1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 32 OF 1996 Phulsing s/o Barkusingh Sulane age 56 years, occup.agriculture, r/of Aradkheda, Tq. Jafrabad, Appellant/ District Jalna. ori. pltff. versus 1. Bhagwan s/o Pachiram Ghusinge age 50 yrs., occup.agriculture, r/of Ardkheda, Taluka Jafrabad, District Jalna. (Appeal abated against him.) 2. Gulabsingh s/o Raisingh Satwan age 46 years, occup.Agriculture, Respondents/ r/of Aradkheda Wadi,Tq,Jafrabad Orig.defts. District Jalna. ------------------------------------------------------ Smt. Geeta Deshpande, Advocate for the appellant. Shri Jayant Chitnis, Advocate for Respondent No.2. ------------------------------------------------------ Coram : P.R. Borkar, J. Date : April 01, 2010 ORAL JUDGMENT 01. This second appeal is preferred by original plaintiff whose suit for declaration, possession and 2 mesne profit bearing R.C.S. No.102 of 1983 though decreed by the 5th Joint Civil Judge, Junior Division, Jalna, on 25.9.1985, said judgment and decree was reversed and the suit was dismissed by the learned Additional District Judge, Jalna, in Regular Civil Appeal No.176 of 1985 decided on 21.6.1993. 02. Briefly stated, the facts giving rise to this second appeal are as follows; It is the case of the appellant-plaintiff that he was exclusive owner of 1 acre 20 gunthas portion out of land bearing block No.82 in all admeasuring 20 acres 27 gunthas situated at village Aradkheda, Tq. Jafarabad. Defendant No.1 Bhagwan (Respondent No.1) had executed sale deed in favour of Defendant No.2 (Respondent No.2 Gulabsingh in respect of three acres land which is null and void, ineffective and inoperative over the right of the plaintiff. Originally, entire block No.82 belonged to the plaintiff-appellant, but as per wishes of his father, the land was gifted to defendant No.1 Bhagwan. It is further stated that the gift deed in favour of defendant No.1 was executed in respect of entire block No.82 except the portion of 1 acres 20 gunthas and 3 till 1975 plaintiff was in possession of this portion. In 1975, Respondent No.2 (defendant No.2) dispossessed the plaintiff-appellant from the suit land and since dispossession plaintiff is suffering yearly loss of Rs.500/=. He, therefore, filed suit for declaration that the sale deed between the defendants was void and that the plaintiff is the owner of 1 acre 20 gunthas land and also for possession and mesne profit. 03. Original Defendant No.1 Bhagwan appeared in the suit and entered into compromise with the plaintiff as per pursis Exh.36. Accordingly, suit was dismissed as against Defendant No.1. However, Defendant No.2 (respondent No.2) contested the suit, vide written statement Exh.23. He denied that 1 acre 20 gunthas portion out of land block No.82 was retained by the plaintiff for his exclusive use and occupation. He also denied that the plaintiff was the owner in possession of the suit land and contended that Defendant No.1 was competent to execute sale deed in his favour and he was put into possession of 3 acres land sold. According to defendant No.2, it is a false suit and so, it be dismissed. 4 04. The trial court framed various issues and came to the conclusion that the plaintiff proved his title over 1 acre 20 gunthas land and defendant No.1 was incompetent to execute sale deed dated 6.6.1975 in favour of defendant No.2 in respect of the said land. In the circumstances, the suit was decreed. However, in First Appeal, the judgment and decree of the trial court was reversed by the learned Appellate Court and the suit was dismissed. 05. This second appeal is admitted on substantial question of law regarding interpretation of compromise (Exh.36) and the right of transferee- defendant No.1 in respect of the suit land. The order admitting second appeal is passed on 23.1.1996. After hearing Advocates for the parties, in my opinion, following issues need to be decided. (1) Whether the plaintiff proved his title over 1 acre 20 gunthas land. ? (2) Whether the plaintiff proved that he was dispossessed by defendant Nos. 1 and 2 from the said land and as such, he is entitled to the decree of declaration of title, possession and mesne profit. ? 5 06. Various documents were relied upon by the plaintiff-appellant for establishing his title and the said documents are referred to by the trial court in the paragraph in which issues No. 1, 4 and 7 are discussed. 07. The plaintiff examined himself on oath at exhibit 39 and stated that he was the owner of the suit land which was 1 acres 20 gunthas. He also stated that he was dispossessed by present respondent No.2 (defendant No.2) ten years before his deposition recorded on 17.7.1985. It is further admitted that block No.82, excluding suit land, was given to Pachiram, the father of defendant No.1, as a tenant on rent. Pachiram and Defendant No.1 paid rent to him for 4 to 5 years. 08. Exhibit 40 is the V.F. 7x12 extract for the period 1966-67 to 1970-71. The name of defendant No.1 is entered as the owner of the property in his capacity as Karta of the joint family. Earlier, there was name of the appellant-plaintiff to entire block No.82, but by mutation entry No.94, name of defendant No.1 appears to have been substituted. It is clear 6 that earlier mode of cultivation mentioned was "No.6" for the period 1966-67 to 1969-70, but from 1970-71 onwards the mode was changed to "No.1" and defendant No.1 was shown to be cultivating the land as owner. The total land was 12 hectors 26 Ares out of which, defendant No.1 was shown to be cultivating an area 12 hectors 12 gunthas. The V.F. 7x12 extract in other rights column, shows that the appellant-plaintiff was given right of grazing cattle over 1 acre 20 guntha land. In the said column, we also find that father of defendant No.1 was tenant from 1930. 