Murlidhar Kisanrao Dongare ... vs The State Of Maharashtra Thro. ...
2021 Latest Caselaw 7316 Bom

                                                      Second Appeal No.11/2021
                                       :: 1 ::




           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                               BENCH AT AURANGABAD


                   SECOND APPEAL NO.11 OF 2021 WITH
                CIVIL APPLICATION NO.483 OF 2021 WITH
                    CIVIL APPLICATION NO.484 OF 2021



 Murlidhar s/o Kisanrao Dongare
 Since deceased, through his L.Rs.
 Dattatraya s/o Murlidhar Dongare & ors. ... APPELLANTS

          VERSUS

 The State of Maharashtra & ors.                      ... RESPONDENTS

                                .......
 Shri Satyajeet S. Dixit, Advocate for appellants
 Mrs. P.V. Diggikar, A.G.P. for State.
                                .......

                                  CORAM :        R. G. AVACHAT, J.

                  Date of reserving order : 9th April, 2021
                  Date of pronouncing order : 6th May, 2021


 ORDER:

The challenge in this Second Appeal is to the

judgment and decree dated 25/7/2007, passed by the Court

of Civil Judge, Senior Division, Sangamner in a suit, Regular

Civil Suit No.220/2004 and confirmed by the judgment and

decree dated 30/9/2019, passed by District Judge-2,

Sangamner in Regular Civil Appeal No.101/2008. By the

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impugned judgment and decree, the suit of the appellant/

plaintiff came to be dismissed. The original plaintiff passed

away pending first appeal. The legal representatives of

original plaintiff are, therefore, before this Court in Second

Appeal.

2. Heard Mr. Dixit, learned counsel for the appellants.

The original plaintiff filed the suit for relief of

declaration that he has become the owner of the agricultural

land Gut No.25/3, admeasuring 3 Hectors 44 R, situated at

village Rayate, Taluka Sangamner, District Ahmednagar (for

short the suit land). The consequential relief of permanent

injunction was also asked for so as to perpetually protect his

possession over the suit land. It is the case of the appellants

that the suit land belong to the State of Maharashtra

(respondent/ defendant No.1). The respondents No.2 and 3

are the Sub-Divisional officer and Tahsildar of Sangamner

respectively. Respondent No.4 is the Sarpanch of the village

Rayate. It is also the case of the appellants that the suit land

was granted to the original plaintiff on lease for one year in

1963. Since then he has been in possession of the suit land.

By virtue of the provisions of the Maharashtra Land Revenue

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Code, 1966 (MLRC), he became the owner of the suit land.

The respondents No.1 to 3, however, shown the suit land to

have been transferred to the defendant No.4. The plaintiff

had moved number of applications to respondents No.1 to 3

for grant of the suit land, permanently.

3. Both the courts below gave a concurrent finding of

fact, holding the plaintiff to have neither proved his title to the

suit land nor possession thereon.

4. Shri S.S. Dixit, learned counsel for the appellants

would submit that, the respondents No.1 to 3 did not file

written statement. The averments in the plaint have as such

not been disputed. The trial Court allowed the Advocate for

the respondents No.1 to 3 to cross-examine the plaintiff.

Whatever admission have come on record during cross-

examination of the plaintiff, should not have been relied for

want of factual foundation as no written statement was filed.

The provisions of Sections 30 and 31 of the MLRC have not

been properly interpreted. In the first appeal, a compromise

was entered into between the appellant and the respondent

No.4 to the extent of some portion of the suit land. The

compromise pursis duly executed by the parties was produced

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before the Court. The averments therein would undoubtedly

indicate the plaintiff/ appellant to have been in possession of

the suit land. The entries in the revenue record have

presumptive value. Both the courts below have, however,

ignored the revenue record of the suit land. In the first

appeal, the respondent No.4 had filed an application for

adducing additional evidence along with certain documents.

Without giving any opportunity of hearing to the appellant the

production of the documents came to be allowed. The first

appellate Court relied on those documents and passed the

impugned judgment. According to learned counsel, no proper

sissues have been framed. The documentary evidence has

not been properly appreciated. According to learned counsel,

substantial questions of law as stated hereinabove are

involved in this appeal. He, therefore, urged for admission of

the appeal.

5. The appellant/ plaintiff has to prove his own case.

The plaintiff filed the suit with a strange prayer. He claimed

the relief of declaration that he has become owner of the suit

land by virtue of provisions of the MLRC. Admittedly, the suit

land was Deshmukh Inam land. On abolition of the inam, the

land resumed to the Government. As such, the State of

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Maharashtra is the owner of the suit land. I have not come

across any provision in the MLRC nor any such provision has

been brought to the notice of this Court to suggest that by

virtue of grant/ lease of the suit for a period of one year in

1963, the plaintiff has become owner of the suit land.

