Bombay High Court
Bhaskar Rathnakar Gaikwad & Other vs Changdeo Babu Gaikwad on 16 June, 2016
Bench: T.V. Nalawade
1 S.A. 429.1993 - [J]
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 429 OF 1993
1. Changdeo Babu Gaikwad
@ Dada Baburao Gaikwad ..... APPELLANT/
[since deceased Thr. L.Rs.] .... [ORI. PLAINTIFF]
1-A. Suresh Changdeo @ Dada Gaikwad
igAge : 50 Yrs., Occ. Agril.,
R/o : Near Sai Mandir,
Kalyanseth Road, Dombiwali (East),
Mumbai.
1-B. David Changdeo @ Dada Gaikwad
Age : 43 Yrs., Occ. Agril.,
R/o : Walki, Tq. and
Dist. : Ahmednagar
Through its POA
Ananda Waman Gaikwad
Age : 55 Yrs., Occ. Agril.,
R/o : Walki, Tq. and
Dist. : Ahmednagar
V E R S U S
1. Bhaskar Ratnakar Gaikwad
Age : 45 Yrs., Occ. Service,
R/o : H.No. 100, Wanawdigaon,
Dist. Pune.
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2 S.A. 429.1993 - [J]
2. Prabhakar Ratnakar Gaikwad
Age : 41 Yrs., Occ. Service,
R/o : H.No. 100, Wanawdigaon,
Dist. Pune.
3. Paraji Waman Gaikwad
Age : 71 Yrs., Occ. Carpenter,
R/o : Walki, Tq. and
Dist. : Ahmednagar.
4.
igShivaji Vithoba Bothe
Age : 50 Yrs., Occ. Agril.,
R/o : Walki, Tq. and ..... RESPONDENTS/
Dist. : Ahmednagar. .... [ORI. DEFTS. 1 TO 4]
5. Bhamabai Changdeo @ Dada Gaikwad
Age : Major, Occ. Agril.,
R/o : Walki, Tq. and
Dist. : Ahmednagar.
5. Priti Dada Gaikwad (Daughter)
Age : 35 Yrs., Occ. Agril.,
R/o : Walki, Tq. and
Dist. : Ahmednagar. ..... RESPONDENTS
.....
Mr. S.D.Kulkarni, Advocate for Appellants.
Mr. B.G.Kale, Advocate for R - 1 to 3.
Mr. R.R.Shaikh, Advocate for R - 4.
.....
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3 S.A. 429.1993 - [J]
CORAM : T.V.NALAWADE, J.
DATE OF JUDGMENT : 16/06/2016
JUDGMENT :
1. The Appeal is filed against the Judgment
and Decree of R.C.A. No. 550/1998 which was pending in
the Court of the learned District Judge, Ahmednagar.
This Appeal was filed by the original defendants of R.C.S.
No. 54/1983 which was pending in the Court of the Civil
Judge [Sr.Division], Ahmednagar. The Suit was filed by
present appellant for relief of perpetual injunction. The
trial court had given decree of injunction on merits and
this decree is set aside by the first appellate Court. Heard
both sides.
2. In short, the facts leading to the institution of
the present Appeal can be stated as follows.
The Suit was filed in respect of the
agricultural land G.No. 544 [old S.No. 261] situated at
village Walki, Tahsil and district Ahmednagar. The total
area of this land is 15.35 Hectors. This land was owned
by defendant Nos. 1 and 2.
4 S.A. 429.1993 - [J]
3. It is the case of the plaintiff that neither the
father of defendant Nos. 1 and 2 nor the defendants
personally cultivated the land at any time and they
always got it cultivated through the tenants. It is
contended that the land was given first to Paraji Waman
Gaikwad, defendant No. 3 and to the father of the
plaintiff namely Dada Babu Gaikwad for cultivation and
the possession was handed over prior to 1956. It is
contended that prior to 1956, on the appointed date, viz.
01/04/1957 under the provision of Bombay Tenancy Act,
the father of plaintiff and defendant No. 3 became
owners of this land. It is contended that under the said
Act, defendant Nos. 1 and 2 had applied to the tenancy
authority for possession and they had contended that
they wanted to cultivate the land personally, but their
application was rejected.
4. It is the case of the plaintiff that another
proceeding u/s 32-G of the Bombay Tenancy Act was
started and in that proceeding defendant No. 3 expressed
that he was not ready to purchase the land and he made
statement that he was giving up the possession. It is
contended that due to this proceeding, defendant No. 3 is
5 S.A. 429.1993 - [J]
not in possession of the land and he left the possession
about 20 - 22 years prior to the date of the Suit. It is
contended that due to such act of defendant No. 3, the
entire land came in possession of the plaintiff and he
started cultivating the entire land as tenant.
5. It is the case of the plaintiff that when
plaintiff was in possession under aforesaid rights,
defendant Nos. 1 and 3 sold the land to defendant No. 4
for the consideration of ` 15,000/- [Rupees Fifteen
Thousand] on 12/03/1982. It is contended that this sale
deed is not binding on the plaintiff and possession was
also not given to the defendant No. 4 as the possession
was with the plaintiff. It is contended that defendant
No. 4 is causing obstruction to the possession of the
plaintiff over the suit property, so the cause of action has
taken place. The relief of injunction was claimed against
the defendants on the basis of aforesaid pleadings.
