Iresh IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 390 OF 2011

1. Ramesh Bagaram Mankane Adult, Occ: Agriculture, Residing at: Gulsunde, Tal. Panvel, District Raigad.

2. Hemant Bagaram Mankame Adult, Occ: Agriculture, Residing at: Gulsunde, Tal. Panvel, District Raigad. ….Appellants Vs.

1. Vasant Dattatray Pawar (Deceased)

through legal heirs

1/1. Smt. Vasanti Vasant Pawar (Since deceased through legal heirs)

1/1.1) Mrs. Manisha Rajendra Chavan Age 36 years, Occ: Household, R/at Ratholi, Tal- Badlapur, Dist. Thane.

1/1.2) Mr. Manoj Vasant Pawar Age 34 years Residing at: Gulsunde, Tal. Panvel, District Raigad.

1/1.3) Mr. Mangesh Vasant Pawar Age 30 years R/at Gulsunde Tal- Panvel, Dist- Raigad.

2. Shri. Mukund Dattatray Pawar, Adult, Residing at- Gulsunde Tal-Panvel, District Raigad.

3. Shri. Ganesh Dattatray Pawar Adult, Residing at- Gulsunde Tal-Panvel, District Raigad.

4. Shri. Suresh Dattatray Pawar Adult, Residing at- Gulsunde Tal-Panvel, District Raigad.

5. Shri. Tukaram Dattatray Pawar Adult, Residing at- Gulsunde Tal-Panvel, District Raigad.

6. Kum. Shobha Dattatray Pawar Residing at- Gulsunde Tal-Panvel, District Raigad.

7. Ku. Ranjana Dattatray Pawar Residing at- Gulsunde Tal-Panvel, District Raigad.

8. Smt. Sitabai Dattray Pawar Residing at- Gulsunde Tal-Panvel, District Raigad.

(Appeal stand abated against respondent no. 8 vide Reg.

Judl-I Order dated 18/11/2011) ….Respondents Mr. Venkatesh A. Shastry Advocate for the Appellants Mr. Ajay Joshi h/f Mr. Rajesh More Advocate for the Respondents CORAM : GAURI GODSE, J.

RESERVED ON: 24^th OCTOBER 2024 PRONOUNCED ON: 18^th FEBRUARY 2025 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 16^th January 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 26^th 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