1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.93 OF 1988 01. Hareshwar Baslingayya Swami died, legal representative- appellant No.2 is already on record. 02. Dhondayya Baslingayya Swami Appellants versus 01. Maharudra Baslingayya Swami (died) through his legal representatives:- 1-A. Parwatibai w/o Maharudra 1-B. Kashinath s/o Mharudra 1-C. Subhash Maharudra Swami age 16 years, minor 1-D. Vilas Maharudra, age 12 years, minor. 1-E. Lalita w/o Kashinath Lonikar 1-F. Shivkanta d/o Maharudra Swami age 3 years. (legal representative Nos.1C, 1D and 1F are minors, under guardianship of their mother Parwatibai L.R. No.1-A. 02. Nirmalabai d/o Vaijnath Swami age 12 years, minor, under guardianship of her father Vaijinath Swami. 03. Dnyanoba s/o Pandurang 2 04. Tukaram s/o Pundlik 05. Dadaram Ramrao Amage, (died) through his legal representatives: 5-A. Parwatibai w/o Dadarao Amage 5-B. Deelip Dadaro, age 12 years, minor. 5-C. Daula s/o Dadarao, age 10 years, minor, 5-D. Chayya d/o Dadarao, age 10 years, minor, Legal Representative Nos.5B 5C and 5D are minors under guardianship of their mother Parwatibai Legal Representative No.5A. 5-E. Kausalyabai w/o Dattu Muley Respondents WITH SECOND APPEAL NO.94 OF 1988 01. Hareshwar Baslingappa Swami died, through legal represen- tative:- Appellant/ original Dhondayya Baslingayya Swami Deft.No.1. Versus 01. Maharudra (died) through his L. Rs.- 1A. Parwatibai w/o Maharudra Swami 1B. Kashinath Maharudra Swami 1C. Subhash Maharudra Swami 3 1D. Vilas Maharudra Swami, age 16 years, minor under guardianship of his real mother Parwatibai w/o Maharudra Swami, (Respondent No. 1A. 1E. Lalita w/o Kashinath 1F. Shivkanta d/o Maharudra, age 7 years, minor under guardianship of her real mother Parwatibai w/o Mahardura Swami, age 54 yrs. occupation household, resident of Wadhona, Kd., Taluka Udgir (Respondent No.1A). 02. Nirmalabai d/o Vajnath Swami, age 17 years, minor, under guardianship of real father Vaijnath Swami, age 60 years, occupation agriculture, resident of Lali, Taluka Udgir. 03. Dadarao (died) through his L.Rs. 3A. Parwatibai w/o Dadarao Amage 3B. Deelip Dadaro Amage, age 16 years, minor 3C. Daula Dadarao Amage, age 10 years, minor, 3D. Chayya d/o Dadarao Amage, age 16 years, minor. All minors (B), (C) and (D) are under guardianship of their real mother Parwatibai w/o Dadarao Amage, age 46 years, occupation household and agriculture, r/of Keni Yelladevi, Taluka Udgir 3E. Kausalyabai w/o Dattu Muley 4 04. Dhondayya Baslingyya Swami (deleted as per Court order dtd.02.09.2004 in CA 7408/02) 05. Dyanoba s/o Pandurang. 06. Tukaram s/o Pundalik. Respondents. WITH SECOND APPEAL NO. 307 OF 1993 01. Hareshwar s/o Baslingayya Swami age 55 years, occup. Kirtankar, r/o Wadhona,Tq.Udgir, Dist.Latur (died) legal representative i.e. appellant No.2 already on record. 02. Dhondayya s/o Baslingayya Swami Appellants age 35 years, occup. agriculture, ori.deft. r/o Wadhona, Tq. Udgir Dist.Latur Nos. 1 & 2 versus 01. Kashinath s/o Maharudrappa Swami age 35 years, occup.agriculture, r/o Wadhona,Tq.Udgir, Dist.Latur' 02. Subhash s/o Maharudra Swami age 33 years, occup. Agri. and service, r/of as above. 03. Parwatibai w/o Maharudra Swami age 68 years, occup. household, r/of as above. 04. Vilas s/o Maharudra Swami age 30 years, occup.agriculture, r/of as above. 05. Dyanoba s/o Pandurang Tirkamathe age 40 years, occup. agriculture r/of as above. 