Dashrath Rajinath Shnde And ... vs [email protected] Devidas Ghavane ...
2021 Latest Caselaw 12133 Bom

                                                                       sa-494-2013.odt


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD

                            SECOND APPEAL NO.494 OF 2013

                 DASHRATH S/O RAJINATH SHINDE AND ORS
                                VERSUS
            ANIL @ BHAIRUNATH S/O DEVIDAS GHAVANE AND ORS

                                      ...
                 Mr. A. N. Nagargoje, Advocate for appellants.
    Mr. S. G. Chapalgaonkar and Mr. R. P. Dhase, Advocates for respondent
                                 Nos.1 to 8.
                                      ...

                                    CORAM        : SMT. VIBHA KANKANWADI, J.

                                    DATE         : 30.08.2021

ORDER :-


.         Present appeal has been filed by original defendants. Respondents

are the original plaintiffs, who had filed Regular Civil Suit No.116 of

1975 before learned IInd Joint Civil Judge Junior Division, Osmanabad

for perpetual injunction. The said suit came to be decreed on

19.12.2012. Present appellants had challenged the said judgment and

decree before learned Principal District Judge, Osmanabad by filing

Regular Civil Appeal No.29 of 2013. The said appeal came to be

dismissed on 25.06.2013. Hence, this second appeal.

2. Heard learned Advocate Mr. A. N. Nagargoje for appellants and

learned Advocate Mr. S. G. Chapalgaonkar and Mr. R. P. Dhase for

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respondent Nos.1 to 8.

3. It has been vehemently submitted on behalf of appellants that

both the Courts below have not appreciated the evidence and law points

properly. Deceased original plaintiff had claimed his possession over the

suit lands on the basis of oral lease from original owner since 1964. He

contended that he is cultivating the lands. However, the defendants had

obstructed him on the basis of sale-deed dated 25.05.1975. He claimed

perpetual injunction. Defendant No.1 had denied any such lease by the

predecessor. He claimed that he was put in possession of the land by his

vendor on the date of the sale-deed. In fact, there was no necessity for

the Trial Court to frame the issue about 'tenancy' and refer it to the

competent Tribunal. Both the Courts ought to have considered the actual

evidence about possession adduced by both the parties. Voluminous

evidence was produced by the appellants to prove their possession. The

suit ought to have been dismissed. Substantial questions of law are

arising in this case, as the findings arrived at by the Courts below is

perverse to the evidence adduced.

4. Per contra, the learned Advocate appearing for respondents

supported the reasons given by both the Courts below and submitted

that on the facts of the case and assessment of evidence adduced, the

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suit has been decreed and appeal has been dismissed. No substantial

question of law is arising in this case. This Court cannot re-appreciate

the evidence in Second Appeal. The issue regarding 'tenancy' was rightly

framed and was referred to Agricultural Lands Tribunal. The said

decision has been confirmed by this Court also in Writ Petition.

5. At the outset it is to be noted that the defendants/present

appellants cannot be allowed to say that there was no necessity to frame

issue regarding tenancy and referring it to competent Court after so

many years. It took about 37 years for the decision of the civil suit. Now

when that decision has gone against the appellants, they cannot raise

such contention. Further, when plaintiffs were seeking relief of

injunction on the basis of possession, then they should prove that it is

referable to lawful title. Whether in each case, such course is required to

be adopted or not need not be gone into, as the present appellants had

the opportunity to make such submission before this Court earlier, when

they had come under Writ Jurisdiction.

6. Now, the facts remain that the said issue was framed and referred

to the competent Court and it has been held that plaintiffs are the

tenants of suit lands. They are bound to be in possession unless it is

shown by the defendants that the possession of the plaintiffs has been

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taken by them after adopting due procedure. Apart from the fact of

obstruction to possession of plaintiffs, it can also be seen from the fact

that defendants are claiming possession over the property, without being

so put by their vendor, had prompted both the Courts below to grant the

discretionary relief to the plaintiffs. The discretion has been properly

and judiciously exercised, does not require interference by this Court.

Hence, no substantial question of law, as contemplated under Section

100 of Code of Civil Procedure is arising in this case, requiring

admission of the second appeal. Therefore, the appeal stands dismissed

at the threshold.

[SMT. VIBHA KANKANWADI, J.]

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