Amit @ Suhas Ramchandra Jadhav And ... vs Ashok Vishnu Jadhav And Ors
2021 Latest Caselaw 3038 Bom

                                                                              (3) wp-716-2018.doc

BDP-SPS

  Bharat
  D.
  Pandit
  Digitally signed
  by Bharat D.
  Pandit
                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
  Date:
  2021.02.20
  13:23:13 +0530




                                           CIVIL APPELLATE JURISDICTION

                                           WRIT PETITION NO. 716 OF 2018


                     Amit @ Suhas Ramchandra Jadhav & Ors.             ..... Petitioners.

                                     V/s

                     Ashok Vishnu Jadhav & Ors                         ..... Respondents.


                     Mr. Umesh Mankapure for the Petitioners.

                     Mr. Sanjeev Sawant i/b Mr. Abhishek Deshmukh for the Respondent.


                                           CORAM: NITIN W. SAMBRE, J.

                                           DATE:    FEBRUARY 16, 2021

                     P.C.:-


                     1]       This Petition is by the Defendants to the Regular Civil Suit No.65

of 2015, who claimed to have purchased the suit property vide Sale

Deed dated 10/07/2013 from predecessor-in-title Smt. Bhagirathi

Ramchandra Jadhav. Respondents/Plaintiffs initiated aforesaid suit

for injunction, thereby restraining the Defendants from interfering

with the possession of the Respondents/Plaintiffs which they secured

by virtue of their status as tenants under the provisions of the

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Maharashtra Tenancy and Agricultural Lands Act (hereinafter referred

to for the sake of brevity as "the Act"). In the said suit, application for

injunction came to be allowed vide impugned order dated 23/09/2015

whereby Petitioners are restrained from interfering with the possession

of Respondents/Plaintiffs which order was confirmed in Misc. Civil

Appeal No.136 of 2015 vide order dated 21/07/2017 passed by the

learned District Judge, Sangli. As such, this Petition.

2] It is the case of the Respondents/Plaintiffs that Petitioner No.4

was married to Ramchandra who expired in 1953 and she being

widow, proceedings under Section 32G of the Act could not be

proceeded against her. Mallu Krishna Jadhav was a tenant of

deceased Ramchandra in relation to the property being land Gat

No.976, old Survey No.222/5. Mutation Entry No.2343 of 1951-52

accordingly was carried out in the name of Mallu. Vishnu and

Shankar are sons of deceased Mallu who inherited said tenancy right

and continued in possession. Respondents are legal heirs of Vishnu

and Shankar. According to them, on tiller's date i.e. 01/04/1957, they

were in possession of the suit property and that being so, they are

deemed purchasers. It is further claimed that even today also, they

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continued in possession of the suit property by virtue of their status as

tenants. Petitioners/Defendants under the guise of Sale Deed Dated

10/07/2013 have tried to disturb their possession and therefore they

were entitled for injunction.

3] Petitioners/Defendants resisted the suit claim and submitted that

Mutation Entry is carried out in favour of Respondents/Plaintiffs only

for name sake in other rights column and that being so, it cannot be

inferred that they are in possession of the suit property. According to

Petitioners, Bhagirathi succeeded to possession through her husband

deceased Ramchandra. As such, it is Defendants who are in settled

possession by virtue of Sale Deed dated 10-07-2013 and that being so,

it is claimed that injunction is liable to be set aside. It is also claimed

by the learned Counsel for the Petitioners that in view of bar under

Section 85-A of the Act, Civil Court has no jurisdiction to record the

finding of tenancy. In the light of above, both the Courts below have

committed an error in recording findings of tenancy of the

Respondents over the suit property. He would urge that the issue as

to whether Respondents are tenants and protected under the Act

should have been referred to revenue authorities. In the aforesaid

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background, learned Counsel for the Petitioners has prayed for

quashing of the orders impugned.

4] With the assistance of the learned Counsel appearing for rival

parties, I have perused the available record. Vide Mutation Entry

No.2343 of 1955, name of Mallu Krishna Jadhav i.e. ancestor of the

Respondents/Plaintiffs came to be recorded.

5] The 32G proceedings under the Act came to be deferred in view

of status of the present Petitioner No.4 as widow. The old revenue

record of 1951-52 and 1956-57 speaks of the Entry in the revenue

record in the name of deceased Mallu Krsihna Jadhav as a tenant.

The rent appears to have been paid, as could be inferred from the

revenue record by the said Mallu to deceased Ramchandra. After the

death of Ramchandra, vide revenue entry No.3945 names of Vishnu

and Shankar were mutated on 26/02/1981. The aforesaid record

demonstrates that Respondents/Plaintiffs are in settled possession of

the suit property by virtue of their status under the Act. Fact remains

that the Petitioners though have tried to establish their source of

possession through Sale Deed, in the backdrop of aforesaid revenue

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entries and status of Respondents as that of tenants, same cannot be

accepted.

6] It appears that Respondents/Plaintiffs have issued a public notice

on 10/05/2013 thereby putting the public to notice that they shall not

deal with the suit property in view of tenancy proceedings. It appears

that the Petitioners have purchased the suit property in spite of the

fact that pendency of tenancy proceedings was within their

knowledge.

7] Apart from above Tenancy Case No.101 of 1998 preferred by

Petitioner No.4 was already dismissed. This court takes judicial note

of the fact that there are various tenancy proceedings pending

between the parties prior to execution of Sale Deed dated

10/07/2013.

8] Though, the learned Counsel for the Petitioners was justified in

inviting attention of this Court to the provisions of Section 85-A of the

Act, so as to claim that Civil Court cannot go into the issue of tenancy

under the Act, Civil Court, however, cannot be said to be lacking

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jurisdiction in the matter of grant of injunction based on the status of

the Respondents/Plaintiffs as that of tenants under the provisions of

the Act. A support can be drawn from Division Bench Judgment of

this Court in the matter of Marybai Marshal Pimenta and another vs.

Ramnath Gopal Bhuskute and another reported in 1987 0 Mh.L.J. 628.

In the aforesaid judgment, Division Bench of this Court also held that

Civil Court has jurisdiction to grant injunction to protect possession of

the party if it comes to conclusion that party is in possession of the

land. However, it has to be clarified here that finding of Civil Court at

the time of granting injunction on the status of the party as a tenant

under the Act is not absolute as same is always subject to outcome of

the proceedings under the Act.

9] Though Mr. Mankapure, learned Counsel for the Petitioners

strenuously urged that court below should have recorded finding of

possession, upon perusal of the order of learned lower appellate court

it could be easily inferred that Respondents/Plaintiffs appear to be in

settled possession of the property. In the aforesaid backdrop, in view

of concurrent findings recorded by both the courts below and having

regard to prima facie case being in favour of the

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Respondents/Plaintiffs about their settled possession over the suit

property, no case for interference is made out. Petition fails and same

stands dismissed.

( NITIN W. SAMBRE, J. )