M.F. Saldanha, J.
1. A next question of law has been posed for determination in this Second Appeal which basically calls for determination of the issue as to when and under what circumstances can it be said that the character and definition of agricultural land stand altered to non-agricultural land pursuant to permission being granted by the Collector for non-agricultural use. In other words, whether on the passing of an order granting such permission for N.A. use, the lands ceased to be agricultural lands, and therefore, the bar of alienation under section 43 of the Bombay Tenancy and Agricultural Lands Act or for that matter the requirements under section 63 of the that Act which prescribes that permission to purchase by a non-agriculturist will cease to be applicable, are the points in issue. The allied aspect of the matter and one of some importance is raised in the companion Civil Application whereby the appellants who lost their appeal principally on the ground that the original order dated 9-10-1964 whereby permission for non-agricultural use was granted had not been produced before either the trial Court or the Appeal Court, made an application on the basis of a certified copy of that order that the same be considered by this Court and further that additional evidence in the matter be recorded. Whether, at the stage of Second Appeal such an addition to the record should at all be permitted, is the subsidiary aspect of the matter. First, however the relevant facts.
2. This litigation pertains to a small plot of land measuring 36 gunthas bearing Survey No. 54/11 situated at village Loni Kalbhor, Taluka - Haveli, District - Pune. The original holder of the land was one Bajirao Sitaram Kalbhor. Bajirao was an agriculturist and there is no dispute about the fact that the lands in question were assessed as agricultural lands though the relevant revenue records indicate that it was designated as 'Kharwatpad' even though it is pointed out that the land was obviously unfit for agricultural purposes and was therefore not in actual cultivation, that aspect of the matter is irrelevant because as far as the type of the land is concerned, the records very clearly designated them as agricultural lands. Under these circumstances, the land would be governed by the provisions of the Bombay Tenancy and Agricultural Lands Act.
3. The original plaintiffs, who are the appellants before me, purchased the land through a registered sale deed dated 20th March, 1965. Prior to this, on the basis of an application from Bajirao, the Mamlatdar, Haveli, had granted N.A. permission under section 65 of the Land Revenue Code by an order dated 9-10-1964. The plaintiffs contended that by virtue of this order, that there was no legal bar to the alienation of the lands in question and that he had acquired a valid title to the same by virtue of the registered sale deed dated 20th March, 1965. It was also the plaintiffs case that pursuant to the registered sale deed that the possession of the land had been handed over and that the land was in the plaintiff's possession. Thereafter the plaintiffs came to know that the original holder, taking advantage of the fact that the plaintiffs had not got their names entered in the relevant records had decided to sell the same land to the defendant No. 6. They, therefore, issued a public notice in the daily 'Prabhat' whereupon it is alleged that the defendants Nos. 1 to 5 started threatening them and interferring with the plaintiffs possession. Civil Suit No. 1064 of 1970 was therefore filed in the Court of the 3rd Joint Civil Judge, Junior Division, Pune, against the defendants Nos. 1 to 4 praying for perpetual injunction against those defendants and the subsequent transferee. It transpired that defendant No. 6 had entered into an agreement to sell dated 3-4-1968 and had entered into a registered sale deed in respect of this very land on 14-4-1970. On 19-7-1972, the defendant No. 6 who is a subsequent purchaser was impleaded as a party defendant to the suit and by an amendment to the plaint carried out on 5-10-1978, the cause of action was altered and a prayer for possession was also included. I need to mention here that the plaintiffs have placed strong reliance on Mutation Entry No. 6328 dated 23rd November, 1966 which does in terms refer to the non-agricultural order dated 19-10-1964 which is of some consequence. The learned trial Judge answered all the issues in favour of the original plaintiffs. He held that the registered sale dated 20th March, 1965 was valid one, that plaintiffs had therefore derived a valid title in law and consequently decreed the suit with costs and perpetually restrained the defendants Nos. 2 to 6 (defendant No. 1 having died) from interferring with the peaceful possession of the plaintiffs over the suit land. The defendant No. 6 carried the matter in Appeal and the learned Extra Assistant Judge, Pune, allowed the Appeal being Civil Appeal No. 297 of 1980, by his judgment and order dated 12th August, 1982. A perusal of the appellate order will indicate that the learned Judge has basically proceeded on a two-fold footing. Firstly, he has upheld the contention that the original or for that matter certified copy of the N.A. order dated 9-10-1964 on which the plaintiffs placed strong reliance has not been produced by anybody before the trial Court or before the Appeal Court. In the absence of this document, merely because there is some indirect reference in the Mutation Entry No. 6328 dated 23rd November, 1965 the Appeal Court has come to the conclusion that it would be impermissible to hold that the plaintiffs were legally permitted to purchase the lands in question or for that matter, that the bar of alienation in respect of agricultural lands and that too to the plaintiffs who are non-agriculturists in the absence of permission from the competent authorities did not affect the validity of the sale transaction dated 20th March, 1965 in favour of the plaintiffs and that consequently, that sale would have to be ignored. As a necessary result, the sale transaction between the original vendors and the defendant No. 6 who was the appellant before that Court, which was the subsequent sale, was upheld. The Appeal Court also examined the evidence with regard to the aspect of possession and came to the conclusion that the evidence was unworthy of acceptance and, therefore, that the plaintiffs had failed to prove that possession was either handed over to them or that they continued to be in possession. It is against this appellate order, that the present Second Appeal has been filed.
