1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.20 OF 1988 1. Mahadappa Sangappa Bhange age 50 years, occupation:Agril. r/of Mahapur, Taluka Ambajogai, Appellant/orig now Taluka and District Latur. Ori.deft.No.4. 2. Manik s/o Sangappa Bhange, age 65 years, occup. Agril. r/o Mahapur, Taluka and Dist. Latur (died), through LRs:- 2/1 Gangabai w/o Manik Bhange, age 60 years, occup.household 2/2. Kamalakar s/o Manik Bhange, age 38 years, occup. agril. 2/3. Kadubai w/o Deelip Hasmate, age 25 yrs.occup.household, All r/of Mahapur, Taluka & District Latur. 3. Laxmanrao s/o Sangappa Bhange, age 50 years,occupation Agril. r/of Mahapur,Tq. & Dist.Latur. 4. Vaijinath s/o Sangappa Bhange, age 69 years, occup. Agril. r/o Mahapur, Taluka and Dist. Latur. (Died), through L.Rs. 4-I. Venubai w/o Vaijinath Bhange, age 55 years, occup.household, 2 4-II. Santosh s/o Vaijinath Bhange, age 26 years, occup. Agril. 4-III. Anant s/o Vaijinath Bhange, age 24 years, occup. Agril. 4-IV. Patita d/o Somnath Kothiwale, age 22 years, occup.household All r/of Mahapur, Taluka and District Latur. 5. Smt. Sitabai Ramappa Bhange, age 60 years, occup.household, 6. Naresh Ramappa Bhange, age 45 years, occup. agril. 7. Vijaykumar Ramappa Bhange, age 38 years, occup. Agril. 8. Balasaheb Ramappa Bhange, age 38 years, occup. Agril. 9. Suresh Ramappa Bhange, age 35 years, occup. Agril. 10. Raju Ramappa Bhange, age 30 years, occup. Agril. 11. Ganpati Sangappa Bhange, age 70 years, occup. Agril. (died), through L.Rs.:- 11/A. Smt. Sarajabai w/o Ganpati Bhange, age 70 years, occup. household. 3 11/B. Sow. Komal w/o Kisan Rajale, age 30 years, occup.household both r/of Mahapur, Taluka and Appellants. District Latur. versus 1. Shivaji Narsu Dhormare, age 45 years, (died), through L.Rs.:- 1(i) Devaibai Shivaji Dhormare, age 75 yrs.occup.household, 1(ii) Shrihari Shivaji Dhormare, age 50 years, occup.service 1(iii) Balbhim Shivaji Dhormare, age 46 years, occup. agril. 1(iv) Dnyanoba Shivaji Dhormare, age 42 years, occup.Agril. 1(v) Sau. Gangubai Dnyandeo Mane, age 55 years, occup. Agril. All r/of Harwadi, Tq.Renapur, District Latur. 2. Narayan Narsu Dhormare, age 35 years, occup. Agril. r/of Harwadi, Tq. Ambajogai, Now Tq. and Dist. Latur. 3. Bansiprasad Hariprasad Awasthi age 70 years, occup. and r/of as above, now at Madhla Maruti Galli, Latur. 4 4. Sudarshan Prasad Sunder Prasad Awasthi, age 18 years, occup. and r/of as above. Respondents/ Resp.Nos.1 & 2 5. Rameshlal Sunder Prasad ori.pltffs. & Awasthi age 19 years, Resp.No.3 to 5 occup. and r/of as above. orig.deft.Nos. 1 to 3. ------------------------------------------------------ Shri S.S.Halkude, Advocate, for the appellant. Shri S.S.Choudhari, Advocate, instructed by Shri D.A.Mane, Advocate for Respondent Nos. 1 and 2 and for legal heirs of Respondent No.4. Shri S.P. Urgunde, Advocate for Respondent Nos. 3 and 5. ------------------------------------------------------ Coram : P.R. Borkar, J. Judgment reserved on : 05.05.2010 Judgment pronounced on : 07.05.2010 ORAL JUDGMENT 01. This second appeal is preferred by original Defendant No.4 Mahadappa, being aggrieved by common judgment and decree passed by the District Judge, Latur, in two appeals i.e. Regular Civil Appeal No.130 of 1983 and 131 of 1983 decided on 2.1.1988 whereby appeal No.130 of 1983 filed by plaintiffs (Respondent Nos.1 and 2 herein) for possession of the suit property was 5 allowed and appeal No.131 of 1983 filed by original defendant No. 4 Mahadappa (present appellant) challenging the finding of the trial court on issue No.1 holding the plaintiffs to be the owners on title of the suit land was dismissed. Said two Regular Civil Appeals were directed against the judgment and decree of the Joint Civil Judge, Junior Division, Ambajogai in Regular Civil Suit No.338 of 1975 decided on 28.8.1980. Plaintiffs had filed first appeal because the trial court had dismissed their suit for possession, and defendant No. 4 had filed first appeal because it was held by the trial court that the plaintiffs had superior title and that defendant Nos. 1 to 3 (present respondent Nos. 3 to 5) had no title to the suit property and they could not have created tenancy in respect of the suit property in favour of defendant No.4- appellant herein. 02. At this stage itself, it may be made clear that pending this appeal, five brothers of Mahadappa were joined as appellants and thereafter 6 four out of six brothers compromised the matter with original plaintiffs (Respondent Nos.1 and 2 herein). However two of the brothers refused to compromise the matter and they wanted to pursue the appeal. As a result, those four brothers, who wanted to compromise the matter, were transposed as Respondents and those two brothers who did not want to compromise the matter and prosecute the appeal, were continued to be the appellants. 