Smt. Laxmibai W/O Pandurang ... vs Smt.Sujata Subhash Vader And ...
2023 Latest Caselaw 5628 Bom

2023:BHC-AS:15864

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    Sonali

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                                      SECOND APPEAL NO. 71 OF 2019
                                                 WITH
                                    CIVIL APPLICATION NO. 117 OF 2019

               Smt. Laxmibai w/o. Pandurang Shenavi & Ors.          ...Appellants
                   Versus
               Smt. Sujata Subhash Vader & Ors.                     ...Respondents


               Mr. Rohit Joshi a/w. Mr. Sandeep Mahadik, for the Appellants.

               Mr. S. M. Kamble, for Respondent No.1.

                                               CORAM : MADHAV J. JAMDAR, J.

DATED : 7th JUNE 2023 P.C. :

1. Heard Mr. Joshi, learned counsel appearing for the Appellants

and Mr. S. M. Kamble, learned counsel appearing for the Respondent

No.1.

2. The Appellants i.e. original Defendants by the present Second

Appeal are challenging the legality and validity of the Judgment and

Decree dated 13th January 2009 passed by the learned Civil Judge,

Junior Division, Gargoti, District Kolhapur in Regular Civil Suit No.42

of 2004 as well as the Judgment and Decree dated 14 th December 2017

passed by the learned District Judge No.6, Kolhapur in Regular Civil

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Appeal No.42 of 2009.

3. The said Regular Civil Suit No.42 of 2004 was filed by the

Plaintiffs by contending that they are the owners of the suit property

and the Defendants are the trespassers. The learned Trial Court decreed

the suit by granting declaration that the Plaintiffs are the owners of the

suit property and further granted decree of the possession by holding

that the Defendants have encroached upon the suit property. Present

Appellants i.e. the Defendants challenged the said Judgment and

Decree of the learned Trial Court by filing Regular Civil Appeal No.42

of 2009. The said Regular Civil Appeal was dismissed by Judgment and

Decree dated 14th December 2017. Hence the present Second Appeal.

4. Mr. Joshi, learned counsel appearing for the Appellants has

raised the following substantial questions of law:-

i. Whether the learned Trial Court as well as the learned Lower Appellate Court has jurisdiction to adjudicate the question of the validity of the orders passed under Sections 32G and 32P of the Maharashtra Tenancy and Agricultural Land Act, 1948 in contravention of Section 85 of the said Act?

ii. Whether the Civil Court has jurisdiction to decide

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the legality and validity of the order passed by the Revenue Authority in Revenue and/or Tenancy matters exercising powers under the provisions of the Maharashtra Tenancy and Agricultural Land Act, 1948?

iii. Both the Courts erred in not framing the issue as per the provision of Order 14 Rule 2 of the CPC as in the written statement, the Defendants specifically pleaded in respect of matter pending before Revenue Court and as such required to be referred to the Tenancy Court? iv. Both the Courts without having jurisdiction and without referring the matter to the Tenancy Court erred in relying on Mutation Entry No.1554?

v. Both the Courts below ought to have considered the fact that admittedly Defendants have constructed house in the year 1968 and till filing of the suit i.e. 2004, Plaintiffs have not raised any objection and as such whether the suit filed by the Plaintiffs is barred by law of limitation?

5. Mr. Joshi pointed out certain documents and submitted that the

Appellants are in possession of the suit property and as the Appellants

have constructed the house in the year 1968, the suit filed in the year

2004 is barred by limitation. He also submitted that as the issue of the

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tenancy is specifically raised in the written statement, the learned Trial

Court should have framed the said issue and the same should have been

referred to the Competent Authority under the provision of the

Tenancy Act.

6. On the other hand, Mr. Kamble, learned counsel appearing for

the Respondents pointed out various orders of the Revenue Authorities

and submitted that the Respondents are not the tenants. He pointed

out the concurrent findings recorded by both the Courts and therefore,

submitted that the Second Appeal be dismissed.

7. Before considering the rival contentions, it is necessary to set out

certain factual position.

