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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION 1418 OF 2022

Vasudeo Gangaram Gurav & Anr.

…Petitioners

vs.

Parshuram Gangaram Gurav & Ors.

...Respondents

Mr.R.D. Suryawanshi with Suraj Naik for Petitioners.

Mr.V.L. Gurav for Respondent.

CORAM : ROHIT B. DEO, J.

DATED : 21 JUNE 2022

P.C. :

1.

The Petitioners are the original Plaintiffs who have instituted

Regular Civil Suit 53/2019 seeking decree of partition, separate possession,

declaration and perpetual injunction qua 42 agricultural lands (suit

properties).

2.

The Plaintiffs preferred an application under Order 39 Rules 1

and 2 of the Code of Civil Procedure dated 8 August 2019 seeking

injunctive relief against Defendant 1 – Respondent 1 herein qua the

property at Serial 1 of the Schedule. The Plaintiffs asserted that on 2 April

2019, the Defendant 1 entered into an agreement of sale in favour of

Defendant 4 qua the said property and an application seeking permission to

sell the said property is pending with the Sub-Divisional Officer, Rajapur.

3.

The Defendant 1 resisted the application on the premise that

the said property at Serial 1 and the properties at Serial 2 to 12 are

exclusively owned by the Defendant 1 in view of the certificate granted in

1 / 4

SANSKRUTI

A THAKUR

Digitally

signed by

SANSKRUTI

A THAKUR

Date:

2022.06.22

18:53:32

+0530

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9a. wp 1418-2022

his favour under Section 32-M of the Maharashtra Tenancy and

Agricultural Lands Act (“the Tenancy Act”).

4.

The learned trial Judge was pleased to allow the application

seeking temporary injunction, vide order dated 9 August 2019. The

Defendant 1 challenged the said order in Miscellaneous Civil Appeal

36/2019 which is allowed by the Principal District Judge, Ratnagiri, vide

judgment dated 11 January 2022.

5.

The learned Appellate Court was pleased to reverse the order

of the trial Judge accepting the submission of the Defendant 1 that the civil

court is precluded from entertaining a submission that the tenant in whose

name the certificate is issued, is not the exclusive owner and that the

certificate enures for the benefit of all the members of the joint families.

Presumably, the learned Appellate Court was impelled to arrive at such

conclusion, since the entire focus of the arguments advanced on behalf of

the Plaintiffs was to demonstrate that the certificate issued under Section

32-M is not in accordance with the statutory provisions.

6.

It is not in dispute that the Defendant 1 has entered into an

agreement to sell property at Serial 1 in favour of the Defendant 4 and has

preferred an application under Section 43 of the Tenancy Act seeking

permission to complete the conveyance. The short question which falls for

consideration, is whether the learned Appellate Court was justified in

interfering with the discretion exercised by the trial Judge on the premise

that the civil court’s jurisdiction is ousted.

7.

The learned Counsel for the Petitioners has invited my

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attention to the decision in Rajaram Mahadu Dahatonde (D) thr. LRs. Vs.

Babu Mahadu Dahatonde

1. An identical question which fell for

consideration, is answered thus :

“23. The aforesaid proposition made by the learned

counsel for the appellants is not at all acceptable in this

case. Firstly, the bar of jurisdiction under Bombay

Tenancy Act is applicable only with regard to the subject

matters mentioned in the Bombay Tenancy Act. Secondly,

the bar does not mean that for all purposes the

jurisdiction of Civil Court is taken away. Under the

Bombay Tenancy Act, the tenant'

s rights are hereditary.

Tenancy rights can be acquired by single person or more

persons or even by joint Hindu family. The disputes

which are between tenant and the landlord are expected

to be considered by the tenancy Court. In the present

matter, the question is, whether the three properties

mentioned in three certificates given under section 32-M

of the Bombay Tenancy Act