03. For proper appreciation of the core issue involved in this case, it is necessary to reproduce in brief some part of the pleadings giving rise to this second appeal as under; Present Respondent Nos.1 and 2 (original plaintiffs) filed R.C.S. No.338 of 1975 for possession of western one half portion of survey No.68 ad-measuring 31 acres 36 gunthas of village Harwadi, Taluka Ambajogai, District Beed. They averred that Survey No.68 was their ancestral property. The said property was divided into two parts i.e. survey No.68A and 68AA. It is the 7 western side 1/2 portion of Survey No.68 i.e. Survey No.68A which is the subject matter of the suit (hereinafter referred to as "the suit property."). It is stated that the suit property was initially given by father of the Plaintiffs (Respondent Nos.1 and 2) by oral mortgage to one Sonabai w/o Ramprasad in 1332 Fasli (i.e. 1923 A.D.) and on the basis of said oral mortgage she became possessor of the suit property. The father of the Plaintiffs (Respondent Nos.1 and 2) expired in 1350 Fasli. At that time, the plaintiffs were minor. Subsequently, Sonabai w/of Ramprashad Awasthi took one Bhagwanprashad in adoption. She died in 1342 Fasli. Laxmnaprashad, the natural brother of Bhawanprashad, became possessor of the suit property. It is stated that since the death of Sonabai in 1342 Fasli till 1348 Fasli, Laxmanprashad continued to be in possession. In 1348 Fasli, father of the plaintiffs (respondent Nos.1 and 2) gave entire survey No.68 in mortgage for Rs.1000/= to one Sakharam Dhanorkar for a period of nine years. At that time, mortgage in favour of Sonabai Awasthi was redeemed and 8 Sakharam Dhanorkar continued to be in possession of the said property. It is further stated that in 1357 Fasli (1947 A.D.) the period of mortgage of Sakharam was over and the maternal uncle of the plaintiffs gave the entire property for cultivation to one Santram s/o Rama Babhulgave for a period of five years and thereafter to one Bhaurao s/o Vithalrao Mane for three years on crop share basis. 04. In paragraph 7 of the plaint, it is stated that in 1954 A.D., the plaintiffs came to reside at village Harwadi from the house of their maternal uncle. They were also to procure implements and bullocks for cultivating the land and, therefore, for Rs.2000/= western side half portion of survey No.68 was given by oral mortgage to Defendant No.1 Bansiprashad who was brother of Laxmanprashad referred to above and thus Bansiprashad became possessor of the suit property. It is stated that since the family of Bansiprashad and Laxmanprashad was an influential family, they got their names entered in the 9 revenue record on the basis of mortgage and showed the name of father of defendant No.4 (present appellant) as tenant in respect of the suit property. From 1957 onwards, the disputes arose over tenancy rights, but the plaintiffs- Respondent Nos. 1 and 2 remained quiet until the period of 20 years of mortgage was over. In the meantime, Respondent Nos. 3 to 5 (original Defendant Nos. 1 to 3 in present suit) filed R.C.S No.202 of 1966 against Mahadappa-appellant herein (defendant No.4 in present suit) and his brothers. That suit was decreed on admission. So, the present appellant- Mahadappa was under impression that the dispute over tenancy was over and therefore he waited for period of mortgage to over. It is further stated that after decision in R.C.S. 202 of 1966, present appellant Mahadappa (Defendant No.4) and his brothers again started tenancy proceedings and in October 1973 they obtained possession over survey No.68A. It is stated that since the plaintiffs-respondent Nos.1 and 2 were not parties to the said tenancy proceedings, the decisions in those proceedings 10 were not binding on the plaintiffs. After the period of mortgage was over, they became entitled to get possession of the suit property on the basis of title. In paragraph 11 of the plaint, it is specifically stated that the cause of action to file the suit arose only after the period of oral mortgage was over in June 1974. In the circumstances, the suit was filed for possession simplicitor. 