A) It is admitted position that the Appellants/their

ancestors were the tenants of the suit property and the

Respondents/their ancestors were the landlords.

B) It is also admitted position that somewhere in

1959-1960, half portion of the suit property was handed

over to the owners by the tenants.

C) As far as balance half portion of the land in

question, the tenants filed 32G proceedings. However, in

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the said 32G proceedings, learned Additional Tahsildar &

A.L.T., Bhudargad by order dated 3rd February 1969 held

that the landlord requires the land for bonafide personal

cultivation. With this finding, learned Additional

Tahsildar & A. L. T., Bhudargard directed that balance half

portion of the land be restored to the landlord for personal

cultivation. Mr. Joshi, learned counsel appearing for the

Appellants fairly admitted that the said order has not been

challenged and the said order has attained finality. It is the

contention of the Respondents that since then the

Respondents are in the possession of the entire property.

D) The present Respondents i.e. the original Plaintiffs

filed Regular Civil Suit No.42 of 2004 seeking possession

by taking contention that the Defendants have encroached

the suit property in November-2001 and constructed the

house.

E) It appears that after the said encroachment in

2001, the Defendants i.e. present Appellants filed fresh

R.T.S. proceedings under Section 32G of the Maharashtra

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Tenancy and Agricultural Lands Act, 1948 (hereinafter

referred to as the "Tenancy Act") bearing Tenancy Case

No.25 of 2003. The said Tenancy Case was rejected.

Against the said decision, the Appellants moved an appeal

before the Sub-Divisional Officer, Radhanagari being

Tenancy Appeal No.11 of 2006, which was dismissed on

10th September 2009. The said decision was challenged

before the Maharashtra Revenue Tribunal, Pune and the

same was dismissed on 10th April 2017. Mr. Joshi, learned

counsel appearing for the Appellants fairly admitted that

no further proceedings have been filed and the said orders

in fresh 32G proceedings have attained finality.

F) Thus, as per the admitted position, in or about

1959-1960, half of the land was handed over to the

landlord. In the first round of 32G proceedings, finding is

recorded that landlord requires the suit land for bonafide

personal cultivation and therefore, directed restoration of

half of the land for personal cultivation to the landlord by

order dated 3rd February 1969 and the said order was

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accepted by the tenant.

8. Thus, if on the basis of above factual position, the substantial

questions of law raised by Mr. Joshi are considered, then it is clear that

there is no substance in any of the substantial questions of law raised by

Mr. Joshi. The substantial questions of law bearing Nos. (i) to (iv)

raised by Mr. Joshi are concerning jurisdiction of the Civil Court to

adjudicate the question of validity of the orders passed by the Tenancy

Authorities or referring the issue to the Tenancy Court and till that

time, staying the said proceedings in view of the provisions of Section

85 of the Tenancy Act. The factual position narrated hereinabove

clearly show that in the year 1959-1960, Defendants have already

handed over half portion of the suit property under 32G proceedings

filed by the Defendants. With respect to balance half portion of the suit

property, finding is recorded by order dated 3 rd February 1969 that the

said land is required for bonafide personal cultivation by the landlord

and therefore, order was passed directing handing over of the

possession to the landlord. It has also come on record that in the year

2003, fresh Tenancy Case No.25 of 2003 was filed by the Defendants

under Section 32G of the said Act and the said proceedings also came

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to an end by which claim of the Defendants raised under Section 32G

has been rejected. It is also admitted position that the said orders have

attained finality.

9. The contention of Mr. Joshi, learned counsel appearing for the

Appellants that the suit should have been stayed and the issue of

tenancy should have been referred to the Tenancy Authorities is

required to be rejected for more than one reason. As already held

hereinabove, the claim of tenancy of the Appellants has been finally

rejected by order dated 3rd February 1969 of the Additional Tahsildar

& A.L.T., Bhudargad. Thus, it is clear that since 3 rd February 1969,

Defendants have no right, title and interest with respect to any portion

of the suit property. Apart from that, the proceedings on the basis of

which, Mr. Joshi has raised the above substantial questions of law (i) to

(iv), are second round of proceedings filed under Section 32G of the

Tenancy Act bearing Tenancy Case No.25 of 2003. It is admitted

position that said Tenancy Case was dismissed. The appeal filed in the

year 2006 against the said judgment is also dismissed and proceedings

filed in the year 2017 before the Maharashtra Revenue Tribunal also

came to be dismissed. Therefore, the Tenancy Authorities have

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concluded that the Defendants are not the tenants. The Civil Court has