4. I shall first deal with Civil Application No. 2328 of 1983, which has been heard alongwith the main appeal. By this Civil Application, the appellants, who have produced a certified copy of the N.A. order dated 9-10-1964 have prayed that the same be taken on record, virtually introduced in evidence and relied on by the Court in support of the appellants' case. It is relevant to point out that there is no affidavit in reply to this Civil Application. Mr. Nakhawa learned Counsel, who appears on behalf of the solely contesting respondent namely the defendant No. 6 has not objected to the production of the certified copy in question though he did contend that normally this Court should not permit any addition to the record at the stage of hearing of the Second Appeal. It is this limited aspect of the matter that requires some consideration. Admittedly, it was the plaintiffs who are non-agriculturists who filed the suit before the trial Court and it was they who referred to the N.A. permission issue and it goes without saying that the production of that document was fundamental to their case. In the absence of that document, the validity of the sale entered into would be questionable and similarly their locus standi to purchase the agricultural lands would also be suspect. It is true that this permission was applied for by the original holder but it was the plaintiffs who required this particular document as a pre-condition for establishing their title. The learned Appellate Judge was, therefore, fully justified in having non-suited the plaintiffs on the ground that this all important document had not been produced and the learned Appellate Judge has also answered the difficulty pleaded namely that the original document was with Bajirao and could not have been produced by the plaintiffs, by recording that nothing prevented the plaintiffs from applying for a certified copy thereof and bringing the same on record. It was also open to the plaintiffs to have summoned the concerned authority and asked him to produce a certified copy of the permission in question. Since the document was not produced either before the trial Court or before the Appeal Court, the question arises as to whether this Court should permit the production at this late point of time because one cannot over look the fact that the parties are now at the stage of second appeal and are confined purely to agitating a substantial point of law. Undoubtedly, for the purpose of deciding even a point of law, the record is relevant but the question arises as to whether the record which has assumed finality before the trial Court can be grafted on to. I need to observe that under normal circumstances, this Court ought not to and would not have permitted the production of the document at this stage. A complete situation, however, arises in so far as, references to this document are there in the record and it is to my mind of importance while deciding the points of law that have been canvassed by learned Counsel that the document will have to be looked into. It is only in this exceptional situation, that the Civil Application in question is allowed and the document in question is taken on record and treated as part of the evidence.
5. Mr. Divekar, learned Counsel, appearing on behalf of the appellant has strenuously submitted before me that the appellate order is vulnerable. He bases his challenge principally on the ground that the time-frame in the present case is of some consequence. He points out that no agricultural crops admittedly were being raised on that land and because of the fact that it was virtually fallow, it was long idle and that the plaintiffs had decided to purchase it. This land could only be put to N.A. use for which purpose the holder made an application to the concerned authorities and an order dated 9-10-1964 came to be passed whereby the authorities permitted the use of the agricultural land for N.A. purpose. Mr. Divekar states that once this permission is granted, the bar prescribed under the Bombay Tenancy and Agricultural Lands Act, in respect of alienation which can only arise in the case of agricultural land, ceases to exist in so far as the section 43 of that Act would no longer hold good. Similarly, he points out that the requirement under section 63 which again is in relation only to agricultural lands that are sought to be sold to a non-agriculturist cannot come in the way of the plaintiffs. In this view of the matter, Mr. Divekar points out to me that his clients have entered into a registered sale deed dated 20th March, 1965 which is admitted and which is a document that is beyond dispute. He contends that this sale deed is perfectly valid and that the learned Appellate Judge was not right in having treated it as non-est only because the N.A. order dated 9-10-1964 had not been produced. Mr. Divekar reinforces his case by relying on Mutation Entry No. 6328 dated 23 November, 1966 which was there on record and he submits that, therefore, there was no warrant whatsoever for the learned Judge to have proceeded on the footing as though the non-agricultural order was not in existence. Undoubtedly the original or a copy thereof had not been produced. Mr. Divekar also relies on the fact that the factum of take over of possession has been disbelieved by the Appeal Court and he submits that it is quite unthinkable when a registered sale deed for due consideration has been executed, that the plaintiffs would not take over possession of the land in question. Mr. Divekar has also attacked the argument that the defendant No. 6 could not have had notice of the earlier transaction of sale. He points out and rightly to my mind, that since it was a registered sale deed, the defendant No. 6 cannot be heard in law to say that he had no notice because all he had to do was to enquire with the registering authorities. Consequently, Mr. Divekar submits that the interference by the Appeal Court was wholly unjustified and that the appellate order is liable to be set aside.
6. Mr. Nakhawa learned Counsel, appearing on behalf of the defendant No. 6 has vehemently contested this position. He submits that the N.A. order dated 9-10-1964 will have to be duly given effect to in law and that the submission canvassed by Mr. Divekar to the effect that the lands had changed character on 9-10-1964 immediately on the passing of that order, is erroneous. In this regard, Mr. Nakhawa, has relied on the provisions of sections 43 and 44 of the Land Revenue Code, whereby he points out that even on the application for N.A. use being granted by the competent authority, that the same does not automatically come into operation. Towards this end, Mr. Nakhawa, has drawn my attention to the fact that the order in question is designated as 'Grant of N.A. permission under section 65 of Land Revenue Code'. He thereafter points out to me that such an order is conditional and that the scheme of the provisions of the Land Revenue Code very clearly specify that the order becomes operational and effective only on the compliance by the party in whose favour that order is passed, within the prescribed time of the conditions specified therein. In this regard, Mr. Nakhawa relies heavily on condition No. 2(iii) which reads as follows :---
' iii). that the applicant shall commence the N.A. use of this plot within period of six months from the date of this order, failing which shall be deemed to have been cancelled.'
Relying on this provision, Mr. Nakhwa submits that the grant of N.A. permission only signifies no objection by the authorities for the use of the land for N.A. purposes. There are additional conditions that are required to be complied with namely the fact that the person to whom that permission is granted will have to in fact perform the requisite acts for the purposes of putting the land to N.A. use. For this purpose, in the present order, a time period of six months was granted for the purpose of commencement the N.A. use failing which the order was deemed to have cancelled. There was an additional condition in Clause (vi) that the N.A. use shall be communicated to the Mamlatdar through the village officer within a period of one month from the date of commencement of such use. This is also a requirement under the rules prescribed under the Land Revenue Code. In this regard, Mr. Nakhawa submits that the argument that the character of the lands stands altered from agricultural to non-agricultural on the passing of the order granting permission, is therefore, fallacious and wrong and that the change or transformation can only take place when the conditions specified in the order are complied with. The learned Counsel is right as far as this submission is concerned in so far as grant of permission is only in the form of no objection or consent from the authorities. It is, therefore, open to the party to whom the permission is granted to put the lands to N.A. use and if the party decides to do so, there are subsequent requirements under the provisions of the Land Revenue Code namely that an official intimation in this regard is required to be given through the Village Officer to the Mamlatdar whereupon a Sanad will be issued designating the lands as Non-agricultural lands. Mr. Nakhawa appears to be right in this submission for the simple reason that under the provisions of the Maharashtra Land Revenue Code, the assessment payable on agricultural and non-agricultural lands is different. When the N.A. permission is granted, there is no alterations made in the assessment but it is only if and when the lands are in fact put to N.A. use and this fact is officially communicated to the notice of the authorities that the assessment will change. Under these circumstances, to my mind, there can be no two opinions with regard to the point of time at which the character of the lands gets altered and it will have to be held that this happens not on the date when the order has been passed but from the date on which the lands are in fact put to non-agricultural use. The commencement of this activity is the point of time of change and not the date of passing of the order.
7. In this regard, Mr. Divekar, advanced an argument which I am required to consider. He submitted that admittedly the N.A. order was dated 9-10-1964 and that an outer limit of six months was given to the holder to commence the N.A. use. Mr. Divekar submitted that the sale deed was executed within this period of six months and not beyond that period, even assuming, by virtue of the conditions of Clause (iii) of the N.A. permission, order if the order was deemed to stand cancelled on the expiry of six months if no N.A. use was demonstrated. Mr. Divekar submits that the permission was very much alive and in existence on the date when the sale deed was executed. To this extent, therefore, he submits that the legal impediment that are against him would not hold good in law and that the sale deed executed by him can still be saved. Normally, this argument could have been availed of by Mr. Divekar, had there been any evidence before the Court that the original holder had performed any act directed towards the putting of the land to the N.A. use. There is no evidence whatsoever led before the trial Court in support of this contention. Furthermore, it is quite evident that nothing of this sort was done because there is not even a reference of any intimation having been given through the Village Officer to the Mamlatdar with regard to the commencement of N.A. use. Under these circumstances, even though the permission was valid and alive on the date when the sale deed was executed, it will have to be held that since no act whatsoever was done by the holder for the purpose of putting the lands to N.A. use, that the character of the lands still continued to be agricultural. As a necessary consequence of this, both the bar under section 43 of the Bombay Tenancy and Agricultural Act as also the requirement of obtaining permission for the purchase of the agricultural lands would be insurmountable hurdles in the way of Mr. Divekar's client. When this aspect of the matter was argued before this Court, Mr. Divekar raised a very serious objection because he submitted that the validity of the N.A. permission was never called into question before the trial Court. Mr. Divekar submitted that it is unfair to him that this aspect of the matter is now taken up particularly the aspect of lack of evidence because he submits that he is virtually caught on the wrong foot in so far as if any grievance along these lines had been made to the trial Court that he would have had an opportunity of meeting it firstly in the course of the pleadings while leading evidence as also in the course of the conduct of the trial and the appeal. In this regard, Mr. Divekar canvassed a strong plea that if this aspect of the matter is to be held against him that the proceeding must be remanded to give his clients a fresh opportunity to lead the requisite evidence.
8. As regards this aspect of the matter, I have already had an occasion to deal with in the sense that I have pointed out that it was the plaintiff who came to the Court and that burden of proof rests with him. It may be that the defendants had not agitated this issue in so many words before either of the forums, but to my mind it is effectively a point of law that is argued before me on the basis of the record. In order to be fair to Mr. Divekar's client, I have taken on record, the certified copy of the N.A. permission order but beyond that, at this late point of time, the interest of justice will not permit any remand of the matter at this stage. I am also conscious of the fact that the transaction in question is almost 20 years old, that the defendant No. 1 has died and in these circumstances, the application for additional evidence is really futile. As regards this last aspect of Mr. Divekar's submission namely that in the circumstances in which he is placed, the opposite party should be precluded from raising this plea, it would be difficult to uphold this contention because it is essential, on an interpretation of the law and it is well settled that a point of law can be canvassed even for the first time before the higher forum.
9. It is necessary for me to deal with another aspect of the matter which was canvassed by Mr. Divekar who contended that it would be necessary for the Court to accept from the content of the Mutation Entry No. 6328 dated 3-3-1966. N.A. permission order though dated 9-10-1964 had not been revoked or cancelled which was why alone, did the revenue authorities mention the N.A. order in that mutation entry. Proceeding from the argument that entries in the revenue records have presumptive value, Mr. Divekar submitted that it is impermissible for Mr. Nakhwa to contend that the Court should at this point of time go behind the mutation entry and nullify its effect. As a corollary to this submission he contended that even though the record may not in so many words indicate very specific reference to the acts done in pursuance of the N.A. permission order, that it is quite obvious that the order in question was very much alive even in the year 1966. His submission is that merely because one Government Office issues the N.A. permission order and another one makes the entries in the revenue records, that aspect will be of no consequence because they are all authorities of the State and therefore, their actions will have to be viewed at co-ordinately. He, therefore, advances a strong plea that in the light of the reference in this regard, that the Court cannot ask for any separate evidence and will have to be presumed that the N.A. permission was acted upon within the prescribed time, and that it had not lapsed nor was it revoked, that it was a valid order as late as on 23-3-1966, and therefore, that the sale deed entered into by his client on 20-3-1965 is unquestionable. As regards this aspect I only need to record that there are requirements under the Land Revenue Code which I have referred to and which are independent of the evidence that has come before the Court. In keeping with those requirements it was specified in condition No. (iv) and specifically brought to the notice of the land holder that even though he was given an outer limit of six months to commence the N.A. use of the land, that he was obliged in law to intimate to the Village Officer the date of such commencement. The reason for this was obvious namely that on such intimation being received, the Village Officer would communicate the same to the higher authorities who would issue a Sanad to the land holder evidencing that the land is no longer agricultural land and further that the assessment is raised by virtue of its being put to N.A. use. The fact that the assessment was never raised is the strongest evidence before the Court that no such intimation went and that no such Sanad came to be issued. We, therefore, have no option except to revert to the original position namely that the land in question did not change character from being agricultural land. This situation fully supports the view taken by the Appeal Court that the present appellant could not have entered into a valid sale deed in respect of that land.
