1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.490 OF 1991 Date of decision: 6/7/2009 For approval and signature: HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see the fair copy of the Judgment ? /No 4. Whether this case involves a substantial /No question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the /No Civil Judges ? 6. Whether the case involves an important /No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G.Paralikar) Private Secretary office/sa490-91 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.490 of 1991 Limbraj s/o Tulshiram Ingle, Age 42 years, Occu: Agril., r/o. Eruka, Tq. & Dist. Latur. ...APPELLANT ORIGINAL DEFENDANT VERSUS Raju s/o Sheshrao Deshpande, Age 20 years, Occu: r/o Ekurka Now resides at Hatte Nagar, Latur, Tq. & Dist. Latur. Mr. S.V.Chandole, Advocate, h/f Mr. V.G.Sakolkar, Advocate, for the appellant. Mr. S.V.Natu, Advocate, h/f Mr. A.R.Joshi, Advocate, for respondent. --- CORAM : K.U.CHANDIWAL, J. DATE : 6th JULY, 2009 *** ORAL JUDGMENT : 1. Heard the Counsels extensively. The defendant, feeling aggrieved by the order of judgment and decree dated 25th July, 1989, recorded by the Joint Civil Judge, Senior Division, Latur, in RCS No.539/1987, challenged the same before the Additional District Judge, Latur, in RCA No.134/1989 and the learned Additional District Judge, by order dt.30th Jan., 3 1990, confirmed the decree and, consequently, the Second Appeal by the defendant against concurrent findings. The appeal is admitted on 28.9.1992, with following noting: “Admit on the point of tenancy. Stay application to be considered on 1st Oct.,1992.” 2. During the course of submissions, Mr.Chandole, Counsel, contended, the Civil Court had no jurisdiction to entertain the proceedings as the defendant was specifically asserting his rights to be a tenant of Sheshrao, the land owner and, consequently, it was not within the realms of the Civil Court to deal with these aspects and clamped an injunction against the defendant who was in possession in his individual capacity. He would further argue, the Tehsildar’s so called handing over of the possession in favour of the plaintiff or the original decree holder has no nexus to the tenancy aspect as the tenancy of the defendant Limbraj could not be disturbed. The possession, at the most, was a paper possession. He urged, the Courts were at fault in clamping injunction and subsequent perpetual injunction. 3. The Counsel for the respondent ( original plaintiff) submits that the suit between the sharer and his son Raju was decreed on 26th April, 1979. The matter was pending for 4 effecting partition of the various agricultural fields as two third share of the plaintiff Raju was to be carved out. The tenancy claimed by the defendant is after the decree dt.25.3.1980 and, consequently, the effects of earlier decree will be binding on the so called rights asserted by Limbraj, the defendant. 4. It is an unquestionable aspect that there was litigation initiated on behalf of minor Raju by his mother Shakuntalabai against her mentally ill husband Sheshrao ( RCS No.216/1973). It was decreed, as stated earlier, on 26th April, 1979, allotting the plaintiff and his mother two third share in the joint family property. According to the plaintiff, the suit lands were referred in the partition suit. The decree was tested by Sheshrao to various Courts but he ultimately failed and, thereafter, the decree was sent for execution before the competent authorities of revenue Courts. 5. The Tehsildar of Latur, by virtue of Collector’s order, after effecting service to Shakuntalabai, on 22nd Dec.,1986, visited the site, notices were also issued to other interested persons. One of the notice was issued to Sheshrao, he refused to accept the notice, resulting in Panchnama. Second notice for dt.8th Jan.,1987 was issued, as the date for 5 giving possession was fixed and, on 8.1.1987, the possession of the property was handed over to the plaintiff Raju or his mother Shakuntalabai. While giving the possession, the Tehsildar had an occasion to browse the map prepared by the learned District Inspector of Land Records and, in presence of several villagers, particularly Sarpanch, such measurements were caused. The theory propounded is he got 76 R. land from land Gat No.101, 2 H. 83 R. from Gat No.107 and 5 H. 20 R. from Gat No.159, totalling 8 H. 79 R. The initial status of the joint family property was 34 acres 09 gunthas, as referred in RCS No. 216/1973 in the decree which is at Exh.62. 6. Both the Courts, on analysing the evidence, coupled with the revenue records, recorded that the possession received by the plaintiff in the Court decree effective from 8th Jan.,1987, by following legally enforceable system, should not be interfered with. 7. Since the defendant has staked a claim that there was a Batai agreement by Sheshrao and his mother Radhabai dt.25th March, 1980, such Batai agreement or its effect would not have influenced the already operating decree for partition initiated by Raju. All the efforts made by Sheshrao or his mother Radhabai to defeat 6 the fruits of the decree, subject matter of RCS No.216/1973 could not have been encouraged and accepted. 8. The contention that the Tehsildar did not verify the record before giving notices appears to be misplaced as it was not the plaintiff alone or the Sarpanch of the village but the evidence of the Tehsildar at Exh.72 indicates, several hundred persons were present at the time of handing over possession. It is also a matter of record, it was not on one occasion but such intention was disclosed on two occasions by the Tehsildar and his efforts were initially tried to be obstructed. The defendant, in this scenario, has difficulty to plead ignorance. Whatever actions he has done, staking claim, based on the Batai agreement, would not have camouflaged on the rights which already flowed due to the court decree in Raju or his mother Shakuntalabai. 9. The contention that the Courts did not formulate issue of tenancy or not referred the matter to the Tenancy Court, will not be germinating in facts of the present case as it was obviously to sabotage the decree in RCS No. 216/1973 to ensure it does not see light of the day and should be squeezed at all possible corners. The batai Agreement by Sheshrao and his 7 mother will not have adverse impact on the rights accrued to plaintiffs to get determined share of property, based on decree in RCS No.216/1973. It was in this situation the learned Judge of the first instance observed that the plaintiff has been waiting for the fruits of the decree or possession since 14 years and he should not further be made to suffer. 10. The findings recorded by both the Courts in the situation cannot be said to be erroneous, perverse or requiring any interference. There was no need or occasion to formulate issue of tenancy to decide the claims and contentions raised by the defendant. If the defendant has his independent rights based on the Batai agreement executed by the sharer, he has, undoubtedly, avenues before the competent Revenue authorities. The fact remains, as on 8.1.1987, based on the Court decree, the learned Tehsildar has handed over possession of the property and, such possession of the property having been properly and through the authority of the Court, being put in with the plaintiff, the plaintiff should not be obstructed to or interfered with. In the situation, I do not find any merit in the Second Appeal. It is, accordingly, dismissed. No costs. ( K.U.CHANDIWAL) JUDGE agp/sa490-91