05. Defendant Nos.1 to 3 Bansiprashad, Sudarshanprashad and Rameshlal (present Respondents 3 to 5) filed their common written statement at Exhibit 2. They stated that the plaintiffs (respondent Nos.1 and 2 herein) were not the owners and possessors of the suit property. The father of the plaintiffs had never mortgaged the suit property in favour of Sonabai Awasthi. All averments of the plaintiffs regarding oral mortgages or redemptions of the same or regarding giving the suit property on crop share basis to Santram Babhulgave or Bhausaheb Mane are false. It is, however, admitted that R.C.S. No. 11 202 of 1966 was filed and was decreed. It is denied that in 1954, the suit property was given on mortgage to Defendant No.1 Bansiprashad and he got his name entered in revenue record by using influence.In paragraph 5 of the written statement, it is further stated that present appellant Mahadapaa (defendant No.4) was declared as tenant-purchaser under the provisions of the Hyderabad Tenancy and Agricultural Lands Act ("The H.T. & A.L. Act" for brevity's sake) and was put into possession of the suit property along with his brothers as per the provisions of Section 38- E(1) of the H.T. & A.L. Act. However, regarding the same writ petition had been filed in the High Court and the same was pending. It is further stated in paragraph 7 of the Written statement that the declarations under H.T.& A.L. Act or decision by tenancy authorities cannot be challenged by the plaintiffs in the civil court and those are binding on the plaintiffs.It is also stated that Defendant Nos. 1 to 3 (Respondent Nos. 3 to 5 herein) are unnecessarily made parties to the suit.It is stated that in fact, defendants No. 12 1 to 3 are the owners of the suit property. In paragraph 15 of Written statement, it is further stated that name of father of present appellant Mahadappa (defendant No.4) and after his death name of the appellant were wrongly mentioned in tenancy register and they were wrongly declared as tenants. On the basis of these pleadings, it is prayed that the suit be dismissed. 06. Present appellant Mahadappa (original defendant No.4) filed written statement at Exhibit 34-B and denied that original plaintiffs (Respondent Nos.1 and 2 herein) or their father was ever owner of the suit property or the suit property was ever given in mortgage or on crop share basis to anybody else. It is, however, admitted that original defendant No.1 Bansiprashad (Respondent No.3 herein) had filed R.C.S. No.202 of 1966 and it was decreed. It is denied that wrongly the name of Bansiprashad was entered in revenue record as owner. It is stated that the suit property had been in possession of Defendant No.4 Mahadappa (present appellant) and his 13 brothers and mother. It is further stated that the rights of present appellant Mahadappa (defendant No.4) declared under the H.T. & A.L. Act cannot be challenged by plaintiffs in the civil court and the decisions of tenancy authorities are binding on the plaintiffs (respondent Nos.1 and 2). If at all the plaintiffs want possession of the suit property, they should approach tenancy court. The civil court had no jurisdiction and, therefore, the civil suit be dismissed. It is stated that in R.C.S. No.202 of 1966 under false promises, false statements of defendants were recorded. The father of the appellant Mahadappa (defendant No.4) was declared as tenant and the revision petition against the same was pending in the High Court. Civil court cannot extinguish tenancy rights.The appellant Mahadappa-defendant No.4 and his father had been in possession for 50 years. It was, therefore, prayed that the suit be dismissed. 07. The trial court framed various issues and it came to the conclusion that though the plaintiffs proved their title over the suit 14 property, they failed to prove that the suit property was given in oral mortgage to Defendant No.1 (Respondent No.3) in 1954. The trial court, although dealt with issue No.3 whether the tenancy of defendant No.4 Mahadappa (appellant herein) over the suit land is binding on the plaintiffs, has not answered the said issue saying that mortgage was not proved. The Court held that the plaintiffs were not entitled to possession. The suit for possession was therefore, dismissed, by holding that though the plaintiffs were entitled to possession of the suit property, civil court could not give delivery of possession, in view of declaration under Section 38-E(1) of the H.T. & A.L. Act which stands in the way and civil court cannot surpass it. It was therefore, held that giving possession of the suit property was beyond jurisdiction of the civil court as is evident from observations at the end of paragraph 27 of the judgment. 08. The District Court, however, held that the plaintiffs (respondent Nos.1 and 2 herein) 15 were having absolute or superior title over the suit property since the mortgage which was oral, is not binding, valid mortgage. The mortgagee i.e. present Respondent Nos.3 to 5 (original defendant Nos.1 to 3) were not entitled to induct present appellant Mahadappa (defendant No.4) as tenant. The learned District Judge held that the Civil Court has right to decide civil rights and, therefore, the learned District Judge decreed the suit and passed the decree for possession. 