1 S.A.No.21.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 21 OF 2010 WITH CIVIL APPLICATION NO.229 OF 2010 1. Shyam S/o Lakshman Maher, Age 26 Years, Occu: Agril & Labour, R/o Palaskheda, Tq. Soygaon,District: Aurangabad. 2. Dnyaneshwar S/o Sukhram Maher, Age 26 Years, Occu: Agril & Labour, R/o Palaskheda, Tq. Soygaon,District: Aurangabad. Expired L.Rs. As per Exh.31 2.(I) Sukhram Balchand Meher, Age 48 years.-Father. 2.(II) Smt. Kantabai Sukhram Meher, Age 44 Years – Mother. 2.(III)Vinod Sukhram Meher, Age 21 years, All are R/o Palaskheda, Tq. Soygaon.Dist.Aurangabad. 3] Ramlal Balchand meher, Age 41 years,Occu & R/o as above. 4] Padam Balchand Meher, Age :36 years,Occup.& R/o as above. ...APPELLANTS. VERSUS 1) Sitabai W/o Kailash Marmat,, Age : 32 years Occup: Agriculture, R/o Palaskheda,Tq. Soygaon. 2 S.A.No.21.10 Dist. Aurangabad. ...RESPONDENTS. ... Shri.V.D.Sonawane, Advocate for Appellants. Shri.N.V.Mande,Advocate for respondent. ... CORAM: SHRIHARI P.DAVARE, J. DATE : 17th JANUARY, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. Appellants are original - defendants and respondent is original plaintiff. 3. The parties are referred to hereinafter, as per their original status. 4. The Challenge in present Second Appeal is to the Judgment and Order rendered by learned District Judge-2, Aurangabad, in Regular Civil Appeal No. 289 of 2005, on 10th September, 2009 confirming the Judgment and decree of perpetual injunction passed by the learned 3rd Civil Judge (Senior Division), Aurangabad on 02nd September, 3 S.A.No.21.10 2005, in Regular Civil Suit No. 1031 of 2004 restraining defendants from obstructing in her peaceful possession over the suit property. 5. Briefly stated facts of the case are that, property described in para No.1 of the plaint is subject matter of the suit. The Suit property admeasures 6 Hectares i.e. 15 Acres of agricultural land having Gut No.211 situated at village Palaskheda, Tq. Soygaon. The suit property originally belonged to Bhikchand and thereafter his son namely Chandmal Bhikchand for more than 15 years. The suit land was in possession of the ancestor of the plaintiff, namely, Motiram Tikaram, who was grand father of plaintiff’s father Mitthu Balchand Meher. It is contended that Bhikchand and Chandmal have never resided in the village Palaskheda, during last 15 years and they were residing in Madhya Pradesh State or Chhatisgarh. However, the names of Chandmala and Bhikchand are appearing in ownership column of the suit property. The name of Phulchand 4 S.A.No.21.10 had been recorded as tenant for the said period of more than 15 years. The name of Motiram Tikaram was recorded as a tenant and possessor of the suit property as per Pahani Patrak for the year 1953-54. The name of father of plaintiff, namely, Mitthu Balchand Meher had been entered in record of rights in respect of the suit property. Motiram Tikaram died long back, inherited by Balchand and Phulchand. The said Balchand and Phulchand are not alive. Balchand is inherited by Mitthu, father of plaintiff. Mitthu died before 10 years back. Plaintiff is a married daughter of Mitthu. The names of Motiram and Phulchand are appearing in Revenue record. 6. It is alleged that Phulchand in his life time delivered possession of suit property to his nephew Mitthu Balchand in the year 1964-65 and since then Mitthu was cultivating the suit property. The name of Mitthu was appearing in 7/12 extract of the suit property continuously in between the period of 1965-66 and 1997-98. Mitthu 5 S.A.No.21.10 expired, in the year 1994 and since then the suit property is in possession of the plaintiff, being his daughter. Plaintiff claimed that she is cultivating suit property, but her name has not been recorded in cultivation column in spite of her several applications in writing, made to Talathi and other revenue officers. According to her, defendants have no right over the suit property. The Revenue Officers have verified the factual aspects of the suit property, but not acted upon accordingly, and they have prepared false panchnama with the help of Talathi, to which she filed an application but same was not considered. 7. It is also contended that defendant Nos.3 to 6 have got executed sale deeds of the suit property from Chandmal Bhikchand, who is residing in Chattisgarh or Madhya Pradesh. According to plaintiff, said sale deeds are only on paper and without consideration. When plaintiff came to know said fact, she again approached defendant Nos. 1 6 S.A.No.21.10 and 2 and filed objections to the mutation entries. On 27.10.2004, defendant Nos.3 to 6 entered into suit property and they had tried to take away cotton crops. Hence, plaintiff was constrained to file suit for perpetual injunction, praying to restrain defendants from obstructing her peaceful possession over the suit property. 