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Judgment
These two Second Appeals arise out of Agreement for Sale dated 20 August 1992 executed between Shri. Vitthal Kondiba Vidhate and Shri. Sadashiv Sagaji Rakshe.
Second Appeal No. 185 of 2023 challenges the judgment and decree dated 4 August 2022 passed by the District Court, Pune dismissing Regular Civil Appeal No. 85 of 2022 filed by the Appellants and confirming the order dated 27 March 2017 passed by the Trial Court rejecting the plaint in Regular Civil Suit No. 260 of 2016, which was filed by the Appellants seeking a declaration that the decree dated 27 March 2014 passed in R.C.S. No. 23 of 2005 is an outcome of fraud collusion and misrepresentation and hence nullity.
Second Appeal No. 184 of 2023 is filed by the Appellants challenging the judgment and order dated 4 August 2022 passed by the District Judge, Pune dismissing Regular Civil Appeal No. 86 of 2022 and confirming the order dated 27 March 2017 in Regular Darkhast No. 6 of 2014 passed by the Executing Court. By Order dated 27 March 2017, Appellant's Application under Section 44 of the Indian Evidence Act, 1872 seeking permission to lead evidence in Regular Darkhast No. 6 of 2014 and to set aside decree dated 27 March 2014 passed in R.C.S. No. 23 of 2005 has been rejected.
Briefly stated, facts of the case are that Shri. Vitthal Kondiba Vidhate executed Agreement for Sale dated 20 August 1992 for sale of the suit property bearing Gat No. 92 area H-1. 00. R situated at Village-Salumbare, Taluka-Maval, District-Pune in favour of Shri. Sadashiv Sagaji Rakshe for total consideration of Rs. 55,000/-. The purchaser paid earnest money of Rs. 5000/- and Agreement for Sale dated 20 August 1992 was executed. Since Vitthal Kondiba Vidhate failed to execute the Sale Deed Shri. Sadashiv Sagaji Rakshe filed Regular Civil Suit No. 23 of 2005 in the Court of Civil Judge Junior Division, Vadgaon seeking specific performance of Agreement for Sale dated 20 August 1992. The suit was resisted by the Defendants therein by filing written statement. The Trial Court however proceeded to decree the suit by judgment and order dated 27 March 2014 directing the Defendants to execute sale deed in respect of the suit property in favour of the Plaintiff and directing the Plaintiff to deposit balance consideration of Rs. 50,000/- in the Court. The Trial Court also directed Defendants to handover possession of the suit property to the Plaintiff upon execution of the sale deed. The Appellants filed Appeal challenging the decree dated 27 March 2014 alongwith application for condonation of delay before District Court. The Application for condonation of delay in filing the Appeal was dismissed for non-prosecution. The Plaintiff in R.C.S. No. 23 of 2005 filed Regular Darkhast No. 6 of 2014 for execution of the decree dated 27 March 2014. In the execution proceedings, the Court Commissioner executed Sale Deed dated 29 October 2016 in favour of Shri. Sadashiv Sagaji Rakshe. Appellants filed Application under Section 44 of the Indian Evidence Act on 21 December 2016 seeking leave to lead evidence. Simultaneously, Appellants also filed a separate suit bearing R.C.S. No. 260 of 2016 for setting aside the decree dated 27 March 2014 on the ground that the same is outcome of collusion and misrepresentation. Defendant in R.C.S No. 260 of 2016 (Sadashiv Sagaji Rakshe) filed Application under Section 9A of the Code of Civil Procedure, 1908 (Code) seeking dismissal of R.C.S. No. 260 of 2016. The Trial Court framed preliminary issues by order dated 28 February of 2017. By order dated 27 March 2017, the Trial Court allowed the application filed by Shri. Rakshe and rejected the plaint in R.C.S. No. 260 of 2016 under Order VII Rule 11 of the Code. The Appellants filed Regular Civil Appeal No. 85 of 2022 (Old No.383 of 2017) challenging order dated 27 March 2017. By judgment and order dated 4 August 2022, the District Court has dismissed Regular Civil Appeal No. 85 of 2022 filed by the Appellants. Accordingly, Appellants have filed Second Appeal No. 185 of 2023 challenging the judgment and order dated 4 August 2022 passed by the first Appellate Court.
In the meantime, Application preferred by the Appellants in Regular Darkhast No.6 of 2014 under Section 44 of the Evidence Act came to be dismissed by the Executing Court by order dated 27 March 2017 and Regular Darkhast No.6 of 2014 was disposed of. The Appellant challenged order dated 27 March 2017 by filing Regular Civil Appeal No. 86 of 2022 which is dismissed by the District Court by judgment and order dated 4 August 2022. Appellants have filed Second Appeal No. 184 of 2023 challenging the judgment and order dated 4 August 2022 passed by the District Court.
