IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.175 OF 1991 A N D SECOND APPEAL NO.168 OF 1991 1) Shri Pandurang Dhondi Suryavanshi) Aged about 75 years ) 2) Shri Dattu Dhondi Suryavanshi ) (Abated vide order dtd.17.6.1987 ) 3) Shri Arjun Santram Suryavanshi ) Aged about 30 years ) 4) Shri Akaram Dhondi Suryavanshi ) Aged about 54 years ) 5) Shri Bhimrao Dhondi Suryavanshi ) Aged about 52 years ) 6) Yesabai w/o Shamrao Yadav ) Aged about 57 years ) All Agriculturists of Karanje, ) Taluka Khanapur, Dist.Sangli. )..Appellants (Org.Defendants Versus Shri Anna Atma Boblat ) Aged about 55 years, Occupation ) Agriculturist, ) Residing at Karanje, Tal.Khanapur ) Dist. Sangli )..Respondent (Org.plaintiff) ---- Miss S.M.Dandekar for the appellants. Mr.B.P.Apte for the respondent. ---- Coram : R.S.Mohite,J Coram : R.S.Mohite,J Coram : R.S.Mohite,J Date : 19/20.6.2008. Judgment :- 1. Since both these appeals raise common questions which arise from common facts, both the appeals are : 2 : being disposed off by this common judgment and order. 2. These are appeals filed by the original defendants seeking to quash and set aside the judgment and decrees passed by the lower Courts. 3. The plaintiff had filed a suit being Regular Civil Suit No.192 of 1980 in the Court of the Civil Judge, Junior Division, Viata. The suit was filed for possession of the suit lands. It was the case of the plaintiff that the lands bearing survey nos.209/1 and 209/2 (both having equal area) of village Karanje, Tal. Khanapur were amalgamated to form gat no.1622 admeasuring 9 hectars & 51 Ares. That one Dnyanu had 1/2 rights in survey no.209/2 and on amalgamation, he was holding and cultivating 1/4th share in gat no.1622 and in a house bearing Grampanchayat No.37. It is the case of the plaintiff that Dnyanu Tuka Boblat expired issueless in the year 1959 and thereafter since there was no other heir to his lands, the plaintiff alone inherited the lands formerly owned by Dnyanu. 4. On such pleadings, the plaintiff sought possession in respect of 1/4th share in gat no.1622 and of the Grampanchayat house bearing Grampanchayat No.37. : 3 : 5. In the suit, defendant no.5 appeared and filed his written statement. This written statement dated 3.8.1982 was thereafter adopted by other defendants. From their written statements, it can be seen that the defendants admitted that Dnyanu was the owner of 1/4th share of gat no.1622. They admitted that Dnyanu expired in the year 1959 and claimed that from the year 1959, the defendants were cultivating the suit property as owners thereof. 6. After considering the evidence led by both parties, by a judgment and order dated 31.7.1985, the Civil Judge, Junior Division, Viata, partly decreed the plaintiff’s suit. He directed the defendants to deliver vacant and peaceful possession of the suit house described in paragraph 1C of the plaint to the plaintiff and held that plaintiff was also entitled to mesne profits for the suit house from the date of filing of the suit onwards till recovery of actual possession thereof. However, the plaintiff’s suit in respect of the recovery of possession of the land as described in paragraph-1B of the plaint was dismissed. 7. Though the parties had not pleaded that the land bearing survey no.209/2 was a Kulkarni Watan land, it appears that in the course of evidence, mutation entry no.3482 was admitted in the evidence and that indicated that survey no.209/2 was a Kulkarni Watan : 4 : land which was resumed to the Government as the original Watandar did not pay the occupancy price on or before 30.4.1956 as was required to be done under the provisions of Section 4 of the Bombay Paragana and Kulkarni Watans (Abolition) Act 1950. It was held by the trial Court that since the occupancy price was not paid by the holder, the land would vest with the State Government, free of any encumbrances. It was also held that defendant no.1 had paid the occupancy price, being the person in actual possession and therefore, the plaintiff was not entitled to succeed in the suit for possession in so far as the agricultural land described in paragraph-1B was concerned. 