: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.449 OF 2008 Gulab Maruti Ambekar & Ors. ....Petitioners V/s. Chandrashekhar Madhukar Tikhe & Ors. ....Respondents Mr.N.V. Walawalkar, Senior Counsel i/b Mr.A.B. Tajane for the Petitioners. Mr.Sanjeev J. Rairkar i/b Mr.S.S. Gawade for the Respondents. CORAM : S.J. VAZIFDAR, J. DATED : 19TH NOVEMBER, 2008. P.C. : 1. This Civil Revision Application is without any substance. It challenges the order passed in execution proceedings. 2. The suit was filed in the year 1982 and the same was dismissed by the trial Court on 13.7.1999. The lower Appellate Court allowed the Respondents’ Appeal and decreed the suit by an order and judgment dated 14.7.2005. This Court by an order and judgment dated 20.10.2005, dismissed the Petitioners’ Second Appeal No.1069 of 2005. The Supreme Court by an order dated 24.2.2006 dismissed the Petitioners’ Special : 2 : Leave Petition to appeal against the said judgment and order. . The judgment therefore, has now attain finality. 3. Despite the same, in the execution proceedings, it is contended that the orders of the lower Appellate Court, this Court and the Supreme Court are erroneous on the questions of fact and were passed without jurisdiction. 4. As the Respondents have been waiting for over twenty six years for this litigation to end, it is necessary to refer to certain aspects albeit briefly. 5. The Respondents filed a suit for permanent injunction restraining the Petitioners from obstructing their possession and enjoyment of the suit land. Contending that during the pendency of the suit, they had been dispossessed, the Respondents amended the suit inter-alia praying for a decree for possession. It was contended in paragraphs 3 and 4 of the plaint that the Petitioners predecessor was a tenant in respect of the suit land and that he had surrendered the same to the Respondents who were the owners thereof and that the surrender was accepted by : 3 : the Agricultural Land Tribunal (the competent authority under the Bombay Tenancy and Agricultural Land Act) on 31.3.1964. It is further averred that the original owners thereafter sold the half portion of the lands in respect of which the Petitioners’ predecessor was a tenant to him on 15.3.1964. The order of the Agricultural Land Tribunal dealt with the same as well by the order dated 31.3.1964. 6. The main contention on behalf of the Petitioners is that the surrender of the tenancy and possession is contrary to the provisions of the Bombay Tenancy and Agricultural Land Act, 1948 (for short "the said Act") and in particular Sections 15, 29(2) and 85 thereof which read as under :- "15. 15. 15. Termination Termination Termination of of of tenancy tenancy tenancy by by by surrender surrender surrender thereof. - thereof. - thereof. - (1) tenant may terminate the tenancy in respect of any land at any time by surrendering his interest therein in favour of the landlords : Provided that such surrender shall be in writing, and verified before the Mamlatdar in the prescribed manner. (2) Where a tenant surrenders his tenancy, the landlord shall be entitled to retain the land so surrendered for the like purposes, and to the like extent, and in so far as the conditions are applicable subject to the like conditions as are provided in sections 31 and 31A for the termination of tenancies. [2A] The Mamlatdar shall, in respect of : 4 : the surrender verified under sub-section (1), hold an inquiry and decide whether the landlord is entitled under sub-section (2) to retain the whole or any portion of the land so surrendered and specify the extent and particulars in that behalf.] (3) The land, or any portion thereof, which the landlord is not entitled to retain under sub-section (2),shall be liable to be disposed of in the manner provided under clause (c) sub-section (2) of section 32P.] 29(2). Procedure Procedure Procedure of taking possession of taking possession of taking possession - [Save as otherwise provided in sub-section (3A), no landlord] shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar. For obtaining such order he shall make an application in the prescribed form [and within a period of two years from the date on which the right to obtain possession of the land or dwelling house, as the case may be, he deemed to have accrued to him.] 85. 85. 85. Bar Bar Bar of jurisdiction . - of jurisdiction . - of jurisdiction . - (1) No Civil Court shall have jurisdiction to settle, decide or deal with any question [(including a question whether a person is or was any any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord the land held by him)] which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager, the Collector or the [Mamlatdar Revenue Tribunal] in appeal or revision or the [State] Government in exercise of their powers of control. (2) No order of the Mamlatdar, the Tribunal, the Collector or the [Maharashtra Revenual Tribunal] or the [State] Government made under this Act shall be questioned in any Civil or Criminal Court." : 5 : 7. The submission is entirely without merit. Even assuming that this contention could have been raised in the execution proceedings, the point is entirely without substance. 