Bombay High Court
Uttam Asaram Kalawane Died ... vs Gangubai Died Uttam Kalawane And ... on 19 July, 2017
Bench: S.P. Deshmukh
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drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.812 OF 2017
Uttam Asaram Kalawane (Died) PETITIONER
Through Karbhari Uttam Kalawane,
Age - 36 years, Occ - Agriculture
R/o Kasabkheda, Taluka - Khultabad
District - Aurangabad
VERSUS
1. Gangubai w/o deceased Uttam Kalawane RESPONDENTS
Age - 50 years, Occ - Household
R/o Maliwadgaon, Taluka - Gangapur
District - Aurangabad
2. Mohd. Abdul Samad s/o Mohd. Abdul Mabud
Age - 45 years, Occ - Business,
R/o Salim Manjil, Central Naka Road,
Jaswantpura, Aurangabad
.......
Mr. Fulchand R. Tandale, Advocate for the petitioner
Mr. Vinod I. Thole, Advocate for respondents No. 1 and 2
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 19th JULY, 2017
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with
consent of learned advocates for the parties.
2. Petitioner - original plaintiff in Regular Civil Suit No. 6 of
2012 instituted primarily seeking declaration that sale deed
dated 20th December, 2011 executed by defendant No. 1 in
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favour of defendant No. 2 to be null and void, contending that in
matrimonial dispute suit land had been given to defendant No. 1
who is wife of the plaintiff under a compromise and registered
sale deed dated 28th August, 1989 had been executed
accordingly. Plaintiff contends that it was a security transaction.
However, thereafter, defendant No. 1 - wife had got her name
mutated in respect of sold land and revenue record since then
had been continuously in her favour. It is around 2012, as
referred to above, she has executed sale deed in favour of
defendant No. 2, which according to the plaintiff is without
possession contending that he is still in possession of suit land.
However, after sale deed has been executed in favour of
defendant No. 2, his possession over suit land is getting
disturbed and therefore, the suit ensued.
3. Plaintiff moved application Exhibit-76 to have issues
framed with regard to tenancy and sending the same for
adjudication to tenancy court claiming that there is sufficient
basis for the same in the pleadings along with same claiming
that defendant No. 2 is not an agriculturist, which also is a
province of revenue authorities to be decided. Said application
accordingly ought to have been decided and allowed, yet instead
the same is rejected erroneously and, therefore, the writ
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petition. Learned advocate submits, there is sufficient material
showing claim is referable to the same.
4. On the other hand, it is the case of defendants that sale
deed executed in favour of defendant No. 1 by plaintiff has been
an absolute sale without any reservation and condition.
Defendant No. 1 has been absolute owner and had been wielding
such power accordingly. Her name has been entered into
requisite revenue register and record. It is in her capacity as
absolute owner she has parted with the property as absolute
owner. It is further being referred to that mere bald statement
with regard to tenancy is not sufficient to give rise to issues and
rights to tenancy proceedings as observed under several
judgments of this court. Learned advocate for the defendants
submits, an issue arises out of pleadings and not by material.
Even otherwise, there is no authentic material worth
consideration lending credibility to claim being made. It is further
being submitted that as far as other aspect is concerned, it is not
the matter between defendants No.1 and 2. Defendant No. 1 has
sold property in capacity of absolute owner to defendant No. 2.
The questions sought to be raised are not the questions in
respect of transaction among defendants No. 1 and 2. It is
further being submitted that plaintiff has not chosen to challenge
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authenticity and validity of sale deed executed by plaintiff in
favour of defendant No. 1, way back in the year 1989. In the
circumstances, title is indeed held by defendant No. 1 and in
absence of challenge to 1989 sale deed, challenge to sale deed
of 2011 is untenable and in all certainty would fail. It is further
submitted that application Exhibit-76 had been moved at the
stage of hearing and that too after matter has lingered on for
hearing from quite a while. It is further referred to that trial
court has observed that objection raised by the plaintiff has no
nexus with the relief claimed. In the suit, claim is only in respect
of declaration and permanent injunction.
5. During the course of submissions, learned advocate for the
petitioner has referred to and relied on a decision of Supreme
Court in the case of "Pandurang Ramchandra Mandlik V/s Shantabai
Ramchandra Ghatge and others" reported in 1989 AIR 2240 in order to
support his submission that whether a person is a tenant or not
would be an issue to be decided by competent authority under
tenancy act and civil courts would not have jurisdiction to decide
on the same and shall refer the issue to competent authority.
6. However, one may have to give regard to the position as
would be emerging from several judicial pronouncements.
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Looking at the series of decisions on the point, particularly
decisions of this court in the cases of "Sadanand Vithal Naik and
Others V/s Rashmi Dinesh Naik and Others" reported in 2010 (4) ALL MR 83,
and "Mohammad Hayatkhan Karimkhan and Another V/s Taramati Sadhu
Khindkar and Others" reported in 2011 (2) Mh.L.J. 653 and the one
which has been fairly referred to may be with an intention to
support case of the petitioner, yet the decision referred to by
petitioner in the case "Rama Krishna Arolkar and Others V/s Kumud @
Kusum Yeshwant Bhobe and Others" reported in 2015 (3) Mh.L.J. 949 do
refer to that for framing of issues particulars for the same have
to be given and if pleadings are short of the same, issue in that
respect cannot be framed. These aforesaid judgments in turn
refer to several other judgments of this court.
7. Perusal of the pleadings on either side, though statements
as appearing in paragraph No. 7 and 8 and stated to be
averments in respect of the same, yet requirements to frame an
issue of tenancy do not appear to be contained in the same and
can be said to be satisfied.
8. As such, it does not appear to be such a case wherein it
can be said that trial court has committed any error in rejecting
application Exhibit-76 filed at the stage of hearing.
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9. In the circumstances, writ petition is not being entertained
and is dismissed. Rule stands discharged. It is, however, made
clear that observations hereinbefore made are for the purpose of
rejection of writ petition and have no binding efficacy.
[SUNIL P. DESHMUKH, J.]
drp/wp812-17
