1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 549/2009 Madhavrao s/o Daulat Moreand others ...Appellants Versus Vyapari Association, Shripurthrough Subhashchandra Babsilal Agrawal,Shripur Tq. Shirpur, Dist. Dhule and others. ...Respondents. Mr. J.R. Shaikh, Advocate for appellants. Mr. S.P. Brahme, Advocate for respondents No. 2 to 4, 6 to 10 and 11 to 13. CORAM : A.V. NIRGUDE, J. Date : 14TH June, 2010. ORAL ORDER:- 1 Heard. 2 This Second appeal is filed against the concurrent finding of the Courts below that the respondent/plaintiff would succeed in evicting the appellants/defendants from suit land pursuant to the notice dated 26th April, 2008 given under section 106 of the Transfer of Property Act. The respondent/plaintiff is a public trust. The suit land was gifted to them by the original owner. The predecessor of the appellants/defendants was the agricultural tenant of the vendor of the respondent/plaintiff. 3 While opposing the suit, the appellants/defendants mainly asserted two points. Their first point was that, their predecessor should have been deemed purchaser under the provisions of Bombay Agricultural Lands and Tenancy Act, because he was cultivating the 2 suit land on the tillers day. Courts below however, found that despite taking independent proceedings to assert the status of deemed purchaser, the predecessor of the appellants could not get beneficial order and the courts below rightly held that this objection to the title of the respondents/defendants is devoid of merits. 4 The second objection raised by the appellants/defendants was that the exemption granted to the respondent/plaintiff Trust under section 88-B of the Bombay Agricultural Lands & Tenancy Act, was illegal and so the trust could not have claimed title to the property. Even this objection was brushed aside by the courts below, having regard to the fact that the certificate under section 88-F was granted to the respondent/plaintiff Trust, after due consideration and examining the case thoroughly about 50 years before the suit was filed. The certificate so issued attained finality as it was never challenged before the Revenue Court. 5 The third technical objection raised was, that the suit was bad for non-joinder of necessary parties. Admittedly, only few of the trustees filed the suit and in anticipating an objection on the ground that the suit was bad for non-joinder of necessary parties - the remaining trustees joined the litigation albeit a little belatedly. The Courts below rightly held that this was permissible in view of Order 1 Rule 10 C.P.C. and the suit would not be affected by law of limitation. 6 The fourth objection is raised probably for the first time, at this stage is, that the suit could not have been filed in the year 1996 when the notice under section 106 was given long back in June 1986. 3 But the learned counsel appearing for the appellants, could not cite any judgment to support his contention that the suit could not have filed after ten years from the date of termination of the tenancy. 7 The 5th objection raised by the appellants’ advocate is rather factual and though it does not require serious consideration, is discussed because it is rather strenuously agitated. 8 The learned advocate appearing for the appellants asserted that in the notice given under section 106, the respondent/ plaintiff Trust alleged that the appellants/defendants did not pay yearly rent and in view of this default, they terminated the tenancy. He said, despite this, the Courts below discussed some other reasons as to why the termination was sought. He pointed out that the Courts below took into account the respondent/plaintiff’s new ground that they needed the suit land for personal cultivation. I am afraid, this argument is not tenable firstly because this was never raised before the Courts below. Besides for the purpose of terminating the tenancy the lessor is not under obligation to prove any ground for terminating the tenancy. Merely giving notice to terminate tenancy and to direct lessee to quit would be lawful in view of the provisions of section 106 read with Section 111 of Transfer of Properties Act. 9 The last question that is agitated before this court is, the Civil Court had no jurisdiction to try and dispose of this suit. The learned counsel appearing for the appellants placed reliance on Sec. 85 of B.T.A.L. Act, but apparently this argument is devoid of merit. The Courts below took care of this angle of the case and held against the 4 appellants/defendants. It is elementary that the suit was filed on the basis of provisions of Section 106 of the Transfer of Properties Act and so the Civil Court alone had jurisdiction to decide the same. No doubt, while defending the case, the appellants /defendants could have raised several points and few of them were based on certain provisions of the Bombay Agricultural Lands and Tenancy Act. The Civil Court would essentially decide as to whether the notice under section 106 is lawful and whether the respondents / plaintiffs had title to the suit land. It was the appellants/defendants who had urged the Civil Court to decide as to whether respondent/plaintiff had title to the suit land, owing to certain provisions of the Bombay Agricultural Lands and Tenancy Act. In view of this, he is debarred from saying that the Court can not decide these questions. This submission is therefore, not only erroneous but illogical. The appeal does not give rise to any substantial question of law. ORDER The appeal stands dismissed with costs. [A.V. NIRGUDE, J.] tsk/ok