IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO. 655 OF 1986. APPEAL NO. 655 OF 1986. APPEAL NO. 655 OF 1986. 1. Babu Dhondi Mohite (Hajam). 2. Nanu Dhondi Mohite (Hajam. 3. Smt.Rayanabai w/o.Anna Mohite. 4. Ramchandra Annappa Mohite. 5. Shamrao Annappa Mohite. 6. Hari Annappa Mohite. 7. Kisan Annappa Mohite. 8. Vishnu Annappa Mohite. 9. Kumari Balabai Annappa Mohite. 10.Manohar Dnyanu Mohite. (since deceased through LRs.) A) Sonabai Dnyanu Mohite. B) Laxmi Manohar Mohite. C) Anil Manohar Mohite. D) Sunil Manohar Mohite. 10-A to 10-D residing at Harpavade, Taluka Panhala, Dist.Kolhapur. 11.Jaysing Dnyanu Mohite. 12.Smt.Sonabai w/o.Dnyanu Mohite. (Plaintiffs Nos.5 to 9 minor by G.A.L.Appellant No.3 above). ... Appellants. (Org.Plaintiffs.) Versus. 1. Maruti Ramaji Patil. 1-a.Ananda Maruti Patil. 1-b.Jaitubai w/o.Maruti Patil. 1-c.Tulsabai Maruti Patil. 2. Sambhaji Dattatraya Patil. 3. Rajaram Dattatraya Patil. 4. Shivaji Dattatraya Patil. (Since deceased through LRs.) 4-A.Smt.Gangubai Shivaji Patil. 4-B.Vilas Shivaji Patil. 4-C.Vasant Shivaji Patil. 4-D.Eknath Shivaji Patil. 4-A to 4-D residents of Panore, Taluka Panhala, Dist.Kolhapur. 5. Dinkar Dattatraya Patil. 6. Smt.Hirabai w/o.Santu Patil. 7. Sou.Hirabai w/o.Dinkar Mohite. ... Respondents. (Org.Defendnats.) Shri Vineet B.Naik for the Appellants. Shri H.D.Gole for the Respondents Nos.1-A, 1-B, 1-C, 2 : 2 : 2 : 2 : and 3. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 26th November, 2007. : 26th November, 2007. : 26th November, 2007. ORAL ORAL ORAL JUDGMENT.: JUDGMENT.: JUDGMENT.: 1. Heard the learned Counsel appearing for the Appellants Nos.1 and 10A to 10D and learned Counsel appearing for Respondents Nos.1-A to 1-C and the Respondents Nos.2 and 3. 2. This Second Appeal was admitted on 2nd December 1986 by passing the following order: "To be heard along with W.P.No.209 of 1980 as the said petition and this S.A. relate to the same questions. Admitted." The said order shows that the substantial questions of law were not specifically framed at the stage of admission of the Appeal. After having heard the learned Counsel appearing for the parties. I find that grounds Nos.2, 3, 11 and 14 in the Memorandum of Appeal raise substantial questions of law. Accordingly the learned Counsel appearing for the parties have argued on the aforesaid substantial questions of law. 3. It will be necessary to refer to the facts of : 3 : 3 : 3 : the case in brief. The present Appellants are the original Plaintiffs. The dispute relates to the land bearing Survey No.50, Hissa No.1 and 2, totally admeasuring 2 acres and 27 gunthas situated at village Harapavade, Taluka Panhala, District Kolhapur. According to the case of the Appellants the suit property was owned by the 1st Respondent (original first Defendant) and one Dattatraya. The 2nd Respondents are the legal representatives of the said Dattatraya. According to the case of the Appellants the father of the Appellants was a tenant in respect of the suit land even before the provisions of the Bombay Tenancy and Agricultural lands Act, 1948 (hereinafter referred to as "the said Act of 1948) were applied to the District Kolhapur. According to the case of the Appellants on the tillar’s day i.e. 1st April 1957, their father was the tenant in possession of the suit land and therefore, he became a deemed purchaser under the provisions of the said Act of 1948. The father of the Appellants expired on 20th December 1974. 4. An Application made by the landlords for possession on the ground of requirement for bonafide cultivation was rejected by the Agricultural Lands Tribunal. According to the case of the Appellants their father was a deemed purchaser and owner of the suit property. : 4 : 4 : 4 : 5. The first Respondent and the deceased Dattatraya filed an application before the Sub-Divisional Officer, Shahuwadi, District Kolhapur contending that the Appellants’ father had encroached upon their property. By an order dated 18th January 1969 the Sub-Divisional Officer held that 13 gunthas of land out of the suit land shall be handed over to the 1st Respondent by the deceased Dattatraya. The Appellants’ father preferred an Appeal before the Collector. The said appeal wad decided against him. Thereafter a second appeal was preferred before the Commissioner, Pune. It was decided on 20th August 1975. In the meanwhile the Appellants’ father died and his heirs were not brought on record. The Appellants filed a suit for declaration that the orders passed by the Sub-Divisional Officer as well as by the Collector and the Commissioner were null and void. A declaration was also sought that the orders were not capable of being executed and it was also contended that the Respondents cannot take possession of any portion of the land on the basis of the said orders. 