1 S.A. 1441/2005 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 1441/2005 1 Karim Khan s/o Nazir Khan, Age : 63 years, Occu. Business, R/o Kaisar Colony, Aurangabad. 2 Ayyub Khan s/o Nazir Khan, Age : 58 years, Occu. Agri / Business, R/o Kaisar Colony, Aurangabad Died L.Rs. 2-A Saira Banu wd/o Ayyub Khan, Age : 50 years, Occu. Household, R/o 5-16-33, Nutan Colony, Pensionpura, Aurangabad. 2-B Sikandar Khan s/o Ayyub Khan, Age : 29 years, Occu. Labourer, R/o 5-16-33, Occu. Labourer, R/o 5-16-33, Nutan Colony, Pensionpura, Aurangabad. 2-C Sarfaraz Khan s/o Ayyub Khan, Age : 27 years, Occu. Labourer, R/o As above. 2-D Javed Khan s/o Ayyub Khan, Age : 25 years, Occu. Labourer, R/o As above. 2-E Mazaffar Khan s/o Ayyub Khan, Age : 20 years, Occu. Labourer, R/o As above. 2-F Gausiya Begum w/o Sk. Karim, Age : 34 years, Occu. Household, R/o Jai Malhar Colony, Satara Parisar, Aurangabad. 2-G Fauziya Begum w/o Sk. Shakeel, Age : 31 years, Occu. Household, R/o Sabzi Mandi, Opp.: Yeola Bus Stand, Yeola, Dist. Nasik. 2-H Sabiya Begum w/o Aziz Khan, Age : 26 years, Occu. Household, R/o Near Moinbhai Bakery, Nutan Colony, Aurangabad. 2-I Shabana Begum w/o Sk. Atiq, Age : 21 years, Occu. Household, R/o Under the ...Appellants. 2 S.A. 1441/2005 Town Hall, Town Hall Colony, Aurangabad. (Original defendants). Versus 1 Nazir Khan s/o Sher Khan (deceased) His L. Rs. i) Rashida Begum s/o Nazir Khan, Age : 68 years, Occu. Household, R/o Osmanpura, Aurangabad. ii) Mahboobkhan s/o Nazir Khan, Age : 35 years, Occu. Business, R/o As above. iii) Zafar Khan s/o Nazir Khan, Age : 34 years, Occu. & R/o As above. iv) Azarkhan s/o Nazir Khan, Age : 30 years, Occu. & R/o as above. v) Mazharkhan s/o Nazir Khan, Age : 28 years, Occu. & R/o as above. vi) Shehnaz Begum w/o Sahebkhan, C/o Nazir Khan, Age : 48 years, Occu. Household, R/o Building, Aurangabad. vii) Mumtaz Begum w/o Mohd. Haneef, Age : 42 yeas, Occu. Household, R/o Osmanpura, Aurangabad (daughter of Nazir khan) 2 Mohd. Khadir Khan s/o Sher Khan, Age : 56 years, Occu. Business, R/o Osmanpura, Aurangabad through G.P.A. Respondent No.1. 3 Smt. Halima Begum w/o Sher Khan, Age : 88 years, Occu. Household, R/o Osmanpura, Aurangabad through G.P.A. Respondent No.1. 4 Sarwari Begum d/o Sher Khan, Age : 43 years, Occu. Household, R/o Osmanpura, Aurangabad. Through G.P.A. Plaintiff No. 3 S.A. 1441/2005 1 / Respondent No.1. 5 Akhtari Begum d/o Sher Khan, Age : 40 years, Occu. Household, R/o Osmanpura, Aurangabad. Through G.P.A. Respondent No.1. 6 Anwari Begum d/o Sher Khan, Age : about 35 years, Occu. And R/o as above. Through her G.P.A. Respondent No.1. ...Respondents. Original Plaintiffs. Mr. D.S. Bharuka, Advocate for the appellants. Mr. P.M. Shah, Senior counsel I/b Mr. S.R. Deshpande, Advocate for respondent No.2. CORAM : A.V. NIRGUDE, J. DATED : 18th July, 2011. ORAL JUDGMENT : 1. This second appeal challenges the concurrent findings recorded by the Courts below that the respondents / original plaintiffs are owners and possessors of lands Survey No. 51 and 52 of Aurangabad. The Courts below examined record as well as revenue record from the year 1910 A.D. and then came to conclusion that the great grand father of the present plaintiffs one Papa khan was owner of these two lands and that since then he and his successors enjoyed the possession of the land. The Courts below searched and examined the title of the plaintiffs. 2. It has come on record that in 1910, certain document by name Inam patrak showed that Papa Khan became owner of these lands because of the Gift / Inam. The Courts below also took note of the fact that although word “Inam” was used in that document, there is no 4 S.A. 1441/2005 record subsequent to 1910 to show that the Inam was either Madad Mash or Khidmad Mash. The Courts below could not therefore, examine as to whether Papa Khan held these lands as “Inam” as understood by the definition of the term contained in “Inam Abolition Act”. 