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TMI Blog2023 (5) TMI 1276X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 2 (5) of the Fragmentation Act, the term land means, agricultural land whether alienated or unalienated - A conjoint reading of Section 54 of the TP Act and Section 17 of the Indian Registration Act, 1908, mandates that transfer of ownership of any land worth more than Rs.100/- shall be effected by a registered deed. Therefore, transfer of a land worth more than Rs.100/- by a registered deed implies transmutation of all rights as the vendor possessed in the property concerned. A conjoint reading of Section 36A and 36B of the Fragmentation Act would reveal that when a suit is instituted in a Civil Court, the Court concerned has to consider if the suit involves any issue(s) which is/are required to be settled, decided or dealt with by any competent authority to settle, decide or dealt with, such issues under the said Act. If it does, then after staying the suit the said issue(s) is to be referred to such competent authority for determination. Apparently, no such consideration had been made by the trial Court as also by the High Court. A careful scanning of the impugned judgment would reveal that virtually, the High Court considered the validity of the sale deed dated 04.07. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Buldana, are as under: - Original Defendant Nos.1 and 2 viz., Ramakrishna Ganpat Mhaske and Tejra Bajirao Mhaske, have sold the above-described suit field in favour of the plaintiff as per registered sale deed dated 21.04.1979 (Exhibit-128). Soon on its execution the plaintiff was put in possession. On 25.04.1979, the second defendant started disturbing his possession. Suit was then filed on 21.05.1979. In view of the registered sale deed (Exhibit 128) he obtained absolute title over the suit land and in such circumstances, the second defendant who sold the same for discharging debts and family needs got no right or reason to disturb his peaceful possession. The total sale consideration of Rs.10,000/- was given to defendants for the aforesaid entire extent of 3 acres and 20 guntas as the first defendant obtained title over 2 acres and 20 guntas out of the aforesaid total extent from the second defendant as per registered sale deed dated 04.07.1978 and the second defendant remained as the owner in possession of the balance one acre. It is his case that the second defendant had utilised the sale consideration passed on to him for different purposes, including to pay his debts. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchasers as in the case of Exhibit 128 sale deed so as to constitute a valid sale and the other such sale deeds were also executed without any intention to effect sale of the properties, at the time of borrowing money. To contend that the plaintiff is disentitled to any relief as sought for, he would also raise two other contentions; firstly, based on the provisions of Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as 'Fragmentation Act') and secondly, in the light of the provisions under Section 10 of the Bombay Money Lenders Act, 1946, which get attracted owing to the facts that he is an original farmer owning only less than 2 hectares of land and that his annual income is less than Rs.1200/-. 4. Based on the rival pleadings, the trial Court formulated the following issues and answered them in the following manner, as can be seen from paragraph 6 of its judgment:- ISSUES FINDINGS. 1. Does the Plaintiff proves that he purchased the suit field from Defendants as alleged? In the negative. 2. Does he further proves. that the suit sale deed is for legal necessity? In the negative 3. If the Plaintiff entitled to the pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d viz. (Exhibit 128), the First Appellate Court had given due weight to the notice dated 27.04.1979 (Exhibit 113), virtually lawyer notice issued by the second defendant immediately after the transaction, in the name of the plaintiff and held that it would lend support to the factum of sale effected through sale deed (Exhibit 128). The First Appellate Court on such consideration and on appreciation of the materials on record held that the second defendant had failed to prove that the sale transaction was an outcome of money lending transaction and that the sale deed was nominal in nature. Consequently, the appeal was allowed, the judgment and decree of the Trial Court was set aside and the suit for possession on the strength of title was decreed in favour of the plaintiff (the appellant therein). 8. It is feeling aggrieved and dissatisfied with the said judgment and decree that the Second Appeal No.435 of 1995 was filed by the original second defendant viz., the first respondent herein, which ultimately culminated in the impugned judgment. 9. A perusal of the impugned judgment would reveal that the High Court re-framed the substantial questions of law on 15.10.2015 as hereinunder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llateral security for the money borrowed and therefore repayable to him along with the quantified fixed interest thereon). 11. We have already referred to the issues/points formulated by the courts below and the findings returned by the respective courts which formed the basis for their respective judgments. Bearing in mind the decisions referred supra and also the relevant facts available, as noted above and also the relevant provisions under the relevant enactments, to be referred to hereafter, we may proceed to consider this appeal. 