relied on those findings. Both the Courts have concurrently held that

they cannot go into the aspect whether Tenancy Authorities have

rightly concluded the issue. Section 85 of the Tenancy Act provides

that no Civil Court shall have jurisdiction to settle, decide or deal with

any question including a question whether a person is or was at any

time in the past a tenant and whether any such tenant is or should be

deemed to have purchased from his landlord the land held by him

which is by or under this Act required to be settled, decided or dealt

with by the Mamlatdar or Tribunal, a Manager, the Collector or the

Maharashtra Revenue Tribunal in appeal or revision or the

Government in exercise of their powers of control. As set out

hereinabove, Mr. Joshi, learned counsel appearing for the Appellants

fairly admits that the issue of tenancy is finally concluded. Therefore,

the Civil Court cannot go into that aspect. Thus, there is no substance

in the contention of Mr. Joshi that the learned Trial Court should have

framed tenancy issue and should have referred the same to the Tenancy

Authorities as required under Section 85 r/w. Section 85-A of the

Tenancy Act.

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10. A learned Single Judge of this Court in Nausabai Balu Patil vs.

Kamal Chaugunda Patil & Ors. 1 and a Division Bench of this Court in

Pulmati Shyamlal Mishra & Anr. vs. Ramkrishna Gangaprasad Bajpai

& Ors.2 has held that it is only a bonafide and legally sustainable claim

of tenancy that can be referred to the Competent Authority in exercise

of the provisions of Section 85-A of the Tenancy Act. In this particular

case, tenancy claim of the Appellant has been conclusively rejected by

two separate sets of proceedings once in 1969 and thereafter in 2003.

Therefore, it cannot be said that said issue is legally sustainable

requiring framing of issue and reference of the same to the Tenancy

Authorities.

11. It is further contention of Mr. Joshi that the Appellants are in

possession of the suit property and there is material on record to show

that houses are constructed by the Appellants in the year 1969 and

therefore, suit filed in the year 2004 for eviction is not maintainable

and in any case, is not within limitation. Both the Courts have

concurrently held that the Defendants were not in possession of the

1 2002(5) Bom. C.R. 768 2 (1981) Mh. L.J. 321

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suit property and they trespassed the suit property in 2001. However,

even if, the contentions of the Appellants are accepted, then also it is

clear that the applicable Article of the Limitation Act is Article 65. As

far as the said Article is concerned, suit filed for possession of

immovable property or any interest therein based on title, the period of

limitation provided is 12 years and the said period begins to run when

the possession of the Defendant becomes adverse to the Plaintiff. The

factual position on record clearly show that the claim of the Defendants

as made under Section 32G of the Tenancy Act has been negatived.

Therefore, it is clear that there is no substance in the 5 th substantial

question of law raised by Mr. Joshi. The Appellants have not raised plea

of adverse possession and in any case, there is no evidence with respect

to the said contention. Therefore, there is no substance in said

substantial question of law.

12. Accordingly, the Second Appeal is dismissed, however, with no

order as to costs. In view of the dismissal of the Second Appeal, nothing

survives in the Civil Application and the same is also dismissed.

13. At this stage, Mr. Joshi, learned counsel appearing for the

Appellants states that the decree of the Trial Court dated 13 th January

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2009 as confirmed by the learned First Appellate Court by order dated

14th December 2017 is not yet executed and this Court has protected

the Appellants. Therefore, the Appellants' possession be protected for

reasonable period. Mr. Kamble, learned counsel appearing for

Respondent No.1 strongly opposes the said request. However, in the

interest of justice, the eviction decree shall not be executed till 30 th

September 2023.

[MADHAV J. JAMDAR, J.]