1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 1013 OF 2007 WITH CIVIL APPLICATION NO.369 OF 2008 Shri Shankar Laxman Jaikar : Appellant versus Shri Anandrao Bhiku Jaikar (Deleted) Smt.Rangubai Anandrao Jaikar & ors. : Respondents.. Shri Dilip Bodke for the Appellant. Shri R.A.Thorat for the Respondents. CORAM : R.M.SAVANT, J. DATED : AUGUST 01, 2008 P.C. 1. The above Second Appeal arises out of the Judgment and Decree dated 28.8.2007 passed by the learned District Judge-1, Satara in Regular Civil Appeal No.116 of 2002 by which the Judgment and Decree dated 15.7.1976 passed by the learned Joint Civil Judge, Junior Division, Wai in Regular Civil suit No.274 of 1977 came to be confirmed. 2. The Appellant herein is the Original Plaintiff in Regular Civil 2 Suit No.274 of 1977 filed by him for a declaration that he has become a deemed purchaser and owner of the suit land bearing Revisional Survey No.184 admeasuring 1 acre 2 gunthas situated at Kasbe Wai and further for a declaration that the decree dated 15.7.1976 passed in Regular Civil Suit No.274 of 1971 filed by Respondent No.1 herein was not binding on him. It was the case of the Plaintiff that the land in question has come to his share in a partition that took place on 3.9.1969 and that he is a deemed purchaser in respect of the said land. The Appellant/Plaintiff also prayed that the decree passed in R.C.S. No.274 of 1971 was not binding on him as he was not a party to the said suit. 3. The parties went to trial, and on the basis of evidence that was adduced by the parties, the trial Court came to a conclusion that the Plaintiff was not entitled to any relief save and except the relief of declaration that the Plaintiff is not bound by the decree passed in R.C.S.274 of 1971. The trial Court rejected the prayer for declaration sought by the Plaintiff that he had become a deemed purchaser under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. 3 4. Being aggrieved by the said decree dated 31.1.2002 passed by the trial Court, the Respondent No.2 herein filed an appeal being Regular Civil Appeal No.116 of 2002 and the Plaintiff filed Cross Objections in respect of the relief which was refused by the trial Court. The lower Appellate Court on the basis of the material that was before it, confirmed the findings of the trial Court. The lower Appellate Court held that considering the revenue record in the form of 7x12 extracts which were marked at Exhibits 101 and 102, it could be seen that the entries in respect of the land in question were in the name of one Bhiku from the year 1950-51 and from the year 1963-64 to 1969-70 the land in question was in the name of Ananda the son of the said Bhiku. The said Ananda is the husband of Respondent No.2 herein who was the original Defendant No.1 to the said suit. The lower Appellate Court held that pursuant to the application made by the said Ananda, the name of Shankar i.e. the Plaintiff was entered in respect of the suit land for the first time in the year 1970. The lower Appellate Court, therefore, concluded that the said Bhiku was the original tenant and after his death, name of his son Ananda was recorded as his heir. The lower Appellate Court, therefore, reached a 4 conclusion that the case of the Plaintiff that he was the protected tenant and that he was a deemed purchaser on account of his possession on tiller's day i.e. 1.4.1957 could not be accepted. 5. In so far as the declaration issued by the trial court in favour of the Plaintiff is concerned, the lower Appellate Court, on the basis of material that was before it, held that the conduct of Defendant No.1 Ananda does not appear to be bonafide inasmuch as in the said R.C.S.No. 247 of 1971, he never mentioned that the land in question i.e. the Revisional Survey No.184 was not part of his holding. The lower Appellate Court also did not accept the fact that the Plaintiff was unaware of the said R.C.S.No. 247 of 1971, the lower Appellate Court further held that it is unbelievable that the Plaintiff was not aware of the litigation between the Defendant No.1 and Defendant No.2, who are the husband and wife. The lower Appellate Court has also taken into consideration the fact that the Plaintiff could have objected to the decree passed in the said R.C.S. No.247 of 1971 by having recourse to Order 29 Rule 97, but he did not do so. And therefore, the lower Appellate Court was of the view that the suit filed by the Plaintiff was not bonafide but was only as and by way of 5 stalling the Respondent No.2 from getting the fruits of the decree in the said R.C.S.No. 247 of 1971. 6. Both the Courts below have, therefore, concurrently rejected the Plaintiff's case of being a deemed purchaser. The lower Appellate Court on the basis of the material that was before it came to a conclusion that the declaration sought by the Plaintiff could not be granted. 7. The learned counsel for the Appellant relied upon the judgment of the Apex Court in the case of Saraswatibai Trimbak Gaikwad v/s. Damodar D.Motiwale & ors. reported in 2002(3) Mh.L.J. 69 and another judgment in the matter of Mudakappa v/s. Rudrappa and others reported in AIR 1994 SC 1190 as well as the judgment of the Full Bench of this Court in the matter of Rajaram Totaram Patel v/s. Mahipat Mahadu Patel reported in 1966 (Vol.LXIX) BLR 282 in support of his submission that since there was a issue of joint tenancy, the Civil Court should not have tried the said suit and should have referred the said suit to the Tenancy authorities under the provisions of Section 85-A of the Bombay Tenancy and Agricultural Lands Act. 6 8. In my view, the reliance on the judgments cited (supra) is misplaced in the facts of the instant case. In the instant case, it is the Appellant/Plaintiff, who had filed a suit for declaration that he is a deemed purchaser under the Bombay Tenancy and Agricultural Lands Act. Both the Courts below, on the basis of the revenue record in the form of 7x12 extracts, have recorded a finding that the Plaintiff was not a deemed Purchaser as the revenue record discloses that one Bhiku was the protected tenant since 1950-51and after his death his son Ananda, who was the husband of Respondent No.2, became the tenant by heirship. There was no issue of any joint tenancy, therefore, raised in the said suit. It is in the contest of the declaration sought by the Plaintiff that the said finding was recorded. 9. Both the Courts below have concurrently held against the Plaintiff in respect of the declaration sought by him 10. In my view, the challenge raised in the above Second Appeal does not involve any substantial question of law. The Second Appeal is accordingly dismissed. 7 11. In view of dismissal of the Second Appeal, the Civil Application No.369 of 2008 does not survive and the same is disposed of as such. 12. The learned counsel for the Appellant Shri Dilip Bodake applies for stay of this order. The operation and effect of this order is stayed for a period of four weeks from date. [R.M.SAVANT, J]