12. As noted earlier, after reversing the judgment and decree of the First Appellate Court, the High Court restored the decree of the trial Court. In this context, it is apt to note the re-framed substantial question of law No. 3 by the High Court, extracted above, that carries the query whether, while reversing the findings recorded by the trial Court, the lower appellate Court had ignored the findings recorded by it on the material facts in the light of undisputed factual position. We may hasten to add here that a bare perusal of the impugned judgment would reveal that after framing such a question of law the High Court did the very seemingly att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vague reference was made on that aspect in paragraph 16 reproduced as under: - "16. …In event, according to provision of Consolidation of Act and Prevention of Fragmentation Act, the plaintiff not entitled to any relief." 14. In view of the aforementioned facts as also taking note of the contentions raised on behalf of the contesting respondents, in support of the impugned judgment, that the First Appellate Court failed to consider at all the voidness of the sale transaction of 2 acres and 20 guntas between original defendants 1 and 2, its impact on the sale of consequentially created 'fragmentation' of one acre by the second defendant and the whole sale transaction effected under Exhibit 128 sale deed by operation of the Fragmentation Act and further that the said aspect was rightly considered by the High Court, we think it only proper to deal with that matter appropriately. 15. At the outset, we may say that there is dichotomy between the contention of the first respondent/ the second defendant founded on the Fragmentation Act as mentioned above and also his contention of absolute absence of a transaction partaking the real nature of sale. This is because Section 9 (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nappropriate to look into the object of the Fragmentation Act, in the context of the contentions. It runs as under:- "Whereas it is expedient to prevent the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof;" 18. Thus, obviously, it is not the object or purpose of the Fragmentation Act to totally prohibit or prevent transfer of land within any notified 'local area', but it is only aimed at preventing the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings for the purpose of the better cultivation thereof. 19. In the context of the above mentioned rival pleadings, contentions and the position revealed from the facts and the provisions, the question to be considered is whether the second defendant herein had made out any case for attracting the provisions of the Fragmentation Act /or in other words, whether the trial Court was right in applying the provisions under the said Act and the High Court was legally correct in restoring the decree of the trial Court after reversing the judgment and decree of the First Appellate Court, in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was made on or after 15th day of November, 1965 and before the date of commencement of Maharashtra Prevention of Fragmentation and Consolidation of Holdings (Amendment) Act, 2017 and that apart, Section 31, referred therein, which puts bar for sale, makes it clear under clause (iii) Sub-section (3) thereof, that the said bar would not apply to any land which is to be transferred to an agriculturist, in its entirety provided such transfer is not creating a fragment. We may hasten to add here that we shall not be understood to have held that the subject suit involves any issue(s) which is required to be settled, decided or dealt with any authority competent to settle, decide or deal with such issue under the Fragmentation Act. As a matter of fact, the very applicability of the Fragmentation Act itself on sale transactions would depend upon the question whether the area in question falls under a Municipal Council or not and if it does not, then on the further question as to whether it falls within a 'local area' notified under the Fragmentation Act. Above all, the case attempted to be projected and proved by the second respondent is that in regard to sale deed dated 04.07.1978 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of such issues mentioned under the section in 'the suit instituted in a Civil Court' is the factor deciding the applicability of the procedures prescribed under Section 36B, of the Fragmentation Act. Therefore, the question whether such issue(s) falling under Section 36B of the Fragmentation Act is involved or not was to be decided with reference to the averments in the plaint. On their own the plaint averments did not disclose involvement of any such issue(s) requiring a reference to a competent authority under the Fragmentation Act. Since the issue is whether the suit involves such issue(s), we will refer to the written statement as well. We have already referred to the sole, vague averment in the written statement filed by the second defendant in the suit referring to the Fragmentation Act, which in no way could construe as a counter-claim capable of treating as a plaint and governed by the rules applicable to plaints in terms of Order VIII Rule 6 A, CPC and enabling the court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. That apart, we have also already noted the case projected and proved by the second defendant that Ext. