2009 (2) AIR Bom R 722 ::2009 A I H C 2704

Bombay High Court

Hon'ble Judge(s): D. G. Karnik , J

( A ) Bombay Prevention of Fragmentation and Consolidation of Holding Act (62 of 1947) S. 31 — Allotted land — Permission to sell — Not necessary when merely survey number of land owned by owner was converted into Gat number and same land was allotted to him.Section 31 (1) says that no holding allott-ed under the Consolidation Act shall be transferred without the permission of the Collector. In the present case, the appellant was previously owner of land bearing survey No. 61 in its entirety. The same land bearing survey No. 61 and consisting of 4 Hissas was given a new Gat No. 99 and allotted to the appellant. No land which was owned by somebody else formed a part of Gat No. 99. The land of appellant was converted into a gat number and very same land was allotted to him. Except that change of Survey No. 61 to Gat No. 99 there was no change in holding. The prohibition against the transfer contained in S. 31 of the Consolidation Act would not be applicable for transfer of the suit land. (Paras1011)

( B ) Bombay Prevention of Fragmentation and Consolidation of Holding Act (62 of 1947) S. 31 — Allotted land — Permission to sell — Not necessary when land was transferred to an agriculturist in its entirety.Section 31 (3) of Consolidation Act, specifically says that nothing in sub-section (1) shall apply to any of the land which is transferred to an agriculturist or agricultural labourer in its entirety. The appellant had agreed to transfer whole of the gat No. 99. The sale was in favour of an agriculturist. It was never disputed by the appellant that respondents were not agriculturist. In fact, if they were not agriculturist, the sale was not permissible at all in view of S. 63 of the Bombay Tenancy and Agricultural Lands Act, 1948. No defence was taken up by the appellant that respondents were not agriculturist, and therefore, they were not entitled to purchase the suit land. In view of sub-clause (iii) of sub-section (3) of Section 31 the bar contained in sub-section (1) of Section 31 of the Consolidation Act, is not applicable to the proposed sale by the appellant to the respondents. (Paras12)

( C ) Specific Relief Act (47 of 1963) S. 38 — Perpetual injunction — Can be granted even in cases not covered by S. 38 — S. 38 only recognises power of Court to grant injunction in cases covered by it — Grant of injunction in favour of trespasser in settled possession of property in pursuance of agreement of sale, restraining owner of property not to dispossess him except by due course of law, permissible.Section 38 of the Specific Relief Act relates as to when perpetual injunction can be granted and says that the perpetual injunction can be granted to the plaintiff to prevent breach of an obligation existing in his favour, whether expressly or by implication. Section 38 is not exhaustive and there would also be cases which are not covered by S. 38 when a perpetual injunction can be granted. Section 38 does not restrict the power of the court to grant perpetual injunction only in the cases mentioned in it. It only recognizes power of the court to grant injunction in the cases covered by it. An owner of property can always claim injunction against a stranger who is attempting to disturb his possession, though such a suit is not strictly covered by S. 38 of the Specific Relief Act. Similarly, a person who is lawfully in possession of the property can also claim injunction for protection of his possession. There are cases wherein the Court had even granted injunction in favour of a tress-passer who is in settled possession of a....