Bombay High Court
Tanaji Narayanrao Pawar vs Angad Shamrao Suryawanshi And Ors on 7 May, 2021
Bench: V.K. Jadhav
1 SA769-770-2008+WP607-1993.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 769 OF 2008
Tanaji s/o Narayandeo Pawar,
Age : 40 years, Occu : Agriculture,
R/o : Shirsi (Hangarga), Tq. Nilanga,
District Latur. ... Appellant
(Orig. Plaintiff)
Versus
Angad s/o Shamrao Suryawanshi,
Age : 46 years, Occu : Service,
R/o. Shirsi (Hangarga)
Now at Jalkot, Tq. Omerga,
District Osmanabad. ... Respondent
(Orig. Defendant)
WITH
SECOND APPEAL NO. 770 OF 2008
Tanaji s/o Narayandeo Pawar,
Age : 40 years, Occu : Agriculture,
R/o : Shirsi (Hangarga), Tq. Nilanga,
District Latur. ... Appellant
(Orig. Plaintiff)
Versus
Angad s/o Shamrao Suryawanshi,
Age : 46 years, Occu : Service,
R/o. Shirsi (Hangarga)
Now at Jalkot, Tq. Omerga,
District Osmanabad. ... Respondent
(Orig. Defendant)
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WITH
WRIT PETITION NO. 607 OF 1993
Tanaji s/o Narayanrao Pawar,
Age 27 years, Occ : Agriculture,
R/o Sirshi Hangarga,
Taluka Nilanga, District Latur. ... Petitioner
(Orig. Respondent)
Versus
Angad s/o Shamrao Suryawanshi,
Age 40 years, Occ : Service and Agri.
R/o Hangarga, Taluka Nilanga,
District Latur. ... Respondent
(Orig. Applicant)
.....
Advocate for the Appellant in both Second Appeals and the
Petitioner in Writ Petition : Mr. V. D. Salunke
Advocate for the Respondent in all three matters : Ms.
Madhveshwari S. Mhase
.....
CORAM : V. K. JADHAV, J.
RESERVED ON : 21.01.2021
PRONOUNCED ON : 07.05.2021
JUDGMENT :-
1. The appellant-original plaintiff Tanaji had instituted a
suit bearing R.C.S. No. 90 of 1994 for a decree of perpetual
injunction restraining the defendant from obstructing his
possession over the suit property i.e. the agricultural land
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Survey No. 46/B-01 (new Gat No. 18) ad-measuring 4 acres
23 gunthas (01 H. 55 Arrs.) situated at village Shirsi
Hangarga, Taluka Nilanga. According to the
appellant/plaintiff, he had purchased the suit land on
31.03.1990 under a registered sale deed for a valuable
consideration of Rs. 55,000/-from the original owner
Vithoba Nagu Surwase However, since Gudi Padwa in the
year 1987, the appellant-plaintiff was in possession of the
suit property on batai basis. On 17.04.1990, Mutation Entry
No. 414 came to be sanctioned. According to him, the father
of the respondent/defendant himself voluntarily surrendered
his right as a protected tenant. So, on 07.11.1959, name of
the father of the respondent/defendant came to be deleted
from the tenancy register. Thus, since Gudi Padwa 1987 till
institution of the suit, the appellant-plaintiff was in
possession of the suit property. However, since 13.02.1994,
the respondent-defendant had started obstructing plaintiff's
possession. It is the contention of the appellant-plaintiff that
the father of respondent-defendant had instituted a civil suit
in respect of the northern half portion ad-measuring 10 acres
39 gunthas of Survey No. 46 against the vendor of the
appellant-plaintiff. However, the said suit bearing R.C.S. No.
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32 of 1958 came to be decreed to the extent of 2 acres 39
gunthas, In the said suit, it was held that the father of the
respondent/defendant was not concerned with the
remaining 8 acres of land. As per the judgment delivered in
R.C.S. no. 32 of 1958, the original owner Vithoba Nagu
Surwase (the vendor of the appellant-plaintiff) was held as
the owner of the remaining 8 acres of land. Out of the 8
acres of land, the appellant-plaintiff has purchased the land
ad-measuring 4 acres 23 gunthas and he is in possession of
the same. Even the father of the respondent-defendant had
not made any claim in his life time in respect of the suit
land. Thus, the respondent-defendant has no right, title or
interest in respect of the suit land, nor he is in possession of
the same. The appellant-plaintiff has also filed his written
statement to the counter claim at Exhibit 26 and he has
almost reiterated all the contentions taken by him in the
plaint. According to the appellant-plaintiff, the counter claim
is not maintainable.
2. The respondent/original defendant Angad had filed a
written statement along with a counter claim Exhibit 18. He
had denied the entire contentions. According to him, the
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alleged sale deed is null and void and not binding on him.
His father was declared as a protected tenant. In the year
1955, his father had entered into a contract of sale with the
original owner. His father was in possession of the suit land
and now the respondent/defendant is in possession of the
suit property as a tenant. It is contended that the appellant-
plaintiff himself is obstructing the respondent/defendant's
possession over the suit property. Therefore, he had filed a
counter claim seeking perpetual injunction restraining the
appellant-plaintiff from obstructing his possession over the
suit property along with compensatory cost. According to the
respondent-defendant, it was held by the Collector in the
judgment in File No. 1990-GB-ROR-A-27 that the appellant-
plaintiff is not in possession of the suit land. In view of the
same, the sanction of Mutation Entry No. 414 loses its
significance. According to the defendant, his father entered
into an agreement of sale with the original owner and paid
him Rs.2,500/- in the year 1955. Originally, the father of the
defendant was in possession of the suit land as a tenant.
However, subsequently, his possession was of the purchaser
of that land and Mutation Entry No. 34 was also passed to
that effect. The respondent-defendant has denied specifically
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the surrender of tenancy on 07.11.1959 as alleged. It is
further contended that the father of the respondent-
defendant though requested the original owner Vithoba to
execute a sale deed, but he had denied to execute a sale
deed. The original owner Vithoba had no right to execute the
sale deed in favour of the appellant-plaintiff. The father of
the respondent-defendant, being the protected tenant of the
suit land, had a preferential right to purchase the northern
one-half portion out of land Survey No. 46 ad-measuring 21
acres. Even the original owner had executed an agreement
to sale to that effect. According to the respondent-defendant,
his father had therefore instituted R.C.S. No. 31/A of 1958.
However, the said suit came to be compromised and as per
the terms of the compromise, the father of the respondent-
defendant got 4 acres 23 gunthas of the land i.e. the present
suit land and the remaining land was sold by the original
owner to one Venkatrao Patil. Therefore, the original owner
Vithoba was not having any land and such, he was not
competent to execute a sale deed in favour of the appellant-
plaintiff. It is contended that the record created by the
concerned Consolidation Officer is totally false. The
defendant is in exclusive possession of the suit land.
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3. On the basis of the rival pleadings of the parties to the
suit, the trial court framed issues and the parties led oral and
documentary evidence in support of their rival claims.
Learned 2nd Joint Civil Judge Junior Division, Nilanga, by
judgment and order dated 28.09.2001, dismissed the suit
with costs and decreed the counter claim with costs. The
plaintiff (the defendant to the counter claim) is perpetually
restrained from obstructing defendant's (the plaintiff to the
counter claim) possession over the suit properties along with
the compensatory costs of Rs.3,000/-.
