Bombay High Court
Smt. Sitabai Murlidhar Gorhade (Since ... vs Shri. Shankar Dhondi Jadhav And Ors on 30 January, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:5309
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.289 OF 2016
WITH
CIVIL APPLICATION (ST) NO.306 OF 2018
Smt. Sitabai Murlidhar Boradhe (Since Decd. Thr.
Lrs.) ...Appellants
V/s.
Shankar Dhondi Jadhav & Ors. ...Respondents
Mr. P. N. Joshi for the Appellants.
CORAM : SHARMILA U. DESHMUKH, J.
DATE : 30th JANUARY 2024.
P. C.:-
1. Being dissatisfied by the Judgment dated 7th October 2015,
passed by the Appellate Court in Regular Civil Appeal No 34 of 2010
declaring the Respondents-Original Defendant Nos 3 to 7 as owners of the
suit property described in paragraph 1 of the Plaint, the original plaintiff is
before this Court.
2. Regular Civil Suit No.34/2001 was instituted by the plaintiff
seeking declaration of title relating to agricultural land bearing Gut No.742
and for injunction restraining the defendants from causing obstruction to
the possession of the plaintiff. In addition the relief of declaration of civil
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death of defendant Nos.1 and 2 was also sought. It was the case of the
plaintiff that original plaintiff deceased Sitabai was the daughter of
Murlidhar Aher who was in possession of the suit land from 1930 till his
death in the year 1975. That the suit land was governed by the provisions
of Bombay tenancy and Agricultural Lands Act("Tenancy Act") and was
acquired by Murlidhar under Section 32 G of Tenancy Act. It was pleaded
that after his death Sitabai came in possession of the suit land. It was pleaded
that defendant Nos.1 and 2 were unheard since last 50 years and no
proceedings were initiated under the Tenancy Act by Defendant Nos 1 and
2. That, defendant Nos.3 to 7 without any concern with defendant No.1
claims to be relatives of defendant Nos. 1 and 2 and causing obstruction in
possession of the plaintiff.
3. The suit came to be resisted by defendant Nos. 3 to 7. The case
of the defendant Nos. 3 to 7 was that the original owners of the suit land
were Bayaji Rama and Pandurang Tulsa, who had mortgaged the suit land
in favour of defendant No.1. Later on the mortgage was redeemed and
accordingly Bayaji Rama and Pandurang Tulsa became the owners of the
suit land. That, after their demise the suit land was recorded in the name of
defendant No.2-Yeshwant Hari Pagare, who was the nephew of Defendant
No 1. It was pleaded that whereabouts of defendant Nos. 1 and 2 are not
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known and they are heirs of Yeshwant Pagare and as such they are having
title over the suit property. That, they have perfected their title over other
land -Gut No 335 being heirs of Yashwant Pagare. By way of counter claim
they sought declaration of title and recovery of possession of suit land from
the Plaintiffs.
4. The parties went to trial and the Trial Court framed the issues
and answered them as follows:
Sr. ISSUES FINDINGS
No.
1. Whether plaintiffs prove their title over suit In the negative.
land ?
2. Whether plaintiffs prove that defendant In the negative.
No.1 and 2 dies before 50 years, they have
no heirs ?
3. Whether plaintiffs prove obstruction ? In the negative.
4. Whether counter claimant defendants 3 to 7 In the negative.
proves their title over suit land ?
5. Whether plaintiffs are entitled for declaration In the negative.
and perpetual injunction ?
6. Whether counter claimant defendants No. 3 In the negative.
to 7 entitled for recovery of possession ?
5. Trial Court considered the 7/12 extract of the suit land and the
statement of the original owners recorded before the Competent Authority
and observed that the documents showed that the plaintiffs and their
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predecessors in interest are in possession of the suit land in capacity of
tenant. As regards the claim of the plaintiffs that they became owners of the
suit land by adverse possession, the claim was negated by the Trial Court as
the necessary ingredients to prove the title by adverse possession were not
satisfied by the plaintiffs. As regards the title of the Plaintiffs, the Trial Court
held that the plaintiffs and predecessor in title were not owners of the suit
land as they had not purchased the land under Section 32 G of the Tenancy
Act. As regards ,the title of defendant Nos. 3 to 7, the Trial Court held that
the defendants have failed to prove that Defendant Nos 1 and 2 have died
and that Defendant Nos 3 to 7 are their legal heirs. The Trial Court held
that when evidence on record proves that Plaintiffs are tenants over the suit
land, the Defendant Nos 3 to 7 have to acquire their rights under Tenancy
Act. As regards declaration of civil death, the Trial Court held that the
Plaintiffs have not led cogent and reliable evidence to prove the civil death
of Defendant Nos 1 and 2 and dismissed the suit and counter claim.
6. Against dismissal of the Suit, the plaintiff did not prefer any
appeal and Defendant Nos 3 to 7 preferred an appeal against the dismissal
of their counterclaim. The Appellate Court framed the following points for
determination:
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Sr. POINTS FINDINGS
No.
1. Whether the appellants/defendant No.3 In the affirmative.
to 7 have proved their title over the suit
property and they are entitled for the
reliefs claimed by them in their counter-
claim ?
2. Whether the judgment and decree In the affirmative.
passed by the learned trial Court in R.
C. S. No.34/2001 dated 2/1/2010
requires interference at the hands of this
Court ?
3. What order ? Appeal is allowed as
per final order.
7. The Appellate Court considered the admission of original
Plaintiff during her cross examination that in respect of other properties of
Defendant Nos 1 and 2 the names of Defendant Nos 3 to 7 have been
mutated in the revenue records. That Appellate Court considered the
various revenue entries which showed that there were three branches of the
joint family of the defendants and their predecessors and that defendants
are relatives in Class II heirs and as such were entitled to succeed to the
property left by deceased Yeshwant. The Appellate Court on the basis of
documentary evidence held that the defendant Nos. 3 to 7 are entitled for
declaration of ownership over the suit property and that the plaintiffs had
no right, title or interest over the same.
