Second appeals against concurrent findings upholding dismissal of injunction suit by purchasers and allowing vendor's suit for mandatory injunction. Court held sale-deeds without consideration were void, challenge could be collaterally raised per Kewal Krishan; no substantial question of law arose.
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N THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
SECOND APPEAL NO. 217 OF 2019 Dilip s/o Damodar Karale & others .. Appellants Versus Balasaheb s/o Badshah Aher & others .. Respondents Mr. B. V. Dhage, Advocate for appellants. Mr. S. T. Shelke, Advocate for respondents No. 1 and 2.
WITH SECOND APPEAL NO. 218 OF 2019 Dilip s/o Damodar Karale & others .. Appellants Versus Balasaheb s/o Badshah Aher & others .. Respondents
Mr. B. V. Dhage, Advocate for appellants. Mr. S. T. Shelke, Advocate for respondents No. 1 and 2.
CORAM : R. M. JOSHI, J. DATE : 15th JANUARY, 2024.
PER COURT :
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Dilip and another filed Regular Civil Suit No. 274/1994 against Badshah i.e. father of Balasaheb seeking perpetual injunction in respect of land Survey No. 67/3/1 admeasuring 1 H 83 R and Survey no. 67/2/2 admeasuring 1 H 82 R (suit lands) on the basis of registered sale-deed executed in their favour on 7th December, 1990. It is the contention of Dilip that the suit lands belong to them and are in their possession pursuant to the registered sale-deed dated 7th December, 1990. They also claim to have filed proceeding bearing Regular Civil Suit no. 24/1994 on 19th March, 2019 seeking injunction against Badshah wherein Badshah has never raised challenge to the sale-deeds. According to them, the said suit was dismissed for want of prosecution. It is alleged by them that Badshah was trying to alienate the suit lands to Madhukar as well as he attempted to take possession thereof and hence the suit for perpetual injunction seeking restrainment order against him and his wife came to be filed.
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from obstructing possession of plaintiff therein over the suit lands and for removal of construction raised therein.
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the sale-deeds in question are never challenged and as such it was not open for the Trial Court to record any finding in respect thereof. Thus, according to him, substantial question of law is involved in the present appeals and they require admission.
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termed as perverse having regard to the facts of the case and evidence brought on record.
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the present case as Badshah was declared as Protected Tenant and proceedings under this act had taken place. Further, there cannot be any dispute is made about the fact that for the purpose of sale of the suit land, consent of appropriate authority i.e. Collector is essential under Section 43 of the Act. Before the First Appellate Court, it is sought to be argued on behalf of Dilip that possession of the suit lands came by virtue of agreement to sale and not by operation of law, but the same is not acceptable in view of fact that it is their specific case that they acquired title and possession on the basis of the registered sale-deed in question. There is evidence on record in order to indicate that Badshah was protected tenant in respect of the suit lands and the proceedings under Section 32G were conducted before Agricultural Lands Tribunal vide Tenancy Case No. 30/1959 and the Tribunal by order dated 30th September, 1963 declared Badshah and one Vasant as tenants of the lands. It was further declared that the suit lands have been sold by original owner to Badshah and others for consideration of Rs. 1,500/-. This clearly shows that Badshah acquired the suit lands by virtue of proceedings under Section 32G of the Act.
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effected without prior permission of Collector under Section 53 of Maharashtra Tenancy and Agricultural Lands Act.
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consideration was enhanced. On the day of registration of documents, Dilip and another executed hand loan receipts (Exhibit 189/190) in favour of Badshah, for Rs. 21,000/- and Rs. 29,000/- respectively. Though Dilip claimed execution of hand loan receipt, there is no explanation as to why those receipts were executed. On the other hand, Rajendra (DW1) during cross examination admitted that Rs. 50,000/- was paid to Badshah on his daughter’s marriage prior to one and half year of execution of sale deeds. He is unable to state amount of total consideration paid to Badshah. Though he claimed that from time to time Rs. 1,75,000/- is paid to vendor but there is no corroboration to this statement of witness with any other evidence. There is absolutely no evidence on record to hold that on date of execution of sale deed any consideration was paid to Badshah. The contentions sought to be raised in oral evidence of Dilip and another for first time is to claim that Rs. 1,75,000/- was paid for medical expenses, however, the said evidence being in absence of, pleadings cannot be considered.
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payment of consideration was decided and it was held that the sale deed without payment of consideration is void. It is further held therein that the document which is void need not be challenged by claiming declaration as the said plea can be set up and proved even in collateral proceeding. Having regard to the law settled by Hon’ble Apex Court, this Court finds no substance in the contention of learned counsel for Dilip in this regard.
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2 issues framed by the court
Whether the registered sale-deeds dated 07.12.1990 were nominal and void for want of consideration, permitting collateral challenge.
Whether Sections 91/92 of the Evidence Act barred evidence contradicting recitals of the sale-deeds.
Colour shows how this judgement treated each authority
Kewal Krishan vs. Rajesh KumarRelied on¶14
AIR 2022 Supreme Court 564 · Who else cites this
7 provisions across 4 enactments
Dilip s/o Damodar Karale & others
Balasaheb s/o Badshah Aher & others
R. M. Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
