1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLAE JURISDICTION SECOND APPEAL NO.407 OF 1996 Shri Budhasingh Chindu Wagh ] since deceased by his L/Rs. ] 1. Dr.Bharat Budhasing Wagh & ors. ] Age 35 years, occupation : Medical ] Practitioner, R/o Dabhadi Primary Health ] Centre, District Nasik ] ] 2 Shri Arun Budhasing Wagh ] age 37 years, Occupation : Agriculturist ] residing at Wadner, Tal.Malegaon, ] District Nasik ] 3 Smt.Kamladevi Gulab Magar ] Age 43 years, Household work ] Residing at Ajmer, Saoundane, ] Tal.Baglan, District : Nashik ] 4. Shakuntala Mahendrasing Patil ] Occupation Household work, ] Residing at Dhule, ] Dhdh Sangh, Dhule ] 5 Mandakini Rajendra Parmar ] age 30 years, occupation Household work ] residing at Near S T Stand, Chalisgaon ] Jalgaon ] 6 Shakuntala @ Sindhubai Patil ] Age 34 years, occupation : Household work] residing at Pangrun, Tal.Pachore ]-- Appellants District Jalgaon ](Org.Defendants) versus 1 Nimba Keshav Wani ] Age 64 years, Occupation Labourar ] residing at Malegaon, Central Bank of ] India, Mamlatdar Galli, Taluka Malegaon ] District Nasik ] 2 2 Dattatraya Keshav Wani ] Age 40 years, Occupation : Service ] residing at Ravalgaon, C/0 Anant Govind ] Wani, Taluka Malegaon District Nasik ] ] 3 Anant Govind Wani ] Age 42 years, Occupation Service ] Residing as No.2 above. ] ] 4 Hari Keshav Wani ] Age 42 years, Occupation Labourar ] residing at Malegaon Camp ] Taluka Malegaon (Nasik) ] ] 5 Dharma Jansing Rajput, ] age 66 years, Occupation Agriculturist ] residing at Kothale, Tal Malegaon, ] District Nasik ] ] 6 Daga Jamsing Rajput ] Age 32 years, Occupation Agriculturist ] Residing at Kothure, Taluka Malegaon ] Dist. Nasik ] ] 7 Devising Budhasing Wagh ] Age 46 years Occupation Agriculturist, ](No.7 Deleted) Residing at, Saygaon, Taluka Malegaon ] Dist. Nasik ] ] 8 Dhansing Budhasing Wagh, ] Residing at Wadner, Taluka Malegaon ] -- Respondents District Nasik ]( Nos.7 & 8 Org. (Deleted) ]Deft Nos.1 & 8) Mr.S V Kotwal with Mr. A R Kapadnis for the Appellants. None for the Respondents. CORAM : C.L.PANGARKAR, J. DATE : 25th JANUARY 2010 3 JUDGMENT : 1. This Appeal has been filed by the unsuccessful defendants against the Judgment and Order dated 12/08/1996 passed by the learned Additional District Judge Malegaon by which order he dismissed the Appeal of the Defendants and confirmed the decree passed in favour of the Plaintiffs. 2. The facts giving rise to the Appeal are as under :- The Plaintiffs claimed to be the owners of the suit field. The suit field was initially mortgaged by the Defendants with the Plaintiffs’s father Keshav Kalu Wani. Subsequent to the mortage, there was a settlement bertween Keshav Kalu Wani and the Defendants i.e. the predecessor in title of Defendants, Chindhu Nihalsing. In spite of the said settlement, the land remained in possession of Chindhu, the father of Defendant Nos.1 and 2. The Defendant Nos. 1 and 2 effected partition of the suit land and later sold it to the Defendant Nos.3 and 4. The Defendant Nos. 1 and 2 never applied under Section 32G of the Bombay Tenancy and agricultural Lands Act, 1948. It is the contention of the Plaintiffs that they are entitled to possession of the suit property. They had in fact issued notice to the Defendants that the Plaintiffs were 4 the owners of the suit property and the possession should be delivered back to the Plaintiffs. The Defendants did not. Hence the suit. 3. The Defendants resisted the said suit by filing written statement. It is the contention of the Defendants that they were the tenants of the suit land and they had also perfected title by adverse possession. 4. The learned Judge of the trial Court framed issues. The issue as regards tenancy was however referred to the tenancy court. . The Revenue Authorities including the Maharashtra Revenue Tribynal held that the Defendants were not the tenants. The learned trial Judge held that the Plaintiffs were the owners and the Defendants had failed to make out the plea of adverse possession and had also failed to show their tenancy. He, therefore, passed the decree for possession. 5. The Defendants preferred an appeal before the District Judge. The learned District Judge dismissed the appeal. 