4. Being aggrieved by the same, the appellant-plaintiff
had filed R.C.A. No. 71 of 2001 against the dismissal of his
suit bearing R.C.S. No. 90 of 1994 and also filed R.C.A. No.
72 of 2001 against the decree of the counter claim. The
learned District Judge-1, Nilanga, by the common judgment
and order dated 14.08.2008, dismissed both the appeals
with costs and confirmed the judgment and decree passed by
the trial court in R.C.S. No. 90 of 1994 dated 28.09.2001.
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5. Being aggrieved by the same, the appellant-plaintiff
has again preferred two appeals bearing Second Appeal No.
769 of 2008 and Second Appeal No. 770 of 2008.
6. In the year 1990 itself, i.e. on 22.06.1990, said Tanaji
(appellant in Second Appeal Nos. 769 and 770 of 2008) had
approached the Mamlatdar, Nilanga by initiating
proceedings under Section 5 of the Mamlatdar's Courts Act,
1906 in respect of the said suit land which was the subject
matter of the civil suit seeking protection of his possession
over the suit land. Learned Mamlatdar, Nilanga, by order
dated 21.07.1990, by invoking the powers under Section
5(2) of the Mamlatdar's Courts Act, 1906, has held that
Tanaji is in possession of the suit land. Being aggrieved by
the same, the respondent Angad Shamrao Suryawanshi had
preferred revision before the Collector, Latur and by the
judgment and order dated 21.01.1993, the Collector, Latur
has allowed the revision petition, directed the Tahsildar
Nilanga to immediately correct the 7/12 extract of the suit
land in favour of the revision petitioner i.e. Angad and to
ensure that his possession over the suit land is not disturbed.
The learned Collector, after noticing the alteration of the
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record vide Mutation Entry Nos. 414 and 418, directed a
departmental enquiry against the Additional Tahsildar (L.C.)
Latur, the Circle Inspector and the Talathi. Being aggrieved
by the same, said Tanaji (original petitioner before the
Mamlatdar) has preferred Writ Petition No. 607 of 1993.
7. In view of the praecipe sent by the counsel for the
respondent Ms. M. S. Mhase, the Senior Administrative
Judge has directed to club the Second Appeals with Writ
Petition No. 607 of 1993 and further directed to place the
matters before the court taking the Writ Petitions of the year
1993.
8. In view of the above, the Second Appeals and the Writ
petition are decided by this common judgment and order
since the parties, the suit property and the cause for the
dispute are the same.
9. Learned counsel for the appellant-original plaintiff
submits that the appellant had instituted Regular Civil Suit
No. 90 of 1994 for perpetual injunction. The respondent-
defendant appeared in the said suit and filed a written
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statement and also filed a counter claim. The trial court has
dismissed the suit and allowed the counter claim of the
respondent-defendant by judgment and decree dated
28.9.2001. The appellant-original plaintiff had filed Regular
Civil Appeal No. 71 of 2001 against the dismissal of the suit
and Regular Civil Appeal No. 72 of 2001 was filed against
the decree of the counter claim. Learned counsel submits
that during pendency of the appeals, the learned District
Judge framed three additional issues and referred the same
to the trial court inviting findings. The trial court answered
the issues by order dated 26.9.2007 below Exh.1. Learned
counsel submits that finally the learned District Judge
dismissed both the appeals by common judgment and order
dated 14.8.2008. Thus, the appellant-original plaintiff has
filed Second appeal Nos. 769 of 2008 and 770 of 2008
against the common judgment and order in regular Civil
Appeal No. 72 of 2001 and Regular Civil Appeal No. 71 of
2001.
10. Learned counsel for the appellant-plaintiff submits that
the appellant-plaintiff had filed proceedings under Section 5
of Mamlatdar's Courts Act. 1906. The Mamlatdar had
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allowed the said proceedings on 21.07.1990. The
respondent-defendant filed Revision under Section 23
against the order of the Mamlatdar before the Collector,
Latur. The learned Collector has allowed the Revision vide
order dated 21.01.1993. The appellant-original plaintiff has
filed Writ Petition No. 607 of 1993 against the judgment and
order dated 21.1.1993 passed by the Collector, Latur in the
revision. Learned counsel for the appellant-original plaintiff
submits that one more proceeding against Mutation Entry
No. 414 is pending before the Divisional Commissioner.
11. Learned counsel for the appellant-original plaintiff
submits that the disputed land/suit property is survey No. 46
situated at village Sirshi Hangarga, Taluka Nilanga, District
Latur ad-measuring 21 acres and 38 gunthas owned and
possessed by original land owner Vithoba Nagu Surwase.
Learned counsel submits that the dispute is only to the
extent of 4 acres and 23 gunthas purchased by the appellant-
plaintiff form original land owner Vithoba Surwase by
registered sale deed dated 31.3.1990. Learned counsel
submits that on the basis of the registered sale deed,
Mutation Entry No. 414 came to be sanctioned by the
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competent authority on 17.4.1990. The appellant-plaintiff
was cultivating the suit land from Gudhi Padva 1987 on
batai basis and then purchased it on 31.3.1990. The
appellant-plaintiff is in possession of the said land and is
cultivating the same. The respondent-defendant started
obstruction and hence the appellant-plaintiff filed the
aforesaid suit for injunction.
12. Learned counsel for the appellant-plaintiff submits
that in the suit for injunction, the defendant claimed that he
is a tenant in possession of the suit land. The appellant-
plaintiff denied the tenancy. Considering the counter claim,
the trial court was duty bound to frame issues as per the
provisions of Order XIV Rule 2 of the Code of Civil
Procedure, 1908. However, no issues were framed on this
important aspect. Learned counsel submits that if the claim
of the respondent-defendant is as a tenant, the Civil Court
has no jurisdiction to decide the tenancy and by framing
issue it has to be referred to the Tenancy Court as there is
bar under Section 99 of the Hyderabad Tenancy and
Agricultural Lands Act, 1950 (for short, "Hyderabad Tenancy
Act"). Learned counsel submits that without doing the above
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legal exercise, the trial court held that the respondent-
defendant is the tenant in possession, which is maintained
by the District Court. Learned counsel submits that the
finding of the trial court that the defendant is in possession
over the disputed land as a tenant, on the face of record in
respect of the compromise recorded in Special Civil Suit No.
130 of 1959 and compromise order passed thereon only to
the extent of 2 acres 39 gunthas, is not sustainable in the
eyes of law and the same is perverse and contrary to the
evidence on record.
13. Learned counsel for the appellant-plaintiff submits
that both the courts below overlooked the provisions of
section 99(A) of the Tenancy Act, which ousts jurisdiction of
Civil Court to determine and deal with the issues in respect
of Tenancy. Learned counsel submits that both the courts
below did not appreciate the evidence on record that the
entry in the name of defendant's father was deleted from the
final tenancy register which is a final proof of protected
tenancy. The said order deleting the name of defendant's
father was not challenged and has attained finality. Learned
counsel submits that both the courts below did not apply
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their mind to the admitted facts in the form of decree i.e.
judgment and decree dated 8.10.1959 in Special Civil suit
No. 130 of 1959. The defendant's father had not claimed
tenancy, but claimed ownership on the basis of the
agreement to sale and then filed the said suit for specific
performance of contract and finally, being satisfied by
compromise, accepted only 2 acres 39 gunthas of land. If he
was finally declared as a protected tenant and if at all he was
tenant in possession, then there was no question of
agreement to sale and suit for specific performance of
contract.