09. This second appeal is admitted by order dated 17.2.1988 on substantial questions of law involved in ground Nos. 6 and 9 of the appeal memo which read thus; "6. In view of the finding that the Appellant is to be protected tenancy of the Appellant, which had remained unchallenged, and as such final and binding, the learned District Judge committed an error of law in allowing the discussion on this point, which would lead to multiplicity of litigation on the same point which has been decided earlier. 9. The learned District Judge committed an error of law in not accepting the conclusiveness of a certificate under Section 38-E of the Act, which has been aimed at by 16 the statute. Non observance of the presumptions in law is a substandard (substantial) question of law. 10. Shri S.S.Halkude, learned counsel for the appellant submitted that the first appellate court failed to appreciate that though original mortgage was not written and registered as required under the provisions of the Transfer of Property Act, still the plaintiffs have, by specific pleadings in para.7 of the plaint, admitted that original Defendant No.1 Bansiprashad was put in possession of western side half portion of the property in 1954 as mortgagee for a period of 20 years for mortgage amount of Rs.2,000/=. So, possession of Defendant No.1 Bansiprashad (Respondent No.3) cannot be said to be unlawful or that of trespasser as has been wrongly held by the first appellate court. Reading of entire paragraph 7 of the plaint makes it clear that in spite of knowledge of tenancy proceedings and delivery of possession of the suit property to the appellant's father as a tenant,original plaintiffs (Respondent Nos.1 and 2) kept quiet on the premise that 20 17 years period of mortgage was to over. It is also specifically mentioned in paragraph 8 of the plaint that as a result of decision in tenancy litigation, in October 1973 present appellant Mahadappa (defendant No.4) and his brothers obtained possession of the suit property. So, pleadings in paragraphs 7 and 8 of the plaint clearly indicate that the plaintiffs (Respondents No.1 and 2) were fully aware of the tenancy proceedings, but they kept quiet because mortgage period of 20 years was yet to over and that is why in para.11 of the plaint, it is specifically stated that after the mortgage period was over, the cause of action had arisen in June-1874 for getting possession. One thing is very clear from the parties are bound by their pleadings and they are not allowed to lead evidence contrary to the pleadings and if there such evidence, the same has to be ignored as being improvement over and above the pleadings. The only reason given in paragraph 10 of the plaint is that since the plaintiffs/respondent Nos.1 and 2 and their father were not parties to the tenancy proceedings, 18 decisions in those proceedings were not binding on them. Even assuming that it was not a legal mortgage, still possession of Defendant No. 1/Respondent No.3 Bansiprashad cannot be said to be of a trespasser, as it was a permissive possession which is relevant when we consider the provisions of the H.T. & A.L. Act. 11. Shri S.S.Halkude, learned counsel for the appellant argued that though the original mortgage was oral and not written and registered, still we find entries in revenue record regarding right of Defendant No.1/Respondent No.3 Bansiprashad as back as in the year 1954. He referred to Exhibit 59/C which is a Pahani Patrak of the year 1954 A.D. in which name of Defendant No.1/Respondent No.3 Bansiprashad was shown as Shikmidar. The word "Shikmidar" is defined in sub-section (12) of Section 2 of the Land Revenue Act of His Exalted Highness the Nizam's Dominions, 1318 Fasli (No.8 of 1317 Fasli), which reads:- 19 "2(12) "Shikmidar" signifies the person who like a "Pattadar" possesses a right to the land or who from the beginning has been jointly in possession with the Pattadar or who before the promulgation of this Act, by virtue of any rule in force, has acquired the right of a Shikmidar or shall hereafter acquire such right under the provisions of this Act." 12. It is, therefore, argued by learned Advocate Shri Halkude that Shikmidar is no less than Pattadar and, therefore, he cannot be said to be a trespasser as held by the District Court. It is further argued by the learned counsel that even assuming that there was oral mortgage, it has been accepted by the plaintiffs (Respondent Nos.1 and 2) as valid and it was acted upon, as stated in the plaint itself, by putting Defendant No.1 (Respondent No.3) Bansiprashad into possession and by admitting receipt of Rs.2000/= by plaintiff No. 1 (Respondent No.1) and therefore abstaining from challenging the same thereafter. 