2024:BHC-NAG:7034 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR SECOND APPEAL NO.239 OF 2018

1. Abid Husen Nijam Husen Sayyad, aged

68 years, Occ. Contractor

2. Nafis Jaha Abid Husen Sayyad, aged 50 years, Occ. Household, Both R/o Ambedkar Ward, Kurkheda, Post and Tah. Kurkheda, Dist. Gadchiroli. ...Appellants/Ori. DEFTS 1 & 2 on R.A.)

// VERSUS //

1. Namdeo Jairam Mankar, aged 65 years, Occ. Retired, R/o Ambedkar Ward, Kurkheda, Post and Tah. Kurkheda, Dist.

(Original Plaintiff on RA)

Gadchiroli

2. Gram Panchayat, Kurkheda, through Sarpanch, Off at Kurkheda, Post and Tah.

Kurkheda, Dist. Gadchiroli

3. Sheonath Jairam Mankar, aged 68 years, Occ. Agriculturist, R/o Khadegaon, Post Charbhatti, Tah. Kurkheda, Dist.

Gadchiroli

4. Ramesh Jairam Mankar, aged 59 years, Occ. Retired, R/o Chirchardi, Post and ... Respondents/ (Ori. DEFETS 2 to 4 on Tah. Kurkheda, Dist. Gadchiroli R.A.)

______________________________________________________________ Shri Arjun V. Bobde, Adv. h/f Ms Shubhangi A. Jadhao, Advocate for Appellant.

Shri Rohit Joshi, Advocate for Respondent No.1.

______________________________________________________________

CORAM :SANJAY A. DESHMUKH, J.

DATE OF RESERVING THE JUDGMENT : 21/06/2024 DATE OF PRONOUNCING THE JUDGMENT : 28/06/2024

1. Heard.

2. This second appeal is preferred by the original defendant against the judgment and decree passed by the learned Principal District Judge, Gadchiroli in Regular Civil Appeal No.08 of 2012 dated 17.01.2018 which was preferred against the judgment and decree passed by the learned Civil Judge, Jr. Dn. Kurkheda, Dist. Gadchiroli in Regular Civil Suit No.12 of 2009 (Old No.13 of 2001) dated 23.02.2012. The landlord had filed the suit for eviction and vacant possession of suit premises as well as for enquiry into mesne profits and damages. The suit was decreed and appeal was dismissed.

3. The factual matrix of the case are as under:

a) A land Survey No.93/3 [New No.204], Chalta No.81 and Sheet No.5, having House No.33 situated at Ambedkar Ward, Gram Panchayat, Kurkheda, Tahsil Kurkheda, Dist. Gadchiroli, is the subject matter of the suit. Hereinafter it is referred to as “the suit premises”. The parties are referred as landlord and tenant :

b) The suit premises were let in the year 1983 for a monthly rent of Rs.250/- to the tenant defendant No.1. The rent was paid till 31.12.1990 thereafter, rent was not paid. The tenant illegally constructed Kaccha latrine and compound wall without permission of the landlord. The landlord came to know that tenant purchased the suit premises i.e. 56 X 48 Sq.ft. of land i.e. alleged share of defendant Nos.4 and 5. The defendant Nos.4 and 5 had no legal right to sale the suit premises. It is lastly prayed to hand over the possession of the suit premises.

4. a) By their written statement, tenant denied all the contentions in the plaint. It is contended that, the suit premises is abadi land. Defendant Nos.4 to 6 proposed to sale suit premises along with open space. Therefore, tenant purchased it from them for the valuable consideration. By agreement to sale, tenant’s possession was confirmed.

b) The landlord relinquished right in the suit premises by receiving costs of construction i.e. Rs.1,800/- in cash and also executed an agreement to sale on 14.10.1986. Now, tenant is the owner of the suit premises. The tenant has raised the construction in the suit premises by spending Rs.1,00,000/-. Defendant No.3 has supported the tenant by filing their written statement and denied all the allegations made against him in the plaint. The learned trial Court decreed the suit and the learned first appellate Court dismissed the appeal.

5. The learned Advocate for the tenant submitted that, the suit premises belongs to the State Government and the landlord has no right, title and interest in it. His possession over the suit premises is only as a trespasser / encroacher. He pointed out the Sections 50 and 51 of the Maharashtra Land Revenue Code, 1966. He further pointed out