1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 255 OF 1990 Smt.Janaki Dharma Kolhatkar & ors. ... Appellants v/s Shri Mahadeo Dharma Gavade ... Respondent Mr.A.B.Tajane i/by Mr.P.a.Pashte for the appellants. Mr.Rajiv Patil for the respondent. CORAM: SMT.NISHITA MHATRE, J. DATED: 25TH SEPTEMBER, 2009 P.C.: 1. The second appeal challenges the judgment and decree passed in Regular Civil Suit No. 20 of 1982 by the Civil Judge, Jr. Divn., Roha, Dist. Raigad, which has been confirmed by the appellate Court in Civil Appeal No.24 of 1985. 2. Few facts giving rise to the present appeal are as follows:- 2 One Dharma Nagu Gawde owned lands bearing Survey No.28/2 and Survey No.33/2+3+5+6 (Part). He was the tenant in respect of these lands and acquired ownership of these lands under the Bombay Tenancy & Agricultural Lands Act, 1948 (in short, “the Tenancy Act”) after paying the purchase price. The revenue records indicated that these lands were owned by him and after his death the name of the plaintiff was entered as the manager of the Joint Hindu Family which included Dharma Nagu Gawde’s wife, two sons and two daughters. The Mutation Entry No.808 recorded the title and possession of Dharma Nagu Gawde. 3. It appears that these lands were then mutated in favour of one Dharma Khasha Kolhatkar. He was the husband of defendant No.1 and father of the other defendants. 4. The plaintiff being aggrieved by the fact that the aforesaid lands had been mutated in the name of Dharma Kolhatkar and by the fact that possession of these lands had also been usurped by the Kolhatkars, filed a suit being Civil Suit No.20 of 1982 for a declaration that he was the owner of the land and for possession of the suit lands. He also prayed for mesne profits. 3 5. The defendants resisted the suit by contending that Dharma Kolhatkar was a tenant and in possession of the suit land on the tillers day and, therefore, after the enquiry under Section 32G of the aforesaid Act, the purchase price was fixed and the land was sold to him. There was no challenge to the mutation entries in favour of Dharma Kolhatkar before any revenue authority or the tribunal. The defendants then pointed out that the suit was bad for non-joinder of parties as the plaintiff was not the manager of the Joint Hindu Family of the Gavades and therefore could not file the suit without joining the other heirs of Dharma Nagu. It was also contended that the suit was barred by limitation. 6. The Trial Court held that the plaintiff had proved that the suit lands were owned by his father Dharma Nagu Gawde and that after his death he had become owner of the suit lands by way of succession. The Trial Court further held that the plaintiff had proved that the defendants had dispossessed him from the suit lands. As regards the issue of limitation and non-joinder of parties, the Court held that the defendants’ contention could not be accepted. The plaintiff was therefore entitled to the declaration that he was the owner of the suit lands and for possession thereof. An enquiry for mesne profits was ordered by the Trial Court. 4 7. Aggrieved by the decision, the defendants preferred an appeal being Civil Appeal No.24 of 1985. The appellate Court held that the plaintiff had proved that his father was the owner of the suit lands in view of the statutory provisions i.e. under the Tenancy Act. The Trial Court also observed that there was no need to refer the matter to the Tenancy Court to decide the title of the parties to the suit lands. The Trial Court did not accept the contentions of the defendants that Dharma Kolhatkar was the owner of the suit lands. 8. The substantial question of law raised in the present second appeal is as follows:- (i) Whether the Civil Court had the jurisdiction to decide the issues raised in the plaint when the entire case was based on plaintiff’s allegation that his father was a tenant and therefore the purchaser of the suit lands under the B. T. & A. L. Act ? 9. Both the Courts below, it must be remembered, have recorded a finding of fact that the plaintiff’s father was the tenant purchaser of the suit lands. A revenue entry recorded in respect of these lands being Mutation Entry No.808 indicates that after the plaintiff’s father’s death, it was he 5 who has become the owner of the suit lands. Both the Courts below have disbelieved the evidence of the defendants that their predecessor Dharma Kolhatkar had become the owner of the suit lands because a certification under Section 32G of the Tenancy Act had been issued by the Tahsildar on 12.2.1982 in favour of Dharma Kolhatkar. 