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2014 Supreme(Bom) 2311
IN THE HIGH COURT OF BOMBAY AT AURANGABAD BENCH
R.G. Ketkar, J.
Sitaram – Appellant
Vs.
Sow. Kaveribai – Respondent
Second Appeal No. 391 of 2010
Decided On: 23.12.2014
.
For appellant/Petitioner/Plaintiff:R.R. Mantri i/b Swapnil S. Patil, Advocates
For Respondents/Defendant:Younus B. Pathan, Advocate
Headnote:
SALE DEED - LIMITATION - POSSESSION - JURISDICTION - TENANCY ACT - [SECTION 50B] - [SECTION 98C] - REGISTRATION ACT - [SECTION 23] - [SECTION 25] - [SECTION 47] - [SECTION 74] - [SECTION 75] - [SECTION 76] - [SECTION 77] - TRANSFER OF PROPERTY ACT - [SECTION 3] - MAHARASHTRA LAND REVENUE CODE - [SECTION 149] - CIVIL PROCEDURE CODE - [SECTION 100] - [SECTION 103] - [ORDER XLI RULE 24] - Held that the sale deed was not null and void and at the highest in view of sub section (2) of section 50B, it will be invalid. In view of the provisions of Sections 98C, 99 and 99A of the Tenancy Act, Civil Court will have no jurisdiction to settle, decide or deal with any question which is required to be dealt with under the Tenancy Act. Since the sale deed is not null and void, decision in the case of Bhimrao does not assist plaintiffs in any manner.
Fact of the Case:
Plaintiffs instituted R.C.S. No. 202/2002 in the Court of the Civil Judge, Senior Division, Aurangabad for (1) declaration that they are owners and in possession of land bearing G. No. 555 admeasuring 2 H. 39 R. situate at Verul Tanda, Taluka Khultabad, District Aurangabad (for short, ' suit land '); (2) direction to the Tahsildar, Khultabad to take proper entries of ownership, possession and tilling of land on mutation record, 7/12 extracts and all other necessary records of the suit land in the names of the plaintiffs, who are legal representatives of late Gobarya Chavan; (3) setting aside the illegal entries made in the name of defendant No. 1 Kaveribai Dasu Rathod in revenue record and (4) setting aside forged sale deed dated 10/02/1977 in favour of Kaveribai Dasu Rathod by declaring the same as illegal and improper; (5) setting aside the illegal entries made in revenue and land record in the name of (a) Bhausaheb Kadam, (b) Kripalsingh Bajwa; (c) Surendrasingh Bajwa (defendants No. 3 to 5) and (d) Sandeep Bodkhe and/or any other person on the basis of illegal entries and alienated only on paper and all subsequent sale deeds in favour of defendants be declared illegal, improper, unjust and the same may be quashed and set aside; (6) declaration that the Judgment in proceeding No. 2001/Jama/1/KV/1281 is null and void and not binding upon the plaintiffs; (7) issuing injunction restraining the defendants from interfering with the possession of the plaintiffs over the suit land.
Finding of the Court:
The sale deed was not null and void and at the highest in view of sub section (2) of section 50B, it will be invalid. In view of the provisions of Sections 98C, 99 and 99A of the Tenancy Act, Civil Court will have no jurisdiction to settle, decide or deal with any question which is required to be dealt with under the Tenancy Act. Since the sale deed is not null and void, decision in the case of Bhimrao does not assist plaintiffs in any manner.
Issues: Whether the point of limitation decided by the lower appellate Court under Article 58 of the Limitation Act can be sustained? Whether the sale deed dated 10/02/1977 is legal and valid in view of Section 50-B of Hyderabad Tenancy and Agricultural Lands Act, 1950? Whether the adjudication of lower appellate Court on the point of possession in favour of defendants is perverse in view of the mutation entries and the report of Tahsildar produced on record? Whether the learned District Judge was justified in not discussing the provisions of Maharashtra Land Revenue Code, 1966 and in particular section 149 thereof as also Registration Act, 1908?
