1 S.A.581.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 581 OF 2010 Shankar S/o Masaji Sonale, Age : 70 Years,Occup.Agril., R/o Gaytond, Tq. Hadgaon, District Nanded. ...APPELLANT. VERSUS 1) Khirba S/o Gopala Narwade, Age : 75 Years,Occup. Agril., R/o Gaytond, Tq. Hadgaon, District Nanded. And another. ...RESPONDENTS. ... Shri.S.N.Rodge, Advocate for Appellant. ... CORAM: SHRIHARI P.DAVARE, J. DATE : 25th JANUARY, 2011. PER COURT : 1. Heard learned counsel for the appellant. 2. Unsuccessful plaintiff has filed present Second Appeal challenging the Judgment and order dated 20th February, 2010 passed by the learned District Judge - 2 Nanded, in Regular Civil Appeal No. 111 of 2006, thereby confirming the Judgment 2 S.A.581.10 and Order of dismissal of Regular Civil Suit No.86 of 1992, passed by the Civil Judge (Junior Division), Hadgaon, District Nanded, filed by the plaintiff herein for recovery of possession of the suit land bearing Survey No. 47/D admeasureing 2H. 82 R., situated at village Jagapur, Tq. Hadgaon, District Nanded. 3. The parties are referred to hereinafter, as per their original status as plaintiff and defendants. 4. Plaintiff came with a case that the suit land bearing Survey No. 47/D, to the extent of 2H 82 R situated at village Jagapur, Tq. Hadgaon, District Nanded, was Government land, and it was allotted to his father by the Government, as restricted owner for cultivation and enjoyment. The patta i.e. Certificate of lease was issued in the year 1951, on the condition that he should not alienate or transfer the said land in any way, without permission of the District Collector. In 3 S.A.581.10 the family partition, the suit land came to the share of plaintiff. It was numbered as 47/D of village Jagapur. However, subsequently, in the year 1976 plaintiff mortgaged the said land to the Land Development Bank, Branch Hadgaon and obtained loan of Rs.2000/-(Rupees Two Thousand). Thereafter, since the plaintiff was in need of money to perform marriage of his daughter, he again obtained loan of Rs. 2000/-(Rupees Two Thousand) and mortgaged the suit land by executing nominal sale deed in favour of defendant No.1 showing consideration thereof as Rs.4000/-(Rupees Four Thousand) as security, at the instance of defendant No.1. It was also agreed that possession of the suit land would remain with defendant No.1 for five years. In lieu of the interest amount defendant No.1 had to enjoy its yield. The plaintiff could not make repayment of loan within the said period, and as such, the possession of the suit land remained with defendant No.1. 5. It is case of the plaintiff that since 4 S.A.581.10 defendant No.1 enjoyed yield of the suit land covered by the interest amount and also received amount more than principal loan amount and its interest, mortgage stands redeemed and as such, the plaintiff is entitled to recover possession of the suit land. 6. Defendant No.1 appeared in the suit and resisted suit claim of the plaintiff by filing written statement and stated that, he purchased the suit land from the plaintiff for consideration of Rs.4000/-(Rupees Four Thousand). He denied the execution of alleged mortgage and categorically stated that the said transaction under registered sale deed dated 14th December, 1976, is out and outright sale, and in pursuance thereof, plaintiff delivered the possession of the suit land to him, and since then he is in possession thereof as exclusive owner. He also stated that plaintiff did not disclose the loan obtained from the Land Development Bank, which was repaid by defendant No.1, and he was issued “No 5 S.A.581.10 dues Certificate” by the said Bank. It is also stated that, in Consolidation Scheme the suit land was allotted Gut No.122, and the plaintiff did not raise any objection at that time. He also contended that suit is not within the period of limitation. 7. After considering rival pleadings and evidence adduced and produced by the parties, the learned trial Judge dismissed the suit of the plaintiff, by the Judgment and order dated 24th September, 2004. Being aggrieved and dissatisfied of the said Judgment and order the plaintiff preferred Regular Civil Appeal No. 111 of 2006 before District Judge, Nanded. However, District Judge-2 Nanded also dismissed the said Appeal, by Judgment and order dated 20th February, 2010. Since the plaintiff lost before both the Courts below, he has preferred present Second Appeal assailing Judgments of both Courts below. 8. At the outset, the suit land was Government 6 S.A.581.10 land, which was allotted to the father of plaintiff as restricted owner for cultivation and enjoyment by issuing Patta in the year 1951, and the suit land came to the share of plaintiff in family partition and as such plaintiff was having restricted ownership regarding suit land. Hence, the mortgage and sale deed executed by plaintiff in respect of suit land are in contravention of the terms and conditions of allotment by Government. Hence, the plaintiff can not claim the possession thereof, but the Government who by virtue of letter dated 24.10.1990 and by letter dated 08.01.2004 issued by Tahsildar is entitled to take back the possession of suit land. 9. Accordingly, there is embargo of section 19 of Maharashtra Agricultural lands (Ceiling on holdings) Act, 1961. Even the defendant also can not claim ownership and possession of the suit land on the basis of alleged sale deed dated 14.12.1976, which is in breach of the terms and conditions of allotment by Government. Hence, 7 S.A.581.10 findings given by the learned trial Judge, as well as District Judge-2, Nanded that the plaintiff was not entitled to recover possession of the suit land can not be faulted with. 10. Apparently, there are concurrent findings against the plaintiff herein. No substantial question of law could be formulated and present Second Appeal lacks merit. Therefore, same stands dismissed. Record and proceedings be sent back to the concerned Court. Sd/- [SHRIHARI P.DAVARE, J.] MTK