3. It so happened that till 1948 name of Papa Khan appeared as owner of the land in revenue record. However, it is also an admitted fact that his name as owner and possessor of these two lands thereafter did not appear in revenue record till 1983. During these 35 years these lands were shown as either Government or Municipal Counsel’s property. These lands are situated outside the walled city of Aurangabad. No doubt, thereafter, the urbanization of this area took place very rapidly and by 1960, the area of the suit lands became part of larger Aurangabad City. 4. As said above, the suit lands were shown to be the property of Government or Municipal Council for quite some time in revenue record, to be precise from 1948 onwards. In 1972-73, the City Survey took place and even then the lands were shown to be the property of Government and Municipal Council. The plaintiffs or their predecessors (father, grand father etc.) did not raise any objection. 5. It is for the first time in 1983, present respondent No.1 (plaintiff No.1) raised objection with the Government officers that in the ownership column of revenue record of these lands, names of Government and Municipal Council were wrongly shown. It appears that on such representation, the Tahsildar conceded that the name of the Government as well as the Municipal Council were wrongly shown as owners of the lands. The Tahsildar made such statement in a letter 5 S.A. 1441/2005 written to the City Survey authority and pursuant to such admission of the Tahsildar, the names of the plaintiffs were inserted as owners of these lands. 6. Soon thereafter in 1985, present suit was filed against the appellants here on the ground that they were trying to interfere in their possession. Prior to filing the suit, the plaintiffs even sold some part of these two lands as plots for urban development. Pursuant to such transaction, the purchasers were shown as owners and possessors in City survey record. Consequently, the City Survey issued Sanads to plaintiffs as well as the transferee of plaintiffs. 7. All these circumstances taken together, the Courts below held that these circumstances established title in favour of the respondents/plaintiffs. The Courts below also held that as against the strong claim of the respondents/plaintiffs, the claim of the appellants to the lands is scanty and they further held that the appellants/defendants could not show any poof of possession. The appellants/defendants also took up a plea of adverse possession etc. but the same was also rejected on facts. 8. The learned counsel appearing for the appellants / defendants challenged the title of the respondents/plaintiffs saying that Tahsildar after 40 years of documentary proof, that the lands belonged to Government and Municipal Council, could not have given up the title of these two parties by simply writing the letter. Such a letter he would not create title in favour of the respondents / plaintiffs. He even placed reliance on judgment of this Court in the case of Bansrajidevi wd/o Bhuval Singh Ramniranjan Singh and others Vs. M/s Byramjee Jeejeebhoy Pvt. Ltd. And others reported in 2006(6) Mh.L.J. 95. In 6 S.A. 1441/2005 this judgment, the learned single judge of this Court examined the purport of provisions of Sec. 149, 150 of the Maharashtra Land Revenue Code and relevant rules made thereunder. The learned judge held that a person who makes application under section 148 for entering his name in revenue record, has to show a legal right to the lands in question in support of his application. He should either show that he is a holder, occupant, owner, mortgagee or tenant or that he claims the lands and possession of it through the lawful title. Merely saying that the respondents did not object at any time to his possession, would not make his possession lawful. Unfortunately, this suit was not filed against the Municipal Council and the Government. They alone could have taken advantage of judgment referred to above. Therefore, this judgment is not applicable to the objection raised by the appellants / defendants. 9. As said above, the Courts below after appreciating the evidence which is documents from 1910 onwards, have come to a conclusion that the plaintiffs have proved their title and possession also. At this stage, I do not find any substantial legal question of law arising in the appeal. ORDER The appeal stands dismissed. [A.V. NIRGUDE,J.] ts k/2011/July18/sa1441.05/ok