5 06. Tukaram s/o Pndlik Tirkamathe age 40 years, occup.agriculture, r/of as above. Respondents -------------------------------------------------- Shri S.V.Chandole, Advocate, holding for Shri V.G.Sakolkar, Advocate, for the appellants. Shri G.N.Chincholkar,Advocate,for Respondents 1A to 1E. -------------------------------------------------- Coram : P.R. Borkar, J. Judgment reserved on : 04/09/2009 Judgment pronounced on: 09/09/2009 JUDGMENT 01. These three second appeals can be disposed of conveniently by a common judgment. All the three appeals essentially arise out of and as a result of the judgment and decree passed on 18.9.1980 by Civil Judge, Jr. Division, in R.C.S. No.150 of 1974. Present appellants in all these three second appeals are the original defendant Nos.1 and 2 and Respondent No.1 Maharudra was the original plaintiff in said suit. Respondent Nos.1A to 1E in Second Appeal Nos.93 and 94 of 1988 are the legal heirs of deceased Respondent No.1 Maharudra and Respondent Nos. 1 to 4 in Second 6 Appeal No.307 are the heirs of deceased Maharudra who had filed Regular Civil Suit No.20 of 1981 in the Court of Civil Judge, Junior Division, Udgir, seeking declaration of ownership and possession which suit was filed as a sequel to R.C.S. No.150 of 1974 referred to earlier. 02. Briefly stated, it was the case of original Plaintiff Maharudra (since deceased) in R.C.S. No.150 of 1974 that survey No.116 situated at village Wadhona, Taluka Udgir, District Latur was a property of which he was entitled to possession and mesne profit as owner. Admittedly, Gurling Swami the husband of Limbabai was the original owner of survey No. 116. After death of Gurling Swami, his wife Limbabai and their daughter Padminibai inherited the said property. Original Defendant No. 3 Nirmala is the daughter of said Padmini. Husband of Limbabai died before Hindu Succession Act 1956 came into force and as such Limbabai became absolute owner of the property under the provisions of the said Act. In 1965, she agreed to sell the suit land to 7 Plaintiff Maharudra and put him in possession. On 15.10.1968, Limbabai executed a registered sale deed in favour of Maharudra. At that time, Maharudra paid Rs.5,000/= out of total consideration of Rs.15,000/= to Limbabai and it was agreed that remaining consideration of Rs. 10,000/= would be paid on the day of Gudi Padva in the year 1969. After execution of sale deed, remaining amount of Rs.10,000/= was accordingly paid on the day of Gudi Padva of 1969 and thus Maharudra became full owner of the property. 03. Defendant Nos. 1 and 2 were nephews of Limbabai. It is the case of plaintiff Maharudra that defendant Nos. 1 and 2 had obtained certain documents from Limbabai and on the strength of those documents, defendant No. 1 (appellant No.1) had started proceedings in the tahsil office. Limbabi died on 28.4.1972 and those proceedings were terminated. Thereafter, defendant Nos. 1 to 5 dispossessed the plaintiff Maharudra from 7 acres 7 gunthas land and it is this property in respect of which the suit is filed The said 8 property is described as "suit property" hereinafter. It is further stated that Maharudra sold 2 acres land to Defendant No.6 Dadarao Amage- Defendant No. 6 has been in possession of the said portion of land since the date of purchase i.e.11.8.1969. The suit is filed for recovery of possession and mesne profit. 04. Defendant Nos.1 and 2 filed their written statement at Exh.25. Defendant Nos. 4 and 5 filed their joint written statement at Exhibit 30. Other defendants did not file written statement. Ownership and possession of suit land by Limbabai was not disputed by defendant Nos. 1 and 2 and they have taken three-fold defence, namely, (i) During lifetime of Limbabai, defendants No. 1 and 2 were cultivating the suit land on her behalf on crop share basis (batai), (ii) Limbabai had orally agreed to sell the suit land to defendant Nos. 1 and 2 and thus they started cultivating the suit land on the basis of oral agreement of sale. (iii)Defendant Nos.1 and 2 being nephews of Limbabai, they had become owners of the suit land. 9 It is denied by defendants that plaintiff Maharudra was in possession of the suit property at any time. It is stated that by practicing fraud,, sale deed was obtained by the plaintiff from Limbabai without paying her any consideration and, therefore, the sale deed in favour of the plaintiff is void. It is further stated that defendant no. 1 had sold 4 acres 5 gunthas land to defendant Nos. 4 and 5 for Rs.7,000/= by sale deed executed on 15.4.1974 and since then defendant Nos. 4 and 5 have been in possession of the said land. Defendant Nos. 4 and 5 pleaded additionally that they were bona-fide purchasers for value without notice and also alleged that they never dispossessed plaintiff Maharudra. 