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation Act' only a very vague plea was taken in the written statement by the second defendant viz., "In event, according to the provisions of Consolidation of Act and Prevention of Fragmentation Act, the plaintiff is not entitled to any relief." Thus, when the indisputable position is that no counter-claim, within the meaning of Order VIII Rule 6A, CPC was made by the second defendant and no averment whatsoever was made specifically in the written statement filed by him how such an issue as to whether 'he had proved to be a marginal owner' in the light of the 'Fragmentation Act' arise for consideration. This is because the well-nigh settled position of law is that one could be permitted to let in evidence only in tune with his pleadings. We shall not also be oblivious of the basic rule of law of pleadings, founded on the principle of secundum allegata et probate, that a party is not allowed to succeed where he has not set up the case which he wants to substantiate. Whether the area in question is a 'local area' notified under the 'Fragmentation Act' so as to have application of the provisions of the said Act, even if it is so, whether the sale transaction of one acre by the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at virtually, the High Court considered the validity of the sale deed dated 04.07.1978 executed by the second defendant in favour of the first defendant under 'the Fragmentation Act', without directly framing an issue precisely on the same and then, decided the validity of the sale deed dated 21.04.1979 executed by the second defendant in favour of the plaintiff. We have already taken note of the decision of this Court in Rohit Singh's case (supra), wherein it is observed that a defendant could not be permitted to raise counter-claim against co-defendant because by virtue of Order VIII Rule 6A, CPC it could be raised by a defendant against the claim of the plaintiff. Be that as it may, in the instant case, no such counter-claim, which can be treated as a plaint in terms of the said provision and thereby, enabling the court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim, was filed by the second defendant. That apart, indisputably, the second defendant did not dispute the execution of the registered sale deed dated 04.07.1978 by him in favour of the first defendant and in his written statement the second defendant had only stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that where a deed of sale had been duly executed and registered, its delivery and payment of consideration have been endorsed thereon it would amount to a full transfer of ownership so as to entitle its purchaser to maintain a suit for possession of the property sold. The very object of the mandate for registration of transfer of an immovable property worth more than Rs. 100/- under Section 54 of the Transfer of Property Act, 1882, read with Section 17 of the Indian Registration Act, is primarily to give certainty to title. When execution is challenged, registration by itself is no proof of execution and proof of complying with Section 67 of the Evidence Act is necessary. There can be no reason to disbelieve a recital contained in a registered sale deed regarding payment of consideration, executed by the vendor. Hence, if it is said to have already been paid, going by the registered sale deed, certainly it is for the vendor asserting non-passing of consideration to prove the said asserted fact. Bearing in mind the aforesaid aspects the aforesaid question has to be approached. 33. It is common case that the sale deed dated 21.04.1979 (Ext.128) is registered and its executants v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the written statement or in the notice at Exhibit 113. The defendant No. 2 is consistent in his stand that he has sold one acre of land by the sale-deed at Exhibit 128 for a total consideration of Rs. 3000/-, but has denied to have sold 2 acres and 20 guntas of land to the plaintiff." When that be the indisputable factual position all the other contentions raised by the second respondent against the plaintiff, including money lending, non-passing of sale consideration in respect of the said extent of one acre would all become inconsequential and unsustainable and unnecessary to be gone into. Even otherwise, in view of the factum of registration of Ext.128 and admission of its execution and the recording of payment of consideration thereon, the second respondent was not justified in raising grievance, initially, even against the sale of the aforesaid extent of one acre. 34. Now, what remains to be looked into is the grievance of the second respondent with respect to the balance extent of 2 acres and 20 guntas involved in the transaction. In the context of the contentions raised by the second defendant viz., the first respondent in this appeal, what is relevant and crucial is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he subject-suit, for the reasons already mentioned as it would amount to adjudication of right or a claim, by way of counter-claim by one defendant against his co-defendant. Finding on its voidness under the Fragmentation Act was already held as unsustainable by us. 35. In the context of the contentions of the second defendant/the first respondent herein against Ext. 128, taking note of its registration and the admission of its execution it is only proper to refer to Sections 91 and 92 of the Evidence Act. Certainly, parol evidence is admissible to show that a contract embodied in a document was never intended to be acted upon but was made for some collateral purpose. But, in view of the specific finding in the judgment of the High Court, which is in favour of the second defendant, that the consistent stand of the second defendant is that he has sold one acre of land by the sale deed at Ext.128 for a total consideration of Rs. 3000/- and admission of execution of sale deed dated 04.07.1978 in favour of the first defendant and in the absence of anything on record establishing annulment of the said sale deed and also in view of the fact that the first defendant is also a co-executan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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