14. Learned counsel for the appellant-plaintiff submits
that both the courts below failed to consider that if the
tenant accepted deleting his name from the tenancy register
and thereby agreed to purchase the land and filed a suit for
specific performance, meaning thereby he was not tenant in
possession. Learned counsel submits that both the courts
below failed to consider that the decree in Special Civil Suit
No. 130 of 1959 was conditional on payment of Rs.800/-.
There is no evidence that the defendant's father paid the said
amount and there is no sale deed executed as per the decree.
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Therefore, the case of the defendant that he is owner in
possession on the basis of that decree is also not proved.
Learned counsel submits that both the courts below utterly
failed to consider that even the defendant had filed
proceedings for grant of ownership certificate as his father
was a protected tenant. The same was turned down holding
that the original land holder was not having land more than
two family holdings. Learned counsel submits that
presuming that the original land owner was having 2 acres
39 gunthas of land more than two family holdings and
special civil suit permits him to purchase only 2 acres 39
gunthas, he cannot claim ownership and possession of suit
property admeasuring 4 acres 23 gunthas.
15. Learned counsel for the appellant original plaintiff
submits that the trial court apparently failed in framing the
issues as per the provisions of Order XIV Rule 2 of the Code
of Civil procedure, 1908 and the lower appellate court did
not frame points for determination as required under Order
41, Rule 31(a) as on the additional issues framed and
referred to the trial court during pendency of appeals.
Learned counsel submits that therefore, the judgment of the
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lower appellate court is hit by the judgment of this Court
reported in AIR 1985 BOM 98.
16. Learned counsel for the appellant-plaintiff submits
that in any case, both the courts below illegally accepted the
stand of the defendant that he is a tenant in possession of
the land on the face of record that Writ Petition No. 607 of
1993 is pending against the proceedings under Section 5 of
the Mamlatdar's Courts Act, 1906. Once the second appeals
are admitted even on one substantial question of law, finally
the court is bound to decide the second appeals on all points
raised. Learned counsel submits that considering all these
legal issues and the apparent illegality committed by both
the courts below, the Second Appeals deserve to be
dismissed or alternatively, it is a fit case for remand.
17. Learned counsel for the appellant-plaintiff, in order to
substantiate his contentions, placed reliance on the following
cases:-
i) Bhagwanrao s/o Jijaba Auti vs. Ganpatrao
s/o Mugaji Raut and another [1987 (3) Bom.
C.R. 258]
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ii) Sheikh Hussain vs. Hanmantrao [1963
Mh.L.J. 7]
iii) Wamanrao Trimbakrao vs. Bhaurao Mahadu
[1960 BLR 587]
iv) Anita M. Barreto (Smt.) vs. Abdul Wahid
Sanaullah [1985 (1) Bom. C.R. 130]
v) Panchugopalbarua vs. Umesh Chandra
Goswami [1997 AIR (SC) 1041]
18. Learned counsel for the respondent-defendant submits
that the bar under Section 99A of the Tenancy Act is not
attracted in the present case. The jurisdiction of the civil
courts to try disputes involving civil rights is all pervasive. It
is settled position of law that the ouster of jurisdiction of
civil court should not be readily inferred unless there is an
express provision, and even in the case of such provision, an
enquiry has to be undertaken prima facie to find out
whether the said bar applies in the facts and circumstances
of the case.
19. Learned counsel for the respondent-defendant submits
that the suit before the trial court was simplicitor for
injunction. The question of title of this respondent was never
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a subject matter for decision before the learned civil court.
Being an injunction suit, the only crucial question before the
court was as to which party is in possession. The only fact of
possession had to be decided and the discussion as to the
source or title or the nature of possession came in as a mere
ancillary to the factum of possession. The status of tenancy
was not in question in a suit for injunction. If during the
enquiry regarding possession of the parties an ancillary
enquiry about the title has to be gone into, the enquiry does
not increase the scope and does not get converted into an
enquiry into the title of the party. At the most the enquiry
can be of whose possession is standing on a better footing,
meaning thereby the validity of source of the possession.
However, even that aspect of enquiry does not result in an
adverse inference if the party found in possession does not
hold a superior right. Learned counsel submits that however,
in the present case, the suit was for simplicitor injunction
and the question of tenancy was not before the court for
decision. Therefore, the bar under Section 99A cannot be
said to be attracted.
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20. Learned counsel for the respondent-defendant further
submits that the record in Civil Suit No. 31/A of 1958 clearly
holds the respondent-defendant as a tenant under the
Tenancy Act. The said suit is disposed of in terms of the
compromise arrived at between the parties. Despite there
being an entry in the tenancy register that the respondent-
defendant has surrendered his tenancy (which is disputed by
the defendant, and an enquiry by the Collector shows that
there is no record of the same) the landlord has admitted in
compromise pursis that the defendant is the tenant in his
land. By the same compromise deed, the possession of the
defendant is confirmed as a tenant and it is agreed that the
landlord is willing to sell and the defendant is entitled to
purchase 4 acres 23 gunthas land from Survey No. 46/B.
Even when the compromise was presented before the court
for passing the decree accordingly, the court had considered
the sale to be a transaction between landlord and tenant,
and held the tenant/defendant to be entitled to purchase 2
acres 39 gunthas land. Therefore, in the said compromise
and the decree as well, the status of the
respondent/defendant is acknowledged and confirmed by
the landlord and the court as well. Learned counsel submits
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that in view of the said compromise, the respondent-
defendant has paid the purchase price in full to the landlord
and accordingly an entry is recorded in the revenue register.
It was the duty of the revenue officers to confirm the said
entry, which however was not done by the authority despite
the respondent-defendant having complied with his part of
agreement.
21. Learned counsel submits that if there is an agreement
between landlord and tenant to sell and purchase the land in
which the person is a tenant, then the provisions of Section
38A apply wherein the price arrived by the parties is to be
held to be the price of the land. The said section also makes
reference and makes applicable the provisions of Sections
38(4), (5), (6), (6A), (8) and (9) mutatis mutandis. Section
38(6)(d) states that if the tenant fails to pay the purchase
price as agreed upon, then he may forfeit his right to
purchase. The very wording is clear and unambiguous that,
on failure to pay, only right to purchase is forfeited, which
logically would follow that the right as a tenant continues
and the status of the tenant as a tenant is not affected. So
also, if the authority decides that the tenant cannot purchase
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the entire land, the tenant will be entitled to purchase only
as much portion of land as the authority decides, but with
regard to remaining portion his status as a tenant will not be
affected unless the said tenancy is surrendered. Learned
counsel submits that in the case in hand, as per the
compromise, the tenant has relinquished his right on 6 acres
20 gunthas in favour of the landlord. The remaining 4 acres
23 gunthas land is confirmed in favour of the tenant-
respondent by the landlord. Even though the court, by the
decree, has permitted the sale to be of only 2 acres 39
gunthas, the right of respondent-defendant to the extent of 1
acre 77 gunthas continues as a tenant. Thus, the right of the
respondent-defendant remains intact on the entire 4 acres
23 gunthas. Learned counsel submits that the alternative
pleas of sale and of tenancy can be taken by a tenant if there
is apprehension of the contention of sale failing on some
technical point. Therefore, the argument of the appellant-
plaintiff that the respondent-defendant cannot make
alternative pleas is not a sound proposition of law.
