Skip to content


Peerkha Lalkha Vs. Bapu Kashiba Mali - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 149 of 1922
Judge
Reported inAIR1923Bom410; (1923)25BOMLR375; 73Ind.Cas.231
AppellantPeerkha Lalkha
RespondentBapu Kashiba Mali
DispositionAppeal dismissed
Excerpt:
.....prior purchaser-subsequent purchaser not bound to prove that he purchased without notice of prior sale-prior purchaser should prove notice to subsequent purchaser of his prior sale.;a person in possession, holding under a subsequent deed of sale, is not bound to prove, in a suit by a prior purchaser, that be had no notice of the prior sale-deed. the burden lies on the prior purchaser to prove that the subsequent purchaser purchased with notice of the prior sale.;himatlal motilal v. vasudev ganesh (1912) i.l.r. 36 bom. 446 : 14 bom l.r. 634, distinguished. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001),..........on september 4, 1907, nazukbi agreed to sell the land to one chimaji. chimaji obtained a sale-deed on october 18, 1907. the plaintiff obtained his sale-deed on november 29, 1907. all those documents were registered. the defendants purchased the land from chimaji on july 28, 1914. on august 2, 1919, the plaintiff filed this suit to recover from the defendants the suit property alleging that the defendants dispossessed him on july 28, 1914. that is the date of the defendant's sale-deed from chimaji. the plaintiff failed to prove that he had been in possession in 1914 and had been dispossessed.2. the question is whether chimaji took his sale-deed in october 1907 with notice of the previous agreement by nazukbi to sell the same property to the plaintiff. it has been urged that.....
Judgment:

Norman Macleod, Kt., C.J.

1. One Nazukbi, the owner of the suit property, passed an agreement in plaintiff's favour on April 2, 1907, to sell the land to the plaintiff. On September 4, 1907, Nazukbi agreed to sell the land to one Chimaji. Chimaji obtained a sale-deed on October 18, 1907. The plaintiff obtained his sale-deed on November 29, 1907. All those documents were registered. The defendants purchased the land from Chimaji on July 28, 1914. On August 2, 1919, the plaintiff filed this suit to recover from the defendants the suit property alleging that the defendants dispossessed him on July 28, 1914. That is the date of the defendant's sale-deed from Chimaji. The plaintiff failed to prove that he had been in possession in 1914 and had been dispossessed.

2. The question is whether Chimaji took his sale-deed in October 1907 with notice of the previous agreement by Nazukbi to sell the same property to the plaintiff. It has been urged that registration of the agreement of April 2, 1907, was notice u to Chimaji. But it has now been settled by a decision of the Privy Council that registration by itself is no notice. There must be other circumstances in the case from which the Court could come to the conclusion that Chimaji had notice of that agreement. It has been urged that the onus lay upon Chimaji, or the defendants claiming through him, to prove that they had no notice of the prior agreement, and the case of Himatlal Motilal v. Vasudev Ganesh I.L.R. (1912) 36 Bom. 446 : 14 Bom. L.R. 634 was relied upon. That case must depend upon its own facts, and from the judgment it appears that the lower Court had come to the conclusion that the appellants-defendants had knowledge of the plaintiff's contract prior to the date of the conveyance; but if that case is to be considered as an authority for the proposition that a person in the position of the defendants in this case has to prove the negative, that he took without notice of the prior agreement to sell, then with the greatest respect I cannot agree. The defendants had a title, and anybody seeking to dispossess them must prove his prior right to possession. If the plaintiff had simply proved his prior agreement and nothing more, it cannot possibly be said that he would be entitled to a decree. But if that proposition were correct it would follow that the plaintiff would be entitled to a decree merely on proving his prior agreement of sale, unless the defendants proved that although they had title and possession, they had no notice of the agreement. In my opinion the decision of the Court below was correct and the appeal must be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //