1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 55 OF 2005 Siddi Isa Khan s/o Siddi Nawab & another Appellants Versus Siddi Akhtar Hussain s/o Siddi Abdul Khadar & others Respondents Shri N.N.Shinde, advocate for the appellants. Shri U.B. Bilolikar, advocate for respondents. CORAM: R.M.BORDE, J. DATE : 13th August, 2009. PER COURT : 1 This is an appeal raising challenge to the concurrent judgments recorded by both the courts below. 2 Plaintiffs instituted Regular Civil Suit no. 133/82 claiming restoration of possession of agricultural land as well as declaration that the decree passed in Regular Civil Suit no. 11/1962 be held to be inoperative and ineffective against the rights of the plaintiffs. According to the plaintiffs, land survey no. 28/1/4 admeasuring 1 H 82 R to the extent of 42 R situate on the southern side was previously numbered as 28/EE admeasuring 2 1 acre and 2 gunthas. The land was owned and possessed by their grand father Siddi Khaja s/o Siddi Isak. They further contend that their grand father had apprehension that their father by name Siddi Nawab in order to meet his vices is likely to dispose of the property and, as such, grand father of the plaintiffs bequeathed the suit land in their favour. Plaintiffs were declared as owner of the suit land in pursuance to the bequeath made by their grand father. Father of the plaintiff took disadvantage of their minority and got entered his name in the revenue record. Plaintiffs thereafter through their mother filed Regular Civil Suit no. 125/61 against their father seeking decree of perpetual injunction and in said suit consent decree was passed. Defendant thereafter in collusion with father of the plaintiffs falsely initiated proceeding under section 98 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 against their father before the Dy. Collector, Degloor and on the basis of consent written statement, got favourable orders. Defendant thereafter filed Regular Civil Suit no. 11/1962 against their father and their father tendered consent written statement and agreed to the contentions raised by the defendants. According to plaintiffs, consent decree passed in Regular Civil Suit no. 11/1962 is illegal and not binding upon them. Plaintiffs also pray for restoration of possession of the suit land and declaration that the decree passed in 3 Regular Civil Suit no. 11/1962 is ineffective. 3 Defendant appeared and contested the suit by filing written statement at exh.29. According to him, plaintiffs are not the owners of the suit land. There are 8 portion of survey no. 28/EE and the plaintiffs have not shown the exact suit land and its location. Defendant further denied that the grand father of the plaintiffs was the owner and possessor of the suit land and the land was bequeathed in favour of the plaintiffs. The other adverse contentions raised by the plaintiffs were denied by the defendant. Defendant further denied the contentions in respect of invalidity of the proceeding under section 98 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 initiated by him against the father of the plaintiffs. According to him, he was declared as occupant under the provisions of seciton 6 of the Hyderabad Inam Abolition Act 1954. It is also his contention that one Aminabegum was the owner of the property and defendant being the tenant of the land was declared as the owner and, certificate under section 38(6) of the Hyderabad Tenancy and Agricultural Lands Act declaring him as protected tenant of land has been issued by the Dy. Collector, Degloor on 28-1-1958. Defendant as such prays that the suit presented by the plaintiff is frivolous and needs to 4 be dismissed. 4 Trial court after recording evidence of the parties has recorded finding that the plaintiffs have failed to establish their title in respect of the suit land. It has also been recorded by the trial court that the plaintiffs have failed to prove that their grand father had title or possession in respect of the suit property. Issue in respect of limitation as well as the suit being barred by non-joinder of necessary party has been held against the plaintiffs. Trial court thus dismissed the suit by judgment and decree dt. 28-1-1988. Plaintiffs preferred appeal raising exception to the judgment passed by the trial court in Regular Civil Appeal no.69/1988 new number Regular Civil Appeal no. 791993 which came to be heard and disposed of by the Additional District Judge, Biloli who was pleased to dismiss the same by judgment and decree dt. 4-8-2000. 5 I have perused the judgments recorded by both the courts below. On perusal of the record it transpires that the defendant has been declared as the occupant under section 6 of the Hyderabad Abolition of Inam and Cash Grants Act and necessary certificate has been placed on record by him. Apart from this aspect, it also transpires from certificate 5 issued under section 38(6) of the Hyderabad Tenancy and Agricultural Lands Act that the defendant has been declared as owner of the suit property by the tenancy authority and the name of the holder of the land is shown as Amina begum. In contrast, there is no documentary evidence placed on record by the plaintiffs to establish their title in relation to the suit property and their entitlement on the basis of bequeath made by their grand father. Considering the relevant aspects, I am of the opinion that this appeal does not give rise to substantial question of law. Appeal therefore stands dismissed summarily. 6 In view of dismissal of the appeal, pending civil application, if any, does not survive and stands disposed of. (R.M.BORDE) JUDGE ******* dyb/sa55.05.odt