6. The suit was contested by the Respondents by filing their written statement. It was contended that the name of the Appellants’ father was wrongly entered into the 7x12 extract as on 1st April 1957. It was contended that the Civil Court had no jurisdiction to : 5 : 5 : 5 : set aside the decisions as prayed by the Appellants. The trial Court decreed the suit by judgment and decree dated 9th March 1987. The trial Court held that the deceased father of the Appellants was a tenant as on 1st April 1957 and he became a deemed purchaser of the suit land. The issue of jurisdiction was decided by the trial Court in favour of the Appellants. In an Appeal preferred by the Respondents, the District Court interfered by holding that the Civil Court had no jurisdiction to entertain and try the suit. The Appellate Court referred to the orders passed by the authorities under the said Act of 1948 holding that the possession of the Respondents was illegal and they should be summarily evicted from the suit land. The Appellate Court referred to the fact that the orders passed by the authorities under the said Act of 1948 were challenged by the Respondents by filing a Writ Petition in this Court by accepting the statement to that effect made across the bar. The Appellate Court held that the Respondents cannot be termed as trespassers in the possession of 23 gunthas out of the suit land, as the issue of the title of the Appellants was not finally decided. 7. The learned Counsel appearing for the Appellants invited my attention to the Judgment and order dated 8th June 2006 passed by this Court in Writ Petition No.209 : 6 : 6 : 6 : of 1980. A copy of the same is already taken on record of the Second Appeal. He submitted that the said order passed by this Court confirms the orders passed by the revenue authorities holding that the Respondents were in unauthorised possession of the suit land and that they should be evicted. He submitted that the finding on the issue of jurisdiction recorded by the Appellate Court is totally erroneous and contrary to the express provisions of the Maharashtra Land Revenue Code, 1966 (hereinafter referred to as "the said Code"). He, therefore, submitted that the Second Appeal deserved to be allowed. The learned Counsel appearing for the contesting Respondents supported the judgment and decree of the Appellate Court and submitted that the Appellate Court was right in holding that the Civil Court has no jurisdiction. 8. I have carefully considered the submissions. There seems to be no dispute that the order dated 18th January 1969 passed by the Sub-Divisional Officer was an order passed in exercise of powers conferred by section 138 of the said Code. An Appeal preferred by the Appellants against the said order was dismissed by the Collector and the second Appeal was dismissed by the Commissioner on 20th August 1975 and the present suit was filed on 14th May 1976. Section 138 of the said Code reads thus: : 7 : 7 : 7 : 138. 138. 138. Effect of settlement of boundary:- Effect of settlement of boundary:- Effect of settlement of boundary:- (1) The settlement of a boundary under any of the foregoing provisions of this Chapter shall be determinative - (a) of the proper position of the boundary line or boundary marks, and (b) of the rights of the landholders of either side of the boundary fixed in respect of the land adjudged to appertain, or not to appertain, to their respective holdings. (2) Where a boundary has been settled as aforesaid the Collector may at any time summarily evict any landholder who is wrongfully in possession of any land which has been adjudged in the settlement of a boundary not to appertain to his holding or to the holding of any person through or under whom he claims. (3) An order of ejectment under sub-section (2) shall, subject to the provisions of sub-sections (4) and (5), be subject to appeal and revision in accordance with the provisions of this Code. (4) Where any person has been ejected or is about to be ejected from any lands under the provisions of sub-section (2), he may, within a period of one : 8 : 8 : 8 : year from the date of the ejectment or the settlement of the boundary, institute a civil suit to