I have heard Mr. Jha, the learned counsel appearing for the Appellants, who has mainly argued Appeal No. 185 of 2023. According to him the decree dated 27 March 2014 passed in R.C.S. No. 23 of 2005 is a nullity as the same is passed without framing the issue of maintainability of the suit in the light of bar under Section 43 of the Maharashtra Tenancy and Agricultural Lands Act, 1948 (Tenancy Act). That the suit was also ex facie barred by limitation as specific performance of agreement executed on 20 August 1992 was sought by filing suit in the year 2005. That the decree is obtained by misrepresentation by filing suit against tenants of the land who had no authority to execute sale deed in favour of the Plaintiff. That since decree is nullity, the same can be challenged in any collateral proceedings including the present Second Appeal. That the Tenancy Act is a complete code in itself and therefore, Civil Court does not have jurisdiction to decide any issue relating to tenancy including right of the tenants to alienate the tenanted land. That Agreement for Sale also contemplated execution of sale deed after removal of condition for class 2 occupancy. He submits that even if possession is handed over or a sale deed is executed in pursuance of the decree, such facts are irrelevant if the decree itself is a nullity. He further submits that the Courts have the necessary power to reverse the transaction. In support of his contention that the suit is not maintainable in the absence of permission from the Collector under the Tenancy Act, Mr. Jha relies on a judgment of the Andhra Pradesh High Court in Meram Pocham V/s The Agent to the State Government (Collector), District Adilabad and Ors.1 and of this Court in Lotan Ramchandra Shimpi and Ors. V/s Shankar Ganpat Kayasth and Ors.2. He also relies on judgment of this Court in Saraswati Shamrao Dhere V/s Khutub Babu Malani and Ors.3 in support of his contention that transaction of purchase of land by a tenant in absence of sanction of Collector is ab-initio void. In support of his contention of permissibility to challenge a void decree in collateral proceedings. Mr. Jha relies on judgments of the Apex Court in S. P. Chengalvaraya Naidu V/s Jagannath and Ors.4 and Kiran Singh and Ors. V/s Chaman Paswan and Ors.5 In support of the contention that it is the duty of the Court to frame and decide the issue of limitation Mr. Jha relies on judgments of the Apex Court in Kamlesh Babu and Ors. V/s Lajpat Rai Sharma and Ors.6 and Narne Rama Murthy V/s Ravula Somasundaram and Ors.7. Mr. Jha accordingly prays for admitting Second Appeal No. 185 of 2023 and for setting aside the impugned decree of the District Court. So far as Appeal No. 184 of 2023 is concerned, Mr. Jha submits that if the decree itself is held to be a nullity, nothing would survive in the execution proceedings, and consequently, all orders passed therein would automatically be rendered illegal.
The Appeals are opposed by Mr. Kursija, the learned counsel appearing for Respondent. He submits that the decree passed in R.C.S. No. 23 of 2005 has attained finality and fresh suit seeking declaration of the decree dated 27 March 2014 is nullity and clearly not maintainable. That Appellants filed Appeal challenging the decree dated 27 March 2014 and the same has been dismissed on account of dismissal of Miscellaneous Civil Application No. 801 of 2014 for default. He submits that an Application filed for restoration of Miscellaneous Civil Application No. 801 of 2014 has also been dismissed by the District Court by order dated 29 April 2026. He further submits that the decree dated 27 March 2014 has already been executed by registration of sale deed through the Court Commissioner in favour of the Respondent. He further submits that the issue of maintainability of the suit in view of the bar under Section 43 of the Tenancy Act was not raised in R.C.S. No. 260 of 2016. The declaration that the decree was a nullity was sought only on the grounds of limitation and failure to frame issues regarding readiness and willingness. That the issue of bar under Tenancy Act is sought to be raised for the first time before this Court. He therefore submits that the Trial Court has rightly rejected plaint in R.C.S. No. 260 of 2016 and which is correctly confirmed in Appeal by the District Court. That, therefore, Second Appeal No. 185 of 2023 deserves to be dismissed. So far as Second Appeal No. 184 of 2023 is concerned, he submits that the same is rendered infructuous on account of execution of the decree. That in any case Appellant's Application for leading evidence in the darkhast has rightly been rejected. Accordingly, he prays for dismissal of Second Appeal No. 184 of 2023.
Rival contentions urged on behalf of the parties now fall for my consideration.
