perusal of the clauses 14, 15 and 19, it
appears that the document in question is agreement to sell. Under
clause (1) of the said document, the defendant has handed over
possession of the suit property to the plaintiff.
3.According to the learned advocate for the petitioner, the
document in question is development agreement. On overall
reading of the document, and in particular clauses 14, 15 and 19,
it appears that the document contains a specific clause that on
property being converted into non-agricultural property, the
defendant agreed to execute sell deed in favour of the petitioner or
the person as indicated by the petitioner. In view of such clause,
the document in question is agreement to sell and, therefore, in
view of Explanation (i) of Article 25 it is to be treated as
conveyance.
4.Explanation (I) to Article 25 states that for the purpose of
said Article, where in case of agreement to sell and immovable
property the possession of any immovable agreement is
transferred, then such agreement to sell shall be deemed to be
conveyance and stamp duty thereon shall be levied accordingly. On
consideration of the agreement, in my opinion, the Explanation (i)
2
38-wp5266-2019+++.doc
to Article 25 is attracted. Therefore, the Trial Court has rightly
issued a direction for impounding the document. Hence, no
interference under Article 227 of the Constitution of India is called
for.
5. All four writ petitions accordingly stand dismissed. No costs.
(AMIT BORKAR, J.)
3
2 issues framed by the court
Whether the Trial Court was justified in directing impounding the document as an agreement to sell.
Whether the document, despite claims of it being a development agreement, should be treated as a conveyance under Explanation (i) to Article 25.
2 provisions across 2 enactments
Balaso Ganapati Varekar
Savkar Raoso Magdum & Ors.
Dada Alias Anna Bharama Magdum & Anr.
Neminath Tatoba Magdum & Ors.
Indumati Appaso Magdum & Ors.
Amit Borkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court