establish his title thereto; . Provided that, the State Government or the Collector, or any revenue or survey officer as such, shall not be made a party to such suit. (5) Where a civil suit has been instituted under sub-section (4) against any order of ejectment, such order shall not be subject to appeal or revision. (6) The Collector may at any time make an order for redistribution of land revenue which, in his opinion, should be made as a result of the decision of the appeal or revision, or as the case may be, the suit, and such redistribution shall take effect from the beginning of the revenue year following the date of the order." Thus the remedy of a suit is provided in sub-section (4) of section 138 of the said Code. The suit was admittedly filed within a period of one year from the date on which the Appeal preferred by the Appellants was dismissed by the Commissioner. 9. The suit was filed by the Appellants on the : 9 : 9 : 9 : basis of title. The case of the Appellants was that their father was in possession as a tenant on 1st April 1957 and hence their father became a deemed purchaser. Thus the suit was filed by the Appellants to establish their title to the suit land. Hence the Appellate Court has committed a gross error by holding that the suit was not maintainable and the Civil Court had no jurisdiction to entertain the civil suit. Hence it will have to be held that the jurisdiction of the Civil Court was not barred and the suit was very much maintainable before the Civil Court. 10. In paragraph 8 of the impugned judgment of the Appellate Court a reference has been made to the orders passed by the authorities under the said Act of 1948 as well as under the said Code holding that the possession of the Respondents over the disputed portion was unauthorised. The Appellate Court observed that as the writ petition filed by the Respondents was pending in this Court, the order of eviction of the Respondents had not attained finality. As stated above, by judgment and order dated 8th June 2006 the said writ petition has been dismissed by this Court on merits. There is no dispute between the parties that the subject matter of the writ petition is the same suit land. This Court in the judgment noted that by the order passed by the Assistant Collector it was held that the Appellants’ : 10 : 10 : 10 : father was in possession of the suit land as on 1at April 1957 and was cultivating the same and had become a deemed purchaser of the suit land under section 32 of the said Act. The Assistant Collector held that the Respondents/landlords failed to prove their case that the Appellants’ father had surrendered the suit land to them. The learned Single Judge dismissed the said writ petition holding that the Assistant Collector as well as the Maharashtra Revenue Tribunal have rightly accepted the case made out by the Appellants that their father was a tenant in possession on 1st April 1957. The learned Single Judge confirmed the order of eviction passed under section 84 of the said Code by holding that at no point of time the Appellant’s father had surrendered his tenancy or that the tenancy was terminated by the orders of the Mamlatdar. Therefore, this Court upheld the legality and validity of the order of summary eviction of the Respondents under section 84 of the said Act and therefore, the writ petition was dismissed. Thus the finding recorded in the proceedings under section 84 of the said Act that the father of the Appellants never surrendered the tenancy has attained finality and the order of eviction against the Respondents under section 84 of the said Act has been confirmed by this Court. 11. As of today the order of this Court passed in : 11 : 11 : 11 : Writ Petition has attained finality. Therefore the order passed by the sub-Divisional Officer under section 138 of the said Code was illegal. This finding follows from the decision of this Court in the aforesaid writ petition. Therefore, the decree of the Appellate Court will have to be quashed and set aside and the decree passed by the trial Court will have to be restored. 12. Hence the following order is passed: i) The Second Appeal is allowed. The impugned judgment and decree dated 31st December 1985 passed by the Appellate Court is quashed and set aside and the Judgment and decree dated 9th March 1981 passed by the trial Court is hereby restored. ii) The Appellants will be entitled to the costs of this Appeal from the Respondents. iii) Certified copy is expedited. Judge. Judge. Judge.