Ratio Decidendi: The sale deed was not null and void and at the highest in view of sub section (2) of section 50B, it will be invalid. In view of the provisions of Sections 98C, 99 and 99A of the Tenancy Act, Civil Court will have no jurisdiction to settle, decide or deal with any question which is required to be dealt with under the Tenancy Act. Since the sale deed is not null and void, decision in the case of Bhimrao does not assist plaintiffs in any manner.
Final Decision: Appeal is partly allowed in aforesaid terms with no order as to costs.
R.G. Ketkar, J.
1. Heard Mr. R.R. Mantri, learned counsel for the appellants, Mr. Younus B. Pathan, learned counsel for respondent No. 1, Mr. S.P. Dound, learned Assistant Govt. Pleader for respondent No. 2-State and Mr. V.I. Thole, learned counsel for respondents No. 3 to 5 at length.
2. By this Appeal, u/s. 100 of the Code of Civil Procedure, 1908 (for short, ' C.P.C.'), original plaintiffs have challenged the Judgment and decree dated 16/02/2010 passed by the learned District Judge-2, Aurangabad in R.C.A. No. 49 of 2009. By that order, learned District Judge allowed the Appeal preferred by original defendants No. 3 to 5 and quashed and set aside the Judgment and decree dated 23/02/2009 passed by the learned 2nd Jt. Civil Judge, Senior Division, Aurangabad in R.C.S. No. 202/2002. The learned District Judge dismissed the Suit. The parties shall herein after be referred to as per their status in the trial Court. The facts and circumstances giving rise to filing of the present Appeal, briefly, stated are as below.
3. The appellants instituted R.C.S. No. 202/2002 in the Court of the Civil Judge, Senior Division, Aurangabad for (1) declaration that they are owners and in possession of land bearing G. No. 555 admeasuring 2 H. 39 R. situate at Verul Tanda, Taluka Khultabad, District Aurangabad (for short, ' suit land '); (2) direction to the Tahsildar, Khultabad to take proper entries of ownership, possession and tilling of land on mutation record, 7/12 extracts and all other necessary records of the suit land in the names of the plaintiffs, who are legal representatives of late Gobarya Chavan; (3) setting aside the illegal entries made in the name of defendant No. 1 Kaveribai Dasu Rathod in revenue record and (4) setting aside forged sale deed dated 10/02/1977 in favour of Kaveribai Dasu Rathod by declaring the same as illegal and improper; (5) setting aside the illegal entries made in revenue and land record in the name of (a) Bhausaheb Kadam, (b) Kripalsingh Bajwa; (c) Surendrasingh Bajwa (defendants No. 3 to 5) and (d) Sandeep Bodkhe and/or any other person on the basis of illegal entries and alienated only on paper and all subsequent sale deeds in favour of defendants be declared illegal, improper, unjust and the same may be quashed and set aside; (6) declaration that the Judgment in proceeding No. 2001/Jama/1/KV/1281 is null and void and not binding upon the plaintiffs; (7) issuing injunction restraining the defendants from interfering with the possession of the plaintiffs over the suit land.
4. It is the case of the plaintiffs that their father Gobarya Chavan was owner and in possession of the suit land as a protected tenant and was declared as owner for more than 50 years back. He was also in possession of the suit land on the basis of Isar pawti executed by previous owner Hiralal. In the year 1982-83, during the implementation of the consolidation scheme, S. No. 246/1, 246/2 and 246/3 were converted into G. No. 555 i.e. suit land. Till the year 1981-82, name of Gobarya Chavan appeared in record of rights of these survey numbers. During the course of consolidation scheme, his name was deleted from ownership column and name of defendant No. 1 Kaveribai Dasu Rathod was entered vide Mutation Entry No. 43 in respect of area admeasuring 1 H. 8 R. The name of Gobarya Chavan was entered in the other rights column. Defendant No. 1 Kaveribai Dasu Rathod has no right, title and interest in the suit land. She was also not in possession of the suit land. Gobarya Chavan died on 23/10/2000. The plaintiffs are legal representatives of deceased Gobarya Chavan. Defendant No. 1 Kaveribai @ Kalawatibai executed sale deeds in favour of defendants No. 3 to 5 and other persons. Plaintiff No. 7 Madan Chavan made several representations to the Tahsildar, Khultabad against the entries made in the name of Kaveribai and other persons on the
