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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
MANGESH S. PATIL, J.
Gangaram Chhabildas Charity Trust Yeola, Tal. Yeola – Appellant
Versus
The State of Maharashtra through Secretary, Ministry of Revenue and Forest – Respondent
Writ Petition No.4200 of 2014, 3144 of 2015, 8597 of 2017, CA/13351/2021 IN WP/8597/2017, 4477, 5116 of 2020
Decided on : 13-01-2022
Civil Procedure Code, 1908 - Section 47 - Maharashtra Tenancy and Agricultural Lands Act, 1948 - Section 32(G),M, 3, 85,29,88B,43,A(1)(b) - Property - Lease Deed - Recovery Of Possession - Tribhuvandas was original owner of writ property - By executing a written lease Tribhuvandas leased out writ property to Deepchand - Deepchand died - He was survived by son and daughter in law - Under another lease deed writ property was leased out by Tribhuvandas to Shekchand - Tribhuvandas sold writ property - Trust has preferred an execution being Regular Darkhast for recovery of possession – Held, Raising an objection before executing court to point out that decree under execution is a nullity which is indeed a ground on which an objection can be raised in execution proceeding as has been a trite principle recognized by courts, rights of Anandibai and Chetan relying upon provisions of Section 32 to 32 G of Tenancy Act are being investigated by tenancy authorities and consequently, one need not enter into that controversy - Having reached such a conclusion on factual aspects which are so vital for decision of the writ petitions, Court find no hesitation in reaching to a logical and legal corollary - Once having found that writ property was exempt from provisions of Tenancy Act, there is no escape from result - Entire case of Anandibai and Chetan about Deepchand having derived title as a deemed purchaser by virtue of provisions of Tenancy Act, being in possession on tillers day, falls to ground - Therefore independent of fact of jurisdiction of civil courts, applicability of principles of res judicata, estoppel and the factum of delay and latches, they would have no case to cause any obstruction in execution of decree - Net result of above discussion is fact that civil court has found Trust entitled to recover possession and decree has reached finality up to Supreme Court - SDO and Maharashtra Revenue Tribunal by orders under challenge have rightly concluded about writ property being exempt from provision of Section 32 to 32R of Tenancy Act - Consequently objection raised by Anandibai and Chetan to execution is not sustainable in law - Executing court has rightly refuted objection and order calls for no interference – Petitions dismissed.
JUDGMENT :
Heard the learned Senior advocate Mr. Anturkar and learned advocate Mr. Bhokarikar.
2. At the outset Mr. Anturkar, on instructions, seeks leave to withdraw Writ Petition No.3144/2015.
3. Rule in rest of the Writ Petitions. It is made returnable forthwith. The learned advocates for the respective respondents waive service. At the joint request of the parties, the matters are heard finally at the stage of admission. Since the facts relevant for decision of all these petitions are common, these are being disposed of by this common judgment. For the sake of convenience the parties are hereinafter referred to by their names.
4. These matters present a chequered history, the events and particulars can be summarized as under. :-
b) By executing a written lease dated 06.08.1955 Tribhuvandas leased out the writ property to Deepchand for a period of 15 years.
c) Deepchand died on 25.01.1958. He was survived by son Shekchand and daughter in law Anandibai Shekchand.
d) Under another lease deed the writ property was leased out by Tribhuvandas to Shekchand in the year 1960.
e) Tribhuvandas sold the writ property to one Gangaram Chhabildas Trust (herein after the Trust) under the registered sale deed dated 11.01.1962.
f) Shekchand died in the year 1975.
g) Anandibai then took Ishwarlal in adoption after demise of Shekchand.
h) The Trust instituted Regular Civil Suit No.534/1992 for eviction of Anandibai. The Suit was decreed on 18.07.2003.
i) Anandibai preferred Regular Civil Appeal No.96/2003 which was dismissed on 07.01.2011.
j) Anandibai preferred Second Appeal No.119/2011 which was also dismissed on 17.03.2011.
k) She preferred Review Application No.112/2011 but even it was dismissed on 14.12.2011.
l) Anandibai preferred Special Leave Petition (c) No.13398-13399/2012 in Civil Appeal No.6447/2012. It was dismissed on 19.04.2012.
m) The Trust has preferred an execution being Regular Darkhast No.18/2014 for recovery of possession in view of the decision of the Civil Court which was finalized up to the Supreme Court.
n) Chetan preferred objections (Exhibit-16 and Exhibit-45) under Section 47 of the Civil Procedure Code read with Section 3 and 85 of the Tenancy Act.
i) He contended that the civil court had no jurisdiction to decide the nature of the tenancy and the decree which was confirmed up to the Supreme Court was a nullity.
ii) He also took a stand that since Deepchand had become the deemed purchaser even he (Chetan) had 50% of share being his grandson. The decree was passed only against Anandibai and was not binding on his half share.
iii) The executing court by the order dated 04.05.2017 rejected both these objections (Exhibit-16 and Exhibit-45).
o) Being aggrieved, Chetan and Anandibai have filed Writ Petition No.8597/2017.
p) Anandibai has died during pendency of these writ petitions and Chetan who is already on the record and other two heirs have been brought on record.
q) Ishwarlal died in 2009 and is survived by a son – Chetan.
r) Anandibai and Chetan filed Tenancy Case No.9/2012 before the Agriculture and Lands Tribunal (ALT) under Section 32 (G) of the Maharashtra Tenancy and Agricultural Lands Act (hereinafter the Tenancy Act) asserting that their predecessor Deepchand was a permanent tenant who was cultivating the writ property personally on the tillers’ day i.e. 01.04.1957 and had become a deemed purchaser on that day and requested for fixing purchase price.
i) It was averred by Anandibai and Chetan that the writ property was in possession of Deepchand since the year 1920. The lease was being extended from time to time. He was personally cultivating the writ property.
ii) There was no reference about the lease being for cultivation of sugarcane crop while executing the lease deed on 06.08.1955.
iii) Without efflux of the period of lease of
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