IMPORTANT POINT
The civil court retains jurisdiction to adjudicate on joint family property matters, even when tenancy rights are involved, unless specifically barred by the Tenancy Act.

JUDGMENT :

GAURI GODSE, J.

BASIC FACTS:

1. This second appeal is preferred by the original defendants to challenge the concurrent judgments and decrees granting 1/4th share each to the plaintiffs, i.e. heirs of Sonba, Kondiba and Rangnath. The original holder of the suit property was Dashrath. Dashrath had four sons - Vitthal, Sonba, Kondiba and Rangnath. Defendants are heirs of Vitthal. Both the courts have held that all four sons of Dashrath would be entitled to 1/4th share in the suit property. Hence, the branch of each of the sons is held entitled to a 1/4th share in the suit property.

2. The second appeal was admitted by order dated 25th November 2013 on the following substantial question of law:

“(N) Whether both the learned lower courts are justified in over looking the Mutation Entry No. 8681 at Exhibit-71 which was certified in the year 1948 which clearly indicate the name of deceased Vitthal (Predecessor of the Appellants/Original Defendants) as protected tenant in respect of the suit property.”

3. By order dated 27th August 2018, the question of law was modified, and one additional question of law was framed. Therefore, the second appeal is heard on the modified and the additional question of law, which reads as under:

(i) Whether the judgment delivered by both the lower courts suffer from ignorance of the 32M certificate issued in favour of Vitthal and its effect?

(ii) Whether the civil court has jurisdiction to consider as to whether a person holding 32M certificate holds it in an individual capacity or as Manager of the joint family?

SUBMISSIONS ON BEHALF OF APPELLANTS:

4. Learned counsel for the appellants submitted that the certificate under Section 32M of the Maharashtra Tenancy and Agricultural Lands Act (‘Tenancy Act’) was issued in the defendants' name as their father, i.e. Vitthal, was the protected tenant. He submitted that the revenue record with respect to the suit property, i.e. survey no. 143 (new Gat No. 51) shows the name of Vitthal as a protected tenant. He submitted that the suit properties were excluded from the partition that had taken place amongst the parties. He submits that the mutation entry regarding the partition does not include the suit property. Learned counsel for the appellants, thus, submits that the suit property, being the independent property of Vitthal, was excluded from partition.

5. Learned counsel for the appellants further submitted that according to the plaintiffs, Dashrath expired on 9th October 1945. However, according to the defendants, Dashrath died sometime in the year 1953. Learned counsel for the appellants submitted that all the parties participated in the proceedings under the Tenancy Act. They had appeared to oppose the grant of a 32M certificate in the name of the defendants. He submitted that after hearing all the parties, the order fixing the purchase price under Section 32G of the Tenancy Act was passed in favour of the defendants. He submits that, accordingly, the certificate under Section 32M was also issued in the name of the defendants. Learned counsel for the appellants, thus, submits that issuance of the certificate under Section 32M is the conclusive proof of title and possession of defendants. He, thus, submits that the property is Vitthal's exclusive property, and the plaintiffs are not entitled to seek partition and separate possession.

6. Learned counsel for the appellants further submitted that the plaintiffs failed to disclose the order passed under Section 32G and the certificate issued under Section 32M. He submits that the order under Section 32G was issued on 15th July 2000. The suit was filed on 15th September 2002, suppressing the order passed under Section 32G. He, thus, submits that the plaintiffs were liable to be non-suited on the ground of suppression of material fact. Learned counsel for the appellants submitted that the first appellate court failed to consider the evidence on record and incorrectly noted the year of death of Dashrath as 1956. Lea