04. Learned Civil Judge, Junior Division framed issues at Exh.36 and on assessment of the evidence and facts on record came to the conclusion that Limbabai was the owner of 9 acres 7 gunthas land which she had sold to the Plaintiff Maharudra. The sale deed was not obtained by the 10 plaintiff by playing fraud upon Limbabai and that entire consideration was paid. The plaintiff is entitled to get back possession. Learned Judge also arrived at the conclusion that the defendant Nos. 4 and 5 were not the bona-fide purchasers for value without notice. There was no agreement of sale executed by Limbabai in favour of Defendant Nos. 1 and 2. It is also held by the trial court that there was no need to refer the issue of tenancy to the tenancy authorities as defendant Nos. 1 and 2 have claimed ownership by inheritance, so also they claimed to be in possession of the property on the basis of agreement of sale and claimed protection under Section 53-A of the Transfer of Property Act, 1882 ("T.P.Act" for short). In paragraph 15 of his judgment, the learned trial judge referred to the claim of tenancy and plea of agreement of sale as per Section 38-A of the Hyderabad Tenancy and Agricultural Lands Act, 1950 ("H.T. & A.L. Act" for short), but observed that mere affidavits proved by Advocate Shri Mamatappa were not sufficient and there was no sufficient and 11 reliable evidence to prove the agreement of sale. Admittedly, issue of tenancy was not referred by learned Civil Judge to the tenancy authorities and he decreed the suit on 18.9.1980. 06. As against the said judgment and decree of the trial court, original defendant nos. 1 and 2, who are present appellants, filed Regular Civil Appeal Nos. 133 of 1980 and original defendant Nos. 4 and 5 filed Regular Civil Appeal No.132 of 1980. As against decision in R.C.A. No.130 of 1980, Second Appeal No.93 of 1988 is filed and against the decision in R.C.A. No. 132 of 1980, Second Appeal No.94 of 1988 is filed. 07. Widow and three sons of Maharudra who was original plaintiff in Suit No.150 of 1974, filed Regular Darkhast No.57 of 1980 for execution of decree of possession passed by the learned Civil Judge, Junior Division, Latur decided on 18th September 1980 and obtained possession of the suit land on 18.8.1980. Thereafter, said heirs of Mahardura filed R.C.A. No.27 of 1981 against 12 defendant Nos. 1,2, 4 and 5 in R.C.S. No.150 of 1974, for declaration that they are entitled to possession and enjoyment as owners of survey No. 116-A until final decision of R.C.S. No.150 of 1974 and for perpetual injunction. Regular Civil Appeal No.58 of 1988 before the District Court was preferred by Defendant Nos. 1 and 2 being aggrieved by the order of declaration and injunction passed in R.C.S. No.270 of 1981 decided on 23.2.1988 by the Civil Judge, Junior Division, Udgir. Said Civil Appeal No.58 of 1988 was dismissed by the III Additional District Judge, Latur on 17.3.1993. Being aggrieved thereby, same defendant Nos.1 and 2 filed Second Appeal No.307 of 1993 in this court. The operative order passed in R.C.S. No.270 of 1981 reads thus: "The suit is decreed. Subject to the final decision in R.C.S. No.150/74, it is hereby declared that the plaintiffs are owners in possession of the suit land. The defendants are hereby restrained from obstructing plaintiffs' peaceful possession in the suit land till the decision in R.C.S. No.150/74. 13 The defendants shall pay costs to plaintiffs and bear their own." 08. Being aggrieved by dispossession in R.D. No.57 of 1980 on 18.9.1980 by the Executing Court, R.C.A.No.27 of 1981 was filed by original defendant Nos.1,4 and 5. R.C.A. No.27 of 1981 came to be dismissed by II Additional District Judge, Latur by common judgment dated 17.11.1980 along with R.C.A. No.132 of 1980 and 133 of 1980. No Second Appeal is filed against the dismissal of R.C.A.No.27 of 1981 by any of defendant Nos.1,4 and 5. 