6. This Second Appeal was initially admitted on Ground 5 Nos.iii, Viii and xviii as substantial questions of law. However, later after hearing the learned counsel for the parties, the substantial questions of law were reframed as follow :- Whether the Suit could have been entertained by the Civil Court in view of the bar as envisaged by Section 29(2) of the Bombay Tenancy and Agricultural Lands Act, 1948 ? Whether the final order as well as the reasoning behind the same passed by the Maharashtra Revenue Tribunal was binding on the Civil Court trying the suit ? 7. The learned counsel for the Appellants/Defendants contends before me that the Civil Court could not have passed a decree in this case because the Plaintiffs have had remedy under the Bombay Tenancy and Agricultural Lands Act, 1948. He submits that the jurisdiction of the Civil Court is not only impliedly barred but also barred by Section 85 of the Bombay Tenancy And Agricultural Lands Act. He submits that since such a remedy is available under that Act, the Civil Court should not have entertained the suit. In the context it would be necessary to look into the provisions of Section 29 of the said Act. Section 29 of the said Act reads thus :- “Procedure of taking possession .- (1) A tenant or an 6 agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply in writing for such possession to the Mamlatdar. The application shall be made in such form as may be prescribed 1[ and within a period of two yers from the date on which the right to obtain possession of the land or dwelling house is deemed to have accrued to the tenant, agricultural labourer or artisan as the case may be.] (2) 2[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 3[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, is deemed to have accrued to him.] (3) On receipt of application uder sub-section (1) or (2) the Mamlatdar shall, after holding an inquiry, pass such order thereon as he deems fit; 4[Provided that where an application under sub- section(2) is made by a landlord in pursuance of the right conferred on him under section 31, the Mamlatdar shall first decide, as preliminary issues, whether the conditions specified in clauses (c) and (d) of section 31A and sub-sections (2) and (3) of section 31B are satisfied. If the Mamlatdar finds that any of the said conditions is not satisfied, he shall reject the application forthwith.] 1[(3A) Where a landlord proceeds for termination of the tenancy under sub-section(1) of section 43-1B, then, notwithstanding anything contained in this Act, the application for possession of the land shall be made to the Collector, who shall after holding an inquiry in the prescribed manner, pass such order thereon as he deems fit.] 7 (4) Any person taking possession of any land or dwelling house except in accordance with the provisions of 2[sub-section (1), (2) or as the case may be, (3A)] shall be liable to forfeiture of crops, if any, grown in the land in addition to payment of costs as mya be directed by the Mamlatdar or by the Collector and also to the penalty prescribed in Section 8.] 8. Therefore it has to be born in mind that the Issue as regards the tenancy was referred to the tenancy court. The revenue courts upto the Maharashtra Revenue Tribunal have held that the Defendants were not the tenants. There is therefore no relationship of landlords and tenants between the parties at all. If Section 29(2) is carefully read, it would be clear that the remedy under that section can be availed by either a tenant or a landlord. Section 29 therefore in the instant case has no application at all. The suit in the civil court therefore could not be said to barred either by Section 29 or by Section 85 of the Act. The suit being based on title was very much maintainable in the civil court. I do not find that the Courts below have committed any error in decreeing the suit. 9. The learned counsel for the Appellants/Defendants then contends before me that the judgment of the Maharashtra Revenue Tribunal operates as res-judicata. There can be no doubt that the 8 judgment and decree of the Court for limited jurisdiction operates such res-judicata under the provisions of Explanation 8 to Section 11 of the Code of Civil Procedure. The judgment delivered by the Maharashtra Revenue Tribunal therefore does operate as res-judicata. It has held that the Defendants are not the tenants and finding has to be accepted by the Civil Court. 10. In the circumstances, I do not find any substance in the Second Appeal, the same is dismissed with costs. [C.L.PANGARKAR, J]