Sections 30 and 31 of the Maharashtra Land Revenue Code

read as follows :

30. Occupation of unalienated land granted under provisions of the Code :

Where any unoccupied land which has not been alienated, is granted to any person under any of the provisions of this Code, it shall be the duty of the Tahsildar without delay to call upon such person to enter upon the occupation of such land in accordance with the terms of the grant.

31. Unoccupied land may be granted on conditions :

It shall be lawful for the Collector subject to such rules as may from time to time be made by the State Government in this behalf, to require the payment of a price for unalienated land or to sell the same by auction, and to annex such conditions to the grant as may be prescribed by such rules before land is entered upon under Section 30. The price (if any) paid for such land shall include the price of the Government right to trees thereon and shall be recoverable as an arrear of land revenue.

It is true that way back in 1963 the respondent

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No.1 appears to have given the suit land to the plaintiff for

cultivation for a period of one year. The entries in the

revenue record of the relevant year supports the plaintiff's

case. Since there being no provision in MLRC or in any other

law conferring title to the agricultural land by virtue of grant

of lease for a period of one year, both the Courts below have

rightly non-suited the plaintiff as regards relief of declaration

of title to the suit land. On this aspect, there could not be any

substantial question of law to be involved in this Second

Appeal.

6. So far as regards prayer for a decree of perpetual

injunction is concerned, it is to be stated that, the appellants

want to protect their alleged possession over the suit land

perpetually on the basis of claim of ownership/ title to the suit

land. Since the suit land belongs to the State of Maharashtra/

respondent No.1, and the plaintiff could not prove his claim to

have perfected title to the suit land, the appellants are

necessarily not entitled to protect their possession, if any,

perpetually. It is not the case of the appellants that their

alleged possession is being disturbed or they are likely to be

evicted without following due process of law.

Second Appeal No.11/2021 :: 7 ::

7. The plaintiff, in affidavit of evidence, claimed to

have no any other land to earn their living. The plaintiff,

however, in response to the questions put to him in cross-

examination on behalf of the respondent No.4, has admitted

that the suit land abuts/ adjoins his own land. In his

examination-in-chief itself and even in plaint (observed by the

trial Court), the plaintiff admitted that the respondent No.1

granted the suit land to the Village Panchayat. It is his case

that he has, however, not lost his possession thereunder. The

trial Court has also observed that, the plaintiff himself has

admitted in the plaint that the Village Sarpanch (respondent

No.4) granted him the suit land on lease for a period of one

year in June 1981. By virtue of Section 51 of the Maharashtra

Village Panchayats Act, the State Government may vest in any

Panchayat open site, vacant or grazing lands etc. Section 55

of the Maharashtra Village Panchayats Act authorises the

Panchayat to lease, sell or transfer property of Panchayat

except the property vested with it by virtue of Section 51 of

the said Act. When the suit land was admittedly granted to

the Village Panchayat for extension of gaothan, the Sarpanch

did not have any authority to give it to the plaintiff on lease

for one year. The possession of the plaintiff over the suit

land, if any, was, therefore, unauthorised. The respondents

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have every authority to obtain possession by following due

process of law.

8. True, the trial Court ought not to have allowed the

learned A.G.P. representing the respondents No.1 to 3 to

cross-examine the plaintiff on factual matrix since they have

not filed written statement. The answers given by the plaintiff

in the cross-examination, therefore, need to be ignored. Still,

the appellants have no case for admission of this appeal.

9. In the first appeal, the appellants and the

respondent No.4 filed a compromise pursis. The appellants

are shown to have given some portion of the suit land to

respondent No.4 for construction of water tank. According to

learned counsel for the appellants, the averments in the

compromise memo is a proof of the appellants' possession

over the suit land. It has already been observed above that

the appellants are not entitled to a decree for perpetual

injunction so as to protect their possession, if any, over the

suit land since they have failed to establish to have acquired

title to the suit land.

10. So far as regards Civil Application for production

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of additional evidence in the Second Appeal is concerned, the

Civil Application needs to be rejected since the appeal is liable

to be dismissed as no substantial question of law is involved

therein.

11. For the aforesaid reasons, the Appeal is liable to

be dismissed in limine. The Second Appeal is, therefore,

dismissed. In view of dismissal of the Second Appeal, Civil

Applications are also dismissed.

( R. G. AVACHAT ) JUDGE

fmp/-