22. Learned counsel for the respondent-defendant submits
that the lower courts have not committed any error in
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observing that the respondent-defendant is in possession of
the suit land as a tenant because, except the said mere
purported entry, there is no record to back the said entry. It
has come on record that the alleged judgment, or any
proceeding is not there to show the validity of the said entry.
Absence of the entire record, and the same not being
available, casts a serious doubt about the validity and value
of the said entry. More so, in view of the fact that after the
said date mentioned in the said entry, the landlord has
admitted before the civil court in compromise deed that the
respondent-defendant is the tenant on the suit land, his
possession is confirmed as such. Learned counsel submits
that except the said entry, nothing else is placed on record to
show that the respondent-defendant has surrendered his
tenancy. The Tenancy Act lays down an elaborate procedure
for surrender of tenancy, and the appellant-plaintiff has not
placed any evidence to show that any such proceeding had
taken place for surrender of tenancy.
23. Learned counsel for the respondent-defendant submits
that whenever a right is waived by a person, the waiver has
to be express, unequivocal, unambiguous, without coercion,
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misrepresentation, or not under duress. So also, when the
waiver of right is under any statutory provision and the
statute prescribes a particular mode for the same, it has to be
in the said way. Waiver cannot be presumed, cannot be
inferred. In this particular case, the waiver cannot be
presumed on a stray entry, which is not backed by any
procedural documents to establish the said entry.
24. Learned counsel for the respondent-defendant submits
that the appellant-plaintiff has failed to prove that he is
vested with proprietary rights by virtue of execution of the
document in his favour. The appellant-plaintiff has failed to
prove that the vendor had any title to pass over the same to
the appellant-plaintiff. The vendor originally owned 10 acres
35 gunthas land. The vendor has already sold land ad-
measuring 6 acres 20 gunthas, the right to which was
waived by this respondent by compromise in Civil Suit No.
130 of 1959 to one Venkat Patil. The remaining land of 4
acres 23 gunthas was agreed to be sold to the respondent.
The respondent had also paid the entire consideration to the
landlord. The Mutation Entry 89 to that effect is also taken
in the revenue record. Even in absence of holding that the
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sale may not have materialized, the status of respondent-
defendant as a tenant is confirmed by the landlord in the
above mentioned compromise. Therefore, the vendor of the
appellant-plaintiff never had any saleable title vesting in him
which could be transferred in favour of the appellant-
plaintiff. Learned counsel submits that the best witness to
prove the saleable capacity of the vendor of the appellant-
plaintiff was the vendor himself. But the appellant-plaintiff
did not bring the best evidence before the court, which
required to draw an adverse inference against the appellant-
plaintiff. Learned counsel submits that, moreover, the suit
was filed after the decision by the Collector in the revision
application against the order of the Mamlatdar. In the said
proceeding, M.E. Nos. 414 and 418 were held to be bad and
were ordered to be set aside. The plaintiff-appellant, despite
having knowledge of the same, suppressed the said fact and
relied upon the said entries which were no longer in
existence. So also, the outcome of the said proceedings was
also suppressed by not mentioning the same in the plaint.
25. Learned counsel submits that the appellant-plaintiff
has failed to place on record any evidence to show his
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possession from 1987. On the other hand, there is consistent
record to show that the respondent-defendant was in
possession from 1950. The only period during which the
name of the respondent was not there was when the same
was illegally deleted and the name of the plaintiff was
recorded in 1990 to 1994, whereupon the name of the
respondent was restored as per the order of the Collector,
Latur. The appellant-plaintiff has failed to make out any case
even on the point of possession for the grant of injunction.
The appellant-plaintiff has not come with clean hands before
the court. Learned counsel submits that the appellant-
plaintiff has not made out any case on facts and on law to
cause any interference in the concurrent findings of fact and
law arrived at by the learned lower courts.
26. So far as Writ Petition No. 607 of 1993 is concerned,
learned counsel for the respondent-defendant submits that
the chronology of the events as mentioned in the facts
clearly shows that the petitioner in collusion with the
revenue authorities, got effected the revenue entries in the
Mutation Register and the 7/12 extract. The said entries
were taken behind the back of the respondent without
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following any procedure as prescribed by law. So also, by
taking disadvantage of such illegal entries the application
under Section 5 of the Mamlatdar's Courts Act, 1906 was
filed and an ex parte injunction was clamped on the
respondent. The Mamlatdar also, without considering the
documents in favour of the respondent-defendant, allowed
the application. In the enquiry that was initiated by the
Collector, Latur in revision petition filed by the respondent-
defendant, it was observed that the revenue authorities have
colluded with the petitioner. There is also a letter on record
addressed by the Talathi to the Tahsldar, wherein a reference
is made to the fault of the Tahsildar and the Circle Officer.
The said communication is dated 21.05.1990. It is thus
amply clear that the entire record was manipulated and a
bid was made to dispossess the respondent from his lawful
possession of the suit property. The learned Collector has
rightly interfered and set aside the order of the Mamlatdar.
27. Learned counsel for the respondent-defendant submits
that in view of the collusion and illegal altering of the
revenue record, the Collector has directed to correct the
entries and restore the record to its original file and position.
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The consequential mutation entries taken for correcting the
record were independently challenged by the petitioner and
he has lost in the said litigation up-till this Honourable
Court. Mutation Entry No. 414 that was effected in favour of
the petitioner was also a subject matter of challenge in
1990/ROR/20. The said appeal is also decided in favour of
the respondent. An appeal therefrom to the Additional
Collector by the petitioner is also rejected and now the
revision is pending before the Revenue Commissioner.
Learned counsel submits that the revisional authority has
ample powers to discard the entries that are doubtful and
the said exercise cannot be said to be re-appreciation of
evidence.
28. Learned counsel for the respondent-defendant submits
that looking at the peculiar facts, having come to the
conclusion that the authorities have acted illegally, mala fide,
and against their duties, the learned Collector, Latur has
initiated departmental enquiry and no fault can be found in
the said direction.
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29. Learned counsel for the respondent-defendant further
submits that the petitioner was well aware that he has not
acquired any title to the suit property. The petitioner was
also having knowledge that this respondent is in long
standing possession of the suit property as a tenant. Despite
the said knowledge the petitioner, by misuse of the precess
of the court and the quasi judicial forum of the Mamlatdar's
Court, has filed these false and vexatious litigation only to
illegally grab the property of the respondent. The
proceedings therefore be dismissed with exemplary costs to
be awarded in favour of the respondent.
30. Learned counsel for the respondent-defendant, in
order to substantiate her contentions, placed reliance on the
following cases:
1. Ramji Rai and Another v. Jagdish Mallah
(Dead) through L.R.'s and Another [2007 AIR
SC 900]
2. Anathula Sudhakar v. P. Buchi Reddy (Dead)
by LR's and Others [AIR 2008 SC 2033]
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3. Shaikh Usman Shaikh Shaikh Burahan and
Others vs. Shaikh Badruddin Shaikh Bhagan
and Another [1994 (1) Mh.L.J. 838]
4. Motilal Padampat Sugar Mills Co. Ltd. v.
State of Uttar Pradesh and others [(1979) 2
SCC 409]
5. Ram Bahal and Another v. Deputy Director of
Consolidation Azamgarh and Others [2015
(10) SCALE 568]
31. The following substantial questions of law are framed
while admitting the Second Appeals:
A) Whether the courts below were justified in
recording finding that defendant/respondent is in
possession over the disputed land as a tenant on
the face of record in respect of compromise
recorded in Civil Suit no. 190 of 99 and order
passed thereon in file number 130/1/95 holding
that father of defendant is entitled to purchase
land to the extent of 2 acres and 39 gunthas out of
the suit land?