10. In his reply, Mr. Divekar advanced one more submission whereby he contended that since the N.A. permission order is now on record and since there is nothing before the Court to indicate that it has lapsed or that it had been revoked, that the Court could have proceeded on the basis that its validity was effective. Mr. Divekar submits that Clause 13 of the order provided for revocation in the event of breaches being committed but there is nothing to indicate that such a situation had occured whereas on the other hand the mutation entry of 23rd March, 1966 signifies that the N.A. permission order was still alive. Similarly, Mr. Divekar relies on the references in the N.A. permission order to the effect that if breaches are committed, action as contemplated under the Rules will be taken and that this action would proceed on the footing that the order was never in existence. Logically, Mr. Divekar submits that it pre-supposes that the order would remain alive until it is revoked and he contends that even if due to lapse or negligence the authorities had not revoked the order that one cannot under any circumstances treat the same as having lapsed after a period of six months if the land had not been put to N.A. use.
11. The issue before me is slightly different. The real question is as to whether the N.A. permission order which is no more than no objection from the authorities to put the land to N.A. use was given effect to or in other words became legally operational/effective. That really is the crux of the dispute in the present appeal. I have already indicated that for a variety of reasons as emerged from the record, it cannot be said that the order in question had taken effect. Clause (iii) of the order further provides that the offer to permit N.A. use will remain in force indefinitely and that the same will lapse if the permission is not utilised within a period of six months. That time period is not of much consequence because the sale has taken place within the period of six months. What is of consequence is as to whether the order had become operational within that period or at any point of time prior to the execution of the sale. On the basis of the present record, I am constrained to hold that though the order had been applied for and issued to the land holder that it was virtually a still-born order that had not commenced any legal existence. It is for this reason that the findings of the Appeal Court to the effect that the sale in question is hit by the provisions of the Tenancy Act will have to be upheld.
12. In support of his submissions, Mr. Nakhwa drew my attention to a decision of this Court reported 41 Bom. L.R. page 1077 in the case of Raichand Gulabchand Accha v. The Secretary of State for India. The point involved in that case was slightly different as it concerned a dispute with regard to raising of the assessment by virtue of the holder having constructed certain godowns on agricultural land though permission was granted to him. Mr. Nakhwa has relied on this judgment because the issue involved in this case is a slightly unusual point which does not seem to have been decided in any proceeding before and hence he draws support from this judgment. He demonstrates that the point of time from which the Court held that the assessment was changed was from the date when the permission was implemented and not granted. Secondly, Mr. Nakhwa has relied on a decision of this Court reported in 1981 Maharashtra Law Journal, page 401, in the case of Nariman Sorabji Parekh v.Ramchandra Janu Mhatre. The issue involved in that case concerned basically the requirement under the Bombay Tenancy and Agricultural Act. Section 33 namely obtaining of permission by a non-agriculturist to purchase agricultural land. The Court upheld the view that such permission is a condition precedent but accepted the submission that it was permissible in the case of a Court auction sale to apply for the permission before the sale was confirmed. On an analogy Mr. Nakhwa submits that there can be no escape from the legal requirement of obtaining permission from the designated authorities prior to the sale being finalised if the purchaser is a non-agriculturist. In the present instance admittedly the appellant was a non-agriculturist and therefore prior permission was necessary. Admittedly, no such permission had been obtained. More or less a similar view has been taken in another decision of this Court, reported in 1981 MLJ 352, in the case of Abdul Karim Pirsaheb Sheikh v. Laxman Bapu Bhosale and others. In this case the Court held that a person holding agricultural land in the adjoining State of Karnataka would come within the definition of agriculturist. Mr. Nakhwa relies on the authority for the limited proposition that unless the purchaser comes within the definition of agriculturist regardless of whether he is based in this State or otherwise, that the permission under section 63 of the Bombay Tenancy and Agricultural Land Act, is a condition precedent for the sale. Mr. Nakhwa also relies on an extract from the standard commentary on the Maharashtra Land Revenue Code by Gupte and Dighe's, II Edition, 1994, at page 202, whereby the learned Authors have extracted the principles referred to by me in Gulabchand's case and reiterated that the grant of permission by itself does not constitute the commencement of the N.A. use but that the same would be from the point of time when it actually takes place.
13. Having regard to the aforesaid position in law, the sale entered into by the plaintiff on 20-3-1965 will have to be ignored and to my mind the finding recorded by the Appeal Court will have to be upheld. The appeal consequently fails and stands dismissed. In the circumstances of the case, there shall be no order as to costs. Interim orders, if any, to stand vacated.
Certified copy expedited.