Balu @ Balasaheb Bapurao Khawal vs Subhash Pundlikrao Jadhav

                                                                                sa157.15

                                             1




                                                                                 
    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
               NAGPUR BENCH, NAGPUR




                                                         
                      SECOND APPEAL NO.157 OF 2015

    Balu @ Balasaheb Bapurao Khawal,




                                                        
    Aged about 45 years, Occupation Cultivation,
    R/o Nandura Lashkar, Post Salora Kh.
    Taluka and District Amrvati.                             ..... Appellant.




                                             
                                       ::  VERSUS  ::

    Subhash Pundlikrao Jadhav,
                              
    Aged 60 years, Occupation Retired Employee,
                             
    R/o Gadge Nagar, Amravati, 
    Taluka and District Amravati.                       ..... Respondent.
    ================================================================
                 Shri M.A. Vaishnav, counsel for the appellant.
                 Shri Akshay Sudame, counsel for the caveator/respondent.
      

    ================================================================
   



                                    CORAM : A. P. BHANGALE, J.  

DATE : AUGUST 14, 2015 ORAL ORDER.

1. Heard learned counsel for the rival parties.

2. It appears that the respondent/plaintiff had instituted Regular Civil Suit No.212 of 2010 on the basis of his title and he prayed for possession in the said suit of the agricultural land.

.....2/-

sa157.15 2 The said Regular Civil Suit No.212 of 2010 was decided on 29.11.2011 and decreed for possession by learned 3 rd Joint Civil Judge Junior Division, Amravati. The appellant/ defendant had preferred Regular Civil Appeal No.11 of 2012. The said appeal was dismissed on 29.9.2014.

3. Thus, the decree for possession of the suit field, as granted by the Trial Court, was confirmed since the appeal was dismissed.

4. The suit was in respect of an agricultural land having Gat No.176, situated at Mouje Nandura (Lashkarpur), Pragane Nandgaon Peth, Taluka and District Amravati. The respondent/plaintiff had pleaded his case that after his retirement he had purchased the suit property from the appellant/defendant on 6.6.2001 and the appellant/defendant had put the respondent/plaintiff in possession of the suit field. The respondent/plaintiff also mutated his name by applying to the .....3/-

sa157.15 3 Revenue Authorities on the basis of the registered sale deed, executed between the respondent/plaintiff and the appellant/defendant. He had obtained the Crop Loan as well as the State Government's Aid in the form of seeds etc.. The appellant/defendant, on 28.11.2005, made a false complaint alleging that the transaction with the respondent/plaintiff was not of sale of the suit field but it was of money lending transaction. The said complaint was rejected on 29.3.2006.

5. Another complaint, made by the appellant/defendant before the Assistant Registrar Co-operative Societies in July, 2006, was also rejected. Pending disposal of the complaint, the appellant/defendant had removed the boundary marks and raised dispute before the Nayab Tahsildar alleging that the appellant/defendant was in possession of land having 0.95 HR out of total area of land 1 H 76 R of field Survey No.176.

6. The criminal proceedings bearing Criminal Case No.2 of .....4/-

sa157.15 4 2006 under Section 145 of the Criminal Procedure Code was registered and the spot inspection was also carried out. The Sub Divisional Magistrate passed an order in the absence of the respondent/plaintiff that the appellant/ defendant was found in possession of the suit field.

7. The respondent/plaintiff had also moved the Honourable High Court by filing a criminal application under Section 482 of the Criminal Procedure Code. The High Court, on 31.3.2010, had disposed of application whereby the respondent/plaintiff was granted opportunity to approach the Civil Court.

8. Thus, the civil suit was filed by the plaintiff on the basis that the respondent/plaintiff was the lawful owner pursuant to the registered sale deed, executed between the respondent/plaintiff and the appellant/ defendant, in his favour and pursuant to which respondent/plaintiff was put in actual possession of the suit property by the appellant/defendant. Under .....5/-

sa157.15 5 these circumstances, Regular Civil Suit No.212 of 2010 was decreed in favour of the respondent/plaintiff and the said decree attained finality after Regular Civil Appeal No.11 of 2012 was dismissed. Factum of actual physical possession was thus in favour of the plaintiff by concurrent finding by both trial and First Appellate Court.

9. Under these circumstances, there was nothing wrong when the respondent/ plaintiff, on the basis of his registered sale deed executed between him and the appellant/defendant, approached the competent Civil Court for execution of decree of possession which became final according to the respondent/plaintiff.

10. The proceedings under Section 145 of the Criminal Procedure Code are by way of stop gap or interim arrangement till the competent Civil Court is approached by either of the party for to decide the issue of possession of the suit one way or .....6/-

sa157.15 6 the other and as such decision by the criminal Court in the criminal proceedings is purely provisional or temporary in nature until a decision is given from the competent Civil Court as to the legal right to possession of the suit property. As such criminal proceedings, therefore, would no longer survive once the decree for possession is passed by the competent Civil Court.

11. That being so, the pleading at this stage on the part of the appellant/defendant that the suit transaction of registered sale deed was a money lending transaction, cannot be accepted.

The remedy, if any, if so advised may be to file an independent civil suit for declaration that the registered sale deed executed by the appellant/defendant in favour of the respondent/plaintiff is not binding between the parties and for consequential reliefs. No ground is made out to interfere with the concurrent findings of facts.

12. In view of above, I do not find any substantial question .....7/-

sa157.15 7 of law in the present case so as to entertain the second appeal.

Furthermore, it is not a matter of right for the party to approach this Court under Section 100 of the Civil Procedure Code unless there is substantial question of law formulated in the memo of appeal which must be acceptable and deserving to be considered in second appeal according to law. The second appeal, therefore, fails and is dismissed with costs.

JUDGE !! BRW !! ...../-