B) Whether the first appellate court was
justified in recording finding in respect of tenancy
of defendant in the civil proceedings overlooking
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the provisions of section 99(a) of the Tenancy Act
which ousts jurisdiction of the civil court to
determine and deal with the issue in respect of
tenancy?
C) Whether the courts below were justified in
recording finding in favour of the defendant in
respect of alleged tenancy rights on the face of
pendency of Writ Petition no. 607/93 wherein
challenge is raised to the proceeding initiated
under section 5 of the Tenancy Act and that no
finality is attached to determination of issue in
respect of tenancy as claimed by respondent?
D) Whether the courts below were justified in
overlooking the order passed by Naib Tahsildar
which records that name of protected tenant i.e.
predecessor of the defendant stands deleted in
view of the order dt. 17.11.1959 passed in file no.
3/19(1)-59?
32. The appellant-plaintiff has asserted the title and
possession over the suit land on the basis of the sale deed
Exhibit 64 dated 31.03.1990 executed by the original owner
of the land, namely, Vithoba Nagu Surwase. The appellant-
plaintiff has thus instituted Regular Civil Suit No. 90 of 1994
for a decree of perpetual injunction to restrain the
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31 SA769-770-2008+WP607-1993.odt
respondent/defendant from obstructing his peaceful
possession of the suit land. The appellant-plaintiff, in order
to substantiate his title and possession over the suit land, has
raised a specific plea that the father of the
respondent/defendant himself voluntarily surrendered his
right as a protected tenant and thus, on 07.11.1959, name of
the father of the defendant came to be deleted from the
tenancy register. It is also contended that the father of the
defendant had instituted the civil suit bearing Regular Civil
Suit No. 32 of 1958 in respect of the northern half portion
ad-measuring 10 acres 39 gunthas of suit land Survey No. 46
against the vendor of the plaintiff. The total area of land
Survey No. 46 was 21 acres 38 gunthas. However, the said
suit bearing Regular Civil Suit No. 32 of 1958 came to be
decreed in terms of the compromise to the extent of 2 acres
39 gunthas only. It is held that the father of the defendant
was not concerned with the remaining 8 acres of land. In
terms of the judgment and decree passed in the said Regular
Civil Suit No. 32 of 1958, the said Vithoba Nagu Surwase
(the vendor of the plaintiff) was held to be the owner of the
remaining 8 acres of land and out of those 8 acres of land,
the appellant-plaintiff has purchased the suit land
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32 SA769-770-2008+WP607-1993.odt
admeasuring 4 acres 23 gunthas and he is in possession of
the same. The respondent-defendant has no right, title or
interest of the suit land.
33. The respondent-defendant has filed his written
statement along with the counter claim at Exhibit 18. It is
contended that the sale deed in favour of the appellant-
plaintiff is sham and bogus. It is further contended that in
view of the judgment delivered by the Collector, the effect of
Mutation Entry No. 414 is valueless. The respondent-
defendant has specifically denied the aspect of surrender on
07.11.1959 as alleged. It has been specifically pleaded that
the father of the defendant had entered into an agreement of
sale with the original owner way back in the year 1955 and
originally, the father of the defendant was in possession of
the suit land as a protected tenant. Though the father of the
defendant has requested the original owner Vithoba to
execute a sale deed, he had denied to execute the sale deed.
The father of the respondent/defendant had a preferential
right to purchase the northern one-half portion and even for
that purpose, the original owner had executed the
agreement of sale. Thus, the father of the defendant had
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33 SA769-770-2008+WP607-1993.odt
instituted the suit bearing Regular Civil Suit No. 31/A of
1958 to get executed the said agreement. The said suit is
disposed of in terms of the compromise and the father of the
respondent-defendant got 4 acres 23 gunthas of land that is
the present suit land and the remaining land was sold by the
original owner to one Venkatrao Patil. Thus, the original
owner Vithoba was not having any land and therefore, he
was not competent to execute the sale deed in favour of the
appellant-plaintiff. Since the appellant-plaintiff has
threatened the rights of the respondent-defendant over the
suit land, the respondent-defendant has filed the counter
claim to restrain the appellant-plaintiff perpetually from
obstructing his peaceful possession over the suit land.
Learned counsel for the respondent, while arguing that the
case does not involve the substantial question, submitted
that assuming that the respondent-defendant has failed to
prove the said transaction of agreement of sale, however, the
respondent-defendant can always fall back upon his right as
a protected tenant if the agreement of sale fails. There is no
bar for pleading tenancy as an alternative case if the party
apprehends that sail may fail due to certain legal defects or
otherwise. In order to substantiate the same, learned counsel
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34 SA769-770-2008+WP607-1993.odt
for the respondent-defendant has placed reliance in a case
Shaikh Usman Shaikh Shaikh Burahan and Others vs. Shaikh
Badruddin Shaikh Bhagan and Another (supra).
34. I have carefully gone through the judgment and decree
dated 8/11-10-1959 in Regular Civil Suit No. 32 of 1958. It
appears that the father of the respondent-defendant had
instituted the said suit for specific performance of contract
for sale of half portion of the land Survey No. 46 to the
north. In addition, in the agreement of sale dated
17.04.1955, it is specifically pleaded that the father of the
respondent-defendant (plaintiff in the said suit) is in
possession of the suit land as protected tenant. It is also
recorded in the judgment that the appellant-plaintiff
(defendant in the said suit) admitted the father of the
respondent-defendant (plaintiff in the said suit) being a
tenant, but alleged that he has surrendered his rights. The
parties submitted a memorandum of compromise on
05.10.1959 which was duly verified and a specific reference
was given in the compromise that in terms of the said
compromise the appellant-plaintiff has agreed to sale the
suit land Survey No. 46 to the extent of the northern portion
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35 SA769-770-2008+WP607-1993.odt
ad-measuring 4 acres 19 gunthas for consideration of
Rs.12,000/- and that he has no objection if the suit is
decreed to that extent. Furthermore, it has also been
specifically mentioned in the compromise that the father of
the respondent-defendant herein is in possession of the
above land as a tenant and his possession as an owner
thereof is confirmed and the remaining portion from the
above suit land ad-measuring 6 acres 20 gunthas would
remain with the appellant-plaintiff herein. The learned Civil
Judge however, despite the compromise placed on record
and verified, decided the issue no. 4 independently by
referring the provisions of the Hyderabad Tenancy Act and
held that considering 8 acres of land as a basis holding, the
land remained to be sold is 2 acres 39 gunthas and
accordingly decreed the suit to the extent of 2 acres 39
gunthas of land towards the north in Survey No. 46 of
village Shirsi Hangarga for a consideration. The issue no. 4,
which is independently decided by the court in the said
Regular Civil Suit No. 32 of 1958 is as follows:
"Is the plaintiff entitled to such in view of the
provisions of the Tenancy Act?"
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36 SA769-770-2008+WP607-1993.odt
The learned Civil Judge thus, by referring the
provisions of the Hyderabad Tenancy Act in detail, recorded
the finding as detailed above.