10. The main contention of the learned advocate for the appellants is that the Civil Court ought not to have tried the suit when the tenancy of the plaintiff’s father was doubtful and the purchase of the suit lands by him as a tenant was also in doubt. It is submitted by the learned advocate that, when both the Courts below have recorded that the plaintiff had not produced the certificate issued under Section 32M of the Tenancy Act in favour of Dharma Nagu Gawde, whereas the defendants had produced an order issued on 3.11.1970 passed in favour of Dharma Kolhatkar under Section 32P. He points out that it was only after an enquiry under Section 32G was concluded that the lands were sold to Dharma Kolhatkar on 3.11.1970. No objection has been raised by the plaintiff or any other person in respect of this sale and the institution of the enquiry under Section 32G. He submits that the defendants are tenants in cultivation and, therefore, have a right to continue in the property. Reliance is placed 6 by Mr.Tajane, appearing for the appellants on the judgments in the case of Bhimaji Shankar Kulkarni v/s Dundappa Vithappa Udapudi & anr., reported in A.I.R. 1966 SC 166 and in the case of Sau.Saraswatibai Trimbak Gaikwad v/s Damodhar D. Motiwale & ors., reported in (2002) 4 SCC 481. The learned advocate submits that both these judgments indicate that a Civil Court has no jurisdiction to try an issue if that is required to be settled or dealt with by the competent authority under the Tenancy Act. He submits that the certificate issued under Section 32P is conclusive proof of purchase of the lands, unless it is set aside in appropriate proceedings. According to Mr.Tajane, therefore, the very fact that a certificates had been issued to the defendants indicate that there is a presumption in favour of the defendants that they are the owners of the land. 11. The Courts below have found that the enquiry as to whether Dharma Nagu Gawde could be the deemed owner of the property was conducted in the year 1970 under Section 32G of the Tenancy Act. In the present case, the Civil Court was not deciding a dispute between a landlord and the tenant. It was a dispute between two persons who claimed to be owners of the land. Therefore, all that the Civil Court was required to ascertain was, whether on the basis of the 7 evidence on record it was the plaintiff who was the owner of the suit land. Therefore, in my opinion, the Courts below were justfied in not referring the matter to the Tenancy Court. The Tenancy Court cannot ascertain the title of two persons, both claiming to be owners of the suit land. 12. Mr.Patil appearing for the defendants points out the judgment in the case of Husein Miya Dosumya v/s Chandubhai Jethabhai Desai, reported in Vol. 55 Bom.L.R. 946, in which it has been held that the Civil Court should be most reluctant to interfere with the working of the machinery set up under the Tenancy Act. It has been held further that, “if the order passed is a nullity, the party is entitled to ignore it and to go to a civil Court for a declaration that the order is a nullity and no action should be taken against the party under that order which would prejudice his rights.” 13. In the case of Baliram Maruti Satvekar v/s Dadu Govind Tipugade & ors., reported in 1986 (O) BCI 111, a learned Single Judge of this Court held that the Civil Court is not expected to make a reference mechanically to the Tenancy Court. 8 14. In the case of Bharat Dagadu Gavate v/s Mahadu Bala Gavate, reported in 2002 (4) ALL MR 196, a learned Single Judge of this Court has held that, where a person has been declared as the deemed purchaser in proceedings under Section 32G of the Tenancy Act, the validity of the proceedings and the order passed thereon can be challenged only at the instance of the landlord and not by any other person. 15. In the present case, the plaintiff was only asserting his right as an owner of the property by filing the civil suit on the ground that he had obtained a certificate under Section 32G of the Tenancy Act. He was not in any manner seeking a declaration that he was a tenant nor did he have any grievance against his landlord. The grievance of the plaintiff very obviously was that the defendants had encroached upon the land which he claimed he had a title to and was therefore entitled to an injunction and possession of the suit land. 16. In the case of Sidappa Rama Patil v/s Sattur Laxman Kole, reported in 2004 (4) Mh.L.J. 119, the Tahsildar had issued a certificate under Section 32-N after proceedings under Section 32-G were concluded. It was held that it was not open for the Tahsildar to reopen the 9 proceedings or to initiate fresh proceedings under section 32G as he becomes functus officio once a certificate under Section 32-M has been issued. The plaintiff, in the present case, had proved that proceedings under Section 32G had been conducted and a certificate had been issued in his favour under Section 32M. It appears from the evidence on record that, subsequently proceedings were initiated under Section 32P. However, such proceedings could not have been undertaken in view of the fact that the certificate under Section 32M had already been issued. The question of resuming the land and disposing it of again did not arise since a certificate under Section 32M had already been issued. 17. Therefore, in my opinion, the substantial question of law raised by the appellants/defendants must be answered in the negative. In the circumstances of the present case, there was no need at all to refer any issue to the Tenancy Court as both the contesting parties were merely trying to establish their ownership rights over the suit lands. 18. Appeal dismissed. 10 19. The learned Advocate for the appellants seeks protection of the possession of the suit premises which he states is with the appellants today. He states that the appellants have been in possession of the suit premises even before filing of the suit. 20. In my view the request is reasonable and, therefore, the appellants shall not be evicted from the suit premises for a period of six weeks from today on the appellants furnishing a usual undertaking to this Court. ..... 11