( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 849 OF 2009 Chandrakant s/o Limbaji More APPELLANT VERSUS Devidas s/o Haribhau Gawai, Since deceased by his L.Rs. 1-A. Chandrakala Wahul & others. RESPONDENTS ..... Mr. V.B. Garud, advocate for the appellant. Mr. P.R. Katneshwarkar, advocate for respondents No. 1-A to 1-C. ..... [CORAM : K.U. CHANDIWAL, J.] [DATE : 20th April, 2010] PER COURT : 1. Heard learned counsel for the parties. 2. The concurrent findings recorded against defendant No. 3 in Suit for perpetual injunction and declaration challenging the order of learned Naib- Tahsildar, is assailed by the defendant No.3/appellant. 3. Mr. Garud while extensively arguing the matter, ( 2 ) submits that the Courts have ignored to consider the legal position and hence, the second appeal projects a substantial question of law. According to him, the substantial question of law is, there was no jurisdiction to the civil Court as a bar was created n terms of section 99 (2) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (for short, “the HT&AL Act”), there was already a bar in terms of section 158 of the Maharashtra Land Revenue Code, 1966 (for short, “the MLR Code”). The other objection is non-joinder of the legal representatives of vendor of plaintiff (sons and daughters of Narayanrao). 4. While extensively arguing the points referred above, the factual matrix was dealt with, which invites attention to analyze what was the stand and its justification by both the Courts. The appellant has set up his rights in the suit properties based on a batai- patra (tenancy agreement), having effected on 24-12-1987 for a period of ten years. The appellant asserts, based on such agreement, he was put in possession of the suit land. It was an unregistered document, effecting ( 3 ) transfer in immovable property, naturally obliterated effect of the provisions of section 17 of the Registration Act. 5. An application purportedly was moved by Narayan and the appellant before the Tahsildar on 06-02-1988 and the learned Naib Tahsildar, on 12-08-1992, decided the said application (Exh-79) thereby directing name of the appellant to be recorded in the Record of Rights and same was questioned by the plaintiff (respondent in this appeal). 6. The sale-deed in favour of the plaintiffs No. 1 and 2 is dated 06-06-1988 while the sale-deed by Narayanrao in favour of Subabai is dated 06-06-1988, in turn, said Subabai sold her rights of 1 Hectare 62 Ares land to plaintiff No. 3 Ramakant on 11-04-1989. 7. Mr. Garud canvassed, the sale-deed being subsequent to creation of tenancy rights in favour of the respondent, the respondent looses right to seek either declaration or perpetual injunction. ( 4 ) 8. It is a matter of record that one more set of parties, namely, Sukhdeo Namdeo and Prakash Namdeo, who had also applied as tenants in the suit property and an enquiry was conducted by the same Naib Tahsildar, by his order dated 18-01-1989 and application of said Sukhdeo and Prakash was rejected. It is curious, the said Naib- Tahsildar/original defendant No. 2 recorded as on the date of inspection in the year 1988-89 or 1991, he found the plaintiff to be in possession. Inspite of such situation, said Naib Tahsildar (original defendant No. 2) had an audacity to record subsequent entry by order dated 12-08-1992 for taking mutation for preceding years 1987-88, 1989-90 and 1990-91. The exercise carried by the learned Naib Tahsildar certainly was in contrast to the settled position under the MLR Code, particularly Chapter-X and in the result, the bar created of section 158 of the said Act would not come into play. 9. There was no declaration of tenancy in favour of the appellant by any competent authorities under the HT&AL Act. Hence, no question of any bar. ( 5 ) 10. As far as the other objection in respect of non- joinder of the legal representatives of vendor of plaintiff, the plaintiff was not required, under the law, to implead the legal representatives of Narayanrao (vendor of the plaintiff) as parties because his controversy was not with the vendors. The vendors after execution of sale-deed have washed their hands leaving their title to the property. The controversy was certainly with the original defendant No.3 (appellant) who tried to assert rights based on unregistered document dated 24-12-1987 and illegally got mutation entry effected in his name. 11. The exclusion of civil Court’s jurisdiction cannot be readily interfered with on the ground of availability of remedy and forum under the Special Act. When the action in question is taken without complying with the provisions of the Act, the civil Court’s jurisdiction is not at all barred or exhausted. In the light of this settled position of law, I do not see any merit to project the above points as substantial ( 6 ) questions of law between the parties. The second appeal is dismissed. No costs. [ K. U. CHANDIWAL ] JUDGE NPJ/sa849-09