8. Defendant Nos. 3 to 6 filed common written statement and resisted the suit claim and raised an objection that the suit is bad for joinder and mis-joinder of necessary parties. The plaintiff has no cause of action to file the suit. It is contended by defendant Nos. 3 to 6 that Phulchand till his death, was cultivating the suit property and after his death his wife Kesrabai and after her death her sons Vitthal and Kisan were cultivating suit property. Phulchand was protected tenant of the suit property and in the capacity of his successors, his wife and sons were cultivating the suit property. It is also alleged that though the name of Mitthu is appearing in the cultivation 7 S.A.No.21.10 column, he never cultivated the suit property during his life time and his name remained on record till 1998, though he died in the year 1994. It is further contended that Mitthu died issueless, although he married with three wives. Plaintiff was residing in the village Saygaon, Tq. Pachora, District Jalgaon. She was given in marriage to one Kailash Marmat, who is resident of Kholkhed, Tq. Nandora, District Buldhana. Her husband was cultivating agricultural land, whereby residing with the plaintiff. It is submitted that Mitthu had wife namely Shantabai, who gave divorce to him by way of consent on 2nd May, 1974. Thereafter, Mitthu married with Chandabai. Mathurabai is third wife who was residing with him till his death. It is stated that plaintiff is not daughter of Mitthu. 9. It is the contention of defendant Nos. 3 to 6 that they are in possession of the suit property since the date of purchase of land from Chandmal Bhikchand, who was real owner of the suit 8 S.A.No.21.10 property. The names of defendant Nos. 3 to 6 have been recorded in the record of right. The plaintiff has no concern with the suit property. The plaintiff is trying to grab the suit property by adopting various tacties. It is further stated that there is no reason for the Revenue Authorities to prepare the false record including panchnama. 10. Considering the pleadings on record and also assessing the evidence adduced by parties, trial Court decreed the suit against the defendant Nos. 3 to 6 and restrained them from disturbing plaintiff’s possession over the suit property without due course of law, by impugned judgment and order dated 02.09.2005. Being aggrieved and dissatisfied with said Judgment, defendant Nos. 3 to 6 preferred Appeal bearing Regular Civil Appeal No. 289 of 2005, before District Court, Aurangabad. But, the same also came to be dismissed by the District Judge-2, Aurangabad on 10.09.2009. Hence, defendant Nos. 3 to 6 assailed 9 S.A.No.21.10 the same in the present Second Appeal. 11. Since suit being for perpetual injunction filed by plaintiff, controversy centers around possession of the suit property. In that respect, dispute so far as relationship is concerned is between Mitthu and Plaintiff herein, namely, Sitabai. P.W.1 Sitabai examined herself and categorically stated that the suit land came into possession of Fulchand and in the year 1964-65, Fulchand gave the land in possession of Mitthu, who was in possession till 1994 and thereafter the suit land came in her possession and she cultivated the land. She further categorically stated that in spite of the said possession, Revenue Officer prepared false panchnama on 23.08.2004. She made complaint to that effect on 03.09.2004. 12. Plaintiff also examined her mother Shantabai, who categorically deposed that she got married with Mitthu, when she was 12 years old and after 10 S.A.No.21.10 three years of marriage she gave birth to one son, but who died. Thereafter, she gave birth to the daughter, namely, plaintiff Sitabai. Thereafter, she resided with Mitthu for three years and then there was divorce between herself and Mitthu. The trial Court after assessing evidence held that plaintiff Sitabai is daughter of Mitthu, who came into possession of the suit land. The said finding was confirmed by the First Appellate Court. 13. Apparently, no interference is warranted, since Mitthu came in possession from Fulchand as aforesaid. Therefore, there is no substance in the contentions raised by defendant Nos. 3 to 6, in respect of Section 40 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. 14. Since the plaintiff is in possession of the suit land, she was certainly entitled to protect the same by filing the suit for perpetual injunction, and same is rightly decreed by the Trial Court and confirmed by the First Appellate 11 S.A.No.21.10 Court. 15. In the circumstances, no substantial question of law could be formulated and present Second Appeal lacks merit. Therefore, same stands dismissed. Record and proceedings be sent back to concerned Court. 16. In the light of dismissal of Second Appeal, nothing survives for consideration in the Civil Application, and the same is disposed of accordingly. Sd/- [SHRIHARI P.DAVARE, J.] MTK