8. Being aggrieved by the judgment and order of the trial Court, both parties filed cross appeals. The appeal filed by the original plaintiff was Regular Civil Appeal No.266/85. The appeal filed by the original defendants was Regular Civil Appeal No.296/85. By the judgment and order dated 30.3.1990 the IIIrd Additional District Judge, Sangli was pleased to allow Regular Civil Appeal No.266/1985. The appellate Court therefore, decreed the plaintiff’s suit and directed the defendants to deliver possession of the suit property to the plaintiff. It also directed enquiry for mesne profit under Order XX rule 12(1)(e) of Civil Procedure Code. : 5 : 9. It is in these circumstances, that the present two appeals have been filed by the original defendants. 10. I have heard both the sides and perused the record. In my view, the appeals deserve to be dismissed as there is no substantial question of law involved. At the very out-set, Counsel appearing for the appellants stated that they were not raising any serious contention relating to the possession of the house property and would like to restrict the arguments in relation to decree of the plaintiff’s suit in respect of the 1/4th share in the agricultural land bearing gat no.1622. As regards this land, it is seen that the lower appellate Court, while accepting the proposition that the part of the said gat number was originally survey no.209/2, held on the basis of the record that the said land was Kulkarni Watan land. The appellate Court also accepted the position that emerged from the record that the original watan holder did not pay the occupancy right by the last date i.e. 30.4.1954 and that in the circumstances, the lands were resumed to the Government. The Court however, held that the resumption did not eclipse the tenancy right of the plaintiff. It is true that the plaintiff has come with the case that he was the owner in cultivation. However, in the light of the record, it appears that both the Courts have : 6 : proceeded on the basis that the land being watan land, Dnyanu was in fact, the tenant in cultivation. There are concurrent findings that the defendants could not prove that they were heirs of Dnyanu. It is seen from the written statement that it was the case of the defendants that they were cultivating the land since 1959. It is significant that Dnyanu died in the year 1959. Defendants also accepted the rights of Dnyanu. It appears to be the defendants’ case that after Dnyanu’s death in 1959, they were cultivating the land in question. In this background, it is clear that tenancy rights of Dnyanu were not eclipsed in view of section 8 of the Bombay Paragana and Kulkarni Watans (Abolition) Act, 1950. The said section 8 reads as under :- " If any watan land has been lawfully leased and such lease is subsisting on the appointed day, the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, shall apply to the said lease and the rights and liabilities of the holder of such land and his tenant or tenants shall subject to the provisions of this Act, be governed by the provisions of the said Act." Explanation- For the purposes of this section the expression "land" shall have : 7 : the same meaning as is assigned to it in the Bombay Tenancy and Agricultural Lands Act, 1948. 11. As observed by the appellate Court, it appears to be the correct legal position that on abolition of the watan under Section 3, the land would stand vested in the Government if the original holder did not pay the occupancy price within the stipulated period. There is nothing in the Act to suggest that this vesting would be free from all encumbrances and it was so observed by the appellate Court on the basis of the provisions of Section 8 which have been quoted hereinabove. 12. Some arguments were made on behalf of the appellants that even if the tenancy rights survive the plaintiff had not shown that the lands were subsequently purchased under Section 32G by either Dnyanu or his heirs and that in any case land would became re-allotable. There are no pleadings on record to support this contention. In any case order under Section 32P will have to be specifically made by the Tribunal and there is nothing on record to support any of these contentions. 13. In the net result, I find that the judgment and : 8 : order passed by the appellate Court cannot be faulted and both these appeals are therefore, liable to be dismissed. Both the Appeals stand dismissed. In the circumstances, of the case however, there will be no order as to costs. (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)