09. Before we go come to the substantial questions of law framed in these three appeals, it is necessary to refer to certain developments those took place pending Regular Civil Appeals in the District Court. Along with application Exhibit 42 dated 4.11.1987, the appellants in Regular Civil Appeal No.133/1980 sought to produce following documents with list Exh.43. 14 (i) Certified copy of decision dated26.6.1986 by Additional Tahsildar L.C. District Latur and President Agricultural Lands Tribunal, Taluka Udgir in case No. 84/TNC/0/2 instituted on 27.2.1984 by present appellants who were original defendant Nos.1 and 2 in the suit. (ii) Copy of Purchase certificate issued under Section 38(6) of the H.T.& A.L. Act dated 16.9.1986 issued by Tahsildar. (iii) Copy of order passed by Deputy Collector, (LR) Latur, dated 6.4.1987 dismissing Appeal bearing file No. 86/TNC/A/7/Udg that was filed against decision of the Additional Tahsildar. (iv) Copy of mutation as a result of decision by above tenancy authorities (v) 7x12 extracts showing names of defendant Nos. 1 and 2 (present appellants No.1 and 2) as owners of the property. 10. Amongst the documents referred to by Addl. Tahsildar, while deciding Tenancy case Ni. 84/TNC/9/02 as per document at sr. No.1 were; (a) The office copy of the notice dated 22.9.1983, (b) Affidavit filed by Limbabai dated 29.4.1970, (c) affidavit of applicant No.1 dated 29.4.1970, (d) final order declaring applicant No.1 15 Hareshwar as tenant dated 31.10.1969. (e) copy of joint application by Limbabai and applicant No.1 Hareshwar with endorsement of Tahsildar. To the said proceedings before the Additional Tahsildar & A.L.T., widow and three sons of Mahardura, as also widow and two sons of original defendant No. 6 Dadarao and original defendant Nos. 4 and 5 in R.C.S. No.150 of 1974 were parties as Respondents. This was proceedings for issuance of purchase certificate under Section 38(6) of the H.T.& A.L. Act to the extent of 9 acres 16 gunthas land out of survey No.116 of village Wadhona, Taluka Udgir.The Tahsildar ultimately held the present appellants, (who were original defendant Nos. 1 and 2 in R.C.S. No.150 of 1974) were entitled to purchase certificate under Section 38(6) of the H.T. & A.L. Act to the extent of 9 acres 7 gunthas land out of survey No.116/A of village Wadhona, Taluka Udgir, District Latur. The Appeal No. 86/TNC/A/7/Udg before the Deputy Collector was between the widow and three sons of 16 Maharudra on one hand and present appellants- original defendant Nos. 1 and 2 in R.C.S. No.150 of 1974) on the other. By that appeal, decision of issuance of purchase certificate under Section 38(6) of the H.T. & A.L. Act, was challenged. The Deputy Collector dismissed the appeal and upheld the decision dated 26.6.1986 by the Additional Tahsildar. 11. It is argued before this court that the learned Additional District Judge passed order "other side to say" on application aqt Exh. 42 on 04.11.1987, but did not pass any order thereafter regarding rejection or acceptance of the said documents on record. It is also submitted that these were the certified copies of public documents which should have been accepted in evidence under Order 41 Rule 27 of C.P.C. as these were the documents which came into existence after decision of the Trial Court dated 18.9.1980 in R.C.S. No.150 of 1974. It is argued that the issue regarding tenancy ought to have been framed by the trial court or at least by the first 17 appellate court when the documents with list Exh. 43 were produced before the first appellate court. It is also argued that if the appellants were held to be tenants of the suit land, Limbabai had no right to sell the suit property to plaintiff Maharudra and as such the sale deed executed by Limbabai in favour of Maharudra is invalid and, therefore, the findings recorded by both the courts below are illegal and wrong. 