35. In the backdrop of the findings recorded in the said
suit of the year 1958, the learned counsel appearing for the
respondent-defendant has submitted that as per the said
compromise decree, the father of the respondent-defendant
has relinquished his tenancy rights in respect of the land ad-
measuring 6 acres 20 gunthas in favour of the landlord and
the remaining land 4 acres and 23 gunthas is confirmed in
his favour by the landlord and even though the court has
permitted the sale to the extent of 2 acres 39 gunthas, the
right of the respondent-defendant as a tenant would remain
intact. The alternate pleading of tenancy can be taken by the
tenant.
36. I have carefully gone through the judgment and decree
passed in Regular Civil Suit No. 90 of 1994. In para 10 of the
judgment, the trial court has made the following
observations:
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37 SA769-770-2008+WP607-1993.odt
"10. In this way the documentary evidence is
against the plaintiff. The revenue record
shows that plaintiff's name was entered by
deleting the defendant's name. But defendants
name was entered in the capacity of protected
tenant. Such name in the capacity of protected
tenant could not have appeared unless
defendant was in possession of the suit
property. In Exh. 1 in Para No.4 plaintiff has
stated that the defendant's father voluntarily
surrendered his tenancy rights. But no
documentary evidence in that respect is
available on record. On the contrary in Exh.
115 the Collector has pointed out that the
record of File No.3/19/(1)/59 is not located
and that from 1961-1962 till 1989-90 the
name of defendant's father is continued in
7/12 extract."
37. Being aggrieved by the judgment and decree passed in
Regular Civil Suit No. 90 of 1994, the appellant-plaintiff
preferred Regular Civil Appeal Nos. 71 of 2001 and 72 of
2001 and the first appellate court in the common judgment
dated 14.08.2008, has considered six points for its
determination and recorded its findings thereof. In the
context of the substantial points of law as formulated by the
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38 SA769-770-2008+WP607-1993.odt
first appellate court, the point no.2 is relevant which reads
as under:
"(ii) Whether the defendant has proved that he is in
possession of the suit land as a tenant?"
The learned Judge of the first appellate court has
recorded the finding with reasons in the affirmative to the
said point no.(ii). In para 14 of the judgment, the first
appellate court has made the following observations:
"14. The extract of tenancy register for the year
1951 of village Shirshi Hangarga is produced at
Exh. 32. It is in respect of Sy. No. 46. It shows that
the father of the defendant was protected tenant to
the extent of 10 acres 39 gunthas. According to the
plaintiff, the father of the defendant had
surrendered his tenancy rights on 7/11/1959.
However, plaintiff has not produced any
documentary evidence to substantiate this
contention. Mutation entry No. 60 is produced at
Exh. 130. Perusal of it, it appears that the disputes
were going on between the father of the defendant
and Vithoba Surwase. Subsequently, those disputes
were settled and it was decided to sell 4 acres 21
gunthas land from Sy. No.46/B to the father of
defendant and remaining land was sold to
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39 SA769-770-2008+WP607-1993.odt
Venkatrao. This mutation entry is dated
shows that father of the defendant has purchased
the suit land for Rs.2,500/- by way of unregistered
sale deed. So it is ample clear that the defendant is
in possession of suit land either as an owner on the
basis of unregistered sale deed or at least as a
tenant. Under these circumstances, by no stretch of
imagination, it can be said that owner Vithoba
Surwase was competent to alienate the suit land to
the plaintiff. I have gone through the judgment of
the trial Court. Learned Civil Judge took the same
view."
38. Further, there is the order dated 29.05.1990 passed by
the Uppar Tahsildar, Zilla Latur Camp Nilanga in the
proceedings bearing No.1989/Kul/Kavi/355 in respect of the
suit land.
39. The appellant-plaintiff had filed an application under
Section 5 of the Mamlatdar's Courts Act, 1906 against the
respondent-defendant for issuance of injunction to protect
his possession over the suit land and by judgment and order
dated 21.07.1990, the Mamlatdar, Nilanga has allowed the
said application. Being aggrieved by the same, the
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40 SA769-770-2008+WP607-1993.odt
respondent-defendant had preferred revision under Section
23 of the Mamlatdar's Courts Act, 1906 before the Collector.
During the course of argument, the above stated order
passed by the Uppar Tahsildar dated 29.05.1990 was
referred. The learned Collector has observed,
"Further, this sale deed effected on suit land by
mutation entry no. 414 as on 17.04.1990. It
appears that after mutation entry no. 414, as an
afterthought, to correct the record, an order was
passed by the Additional Tahsildar (L.C.), Latur
dated 29.05.1990 deleting name of Angad as a
protected tenant. However, this order is subsequent
to the sale deed and hence cannot justify the sale
deed, which was effected prior to this order dated
29.05.1990. Further, mutation entry no. 418,
deleting the name of Angad, is subsequent to the
date of mutation entry no. 414 (17.04.1990) by
which the respondent's name was entered in the
suit land. It is clear that mutation entry no. 418
and the order of the Additional Tahsildar dated
29.05.1990 are both contrived and mischievous
order to deprive the revisional petitioner
(respondent-defendant herein) of his possession
over the suit land. The order dated 29.05.1990 of
the Additional Tahsildar is ex parte order in which
even though the right of Angad as protected tenant
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41 SA769-770-2008+WP607-1993.odt
was adversely affected, his defence was not
considered. However, the grounds on which his
name is deleted as a protected tenant, have been
proved. In short and for the order, no evidence has
been cited by the Additional Tahsildar to indicate
on which basis he has come to the conclusion that
the name of the protected tenant should be
deleted."
40. In the operative part of the order, the learned
Collector, Latur has directed departmental enquiry for
breach of discipline against the Additional Tahsildar (L.C.),
Latur, the Circle Inspector and the Talathi involved in the
case, who have altered the record vide M.E. Nos. 414 and
418 and the order dated 29.05.1990. The learned Collector
has directed that charge sheet should be prepared on the
basis of his order.
41. In the backdrop of these observations, it would be
appropriate to reproduce the provisions of Section 99 and
99A of the Hyderabad Tenancy Act which read as under:
" 99. (1) Save as provided in this Act no Civil
Court shall have jurisdiction to settle, decide or
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42 SA769-770-2008+WP607-1993.odt
deal with any question including a question
whether a person is or was at any time in the past
a tenant or protected tenant and whether any such
tenant or protected tenant is or should be deemed
to be the full owner of the lands which is by or
under this Act required to be settled, decided or
dealt with by the Tahsildar, Tribunal or Collector
or by the Commissioner or Government.
(2) No order of the Tahsildar, Tribunal or
Collector or of the Commissioner or Government
made under this Act, shall be questioned in any
Civil or Criminal Court.
99A. (1) If any suit instituted in any Civil Court,
involves any issues which are required to be
settled, decided or dealt with by any authority
competent to settle, decide or deal with such
issues under this Act (hereinafter referred to as
the "competent authority") the Civil Court shall
stay the suit and refer such issues to such
competent authority for determination.
(2) On receipt of such reference from the Civil
Court the competent authority shall deal with and
decide such issues in accordance with the
provisions of this Act and shall communicate its
decision to the Civil Court and such Court shall
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43 SA769-770-2008+WP607-1993.odt
thereupon dispose of the suit in accordance with
the procedure applicable thereto.
