Bombay High Court
Balu Dagdu Raut vs Baban Shripati Disale And Ors on 4 September, 2024
2024:BHC-AS:35977
Megha 4_wp_9064_22.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.9064 OF 2022
....Petitioner
Balu Dagdu Raut (orig. Plaintiff)
V/s.
1.Baban Shripati Disale,
deceased through his LR
...Respondents
2. Prakash Baban Disale and Ors. (orig. Defendants)
__________________________________________________________________
Mr. Shriniwas S. Patwardhan with Ms Mrinal Ashwin Shelar for
the Petitioner.
Mr. Anil Anturkar, Senior Advocate i/b. Mr. Prathamesh Bhargude
for Respondent Nos.2 and 9
__________________________________________________________________
CORAM : SANDEEP V. MARNE, J.
Dated : 4 September 2024.
ORAL JUDGMENT:
1) Petitioner has filed this Petition challenging the judgment and
decree dated 19 March 2022 passed by the learned District Judge-21,
Pune, dismissing Regular Civil Appeal No.326 of 2017 and confirming
the judgment and decree dated 20 March 2017 passed by the Additional
Judge, Small Causes Court in Civil Suit No.435 of 2012.
2) Lands bearing survey Nos.19/4, 19/1 and 20/1 situated at
Village-Mamurdi, Taluka-Haveli, District Pune is the suit property,
which was originally owned by Venubai Tukaram Raut, in which
Defendant No.1-Baban Disale was a tenant. According to Plaintiff, said
Venubai was widow and therefore being a disabled landlady, provisions
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of Section 32F of the Maharashtra Tenancy and Agricultural Lands
Act, 1947 (the Tenancy Act) applied and the tiller's date got
postponed. It is Plaintiff's case that Defendant No.1-Baban Disale took
benefit of ailing widowed landlady and applied to Additional
Tahasildar, Taluka-Haveli by application dated 28 October 1993 for
permission to purchase the suit property, stating that the widow had
proposed sale of the suit property and as per the provisions of the
Tenancy Act, he has first right to purchase the suit property. The ALT
recorded statements of the widowed lady-Venubai as well as of Baban
Disale and proceeded to fix statutory purchase price of the suit
property under the provisions of Section 32G of the Tenancy Act vide
order dated 24 January 1994. It appears that the tenant paid the
purchase price of Rs.3253/- and accordingly the ALT issued certificate
under the provisions of Section 32M of the Tenancy Act in the name of
Baban Disale on 13 June 1994. By Notification dated 11 September
1997, the entire village of Mamurdi was included in the geographical
area of Pimpri Chinchwad Municipal Corporation.
3) Plaintiff claims to be the only legal heir and successor of
Venubai Raut, who passed away in the year 1995. The Plaintiff
instituted Regular Civil Suit No.1615 of 2002 seeking declaration that
the order of ALT dated 24 January 1994 fixing purchase price under
Section 32G of Tenancy Act is null and void and also claimed injunctive
reliefs. Regular Civil Suit No.1615 of 2002 came to be dismissed by the
9th Joint Civil Judge, Senior Division, Pune vide judgment and decree
dated 1 September 2006. Plaintiff preferred Civil Appeal No.777 of
2007 before the District Court, Pune, challenging the Trial Court's
decree dated 1 September 2006. Though the Appellate Court held
Tahasildar's order dated 24 January 1994 to be null, void and nullity, it
held that the Suit was not within limitation and accordingly, Appeal
came to be dismissed on 1 July 2011.
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4) In the aforesaid factual background, Plaintiff instituted fresh
Civil Suit No.435 of 2012, this time in the Court of Small Causes at
Pune, after issuing notice under Section 106 of the Transfer of Property
Act, 1882 (the TP Act) terminating the tenancy of the Defendants and
demanding possession of the suit property. The Small Causes Court
has dismissed the Civil Suit No.435 of 2012 by judgment and decree
dated 20 March 2017. The Regular Civil Appeal No.326 of 2017
preferred by the Plaintiff has been dismissed by the District Judge,
Pune, vide judgment and order dated 19 March 2022. The Petitioner
has filed the present Petition challenging the decisions of the Small
Causes Court, Pune and District Judge, Pune in the present Petition.
5) I have heard Mr. Patwardhan, the learned counsel appearing
for Petitioner and Mr. Anturkar, the learned Senior Advocate appearing
for Respondent Nos.1 and 9. I have gone through the findings recorded
in the judgments rendered in both the rounds of litigation initiated by
Petitioner/Plaintiff.
6) In the previous round of litigation Petitioner/Plaintiff sought a
declaration that order dated 24 January 1994 passed by the ALT fixing
purchase price in respect of the suit property under the provisions of
Section 32G of the Tenancy Act to be nullity. As a matter of fact,
Plaintiff could have challenged the said order dated 24 January 1994
passed by the ALT by preferring appeal to the Appellate Authority
under the provisions of Section 74 of the Tenancy Act. For some
inconceivable reasons, (possibly due to limitation restriction) Plaintiff
was advised not to file such appeal and allow the order under Section
32G as well as the certificate of purchase under Section 32M to attain
finality. Since the fixation of price under Section 32G attained finality,
Plaintiff thought of seeking a declaration in the Civil Court about the
said order being nullity. However, under the provisons of Section 32M
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of the Tenancy Act, the certificate of purchase becomes conclusive
evidence of purchase. The Plaintiff however, contended that since the
suit property could not be purchased by Defendant -Baban Disale
during lifetime of widowed -landlady, fixation of purchase price under
Section 32G was nullity. He claimed that the widowed landlady passed
away on 15 May 1994 whereas the order of fixation of purchase price
was passed by the ALT's on 24 January 1994. Regular Civil Suit
No.1615 of 2002 was however, dismissed by the Trial Court on 1
September 2006. Though, the Appellate Court upheld the contention of
Plaintiff about ALT order dated 24 January 1994 being a nullity, the
appeal still came to be dismissed on the ground that the Suit was not
filed within limitation. The decree of the Appellate Court dated 1 July
2011 attained finality as the same was not challenged any further.
Thus, a complete quietus was achieved with regard to issue of validity
of order of fixation of purchase price as well as certificate of purchase.
Under provisions of Section 32M of the Tenancy Act purchase
certificate issued in favour of Baban Disale on 13 June 1994 became a
conclusive proof of his ownership.
7) Therefore, Plaintiff had no title in respect of the suit property.
The notice issued by him terminating the tenancy under Section 106 of
the TP Act was without any authority. Defendant- Baban Disale no
longer remained tenant in respect of the suit property and had become
owner thereof. In that view of the matter, there was no question of
termination of alleged tenancy of Defendant-Baban Disale.
8) In my view, therefore, the Court of Small Causes rightly
dismissed the Civil Suit No.435 of 2012 and dismissal of the Suit has
correctly been upheld by the Appellate Court. No palpable error is
traced in concurrent findings recorded by the Trial and Appellate Court
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for this Court to intervene in exercise of jurisdiction under Article 227
of the Constitution of India.
9) Writ Petition is devoid of merits and is accordingly dismissed
without any orders as to costs.
[SANDEEP V. MARNE, J.]
MEGHA SHREEDHAR
SHREEDHAR PARAB
PARAB Date:
2024.09.06
17:06:16 +0530
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