12. In the set of two Second Appeal (Nos. 93 and 94 of 1988) and in Second Appeal No.307 of 1993 following substantial questions of law were framed separately as per order dated 1.9.2009 and 4.9.2009 respectively and the parties are heard on the same at length. Second Appeal Nos.93 & 94 of 1988 (1) Was it necessary to frame the issue whether defendant No. 1 & 2 were tenants of the disputed portion of the suit land ? (2) Whether Limbabai had right to sell the land to Maharudra Swami (who is original plaintiff) when the land was already given on lease to Defendant No.1 & 2 ? 18 (3) Whether the finding that the plaintiff became owner of the suit land vide sale deed dated 11.8.1969 is perverse and recorded without considering the findings given by Tahsildar, Deputy Collector and M.R.T. which are on record. ? Second Appeal No.307 of 1988 (1) Whether the findings of fact by the trial court and the first appellate court are perverse and not based on evidence. (2) Whether the decision of the trial court as confirmed by the first appellate court needs modification ? 13. At the outset, in my considered opinion, when the certified copies of the tenancy proceedings were produced before the learned Additional District Judge, he ought to have allowed production of the said documents because firstly, those were the certified copies of the public documents and secondly those documents came into existence after the decision in R.C.S. No.150 of 1974 and, therefore, the appellants could not have produced those documents earlier even after exercise of due diligence. The decisions of the 19 tenancy authorities declaring the appellants as tenant-purchasers of the land under the H.T. & A.L. Act were binding on the civil court and, therefore, the learned Additional District Judge ought to have taken those documents on record and should have considered the same while deciding the appeals. 14. As a further development pending these second appeals, it is stated that the decision of the Deputy Collector confirming the decision of the Additional Tahsildar regarding issuance of the sale certificate under Sec.38(6) of the H.T.& A.L. Act was further challenged by the widow and sons of original plaintiff Maharudra by filing revision before the Maharashtra Revenue Tribunal(M.R.T.), Aurangabad in revision bearing case No.28/B/8911 which was dismissed by learned Member of the M.R.T. on 16.6.1990. The copy of the said decision is produced by the appellants before this Court in Second Appeal No.93 of 1988 and the same is taken on record and marked 'X' for the purpose of identification. It is now further admitted 20 position that as against the said decision of the M.R.T., Writ Petition No.2007 of 1991 is filed in this court and the same is pending. 15. Heard Shri S.V. Chandole, learned Advocate, holding for Shri V.G.Sakolkar, Advocate for the appellants in all three appeals and Shri G.N.Chincholkar, Adv. for Respondents No.1A to 1E who are legal representative of original plaintiff Maharudra. 16. So far as Second Appeal Nos. 93 and 94 of 1988 are concerned, in my opinion, civil court ought to have framed the issue regarding tenancy when such a plea was taken. It is true that there were alternate pleas, namely, defendant Nos. 1 and 2 were heirs of Limbabai and that the sale deed in favour of plaintiff was void as it was obtained by fraud and without consideration; and that even in the alternative, defendant Nos. 1 and 2 were in possession of the property under oral agreement of sale and as such entitled to protection under Section 53-A of T.P. Act. Due to 21 said alternate pleas, the Civil Court has not felt it necessary to frame the issue regrading tenancy and refer the same to the tenancy authorities. However, the Additional District Judge has clearly committed an error in not allowing application Exhibit 42 and thus refusing production of documents with list Exh.43. He failed to consider the import of said documents on appeals in hand. The provisions of