The court affirmed that ownership established through tenancy certificates prevails over claims of possession based on unproven agreements or wills, emphasizing the necessity of fulfilling statutory conditions for possession claims.

JUDGMENT :

Facts in brief:

1. This second appeal is preferred by original defendant nos. 1 and 2 to challenge the concurrent judgments and decrees granting declaration of title of the suit property and injunction restraining the defendants from obstructing the plaintiffs’ possession over the eastern side of suit property shown in green color in the suit map.

2. The respondents are original plaintiffs who had filed the suit for declaration and injunction based on title. Plaintiff nos. 1 to 5 are real brothers, and plaintiff nos. 6 and 7 are their sisters. Plaintiff no. 8 is their mother. The plaintiffs are claiming through the original owner Dattatray, i.e. father of plaintiff nos. 1 to 7 and husband of plaintiff no. 8. There is no dispute that Dattatray was the original owner of the suit property. Defendants are claiming rights in the suit property based on two agreements, one possession receipt and a Will allegedly executed by Dattatray. The trial Court decreed the suit granting declaration of title and injunction as prayed, and the said decree is confirmed in the first appeal preferred by the defendants.

3. By an order dated 16thJanuary 2014, the second appeal was admitted on the following substantial question of law:

“(i) Whether there is a bar under section 43 of the Bombay Tenancy and Agricultural Lands Act, to transfer the tenancy land by a Will?”

4. When the second appeal was taken up for final disposal, learned counsel for the appellants submitted that in view of the decision of the Hon’ble Apex Court in the case of Vinodchandra Sakarlal Kapadia Vs. State of Gujarat and others, 2020 AIR (SC) 5138, the aforesaid question of law is no longer res integra. He submitted that as held by the Hon’ble Apex Court, there is a bar under Section 43 of The Maharashtra Tenancy and Agricultural Lands Act, 1948 (‘Tenancy Act’) for testamentary disposition. He thus submits that the question of law framed is not required to be answered by this Court. However, learned counsel for the appellants pointed out that the second appeal raised another question of law. Hence, the parties were heard on 26th September 2024, and the following question of law was framed under the proviso to sub-section (5) of Section 100 of Code of Civil Procedure, 1908, which reads as under:

“(i) Whether the findings recorded by both the courts regarding the plaintiffs being in possession of eastern side of the suit property would amount to incorrect appreciation of the evidence on record and more particularly ignoring the admissions given by PW-1?”

Submissions on behalf of appellants:

5. Learned counsel for the appellants submitted that the suit property was a tenanted property, and a certificate under Section 32M of the Tenancy Act was issued in the name of Dattatray on 31st May 1966. Learned counsel for the appellants submitted that through the suit property, there was a road passing through to reach another village by the name Dandphata. He submitted that the said village road was passing through the North-South direction. He thus submitted that the suit property was divided into two parts, i.e. one on the eastern side of the road, which the plaintiffs claimed to be in possession, and the western part of the road, in possession of the defendants.

6. Learned counsel for the appellants submitted that the plaintiffs filed a suit on the ground that the defendants were obstructing the plaintiffs’ possession over the eastern side of the said road. The appellants relied upon the agreement to sale deed 20th June 1983 executed by Dattatray in favour of the defendants. Learned counsel for the appellants submitted that by way of the said agreement for sale, the defendants had paid the amount of Rs. 10,000/- as an earnest amount out of total consideration agreed at Rs. 22,000/-. Learned counsel for the appellants submitted that thereafter another