Wamanrao S/O. Ganpat Akhare vs Vishnu Pandurang Hage And Another
2017 Latest Caselaw 9470 Bom

                                                    1                   J-CRA-57-15.odt

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

             CIVIL REVISION APPLICATION (CRA) NO.57/2015

 Wamanrao s/o Ganpat Akhare,
 Aged about : 61 years,
 Occ : Agriculturist, R/o Tumki,
 Th. Sangrampur, Distt. Buldhana.                            ..... APPLICANT

                               ...V E R S U S...

 1. Pandurang Kisan Hage (Dead)
    through LRs Vishnu Pandurang Hage
    Aged about : 53 years,
    Occ. : Agriculturist.

 2. Kashinath Pandurang Hage,
    Aged about : 51 years,
    Occ. : Agriculturist.

      Both R/o Bawanbir,
      Tq. Sangrampur, 
      Distt. Buldhana.                                       ... NON-APPLICANTS

 -------------------------------------------------------------------------------------------
 Shri S. R. Deshpande, Advocate for the applicant.
 Smt. S. W. Deshpande, Advocate for respondent Nos.1 and 2.
 -------------------------------------------------------------------------------------------
                                               CORAM:-    
                                                          ARUN D. UPADHYE, J.

 Date of reserving the judgment :         07/12/2017
 Date of pronouncing the judgment :   11/12/2017

 JUDGMENT

1. By this civil revision application, the applicant has

prayed to quash and set aside the order dated 16/06/2015 passed by

the Civil Judge, Junior Division, Sangrampur below Exh.73 in Regular

Darkhast No.7/12.

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2. The applicant has contended that the non-applicants

have filed R.D.No.7/12 for execution of judgment passed in Regular

Civil Suit No.82/68, which is modified by the learned 2 nd Additional

Sessions Judge, Khamgaon by the Judgment and decree dated

30/09/2002.

3. The applicant has contended that Reg. Civil Suit

No.82/1968 was filed by Pandurang Kisan Hage for declaration,

permanent injunction and for partition and separate possession of the

suit field bearing Survey No.77 admeasuring area 30 acres 10 Gunthas,

situated at Village Ladanpur, Tah. Jalgaon-Jamod, Dist. Buldhana. In

the said suit, issue of tenancy was framed and same was referred to the

Tenancy Court. The Sub-Divisional Officer, Jalgaon-Jamod vide order

dated 31/07/1973 found that the plaintiff Pandurang and defendant

Ganpat are the joint tenants. According to the applicant, the learned

Civil Judge has held that the plaintiff Pandurang and defendant Ganpat

are having ½ share in the suit field. However, in the appeal, the

Appellate Court held that the plaintiff Pandurang has 5/6 th share and

defendant No.1 Ganpat is having 1/6th share.

4. According to the applicant, in the proceeding under

Section 36 of The Bombay Tenancy and Agricultural Lands (Vidarbha

Region) Act, 1958, the learned Tenancy Court held that the applicant

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and other LRs of Ganpat are entitled for ownership right to the extent of

6.12 hectares in the suit field. According to the applicant, on the basis

of the decree passed by the Civil Court, the non-applicants have filed

R.D.No.7/12 and therefore, the applicant constrained to file application

Exh.73 and objected the execution proceedings and prayed for dismissal

of the execution proceedings.

5. It is submitted that after obtaining the say from the

non-applicants and hearing both the side, the learned Executing Court

has rejected the application by its order dated 16/06/2015. The

applicant thus, filed present Civil Revision Application challenging the

said order.

6. The non-applicants have filed reply to the civil revision

application and objected the same. It is submitted that the question of

tenancy has already been decided by the Revenue Court and therefore,

the present application is misconceived and liable to be dismissed. It is

submitted that the Writ Petition No.1419/1983 was preferred by the

applicant, but the same was dismissed and it was finally held that

Pandurang was tenant to the extent of 5/6 th share and Ganpat was

tenant to the extent of 1/6th share. It is submitted that the Reg. Civil

Suit No.82/68 which was decreed on 13/04/1994. The Appeal

No.53/94 filed by Pandurang and another Reg. Civil Appeal No.104/96

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was filed by Ganpat. Both the appeals were decided by common

judgment and therefore, legal heirs of Pandurang have filed execution

proceeding for implementation of the common judgment dated

30/09/2002 by filing R.D. No.2/2012. Lastly, it is submitted that the

application was rightly rejected by the Executing Court. The revision

application therefore, be dismissed.

7. I have heard both the sides at length. Shri

S.R.Deshpande, learned counsel for the applicant and

Smt.S.W.Deshpande, learned counsel for the non-applicants at length.

8. Shri Deshpande, learned counsel for the applicant has

submitted that the application Exh.73 filed under Section 47 of the CPC

was rejected by the Executing Court on 16/06/2015. He further

submitted that the suit is filed for partition and separate possession. The

Civil Court has no jurisdiction to entertain the suit. He submitted that as

per the provisions of Section 36 and 100 (12) and Section 124 of The

Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958.

The Civil Court has no right to pass the decree which is un-executable.