H.T. & A.L. Act are very clear. If the land is in possession of tenant or it is leased to a tenant and the land holder intends to sell the same, in that case he is bound to follow the procedure laid down under Section 48 of the H.T. & A.L. Act. Section 48(1) is as follows: "48(1) Where a landholder intends to sell any land leased to a tenant, he shall apply to the Tribunal for determining the reasonable price thereof. The Tribunal shall thereupon determine the reasonable price of the land in accordance with the provisions of section 50C. The Tribunal shall also direct that the price shall be payable either in a lump sum, or in annual installments not exceeding six carrying simple interest at three per cent per annum." 22 17. As per section 48(7) of the H.T. & A.L. Act, any sale made in contravention of said section shall, subject to the provisions of section 49, be invalid. Section 49 deals with sales effected by or in favour of a cooperative bank registered under the Maharashtra Cooperative Societies Act, 1960. In the present case, the tenancy authorities have held that the present appellants were tenants of the suit land and they were entitled to purchase the land under Section 38 of the H.T.& A.L. Act and in fact the certificate as per Section 38 (6) was issued. It is true that the decision of the Additional Tahsildar, as confirmed by the Deputy Collector in appeal and by M.R.T. in revision, is still subject matter of writ Petition No.2007 of 1991 and said decision has yet not attained finality and under these circumstances, it is necessary that the decision in R.C.S. No.150 of 1974, as confirmed in R.C.A. Nos.132 of 1980 and 133 of 1980 by the Second Additional District Judge, Latur, needs to be modified. 23 18. It may be noted that so far as findings recorded by the trial court and the first appellate court are concerned, there are certain concurrent findings of facts. Both the courts have held that Limbabai had executed the registered sale deed in favour of Maharudra on 11.8.1969. It was not a sale deed obtained by fraud or without consideration. The consideration was paid by Maharudra to Limbabai. It is also held that the present appellants had not proved that they were in possession of the property under oral agreement of sale with Limbabai and as such were entitled to protection under Section 53-A of the T.P. Act. Both the courts have also held that the original defendant Nos. 4 and 5 were not bona fide purchasers for value without notice. In the circumstances, it was held that the heirs of original plaintiff Maharudra were entitled to recovery of possession and mesne profit. Since nothing is argued in respect of these concurrent findings of facts, the decree passed by the Civil Jude, Junior Division, Udgir in R.C.S. No. 150 of 24 1974 can be confirmed in Second Appeal Nos.93 and 94 of 1988 only in case the heirs of original plaintiff Maharudra succeed in Writ Petition No. 2007 of 1991 filed by them and obtain declaration that the present appellants-original defendant Nos. 1 and 2 were not tenants of the suit land. 19. Shri G.N.Chincholkar, learned Advocate for Respondents, relying upon the decision of our High Court in Makbul Rasul alias Babalal vs. Dastgir Dada Jamadar 2003 (1) All M.R. 193, argued that the member of the family cannot be a tenant and that aspect will have to be considered in the writ petition and not in these appeals. In the circumstances, Second Appeal Nos.93 and 94 of 1988 will have to be allowed partly and the decision therein will have to be made applicable subject to ultimate decision in writ petition No.2007 of 1991. 20. Similarly, in Second Appeal No.307 of 1993, after hearing learned counsel for both the parties, I am satisfied that the concurrent 25 findings recorded by the trial court and the first appellate court are not perverse. Those are the findings based on evidence. However, the decree passed requires modification, in view of decisions of the tenancy courts and pendency of writ petition No.2007