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8. As regards the rights claimed by the plaintiff on the basis of
tenancy rights as also by adverse possession, the Appellate Court noted that
there is no purchase certificate which is issued in favour of plaintiffs or their
predecessors in title and there are no documents to show that they are
protected tenants. The Appellate Court also negated the claim of the
plaintiffs as regards the adverse possession. The Appellate Court noted that
the plaintiffs have not preferred any Appeal against judgment and decree of
the Trial Court nor filed any counter objections to the claim in the appeal to
claim their right over the suit property. Based on the evidence the Appellate
Court held that defendant Nos.3 to 7 are owners of the suit property as
successors of Yeshwant and therefore they are entitled for the relief claimed.
The Appellate Court applied the maxim that the ownership follows the
possession and as such held that defendant Nos. 3 to 7 were entitled to
recover possession from the plaintiffs.
9. Heard Mr. Joshi, learned Counsel appearing for the appellants.
10. Mr. Joshi submits that the Trial Court rendered a specific
finding in their favour that they are in possession of the suit property in the
capacity of tenant. He submits that despite Section 32M certificate not being
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issued in favour of the plaintiff or their predecessors in title, for the purpose
of recovery of possession, the defendant No.3 to 7 have to take recourse to
the provisions of the Tenancy Act. He submits that the substantial question
which arises in the present case is that jurisdiction of Civil Court is barred
under Section 85 and 85A of the Tenancy Act as regards the issue of
tenancy which is required to be decided under the provisions of Tenancy
Act.
11. Considered the submissions and perused the record.
12. The suit was filed seeking declaration of their ownership in
respect of the suit property which was premised on the ground of acquisition
of the property by their pre-decessors in proceedings under Section 32 G of
Tenancy Act and on ground of adverse possession. As against the ownership
claim of the Plaintiffs, rival claim of ownership was put up by the
Defendants along with relief seeking recovery of possession. The Trial Court
was therefore concerned with the issue of ownership of the suit property.
The issue as to whether the Plaintiffs or their pre-decessors was
tenant/protected tenant/permanent tenant could not be gone into by the
Civil Court and the adjudication was restricted to the claim for ownership. It
was not the case of the Plaintiffs that they are protected tenants of the suit
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property but their claim was of ownership. Considering the counter claim of
the Defendants seeking recovery of possession, it was incumbent upon the
Plaintiffs to adopt necessary proceedings before the Authority under the
Tenancy Act to decide the issue of tenancy of the Plaintiffs, which was not
done. As there was no issue of tenancy raised, the Civil Court could not have
referred the dispute to the authority under the Tenancy Act.
13. The Plaintiffs did not file Appeal against the dismissal of their
suit and the Appellate Court was only considering the counterclaim of the
Defendant Nos 3 to 7. The contention of Mr. Joshi that the Plaintiffs was
satisfied with the finding of the Trial Court that the Plaintiffs are in
possession of the property in capacity of tenant does not hold any force as
the jurisdiction of Civil Court is barred as regards the issue of tenancy. In
any event the plea of tenancy is not shown to have been raised in response
to the counter claim. The Appellate Court has considered that the suit
property was previously owned by one Yeshwant Pagare and other members
as joint family property and that various entries are in favour of owners of
the suit property. The Appellate Court considered the genealogy of
defendant's branch and held that as there is no Class I heir, the relatives
specified in Class II heir have a right to succeed to property left by deceased
Yeshwant. It also needs to be noted that the original Plaintiff has admitted in
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her cross examination that the names of the Defendant Nos 3 to 7 have
been mutated in the revenue records as regards other properties of
Defendant Nos 1 and 2. On considering the evidence on record has held
that the Defendant Nos 3 to 7 are the owners of the suit property. As no
plea of tenancy was raised and the only claim of the Plaintiffs in support of
their possession was of ownership which the Plaintiffs had failed to establish,
the Appellate Court held that ownership follows possession and directed
possession to be handed over.
14. As regards the provisions of Sections 85 and 85A of Tenancy
Act, on which much reliance has been placed by learned counsel for the
appellant, the bar of jurisdiction of Civil Court operates to decide any
question which under the Act is required to be decided by the authorities
specified in the Tenancy Act. The bar operates to decide a question whether
a person is or was at any time a tenant and whether any such tenant is or
should be deemed to have purchased from his landlord the land held by
him. In the present case, the Plaintiffs had instituted the suit claiming
ownership of basis of Section 32 G proceedings. The Civil Court was not
called upon to determine the issue whether the Plaintiff by virtue of being
the legal heirs of Murlidhar were the tenants in respect of the suit property
in which case the bar of Section 85 and Section 85A would have operated.
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There was no inquiry contemplated as to whether the Plaintiff was a tenant
or had purchased the property from the landlord. In the present case, it is
not demonstrated that in reply to the counter claim of the defendant Nos.3
to 7 seeking recovery of the possession any reply has been filed by the
plaintiff raising the bar of tenancy. As such the the bar of jurisdiction
under Section 85 and 85A of the Bombay Tenancy & Agricultural Lands
Act does not arise.
15. Having regard to the discussion above, no substantial question
of law arises in the present case. However, as the Civil Courts have only
decided the issue of ownership of the suit property, it is open for the
Plaintiffs to approach the concerned Authority under the Tenancy Act and
seek appropriate relief as regards their tenancy rights.
16. Appeal stands dismissed. In view of the dismissal of the Appeal,
the Civil Application does not survive and stands disposed of.
(SHARMILA U. DESHMUKH, J.)