Explanation.- For the purpose of this section a
Civil Court shall include a Mamlatdar's Court
constituted under the Mamlatdar's Courts Act,
1906."
It is thus clear that there is an express bar of
jurisdiction and if the suits involving issues required to be
decided under the Hyderabad Tenancy Act in terms of the
provisions of Section 99A, the Civil Court shall stay the suit
and refer such issues to such competent authority for
determination. On receipt of such reference from the Civil
Court, the competent authority i.e. the Tahsildar, Tenancy
Tahsildar or the Tribunal is required to deal with and decide
such issues in accordance with the provisions of the
Hyderabad Tenancy Act, and to communicate its
decision to the Civil Court. The Civil Court shall thereupon
dispose of the suit in accordance with the procedure
applicable thereto.
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42. In the instant case, even in the suit of the year 1958
which was disposed of in terms of the compromise and also
by recording independent findings to issue no.4 by the Civil
Court, so also in the present suit bearing Regular Civil Suit
No. 90 of 1994, so also in the first appellate court while
deciding the appeals, though tenancy issue has been framed,
instead of referring the said issue to be decided in terms of
the provisions of Section 99A of the Hyderabad Tenancy Act,
the trial court so also the first appellate court has decided
the said issue by referring the provisions of the Hyderabad
Tenancy Act. Learned Collector while deciding the revision
preferred against the order passed by the Mamlatdar under
Section 5 of the Mamlatdar's Courts Act, 1906, has made
serious observations about the order passed by the Tahsildar
(L.C.) dated 29.05.1990 and the M.E. No. 418 which was
sanctioned deleting the name of the respondent-defendant
as a protected tenant and also directed a departmental
enquiry against the Additional Tahsildar (L.C.), Latur along
with the Circle Inspector and the Talathi concerned.
However, even the learned Collector has not further referred
the matter to the Tenancy Tahsildar/Tribunal in terms of the
provisions of Section 99A. In terms of the explanation to
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45 SA769-770-2008+WP607-1993.odt
Section 99A, a Civil Court shall include the Mamlatdar's
Court constituted under the Mamlatdar's Courts Act, 1906.
43. Further, so far as the specific plea raised about
termination of tenancy by the tenant by surrender of his
rights to the land holder is concerned, the Tenancy Tahsildar
or the tribunal is required to determine the said issue in
terms of the provisions of Section 19 of the Hyderabad
Tenancy Act and the same is required to be decided
notwithstanding any agreement or usage or any decree or
order of a court of law. In terms of the provisions of Section
19A of the Hyderabad Tenancy Act, it is for the Tenancy
Tahsildar to hold an enquiry and declare whether the whole,
or what part, if any, of the land surrendered, the landholder
is entitled to retain under Sub-section (1). Thus, there must
be a Tenancy Tahsildar/Tribunal/authority to pronounce
about a valid surrender of tenancy in terms of the provisions
of the Hyderabad Tenancy Act as referred above. Further, in
term of Rule 7 of the Hyderabad Tenancy and Agricultural
Lands Rules, 1958, it is for the Tahsildar to satisfy himself as
to the voluntary surrender of the tenancy.
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46 SA769-770-2008+WP607-1993.odt
44. In the backdrop of this legal position, the learned
counsel for the respondent has vehemently submitted that
the said civil suit bearing Regular Civil Suit No. 90 of 1994
before the trial court was simplicitor suit for injunction and
the question of title of respondent-defendant was never the
subject matter for decision before the learned Civil Court.
Being a suit for injunction, the only crucial question before
the court was as to which party is in possession. In order to
decide the factum of possession, the discussion as to the
source or title or the nature of possession would be mere
ancillary to the factum of possession. Learned counsel has
submitted that the issue of tenancy was not in question in a
suit for injunction. If during enquiry regarding possession of
the parties, an ancillary enquiry of title has to be gone into,
the inquiry does not increase the scope and does not convert
into an enquiry into the title of the parties. At the most, the
inquiry can be of whose possession is standing on better
footing, meaning thereby the validity of source of the
possession. Learned counsel for the respondent-defendant, in
order to substantiate her contention, placed reliance on two
cases i.e. Ramji Rai and Another v. Jagdish Mallah (Dead)
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47 SA769-770-2008+WP607-1993.odt
through L.R.'s and Another (supra) and Anathula Sudhakar
v. P. Buchi Reddy (Dead) by LR's and Others (Supra)
45. In the case of Ramji Rai (supra), in the facts of the said
case, in para no. 10 of the judgment, the Supreme Court has
made the following observations:
"10. On the finding of facts, we do not wish to
interfere. There is no reason to reverse the
concurring findings. However, suffice it to state
that the lower appellate court should have
dismissed the suit filed by the appellants only on
the ground that the appellants had failed to prove
that they were in possession of the disputed
lands. Under Section 38 of the Specific Relief Act,
1963 an injunction restraining disturbance of
possession will not be granted in favour of the
plaintiff who is not found to be in possession. In
the case of a permanent injunction based on
protection of possessory title in which the plaintiff
alleges that he is in possession, and that his
possession is being threatened by the defendant,
the plaintiff is entitled to sue for mere injunction
without adding a prayer for declaration of his
rights [See: Mulla's Indian Contract and Specific
Relief Acts, 12th Edn., page 2815] "
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48 SA769-770-2008+WP607-1993.odt
46. In the case of Anathula Sudhakar (supra) in the facts
of the said case, in para 10 and 11, the Supreme Court has
made the following observations:
"10. On the contentions urged, the following
questions arise for our consideration in this appeal:
(i) What is the scope of a suit for prohibitory
injunction relating to immovable property?
(ii) Whether on the facts, plaintiffs ought to have
filed a suit for declaration of title and injunction ?
(iii) Whether the High Court, in a second appeal
under section 100 CPC, examine the factual
question of title which was not the subject matter
of any issue and based on a finding thereon,
reverse the decision of the first appellate court?
(iv) What is the appropriate decision?
Re : Question (i) :
11. The general principles as to when a mere suit
for permanent injunction will lie, and when it is
necessary to file a suit for declaration and/or
possession with injunction as a consequential
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49 SA769-770-2008+WP607-1993.odt
relief, are well settled. We may refer to them
briefly.
(11.1) Where a plaintiff is in lawful or peaceful
possession of a property and such possession is
interfered or threatened by the defendant, a suit
for an injunction simpliciter will lie. A person has a
right to protect his possession against any person
who does not prove a better title by seeking a
prohibitory injunction. But a person in wrongful
possession is not entitled to an injunction against
the rightful owner.
(11.2) Where the title of the plaintiff is not
disputed, but he is not in possession, his remedy is
to file a suit for possession and seek in addition, if
necessary, an injunction. A person out of
possession, cannot seek the relief of injunction
simpliciter, without claiming the relief of
possession.
(11.3) Where the plaintiff is in possession, but his
title to the property is in dispute, or under a cloud,
or where the defendant asserts title thereto and
there is also a threat of dispossession from
defendant, the plaintiff will have to sue for
declaration of title and the consequential relief of
injunction. Where the title of plaintiff is under a
cloud or in dispute and he is not in possession or
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50 SA769-770-2008+WP607-1993.odt
not able to establish possession, necessarily the
plaintiff will have to file a suit for declaration,
possession and injunction."