13. In the case of Lachhmi Narain vs. Kalyan AIR 1960 Rajasthan 1, it is held that by virtue of Section 28 of the Limitation Act, 1908, the 20 limited right of mortgagee can be acquired by adverse possession. It can be so acquired even if mortgagee has obtained possession under a void or inoperative mortgage deed. The provisions of Section 59 of the Transfer of Property Act are not in any way affected on account of acquisition of rights by prescription. The rights of the parties can be regulated by law if no valid agreement exists. In the said case, there was an unregistered document and delivery of possession. It was held that the suit for redemption of mortgage created by operation of law is governed by Article 148 of the Limitation Act and the period will run after the expiry of 12 years from the date when possession was taken under such mortgage deed. In the said case, authorities of the Supreme Court and of Privy Council were relied upon. Similar view is taken by Madhya Pradesh High Court in Balkrishn vs. Mohsin Bhai AIR 1999 M.P. 86. 14. Shri Halkude, learned counsel for the appellant also relied upon Ram Kumar vs. Jagdish 21 Chandra 1952 S.C.23, wherein the same principle was applied to the agreement of lease. Another case on the same point relied upon is of Collector of Bombay vs. Municipal Corporation of the City of Bombay AIR 1951 SC 469. In that case, grant in favour of Municipal Corporation, though invalid; was held to have acquired status of legal grant by virtue of adverse possession. 15. Relying upon the aforesaid rulings, it is submitted by the learned counsel for appellant- Mahadappa (original defendant no.4) that though oral mortgage was initially invalid as not being in writing and not registered, but by efflux of time and by acceptance of the same by the parties and particularly by the plaintiffs in their plaint itself, the mortgage can be treated as a valid mortgage. It is argued that Defendant No. 1/Respondent No.3 Bansiprashad was shown as Shikmidar and the tenancy created by Shikmidar is equally valid. It is also stated that in the revenue record of 1954 onwards, though name of Defendant No.1 Bansiprashad was shown, he was 22 never shown as mortgagee or Murtahin which is a Urdu word for english word "Mortgagee". 16. On behalf of the appellant, reliance was also placed on Saraswatibai Gaiakwad vs. Damodhar Motiwale 2002 (2) ALL MR.944 (S.C.). In the said case, as paras. 2 and 3 disclose; one Narayan Motiwale was the owner of certain pieces of land. He was survived by two children, namely, son Dattatraya and daughter Tarabai. Dattatraya became owner of the property after death of his father. By a registered settlement deed dated 12.1.1927, Dattatraya gave certain pieces of lands to his sister Tarabai for her maintenance during her life time. The settlement deed was for a limited right to be enjoyed by Tarabai during her life time. However, Tarabai leased out one piece of land to a tenant in 1968. Dattatraya filed suit bearing No.362 of 1969 against Tarabai that he was the owner of the property leased out and not Tarabai and she had a limited interest and, therefore, could not have leased out the land. In the meantime, the tenant applied for 23 tenancy right under the provisions of the Bombay Tenancy and Agricultural Lands Act. In paragraph 17, the Supreme Court observed thus; "17.......................................... Thus,it is to be seen that a Civil Court does not have jurisdiction to decide matters which are required to be dealt with by the Tribunal under the said Act. Thus, it is only the Tribunal which can decide whether a person is deemed to be a tenant and whether he is entitled to purchase the land held by him. The Civil Court has no jurisdiction to decide such a question. Even if such a question was to be raised in a proceeding before it, the civil Court would have to refer the issue to the authority under the said Act. The Suit would then have to be disposed of in accordance with the decision of the authority. Thus, if the Tribunal fixes a purchase price and issues a certificate then that certificate would be conclusive proof of purchase. The civil Court would then be bound to give effect to the certificate and cannot ignore it." 17. It is argued before this court that the provisions of the Bombay Tenancy and Agricultural Lands Act are almost para-materia and the trial court was justified and correct in holding that it had no right to question the purchase certificate issued in favour of appellant Mahadappa (defendant No.4) 24 under the provisions of H.T. & A.L. Act and the first appellate court erred in unnecessarily trying to distinguish and assume jurisdiction which, in fact, it did not have, and directed dispossession of the tenant. It is also argued that when the rights of the appellant-tenant were confirmed upto the High Court and when it was brought to the notice of the District Court that the matter was pending before the High Court regarding right of purchase by tenant between tenant