SA.743-08 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 743 OF 2008 Bapurao Dattatraya Kharade ...Appellant Vs. Vikram Shankar Shinde & Ors. ...Respondents *** Mr. S. D. Dharmadhikar & D. J. Shejal, for the Appellant. None for the Respondents. *** CORAM: V. M. KANADE J. DATE : MARCH 17, 2011 P.C. 1. Heard the learned counsel appearing for the appellant. Appellant is the original plaintiff. He had filed a suit for possession and permanent injunction in respect of the suit property. The common ancestor of the plaintiff was one Khandoba who had three sons, namely Dhondiram, Aba and Bala. Plaintiff is the son of Dhondiram; Aba had one son by name Mahadeo; and Bala died issueless. It is an admitted position that certificate of tenancy under Section 32-M of the Bombay Tenancy and the Agricultural Lands Act, 1948 (hereinafter referred to as SA.743-08 - 2 - the “Act”) was issued in the name of Bala. 2. The contention of the plaintiff was that though the certificate is issued in the name of Bala, the said tenanted land was a joint family property. After the death of Bala, name of his wife Housabai was entered in the revenue record. Said Housabai adopted defendant No. 1, after the death of her husband, as her son, by a registered Adoption-Deed. The defendants contended that defendant No.1 was adopted by Housabai by a registered Adoption-Deed. It was denied that the agricultural land belonged to the joint family and it was denied that Bala was cultivating the said land as a tenant on behalf of the joint family, as a manager. The trial Court dismissed the suit of the plaintiff and the appeal preferred against the said decision was also dismissed. 3. It is contended by the learned counsel appearing on behalf of the appellant that since the plaintiff had claimed that the land was a tenanted land of the joint family, the trial Court ought to have referred the matter to the tenancy Court for deciding the said issue since jurisdiction of the Civil Court is barred by the provisions of Section 85-A of the Act. It is submitted that even lower Appellate Court has not taken into consideration this aspect. The learned counsel, however, fairly conceded that a specific ground to that effect was not taken in the SA.743-08 - 3 - grounds of appeal before the lower Appellate Court. The submissions made by the learned Counsel for the appellant cannot be accepted, firstly because, it is case of the appellant that suit property though it was tenanted property, it was cultivated by Bala as a Manager of the joint family. Since this was the specific averment made in the plaint, there was no question of referring this issue to the tenancy Court. Since the question as to whether tenanted property was a joint family property or not is an issue which can be decided only by the Civil Court and not by the Tenancy Court, particularly when it is an admitted position that tenancy certificate under Section 32-M of the Act was issued in the name of deceased Bala and that position was not denied by the plaintiff. 4. It is further submitted that the adoption of defendant No.1 by Housabai had not been established. It is submitted that mere registration of the Adoption-Deed was not sufficient to establish adoption and that the ceremony of adoption, according to the Hindu Law of Adoption, had to be established. This submission also cannot be accepted since perusal of the order of the trial Court discloses that the Adoption-Deed was registered and the attested witnesses were examined. Similarly, the witnesses had also proved the ceremony of adoption, that had taken place. Since this is a concurrent finding given by both the SA.743-08 - 4 - Courts below, it will not be possible to interfere with the said concurrent finding. Hence, no substantial question of law is raised in this second appeal. Second Appeal is, therefore, dismissed. [ V. M. KANADE J.]