47. In both the cases however, the provisions of the
Hyderabad Tenancy Act, particularly Sections 99 and 99A
creating an express bar about jurisdiction of the Civil Court,
so also the issue regarding tenancy involved in the suit and
the same is required to be referred to the tenancy court,
were not the issues for consideration before the Supreme
Court and those were the simplicitor suits for injunction
seeking a decree for protecting possession. In view of the
same, the ratio laid down in the aforesaid cases is hardly
applicable to the facts and circumstances of the present case.
48. Learned counsel for the appellant-plaintiff has placed
his reliance on the case of Bhagwanrao s/o Jijaba Auti vs.
Ganpatrao s/o Mugaji Raut and another (supra). The
following question was referred to the Division Bench of this
Court:
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51 SA769-770-2008+WP607-1993.odt
"In a suit simplicitor for a permanent injunction, is it
necessary to frame an issue of tenancy either of the
plaintiff or of the defendant?"
This reference arose out of the Regular Civil Suit filed
by the plaintiff Bhagwanrao in the court of Civil Judge
Junior Division for permanent injunction simplicitor for
restraining defendant no.1 Ganpatrao and defendant no.2
from disturbing his possession over the suit field. The
plaintiff Bhagwan contended that he is a tenant in
possession in respect of the suit field by virtue of a batai
patrak executed by defendant no.1 Ganpatrao in his favour.
The defendants disputed the plaintiff's possession over the
suit field, much less by virtue of the alleged batai patrak.
The Division Bench, after referring various contrary
views, referred the view expressed by the Supreme Court in
a case Gundaji Satwaji Shinde v. Ramchandra Bhikaji Joshi
[AIR 1979 SC 653] wherein, in para 10 of the judgment, the
Supreme Court has made the following observations:
"In a civil suit nomenclature of the issue as
principal or subsidiary or substantial or incidental
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52 SA769-770-2008+WP607-1993.odt
issue is hardly helpful because each issue, if it
arises, has to be determined to mould the final
relief. Further, sections 85 and 85-A oust
jurisdiction of Civil Court not in respect of civil
suit but in respect of questions and issues arising
therein and section 85-A mandates the reference
of such issue as are within the competence of the
Competent Authority. If there is an issue which
had to be settled, decided or dealt with by
Competent Authority under the Tenancy Act, the
jurisdiction of the Civil Court, notwithstanding the
fact that it arises in an incidental manner in a civil
suit, will be barred and it will have to be referred
to the Competent Authority under the Tenancy
Act."
The Division Bench has also observed that the
provisions of the Bombay Tenancy Act are pari materia and
are almost similar to the Hyderabad Tenancy Act. There is no
difference between the provisions of Section 85-A of the
Bombay Tenancy At and Section 99-A of the Hyderabad
Tenancy Act. In para 28 of the judgment, the Division Bench
has made the following observations:
"28. In short it is the relief claimed which moulds
the enquiry and raises issues and questions. A relief
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of permanent injunction necessarily leads to an
enquiry as regards the nature of the rights of
plaintiffs and defendants. Where, therefore, in a
suit for permanent injunction, plaintiff or defendant
resists the question of tenancy, the Court will have
to consider that question, and since the Civil Court
has no jurisdiction to deal with that question it will
have first to be referred to the Tenancy Court and
after receiving the decision of the Tenancy Court
alone will it be possible for the Civil Court to decide
whether to grant or not permanent injunction. In
view of this position, and particularly in view of the
clear and unequivocal mandate of law to the Civil
Court, not to deal with any question or issue about
tenancy which arises in a suit and which is
necessary for granting or not granting the relief of
permanent injunction, that even in suit simpliciter
for permanent injunction an issue of tenancy be
framed, when it is raised, and it be referred to the
Tenancy Court for decision. We, therefore, agree
with the view expressed by S.J. Deshpande, J., in
1985 (2) Bom. C.R. 617 : 1986 MLR (Revenue
Section) page 1; Digamber v. Sk. Yasin, and find
that the view expressed in 1983 Maharashtra Law
Journal page 958, Maruti v. Parshuram is not good
law. "
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54 SA769-770-2008+WP607-1993.odt
49. In the instant case, the trial court as well as the first
appellate court, even though the suit was involving the issue
required to be decided in terms of the provisions of
Hyderabad Tenancy Act, dealt with the said issue and
decided the same. Though this is a suit of the year 1994, I
am left with no other choice but to remand the matter to the
trial court for referring the tenancy issue to the tenancy
court with certain directions, by quashing and setting aside
the judgment and decree passed by the trial court so also the
common judgment and order passed by the first appellate
court. In terms of the explanation to section 99A of the
Hyderabad Tenancy Act, a Civil Court shall include a
Mamlatdar's Court constituted under the Mamlatdar's Courts
Act, 1906. I am again left with no other choice but to
remand the matter to the Mamlatdar's Court with certain
directions. Hence, the following order:
ORDER
I. Second Appeal No. 769 of 2008, Second Appeal
No. 770 of 2008 and Writ Petition No. 607 of 1993 are
hereby partly allowed.
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II. (a) The judgment and decree dated 28.09.2001
passed by the 2nd Jt. Civil Judge, Junior Division,
Nilanga in Regular Civil Suit No. 90 of 1994 with the
counter claim, (b) the common judgment and order
dated 14.08.2008 passed by District Judge-1, Nilanga in
Regular Civil Appeal No. 71 of 2001 and Regular Civil
Appeal No. 72 of 2001, (c) the judgment and order
dated 21.07.1990 passed by the Mamlatdar, Nilanga in
Case No. 90/Jama/Kavi/1062 and (d) the judgment and
order dated 21.01.1993 passed by the Collector, Latur in
File No. 1990-GB-ROR-A-27 are hereby quashed and set
aside and the matters are remanded to the trial court
and the Mamlatdar's Court, respectively, with the
following directions:
(i) Readmit the Regular Civil Suit No. 90 of 1994 under
its original number along with the counter claim.
(ii) The evidence recorded during the original trial shall be
the evidence during the trial after remand. The parties are
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not at liberty to adduce any oral or documentary evidence
after remand.
(iii) The parties shall appear before the trial court on
09.08.2021.
(iv) The trial court, in terms of the pleadings of the parties,
shall frame necessary tenancy issue/s and refer it to the
tenancy authority in terms of the provisions of Section 99A
of the Hyderabad Tenancy and Agricultural Lands Act, 1950.
(v) After such reference is made, the trial court shall direct
the parties to the suit to appear before the tenancy authority
on a particular date.
(vi) The tenancy authority shall decide the said reference
within a period of six months after appearance of the parties
before it.
(vii) On receipt of the decision of the tenancy court on such
reference, the trial court shall dispose of the suit in
accordance with law as expeditiously as possible, preferably
within a period of three months thereafter.
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(viii) The proceedings bearing Case No.
90/Jama/Kavi/1062 be restored to its original number
before the Mamlatdar's Court.
(ix) The Mamlatdar shall stay the further proceedings
till the aforesaid issue/s is/are settled, decided and dealt
with by the tenancy authority and communicated its
decision to the Civil Court.
(x) The Mamlatdar shall dispose of the proceedings
remanded to it in terms of the issue/s decided by the
tenancy authority.
III. Second Appeal No. 769 of 2008, Second Appeal
No. 770 of 2008 and Writ Petition No. 607 of 1993 are
accordingly disposed of. Rule in Writ Petition No. 607 of
1993 is made partly absolute.
( V. K. JADHAV, J. )
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