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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Shri Chindhu Fakira Satale and Ors. - Appellants
Versus
Sau.Vithabai Kashinath Jadhav, Deceased L.Rs. and Ors. - Respondents
SECOND APPEAL NO.421 OF 2013 WITH CIVIL APPLICATION NO.1272 OF 2013 IN SECOND APPEAL NO.421 OF 2013 WITH CIVIL APPLICATION NO.282 OF 2015 IN SECOND APPEAL NO.421 OF 2013
Decided On : 05-10-2016
Once the landlord obtains possession of the land from a tenant in pursuance of a surrender which is accepted by the Mamlatdar in accordance with the provisions of the Tenancy Act, the question whether such a surrender was a nominal or sham surrender does not fall within the ambit of Section 70 of the Tenancy Act. The jurisdiction of the Civil Court to decide that question cannot be held to be ousted by virtue of Section 85 of the Tenancy Act. The said `F` and `S` having acquired right, title and interest in the suit property much prior to the date of such alleged certificate could not have been divested of their title and thus the joint ownership of the two parties could not have been converted into a tenancy by virtue of the said certificate under Section 32-M of the BTAL Act.
Bombay Tenancy & Agricultural Lands (Vidarbha Region) Act, 1958 - Section 85-A-Reference under.-Since no issue of tenancy was involved before trial Court raised by either party hence issue of tenancy cannot be referred to competent authority under Section 85-A of Act.
A perusal of the said judgment and decree passed by the first Appellate Court also clearly indicates that no issue of tenancy could be established by the defendant Nos. 1 to 7 for referring the same to the competent authority for decision under Section 85-A of the BTAL Act. Court is thus not inclined to accept the submission made by the counsel for the defendant Nos. 1 to 7 that two Courts below were bound to refer the said alleged issue to the competent authority under Section 85-A of the BTAL Act. Reliance placed by the counsel for the defendant Nos. 1 to 7 on the judgment of the Full Bench of the Court in the case of Rajaram Totaram Patel, (supra) is thus misplaced. Since the defendants did not file any written statement in spite of opportunities given by the trial Judge twice and more particularly not raising any issue of tenancy, the trial Judge even otherwise could not have referred any alleged issue of tenancy to the competent authority. The judgment of the Full Bench of the Court in the case of Rajaram Totaram Patel (supra) does not apply to the facts of this case and is clearly distinguishable.
Civil Procedure Code, 1908 - Section 100-Second appeal.-Concurrent findings of facts rendered by Courts below being not perverse, cannot be interfered with in second appeal.
The findings recorded by the two Courts below are concurrent findings of facts which are rendered after considering the oral and documentary evidence produced by the plaintiffs which remained uncontroverted and being not perverse cannot be interfered with by the Court under Section 100 of the Code of Civil Procedure, 1908. There is no substantial question of law arises in this appeal. Court is not inclined to allow the Civil Application No. 282 of 2015 filed by the defendant Nos. 1 to 7 inter alia praying for taking the alleged certificate under Section 32-M of the BTAL Act dated 1st September, 1963 on record by marking the same as exhibit for the reasons already recorded aforesaid. The second appeal as well as civil application are totally devoid of merits.
1. By this appeal filed under section 100 of the Code of Civil Procedure, 1908, the appellants (original defendant nos.1 to 7) have impugned the judgment and decree dated 30th October, 2012, passed by the learned District Judge – 5, Nashik, dismissing the appeal (Civil Appeal No. 112 of 2011) filed by the appellants herein by which the appellants had impugned the judgment and decree dated 10th August, 2006 passed by the learned Civil Judge, Junior Division, Dindori in Regular Civil Suit No. 55 of 2001 filed by the respondents herein (original plaintiffs) thereby decreeing the suit filed by the plaintiffs and declaring the plaintiffs as the owners of the suit land to the extent of half area and directing the defendants to deliver the possession of the suit land to the extent of half area to the plaintiffs. Some of the relevant facts for the purpose of deciding this second appeal are as under :
2. The parties in this judgment are described as per their status in the civil suit. It was the case of the plaintiffs that the deceased Sonubai Shankar Gangurde and deceased Fulji Dhondi Satale were residing together and had purchased the land bearing survey No.18 jointly, admeasuring 6 acres and 30-R jointly from its erstwhile owner Narayan Vitthalrao Jathar on 19th June, 1958. The said deceased Fulji Dhondi Satale and the said Sonubai Shankar Gangurde had half share each in the suit land.
3. It was the case of the plaintiffs that the plaintiffs are legal heirs of the said Sonubai Shankar Gangurde and the defendant nos.1 to 7 are the legal heirs of the said Fulji Dhondi Satale. The defendant nos.1 to 7 however, got mutated their names for the entire area of the suit land after the death of Sonubai Shankar Gangurde. The names of the plaintiffs were shown in the other rights column instead of mutating in the column of ownership insofar as half portion of the suit land is concerned.
4. On 30th August, 1993, the said Sonubai Shankar Gangurde expired. It was the case of the plaintiffs that till the death of the said Sonubai Shankar Gangurde, the said Sonubai Shankar Gangurde and the defendants were in possession of the suit land jointly. The defendant nos. 1 to 7 however, with a view to grab the entire land got mutated false entries and refused to give the share to the plaintiffs. The plaintiffs thereafter sent a legal notice on 24th January, 2001 to the defendant nos.1 to 7 for their share in the suit property. The defendant nos.1 to 7 however, did not comply with the said notice. The plaintiffs therefore filed a suit (Regular Civil Suit No.55 of 2001) in the Court of the learned Civil Judge, Junior Division, Dindori, Taluka and District Nashik inter-alia praying for a declaration and mesne-profits.
5. The defendant nos.8 and 9 were impleaded as parties to the suit in view of the fact that the defendant nos.1 to 7 had raised loan from the defendant nos.8 and 9 and their names were appearing in the revenue records. The suit land was irrigated land and various crops such as onion, vegetables etc. were cultivated on the suit land. Though witness summons were issued to all the defendants, the defendants did not appear and did not file any written statement. The suit was accordingly proceeded ex-parte against the defendant nos.1 to 7 on 31st March, 2002. The defendant nos.1 to 7 challenged the said order dated 31st March, 2002 before the District Court. On 13th April, 2006, 4th Ad-hoc Principal District Judge was pleased to set aside the said ex-parte order dated 31st July, 2002 and remanded the matter back to the trial Court with a direction to decide the suit afresh by giving chance to both the parties to adduce their oral and documentary evidence. The defendant nos.1 to 7 were directed to file the written statement on 26thJune, 2006. The defendant nos.1 to 7 however, did not appear on 26th June, 2006 before the learned trial Judge
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