(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. SECOND APPEAL NO. 132 OF 2010 Dinkar s/o. Keru Sanap, Age : 34 years, Occupation : Agriculture, .. Appellant R/o. Wadzari, (Original defendant Taluka : Patoda, no. 3A(3) ) District : Beed. versus 1. Padmakar s/o. Narhar Deshmukh, Age : 70 years, Occupation : Agriculture, R/o. Paraji Matkar, House No. 1185, Hatti Khana, Juna Bazar, Beed, District : Beed. 2. Rakhmabai w/o. Bhanudas Sanap, Deceased. 3. Tulsabai w/o. Ramrao Bangar, Age : 75 years, Occupation : Household, R/o. Market Yard, Gagan Vihar, Pune, Dist. Pune. 4. Kesharbai w/o. Gajanan Nagargoje, Age : 45 years, Occupation : Household, R/o. Chatijugiri, Taluka & Dist. Yawatmal. (2) 5. Janabai w/o. Aba Misal, Age : 55 years, Occupation : Household, R/o. Misalwadi, Post : Amalner, Taluka : Patoda, District : Beed. 6. Sakharbai w/o. Keru Sanap, Age : 65 years, Occupation : Household, R/o. Wadzari, Taluka : Patoda, District : Beed. 7. Mangal d/o. Keru Sanap, Age : 30 years, Occupation : Household, R/o. Wadzari, Taluka : Patoda, District : Beed. 8. Nivrutti s/o. Devrao Sanap, Age : 55 years, Occupation : Agriculture, R/o. Wadzari, Taluka : Patoda, District : Beed. 9. Maruti s/o. Devrao Sanap, Age : 60 years, Occupation : Agriculture, R/o. Wadzari, Taluka : Patoda, District : Beed. (3) 10. Pushpa Vasantrao Mule, Age : 50 years, Occupation : Household, R/o. Vipra Nagar, Peth Beed, Taluka & District : Beed. 11. Kashinath s/o. Patilba Sanap (Deceased). 12. Prabhavati w/o. Ramrao Borde [Abated against her in First Appellate Court ]. 13. Pralhad s/o. Bhanudas Sanap, Age : 48 years, Occupation : Agriculture, R/o. Wadzari, Taluka : Patoda, District : Beed. 14. Baban s/o. Keru Sanap, Age : 39 years, Occupation : Agriculture, R/o. Wadzari, Taluka : Patoda, District : Beed. .. Respondents (No.1 - Original 15. Maruti s/o. Bhaurao Sanap, plaintiff Age : 80 years, & Occupation : Agriculture, Nos.2 to 15 - R/o. Wadzari, Original Taluka : Patoda, defendants ) District : Beed. ....................... (4) Mr. A.N. Nagargoje, Advocate, for the appellant. Mr. G.K. Thigle, Advocate, for respondent no.1, caveator. Mr. D.M. Mane, Advocate, for respondent nos.3 to 9. Respondent nos.2 and 11 dead. Appeal abated as against respondent no.12. ........................ CORAM : K.U. CHANDIWAL, J. DATE : 6TH APRIL 2010 COURT'S ORDER : 1. Heard the learned Counsel for the respective parties, extensively. 2. The plaintiff's suit seeking possession was decreed, confirmed by the first appellate court, same is questioned by the defendant in the Second Appeal. 3. Mr. A.N. Nagargoje, learned Counsel appearing for the appellant, while extensively arguing the matter, taking recourse to the provisions of the Hyderabad Inam Abolition & Cash Grants Act, 1954, had a grievance that since the father of (5) the plaintiff, even if declared as owner, there should have been a proof of occupancy rights. Secondly, the defendant is in possession since 1954 and during the pendency, in the light of Exhibit 6 dated 3-3-1987, there is Batai Patrak in favour of the defendant by the plaintiff. He urged, findings of both the courts, directing him to vacate the lands, is perverse, warrants interference. 4. The pleadings at paragraph 4, as referred by the learned court of first instance, illustrate, at Exhibit 26, the defendant did not dispute that the suit lands are ancestral property of the plaintiff. They did not dispute their relations with the plaintiff. It was only a case, that the suit suffers from joining necessary parties as brothers of the plaintiff are not added either as plaintiffs or defendants. The defendant contended, they are not aware about grant of occupancy rights in favour of father of the plaintiff. The grant of mutation entries or its sanction is behind the back of the defendants. 5. The courts, on analysis of the evidence, found that the possession of the defendants to the suit land, is referred from 1961-62 till 1969-70. The entries for the year 1961-62 up to 1965-66 are in pencil, the entries or possession was not approved. The defendant's possession on the date of filing of the suit is not in controversy. The defendant, though Mr. (6) Nagargoje, learned Counsel for the appellant, submits, to be in possession of the property since 1954, certainly failed to establish the same. The plea of tenancy that has been accelerated, has been negated even up to the High Court vide order dated 29th August 1986 in Writ Petition No. 406/1982. 6. The learned Counsel appearing for the appellant has placed reliance on the judgment of Full Bench of this court, in the matter of Dattatraya Sadashiv Dhond Vs. Ganpati Raghu Gaoli (1965 Mh.L.J. 881), particularly paragraph 23 thereof, which reads as under : " The possession which would entitle a person to be recognised as an occupant must also be lawful possession. If, therefore, a person had unlawfully taken possession of a land, he could not claim occupancy rights unless the right to recover possession from him had become barred by limitation before July 1, 1960. In cases in which the land had been leased to a tenant, the sections specifically provide for occupancy rights being granted to the tenant, even though the constructive possession was with the inamdar. The possession, which will determine the question of occupancy rights as between an inamdar and (7) his tenant must, therefore, be actual possession. If, therefore, the inamdar had obtained the actual possession of the land before July 1, 1960, or if a final order for possession had been made in his favour before this date, which entitled him to actual possession on or before July 1, 1960, then the inamdar would be entitled to the rights of an occupant. " 7. There cannot be a quarrel to what has been propounded by the judgment referred above. However, the fact situation in the present case, needs its revolving to the possession which will naturally determine the question of occupancy rights either between the Inamdar or tenant. The stand of tenancy, as referred above, has been thrashed to pieces. Consequently, the same cannot be allowed towards further zeal and velocity to take the benefit of the above referred judgment. The contention, that during the pendency of the proceedings, fresh tenancy is created, has no meaning in the eye of law as it has ramification with the proceedings. The findings of both the courts does not demonstrate any perversity or misinterpretation of law. Admittedly, the defendant is not a family member of the plaintiff to stake claim to remain in possession for non-joinder of the brothers. It is not a suit for partition, it is a suit for taking possession from stranger / third party and consequently, a co- (8) owner in the eye of law, being entitled for removal of possession of stranger, such suit was indeed maintainable. 8. The Second Appeal sans merit and it is accordingly dismissed. 9. The defendant is in possession, though Mr. Nagargoje, learned Counsel for the appellant, informs, execution proceedings are initiated, however, considering the fact situation, the order under challenge is stayed up to 30th November 2010. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/sa132