Second Appeal No. 185 of 2023 involves challenge to judgment and decree passed by the First Appellate Court on 4 August 2022 dismissing Regular Civil Appeal No. 85 of 2022 and confirming the order of the Trial Court dated 27 March 2017 rejecting plaint in R.C.S. No. 260 of 2016 under Order VII Rule 11 of the Code.
As observed above, Appellants had participated in R.C.S. No. 23 of 2005, which was filed by the Plaintiff therein Sadashiv Sagaji Rakshe for specific performance of Agreement for Sale dated 20 August 1992. The suit came to be decreed on merits by judgment and order dated 27 March 2014 directing the Defendants to execute sale deed in respect of the suit property in favour of Plaintiff-Sadashiv Sagaji Rakshe. The decree dated 27 March 2014 passed in R.C.S. No. 23 of 2005 has attained finality, as the appeal preferred by the Appellants challenging the said decree was dismissed consequent upon the dismissal for non-prosecution of Miscellaneous Civil Application No. 801 of 2014, filed for condonation of delay. The Appellants did not take any contemporaneous steps to seek restoration of Miscellaneous Civil Application No. 801 of 2014 and acquiesced in the dismissal of the Appeal.
After the decree dated 27 March 2014 attained finality Appellants were advised to file R.C.S. No. 260 of 2016 seeking a declaration that the judgment and decree dated 27 March 2014 passed in R.C.S. No. 23 of 2005 is fraudulent and passed on account of misrepresentation and seeking a prayer for setting aside the same. By the time R.C.S. No. 260 of 2016 was filed on or about 2 December 2016, the decree in R.C.S. No. 23 of 2005 was already executed by way of registration of sale deed dated 29 October 2016 through the Court Commissioner. Appellant therefore sought a prayer for setting aside the said sale deed in R.C.S. No. 260 of 2016.
The present case thus involves institution of a separate suit by the Appellants, who were the Defendants in R.C.S. No. 23 of 2005, raising various pleas after having failed in their attempt before the First Appellate Court to set aside the decree dated 27 March 2014. Once the Appeal challenging the decree is dismissed (for whatever reason) the Appellants cannot be permitted to file a fresh suit seeking a declaration that the decree passed in the previous suit is a nullity. The correct remedy for them was to apply for restoration of the Appeal. In my view therefore, the Trial Court has rightly rejected plaint in R.C.S. No. 260 of 2016 by having recourse to provisions of Order VII Rule 11 of the Code.
Mr. Jha has strenuously contended that the suit property continued to be mere tenanted property which was in cultivation of the Defendants and that R.C.S. Suit No. 23 of 2005 seeking specific performance was filed merely against tenants. He has relied upon provisions of Section 43 of the Tenancy Act in support of his contention that the suit itself was not maintainable before the Civil Court. However, perusal of the plaint in R.C.S. No. 260 of 2016 would indicate that this point was not raised in the plaint and declaration of decree in R.C.S. No. 23 of 2005 as nullity was sought only on the ground that the suit was barred by limitation. Appellants also sought to raise the contention of fraud in the plaint filed in R.C.S. No. 260 of 2016 contending that Sadashiv Sagaji Rakshe had already filed Application before Deputy Collector. Though the aspect of alleged fraud is not very apparent from the contents of the plaint, it is not necessary to delve deeper into that aspect. Suffice it to observe that the plaintiffs in R.C.S. No. 260 of 2016 did not raise any contention regarding the bar on jurisdiction under Section 43 of the Tenancy Act. There is no averment in the plaint in R.C.S. No. 260 of 2016 that the agreement for sale was executed in respect of tenanted land or that the sale of such land without the sanction of the Collector was impermissible. Thus, what is now sought to be strenuously argued by Mr. Jha is not even pleaded in the plaint filed in R.C.S. No. 260 of 2016. Therefore, the issue of non-maintainability of R.C.S. No. 23 of 2005 in view of the provisions of Section 43 of the Tenancy Act and the requirement of obtaining the Collector’s permission cannot be examined in the present Second Appeal. In that sense it is not necessary to consider ratio of the judgment of Andhra Pradesh High Court in Meram Pocham and of this Court in Lotan Ramchandra Shimpi and Saraswati Shamrao Dhere (supra).
There appears to be a reason why the issue of suit property being tenanted land was not raised by the Appellants in R.C.S. No. 260 of 2016. This is because the revenue records indicate that purchase price on the property was fixed under Section 32-G of the Tenancy Act and the names of the tenants were brought on record as owners and also the sale deed effected by the Court Commissioner in favour of Respondent on 29 October 2016 records that the purchase price was paid and certificate under Section 32-M of the Tenancy Act was already issued.
