1 FARAD CONTINUATION SHEET NO.__________ IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 10998 OF 2009 IN SECOND APPEAL NO.125 OF 2003 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 15 th October, 2009. 1 This is an application seeking condonation of delay of 420 days occurred in presenting the review application. 2 Heard. For the reasons stated in the application, application deserves to be allowed and the same is accordingly allowed. Delay occurred in presenting the review application stands condoned. ( R. M. BORDE, J.) dyb / office /sa125.03.odt 2 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL APPLICATION NO. 23210 OF 2009 IN SECOND APPEAL NO. 125 OF 2003 Pama Rama Ganpat (deceased through LRs) .. APPLICANTS VERSUS Changdeo Santram Zambre & others .. RESPONDENTS Mr. B.N. Patil, Advocate for the applicants. Mr. M.P. Kale, Advocate holding for Mr. G.V. Sukale, Advocate for respondent nos.1 and 2. ===== CORAM : R. M. BORDE, J. DATE : 15 th October, 2009. PER COURT : 1 This is an application seeking review of the order passed by this court on 7-7-2008 in Second Appeal no. 125/2003. It is contended by the applicant that order passed by this court is non-speaking and no reasons are recorded in support of the order. It is contended that on perusal of the order it is not reflected that the arguments advanced by the appellant have been considered. 3 2 Heard arguments advanced by learned counsel for the respective parties. Learned counsel for the opponents has resisted the application. It is contended that the appeal is dismissed summarily and as such no reasons are required to be recorded in support of the order. I am of the opinion that it is appropriate to record reasons, though in brief, in support of the order passed by this court. Non-speaking order reflects non-application of mind to the record of the case. Even though law does not require recording of reasons while dealing with the matter at admission stage and when the appeal is found to be unfit for consideration of final disposal, however, in order to demonstrate that this court has applied its mind and taken into consideration the points involved in the matter, it is always appropriate to record the reasons. In this view of the matter, I deem it appropriate to allow the review application. Application for review therefore stands allowed. Order passed by this court on 7-7-2008 in Second Appeal no. 125/2003 is recalled. Civil application stands disposed of. ( R. M. BORDE, J.) dyb/office/sa125.03.odt 4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 125 OF 2003 Pama Rama Ganpat (deceased through LRs) .. APPELLANTS VERSUS Changdeo Santram Zambre & others .. RESPONDENTS Mr. B.N. Patil, Advocate for the appellants. Mr. M.P. Kale, Advocate holding for Mr. G.V. Sukale, Advocate for respondent nos.1 and 2. ===== CORAM : R. M. BORDE, J. DATE : 15 th October, 2009. PER COURT : 1 This is an appeal by original plaintiffs raising exception to the judgment and order passed by the Additional District Judge, Osmanabad in Regular Civil Appeal no. 359/1992 decided on 20-4-2002. 2 Plaintiff instituted Regular Civil Suit no. 48/1986 claiming declaration of ownership and perpetual injunction and in the alternative, possession in respect of land survey no. 91 admeasuring 28 acres and 17 gunthas situate at village Dindori, Tq. Bhoom, Dist. Osmanabad. According to the plaintiffs, 5 original owner of the land was one Santaram Zambare. Defendants are the sons of original landlord i.e. Santaram Zambare who is no more. Plaintiff claims to be protected tenant of the suit land. According to him, he is declared as owner of the suit land by the tenancy authority and certificate under section 38 E of Hyderabad Tenancy and Agricultural Lands Act has been issued in his favour on 25-8-1962. Defendants have interfered in possession of the plaintiff. As such, plaintiff is constrained to approach the the court by filing suit. 3 Defendants have controverted the adverse contentions raised by plaintiff, by filing written statement. Defendants have denied that plaintiff is declared owner in respect of the suit land. According to the defendants, the plaintiff has got prepared false revenue record in his favour. According to the defendants, plaintiff was never in possession of the suit land. He was neither declared as owner nor has deposited the purchase price. Defendants as such pray for dismissal of the suit. 4 Trial court after considering the rival contentions raised by the parties was pleased to hold in favour of the plaintiff. Trial court directed the defendants to hand over possession of the suit land in favour of the plaintiff. 6 Judgment and decree passed by the trial court was subjected to challenge in Regular Civil Appeal no 359/1992 before the District Court, Osmanabad. Appeal came to be heard and disposed of by the Additional District Judge, Osmanabad who was pleased to allow the same and the judgment and decree passed by the trial court came to be quashed and set aside. 5 I have perused the judgments recorded by both the courts below. It transpires that although certificate is issued in favour of the plaintiff under section 38 E of the Hyderabad Tenancy and Agricultural Lands Act, defendant raised challenge by presenting appeal to the Deputy Collector, Land Reform who has ruled in favour of the defendant and tenancy certificate granted in favour of the plaintiff came to be quashed and set aside. Thus, plaintiff can no more claim to be the owner in respect of the suit property. It is also found by the first appellate court that the plaintiff has failed to establish his possession over the suit property on the strength of the alleged tenancy rights. It has also been observed by the first appellate court that in the year 1960 plaintiff has surrendered his rights as tenant in respect of the suit land and necessary entires to that effect have been recorded in the revenue record. Appellate court therefore found that the plaintiff cannot claim possession on the basis of his alleged tenancy rights 7 nor the plaintiff was ever in possession of the suit property. Reasons recorded by the first appellate court are reasonable and based on proper appreciation of evidence placed on record. 6 it is urged by learned counsel for the appellants that the Deputy Collector, Land Reforms, Osmanabad has infact no jurisdiction to entertain the appeal. Learned counsel for the appellants places reliance on judgment recorded in 2001(3) Mh.L.J. 380 and contends that issuance of certificate is merely administrative act and the appellate court was not supposed to entertain the appeal. However, it is open for the plaintiff to raise challenge before the revisional authority. Apart from this aspect, the first appellate court also found that the plaintiff has failed to establish his possession in respect of the suit property on the strength of his alleged tenancy rights. Moreover, revenue record shows that the plaintiff has surrendered his rights as tenant in respect of the suit land. Considering all these circumstances, I am of the opinion that the view adopted by the first appellate court need not be interfered with. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 8 7 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa125.03.odt