He submitted that the remedy for the applicant was to approach the

Tenancy Court under Section 36 of The Bombay Tenancy and

Agricultural Lands (Vidarbha Region) Act for possession and therefore,

the learned Executing Court has not considered the legal provisions and

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wrongly rejected the objection raised by the applicant. The application

(Exh.73) be allowed by allowing the revision application.

9. Smt. Deshpande, learned counsel for the non-applicants

has vehemently submitted that the decree passed by the Civil Judge,

Junior Division, Sangrampur which was modified by the Additional

District Judge, Khamgaon and confirmed in Second Appeal. The

applicant has raised question of jurisdiction in the said proceeding and

therefore, the objection raised by him in execution proceeding is rightly

turned down by the Executing Court. She submitted that the revision

application filed by the applicant, therefore, be dismissed.

10. Considering the submission of both the sides and

having gone through the impugned order as well as material placed on

record, I am of the considered view that the learned Executing Court

has rightly rejected the application filed by the applicant under Section

47 of the CPC. It is to be noted that the applicant has not disputed the

fact that the non-applicants are having 5/6 th share and the applicant is

having 1/6th share in the suit property. The tenancy proceeding is went

upto the Hon'ble Apex Court. The order of the High Court in Writ

Petition No.1419/83 discloses that the writ petition filed by the father

of applicant was dismissed. The order of the Maharashtra Revenue

Tribunal dated 21/09/1982 was confirmed. The status of tenancy is

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already finalized in the revenue proceeding. The High Court has held

that once the evidence is accepted, the case of the respondent No.1 that

he was the joint lessee of the suit field along with the petitioner stands

proved which means that the case of respondent No.2 that they were in

illegal and unauthorized occupation of the suit field must fail. The

petitioner in the said writ petition was father of the applicant and

respondent No.1 was father of non-applicants and the respondent No.2

is land-holder. The submission put forth on behalf of applicant that Civil

Court has no jurisdiction to entertain the suit and therefore, decree is

not executable, cannot be accepted. It is to be noted that the applicant

has raised the said objection in civil proceeding. Moreover, in the

second appeal, the said submission was turned down by the High Court.

The order passed by the High Court in Second Appeal No.156/2003 in

relevant para runs as under :-

"Learned counsel for the appellants submits that the civil court exceeded its jurisdiction in determining the share and the share could only be decided by the Tenancy Authorities. No provision of law was cited in support of this proposition that shares can be decided only by the tenancy authorities and not by a civil court. No other point of law was urged. The second appeal is dismissed."

If, that is so, the similar submission cannot be allowed

to be made in the executable proceeding.

11. The submission put forth on behalf of the applicant that

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the Civil Court has no jurisdiction under Section 124 of The Bombay

Tenancy and Agricultural Lands (Vidarbha Region) Act. The said

submission also cannot be accepted as there is no question before the

Civil Court to settle, decide or deal with any question including a

question whether a person is or was any any time in the past, a tenant

and whether the ownership of any land is transferred to. The said

question is already referred to Tenancy Court and decided by the said

Court. The submission to that effect is also cannot be accepted.

12. Another submission made by the learned counsel for the

applicant that the non-applicants have only remedy under Section 36 of

The Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act to

apply to the Tahsildar for possession. The said submission also cannot

be accepted for the reason that the non-applicants are in possession of

the land and only they seek partition and separate possession and the

fact that the proceeding under Section 145 of the Code Criminal

Procedure was initiated, also no ground to hold that the applicants were

not in possession of the suit property.

13. The another submission put forth on behalf of the applicant

that as per Section 33 of The Bombay Tenancy and Agricultural Lands

(Vidarbha Region) Act, sub-division, subletting and assignment

prohibited.

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The said provision is also not attracted in the present case.

The share of the applicant as well as non-applicants are fixed as 1/6 th

and 5/6th respectively and therefore, they are entitled for the partition

and separate possession.

14. The learned counsel for the applicant has relied upon the

ruling in the case of Sitaram Deoba Marathe Vrs. Hawadya Piraji and

others, reported in 1975 Mh.L.J. 521.

In the above ruling, it is held that status and remedy of

tenant after vesting - He is deemed to be owner after date of vesting -

Relationship of landlord and tenant does not thereafter subsist - Tenant

losing possession after date of vesting cannot apply under Section 36(1)

for possession. On the facts and circumstances of the case, the above

ruling is not made applicable.

15. Another ruling in the case of Govind Jagannath Samarth

Vrs. Pundlik Jagannath Samarth and others, reported in 1996 (2)

Mh.L.J. 612.

In the above ruling, it is held that the plaintiff seeking

declaration of his status as tenant from civil court - Injunction also

claimed on that basis - In view of Section 124, Civil Court has no

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jurisdiction to decide the question whether a person was a tenant or not

- Suit itself not being maintainable, injunction could not be granted -

Order of appellate Court granting injunction illegal. In the present case,

the plaintiff is not claiming status as a tenant and therefore, the above

ruling is not made applicable.

16. After considering the submission of both the sides and

considering the material placed on record, I am of the view that the

order dated 16/06/2015 passed by the Executing Court below Exh.73 in

R.D.No.7/12 does not require interference of this Court.

17. The civil revision application filed by the applicant is devoid

of any merit and liable to be rejected, and accordingly rejected. No

order as to costs.

JUDGE

Choulwar