Thus, the plea of fraud is not founded on the alleged bar under Section 43 of the Tenancy Act or on the absence of the Collector’s permission for the sale transaction. On the other hand, perusal of averments in R.C.S. No. 260 of 2016 would indicate that the allegation of fraud is essentially connected to the ground of limitation.
If R.C.S. No. 23 of 2005 was indeed barred by limitation and if the Trial Court had erred in decreeing the suit on 27 March 2014 the proper remedy for the Appellants was to file Appeal before the District Court challenging the decree in R.C.S. No. 23 of 2005. The Appellants did exercise the said remedy by presenting the Appeal before the District Court. The Appeal was delayed and therefore Miscellaneous Civil Application No. 801 of 2014 was filed seeking condonation thereof. However, the Appellants failed to diligently prosecute Miscellaneous Civil Application No. 801 of 2014, which came to be dismissed for non-prosecution by order dated 11 January 2016. Consequently, the application for condonation of delay was dismissed, resulting in the dismissal of the Appeal as well. The Appellants cannot be permitted to institute an independent suit to raise the issue of limitation instead of seeking restoration of the application and pursuing the appeal preferred to challenge the decree dated 27 March 2014. Here it must be observed that the Appellants got wiser after filing of R.C.S. No. 260 of 2016. They filed Civil Miscellaneous Application No. 95 of 2022 (old Civil Miscellaneous Application No. 72 of 2020) before the District Court on 16 January 2020 seeking restoration of Miscellaneous Civil Application No. 801 of 2014 by seeking condonation of delay of 1280 days. Thus, Appellants started pursuing twin remedies in respect of decree dated 27 March 2014 passed in R.C.S. No. 23 of 2005. After filing R.C.S. No. 260 of 2016 on 2 December 2016, they also filed Application for restoration of Miscellaneous Civil Application No. 801 of 2014 on 16 January 2020. The later remedy exercised by the Appellants was the correct remedy. It is another thing that Civil Miscellaneous Application No. 95 of 2022 for condonation of delay in preferring Application for restoration of Miscellaneous Civil Application No. 801 of 2014 has been recently dismissed by the District Court by order dated 29 April 2026. It is for Appellants to take appropriate steps in respect of judgment and order dated 29 April 2026. Filing of R.C.S. No. 260 of 2016 was not the correct remedy and the plaint in that suit has rightly been rejected by the Trial Court under Order VII Rule 11 of the Code. The case of fraud sought to be raised by the Appellants is clearly baseless and reliance on judgments of the Apex Court in S. P. Chengal Varaya Naidu and Kiran Singh (supra) is clearly inapposite. Similarly, reliance by Mr. Jha on judgments of the Apex Court in Kamlesh Babu and Narne Rama Murthy about Trial Court's duty to frame issue of limitation is also inapposite since Appellants will have to prosecute Appeal against decree dated 27 March 2014 and raise points about failure to frame issue of limitation before the Appellate Court.
In view of the above discussion, it is seen that no substantial question of law is involved in Second Appeal No. 185 of 2023.
So far as Second Appeal No. 184 of 2023 is concerned, the same merely challenges order passed in execution proceedings refusing permission to lead evidence as confirmed by the Appellate Court on 4 August 2022. The decree has already been executed by way of registration of sale deed dated 29 October 2016. In that sense, Second Appeal No. 184 of 2023 is rendered infructuous. Mr. Jha has fairly not argued Second Appeal No. 184 of 2023. Even otherwise, I do not find any valid reason why evidence can be permitted to be led in execution proceedings by the Appellants. This would be the third attempt on the part of the Appellants to upset the decree passed in R.C.S. No. 23 of 2005. As observed above, they first filed R.C.S. No. 260 of 2016 seeking a declaration that decree passed in R.C.S. No. 23 of 2005 is nullity. They also filed application for restoration of Miscellaneous Application No. 801 of 2014 with a view to prosecute Appeal against decree passed in R.C.S. No. 23 of 2005. They again sought to raise various issues about correctness of the decree in the execution proceedings. The Executing Court has rightly dismissed their Application filed under Section 44 of the Indian Evidence Act. No substantial question of law is involved even in Second Appeal No. 184 of 2023.
In view of the above discussion and in absence of any substantial question of law being involved in either of the Appeals, both the Appeals are dismissed with costs. Appellant shall however be at liberty to take appropriate steps in respect of judgment and order dated 29 April 2026 passed by the first Appellate Court in Civil Miscellaneous Application No. 95 of 2022.