6. Defendant No. 4, the purchaser filed Written
Statement and contested the matter. He denied the
aforesaid contentions. He contended that he has
purchased half portion of the land, which was in the past
6 S.A. 429.1993 - [J]
with defendant No. 3 for cultivation. He contended that
in the proceeding started u/s 32-G of the Bombay
Tenancy Act, defendant No. 3 had given statement that
he had no desire to purchase the land and he had
returned the possession to the landlord. It is contended
that due to this circumstance, the possession of the
portion which was with defendant No. 3 came to the
landlord and then under sale deed dated 12/03/1982,
defendant Nos. 1 and 2 sold this land for lawful
consideration to the defendant No. 4. He contended that
defendant No. 3 has no concern with this transaction. He
has denied that the plaintiff is in possession of this
portion and plaintiff has became owner in view of the
provisions of the Bombay Tenancy Act. He denied that
there is cause of action to the Suit.
7. Defendant No. 4 further contended that the
entire land was initially owned by Ratnakar Gaikwad. He
contended that father of plaintiff namely Ratnakar and
defendant No. 3' father were cousins. It is contended that
half portion was being cultivated by defendant No. 3, but
as the relative of the owner, and the remaining half
portion was cultivated by the father of the plaintiff, but
7 S.A. 429.1993 - [J]
also as cousin brother of owner and so no tenancy rights
were created. It is contended that due to these
circumstances in a proceeding filed u/s 32-G of the
Bombay Tenancy Act, defendant No. 3 admitted that he
was not tenant and then the land which was with him,
northern portion, was shown to be given to the landlord
and this portion is purchased by defendant No. 4.
ig On the basis of the aforesaid pleadings,
Issues were framed by the trial Court. Both sides gave
evidence. The trial Court had held that the plaintiff was
in possession due to the record of dispute which was
going-on between the plaintiff and defendant Nos. 1 and
2 in the past and his possession was over entire area of
aforesaid land. The first appellate Court has considered
the other record like record of tenancy Court in respect
of statement given by defendant No. 3 and has held that
the defendant No. 3 was in possession of half portion and
in a proceeding which was started u/s 32-G of the
Bombay Tenancy Act had admitted that he was not
willing to purchase the said portion and he has returned
back the possession to the landlord, the defendant Nos. 1
and 2. The first appellate Court has held that the said
8 S.A. 429.1993 - [J]
portion was with defendant No. 3 right from beginning
and so the plaintiff was not in possession of this portion.
9. This Court [other Hon'ble Judge] admitted
the Appeal but no substantial questions of law were
formulated. The learned counsel for the appellant was
allowed to argue on following points which are treated as
substantial questions of law.
[i] Whether it was necessary for the Courts
below to refer the dispute to the Tenancy
Court ?
[ii] Whether the Civil Court has jurisdiction to
decide such dispute in view of Section 85 of
the Bombay Tenancy Act ?
10. At the out set, it needs to be mentioned that
the present appellant had approached Civil Court for
relief of injunction. The Suit was for simplicitor
injunction on the contention that the plaintiff was in
possession of the suit land. In view of this submission, no
issue with regard to the tenancy was involved. Thus,
there was no question of raising doubt about the
jurisdiction of the Civil Court in considering such Suit and
9 S.A. 429.1993 - [J]
also there was no question of sending the matter or any
point to the Tenancy Court for reference.
11. In the plaint itself it is admitted that the
father of plaintiff and defendant No. 3 were cultivating
the land of the father of defendant Nos. 1 and 2. The
7/12 extract is produced on record at Exh. 4 and this
document was produced along with the plaint by the
plaintiff himself. This document shows that defendant
No. 3 was in possession of half portion of the land and
plaintiff's father was in possession of half portion of the
land. They were separately cultivating their portions as
per this document. Admittedly, father of defendant Nos.
1 and 2 was the owner of the land at the relevant time.
The names of defendant Nos. 1 and 2 were entered in the
ownership column after the death of their father
Ratnakar. There is no record to show that the proceeding
was started by the plaintiff for purchasing the property
under the provisions of the Bombay Tenancy Act though
there was one proceeding of other nature between the
plaintiff and defendant Nos. 1 and 2. The dispute is not
really in respect of the portion which was in possession of
defendant No. 3 and from the revenue record it can be
10 S.A. 429.1993 - [J]
said that the defendant No. 3 was in separate possession
till the year when he gave the statement before the
Tenancy Court that he was only cousin of the owner and
so he was not tenant. He had admittedly given statement
that he had handed over the possession to the owner. In
view of the aforesaid revenue record, Exhs. 4 to 8, it can
be said that defendant No. 3 was in possession of the
portion which is shown to be sold to defendant No. 4
and he had returned the possession to the owner. In view
of the provisions of the Maharashtra Land Revenue Code,
it needs to be presumed that every year enquiry was
made by the concerned authority to ascertain as to who
was cultivating the land and accordingly the entries were
made in crop cultivation column. In view of the aforesaid
record, burden was heavy on the plaintiff to prove that he
was in possession of the portion which was shown to be
cultivated by defendant No. 3 as per the revenue record.
He failed to discharge that burden. So, the points are
answered against appellant.
12. So far as the oral evidence is concerned, it
can be said that there is word against word. Further,
there is evidence of defendant No. 3 in support of the
11 S.A. 429.1993 - [J]
case of defendant No. 4 which is in accordance with the
aforesaid record. Thus, the oral evidence given by the
defendants is consistent with the record and due to such
evidence, there was no other alternative than to hold that
defendant No. 4 got the possession and defendant No. 4
is in possession of the portion purchased by him under
the registered sale deed. The finding is on question of
fact. This Court holds that no interference is possible in
the decision given by the first appellate Court.
13. In the result, Second Appeal stands
dismissed.
[T.V.NALAWADE, J.]
KNP/S.A. 429.1993 - [J]