09. Second document (Exh.41) is the consolidation statement of block No.82 which shows that it was consolidation of survey Nos. 34/4B, 34/4-A and 34/1. In `tenant and other rights column', it is mentioned that present appellant-plaintiff has right of grazing cattle over 1 acres 20 gunthas land. That right continued even after consolidation as can be seen from column Nos. 11 and 25 of Exh.41. Thus, the V.F. 7x12 extract and the consolidation statement do not show that the plaintiff-appellant was owner of 1 acre 20 gunthas portion of land, but it seems that he was having right of grazing cattle over that much portion. It is clear from the consolidation statement 7 that there was one well in the land. The V.F.7x12 extract at Exh.40 also shows that 12 acres 22 gunthas out of total land of 12 acres 26 gunthas was under cultivation. 10. At Exhibit 42, there is another V.F. 7x12 extract of the year 1982-83. Defendant No.1 was shown to be in possession of 6 hector 29 Are. Defendant No.2 was also shown to be in possession and against his name, we find that he had grown crops like bajara in 80 R. land and jawar in 40 R. land. So, defendant No.2 was actually cultivating portion of 1 hector 20 R. In the said V.F. 7x12 extract, in `other rights column', we find right of grazing cattle reserved for the plaintiff-appellant. 11. Exhibit 43 is mutation entry No.248 and it shows that the plaintiff and defendant No.1 had given application stating that Pachiram (father of deft. No. 1) had been in possession of the property as tenant for 30-40 years and after his death, his sons Bhagwan, Moti and Sandu were cultivating the land. Defendant No.1 was Karta of joint family and so his name be entered in the revenue record. He was in actual possession of the property. Defendant No.1 had given 8 1 acre 20 gunthas land to appellant-plaintiff for grazing cattle. Admittedly, no document of gift/sale/exchange or transfer by other mode is executed between plaintiff and defendant No.1. It, therefore, appears that right of grazing cattle was conferred by mutation No.258 which was sanctioned on 8.12.1970. So, it can be a right of easement. 12. At Exhibit 44, there is sale deed executed by defendant No.1 in favour of defendant No. 2 wherein it is stated that the western side three acres land was sold by defendant no.1 to defendant No. 2 for meeting some financial difficulties. Possession of the land was also handed over. 13. At Exhibit 45, there is mutation No.224 which is sanctioned on 29.9.1974 and by that mutation, cognizance was taken of the sale of 3 acres land by defendant No.1 to defendant No.2 and name of defendant No.2 was entered into the revenue record. 14. At Exhibit 50, there is a Register of Protected Tenants and we find the name of the plaintiff as heir of the landlord and that of Pachiram as tenant. So, this document clearly proves that 9 Pachiram, father of defendant No.1, was the protected tenant of survey No.34. 15. Exhibit 51 is the V.F. 7x12 extract of year 1984-85 which again shows that defendant Nos. 1 and 2 and others were cultivating different portions of lands. There are names of Mansaram Sandusing, Jamunabai Bhagwan, Kapursing Kaniram as owners of different portions of lands. In the year 1984-85 defendant No.1 was shown to have grown bajara in 80 R. and cotton in 40 R. land. 16. So, the above-said documents on record in no way show that the plaintiff-appellant continued to be owner of any of the portion of the land. It appears that the land was sold to protected tenant as per the provisions of Hyderabad Tenancy and Agricultural Lands Act, otherwise there is no reason how name of the tenant came to be shown as owner and erstwhile tenant happen to give grazing right in area of the land 1 acre and 20 gunthas to erstwhile owner. The theory of gift to defendant No.1 propounded by the plaintiff is not supported by any document. 10 17. The compromise-Exh.36 between the appellant - plaintiff and defendant No.1-respondent No.1 is not binding on defendant No.2 (respondent No.2). The compromise shows that on east of the land of defendant No.2 there is 1 acre 5 gunthas land of the plaintiff-appellant. Ordinarily, land under cultivation in which crops are taken, would not be given for the purpose of grazing cattle as of right to a stranger. Generally, the land which is not under cultivation, but in which grass is grown is given for such purpose. There is nothing on record to show that this general rule is not followed in this case while giving right of grazing by defendant No.1 to the plaintiff. The land sold to defendant No.2 and which is in his possession is under cultivation by defendant No.2. 18. In the facts and circumstances stated above, the plaintiff has failed to prove his ownership over portion of 1 acre 20 gunthas of land and it is apparent that defendant No.2 Gulabsingh was in possession of land purchased by him. As such, plaintiff is not entitled to declaration, possession and mesne profit as claimed by him. The first appellate court has considered all these aspects in 11 details. I agree with reasons given by it. 19. In the result, in my opinion this is not a case requiring interference by this court in the second appeal. Consequently, second appeal fails and is dismissed. pnd/fa204.96 (P.R.BORKAR, J.)