/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO. 10 OF 2008 IN SECOND APPEAL NO.809 OF 2006 Shri Vasant @ Baba Maruti Chavan & Ors. ...Petitioners vs. Anusaya Namdeo Chavan & Ors. ...Respondents ---- Shri Dilip Bodke for Petitioners Shri A.M. Kulkarni for Respondents ---- CORAM: V.M. KANADE J. DATED 25TH AUGUST, 2008 P.C. 1. Heard the learned Counsel appearing on behalf of the Petitioners and the learned Counsel for the Respondents. The review petition has been filed, challenging the order passed by this Court dated 31.2.2007 in Second Appeal No.809 of 2006. It is submitted that this Court has erred in holding that the judgment and order passed by the Lower Appellate Court is correct. The Learned Counsel for the Petitioners submits that a certificate under section 32M of the Bombay Tenancy and Agricultural Lands Act was issued in favour of the appellants and the Respondents had claimed that the said certificate was issued in favour of the Petitioners as Karta of the Joint Hindu / 2 / Family. It is submitted that this Court had not considered this aspect while dismissing the Second Appeal. In support of the said submissions, he relied on the judgment of Apex Court in the case of Saraswatibai Trimbak Gaikwad Vs. Damodar D. Motiwale and others reported in 2002 (3) Mh.L.J. Page 69. He also relied on the judgment of the Apex Court in the case of Mudakappa Vs. Rudrappa and others AIR 1994 Supreme Court 1190 and the Full Bench Judgment of this Court in the case of Rajaram Totaram Patel vs. Mahipat Mahadu Patel reported under the Bombay Tenancy and Agricultural Lands Act (Bom. LXI II of 1948), Secs. 70(b), 85. It is not possible to accept the submissions made by the Learned Counsel for the Appellants. An issue was framed by the Trial Court is as follows: (i) Whether the Respondents prove that the tenancy in the name of Maruti was a joint tenancy? This issue is answered in the negative. Against the judgment and order of the Trial Court, the Respondents herein preferred an appeal before the District Court. The District Court, however, certified the judgment and decree of the Trial Court and held that the certificate under section 32M was held by the Petitioners on behalf of the joint family. Though a specific point / 3 / for determination in the above terms was not framed by the Lower Appellate Court as required under Order 14 Rule 1 and 2 and Order 41 Rule 31 of the Code of Civil Procedure, in its judgment the Appellate Court has addressed itself at length on this question and has given a finding that the said land was occupied by the Maruti as a tenant on behalf of the joint family property. A specific ground was raised in the Memo of Appeal on this point I have upheld the judgment and order passed by the Lower Appellate Court on this point and the same has been confirmed by me in the said matter. That being the position, submissions made by the learned Counsel appearing on behalf of the Appellant that this question is not considered in the impugned judgment is incorrect. The ratio of the judgment on which the reliance is placed by the learned Counsel appearing on behalf of the Review Petitioners does not apply to the facts in the present case. In the case of Rajaram Totaram Patel vs. Mahipat Mahadu Patel, the issue was whether a dispute between the tenant and co-tenant should be decided by the Civil Court? While deciding the said issue, the Supreme Court has held that such an issue could be decided only by the Tenancy Court under section 17B of the Bombay Tenancy and Agricultural Lands Act. 2. In the present case the issue is whether the certificate issued by the / 4 / Tenancy Court under 32M is held by him on behalf of the joint family or not? This issue in my view, only could be decided by the Tenancy Court and not by the Civil Court. The reliance is also placed in the case of Saraswatibai Trimbak Gaikwad Vs. Damodar D. Motiwale and others reported in 2002 (3) Mh.L.J. Page 69. In this case also the Apex Court has held that the question whether a person is deemed to be a tenant, whether he is entitled to individual land held by him. This issue can be only decided by the Land Tribunal and not by the Civil Court. There cannot be any dispute about the said proportion of law. In the present case, the ratio of the said case, however, does not apply to the facts of the present case. Lastly, in the case of Mudakappa Vs. Rudrappa and others AIR 1994 Supreme Court 1190. The question before the Court was whether the joint family or one of its members is a tenant or not, and, therefore, during pendency of the suit, the said issue was referred to the Trial Court. In the present case the certificate was already issued in favour of the Maruti, the Appellant herein under section 32-M. The evidence has been brought on record to indicate that similarly in respect of other lands also, certain lands were calculated by other members of the joint family and a certificate under section 32-M was issued in their individual name, this being the position. The facts of the said case is different. The / 5 / ration of the said judgment would not apply to the facts of the present case. There is, therefor, no error of law apparent on the face of record and no case is made for reviewing the order passed by this Court. The issue, if any, to challenge the said order is by filing of SLP in the Apex Court. V.M. KANADE J.