8. Firstly, it is important to note that even the trial Court on this issue had held against the Petitioners. The trial Court had dismissed the suit on a different basis altogether. Before referring to the observations of the trial Court, it is of vital importance to note that in answer to the averments in paragraphs 3 and 4 of the plaint referred to earlier, the Petitioners in paragraph 6 of their written statement stated as under :- "6. The allegations in para-4 of the plaint that Madhukar Chintaman Tikhe sold away half portion out of the lands mentioned in para 3 above for Rs.4,000/- on 15th March 1964 for which the agricultural lands Tribunal after holding enquiry passed the order on 31.3.1964 is substantially true and correct and hence admitted by these Defendants. The Defendants submit that the Defendants father only has purchased the said half land and the present Defendants are in actual physical possession of the said lands." 9. There was thus a clear admission that the concerned authorities under the said Act had passed an order on 31.3.1964 regarding surrender by the erstwhile tenant. The learned Judge in this regard : 6 : recorded that he had perused the evidence, gone through the documents exhibited by the Respondents/Plaintiffs and had come to the conclusion that the same contained the seal and signature of the competent authority and that the transfer was recorded under the enquiries made by the competent authorities. In the circumstances, the trial Court held that the Respondents had succeeded in proving that the Petitioners’ predecessor had surrendered the right of tenancy in favour of the father of Plaintiff No.1, 2 and 4 i.e. the husband of Plaintiff No.3. 10. The lower Appellate Court also in respect of the said surrender held that the same had been recorded and had also been accepted by the competent authority. The copy of the order of Mamlatdar by which the same was accepted was expressly referred to. The lower Appellate Court also held that the subsequent sale of 1/2 portion of the lands by the Plaintiffs’ predecessor to the Defendants’ predecessor was upheld by the competent authority by the said order dated 31.3.1964. In these circumstances, the lower Appellate Court decided this issue in favour of the Respondents. 11. The Petitioners filed Second Appeal No.1069 of 2005 in this Court challenging the order of the : 7 : lower Appellate Court. The same was dismissed by an order dated 20.10.2005. The above findings were expressly upheld.It was contended before this Court that the lower Appellate Court had ignored the provisions of the Bombay Tenancy Act. The factual basis for this submission namely whether the provisions of the Act had been followed in respect of the said surrender were discussed by this Court. The question was answered in the Respondents’ favour. 12. The Special Leave Petition against the said order and judgment was dismissed by the order of the Supreme Court dated 24.2.2006. It is not open even in the execution proceedings for the Petitioners to contend that the above orders of the courts below, of this Court and the Supreme Court are based on an incorrect appreciation of facts or on an incorrect basis and contrary to the provisions of the said Act. 13. The next question raised on behalf of the Petitioners is that the civil Courts had no jurisdiction to decide the above questions in view of the provisions of the said Act and in particular Sections 15, 29(2) and 85 thereof. 14. The submission proceeds on a fundamental misconception. Section 29 does not bar the : 8 : jurisdiction of the lower Courts or of this Court or of the Supreme Court to decide whether the provisions of the said Act had been complied with or not by the concerned authorities. In these proceedings, the courts were not called upon to consider an application for surrender thereof. The courts merely considers whether the right of surrender and the surrender was approved by the competent authority under the said Act. The issue was not whether the competent authority rightly or wrongly approved the same. Whether the competent authority had in fact approved the transfer was certainly an issue which had to be decided by the civil Court. 15. In the circumstances, Mr.Walawalkar’s reliance upon the judgments in - (i) Madhao Tatya Sonar v. The Maharashtra Revenue Tribunal, (Full Bench) 1969 Bombay Law Reporter, 755, (ii) Ramchandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915, (iii) Vasu Dhondi Sutar v. Ganapati Dhondi Sutar and another, 1992 Mh.L.J. 730 and (iv) Babu Parasu Kaikadi (Dead) by L.Rs. v. Babu (Dead) through L.Rs., (2004) 1 SCC 681 is of no assistance to him. 16. The Civil Revision Application is therefore dismissed. The operation of this order is stayed upto and inclusive of 28.2.2009 to enable the Petitioners : 9 : to challenge the same.