1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL NO.378 OF 2009. Taterao S/o Narayanrao Deokate (died) L.Rs. Rajubai W/o Taterao Deokate and others ... Appellants. Versus Gangubai W/o Nagu Devkate (died) L.R. Datta S/o Nagu Deokate ... Respondent. ... Mr.V.C.Solshe, advocate for appellants Nos.1/2 to 1/6 and 1/9. Mr.P.V.Mandlik, Sr. counsel instructed by Mr.Amol Gandhi, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 07.12.2009. PER COURT 1. Heard. 2. The appellants are original defendants. 2 The suit filed by deceased plaintiff No.l Gangubai and her son Datta for recovery of possession and declaration came to be decreed. The contesting defendants preferred appeal (RCA No.71/2004). The appeal was also dismissed. Thus, both the Courts have rendered concurrent findings of facts and on the questions of law. 3. The plaintiff's case in the trial Court was that husband of deceased plaintiff No.l Gangubai, namely, Nagu died in 1952. Deceased Pandurang was his brother who died in or about 1950. During life time of said Pandurang, he and Nagu divided the ancestral properties. In the course of such partition, suit lands were allotted to the share of Nagu. After death of Nagu, the plaintiff No.l, being his widow, continued to remain in possession of the suit properties. The widow of deceased Pandurang, namely, Bhimabai has no concern whatsoever with the suit properties. She however, alienated the suit land by virtue of a sale deed dated 13.8.1966 in favour of deceased defendant Taterao. She had no authority to alienate the 3 share of deceased Nagu. The plaintiffs, therefore, sought declaration that the said sale deed was not binding on their rights and that they were entitled to seek possession of the suit properties. 4. There were two properties viz. S.No. 122/1, admeasuring 8 Ares and S.No.122/2, admeasuring 71 Ares. The trial Court held that 8 Ares land i.e. S.No.122/1 was owned by deceased Bhimabai and she was competent to alienate the same to deceased defendant Taterao. However, she was not owner of S.No.122/2 comprising of 71 Ares area and, therefore, such sale transaction was not binding on rights of the plaintiffs. 5. It was contended by deceased defendant Taterao that Bhimabai was holder of both the suit lands. He also contended that he was tenant in possession of the suit lands as he was inducted by said Bhimabai. He asserted that Bhimabai had given the suit lands to him for cultivation on Batai basis somewhere after Police action i.e. after 1947. It was further alleged that Bhimabai 4 subsequently alienated the suit lands in his favour. 6. The issue of tenancy was referred to the Tenancy Tribunal. It appears that Tenancy Tribunal held that deceased Taterao was tenant of the suit lands and the tenancy was created by Bhimabai. 7. The trial Court and the first appellate Court decreed the suit mainly for the reason that the tenancy issue was no more required to be considered because deceased Bhimabai was not competent to create tenancy in respect of S.No. 122/2 admeasuring 71 Ares area because she was not owner thereof and moreover, the tenancy rights got merged into the ownership rights because of the sale deed executed by her. The first appellate Court noticed that the legal heirs of deceased Taterao i.e. Respondent Nos.1/2 to 1/6 have alienated the suit lands in favour of appellant No.1/9 i.e. original defendant No.1/9 Indirabai, by virtue of a sale deed dated 2.1.1986. Thus, whether the appellant No.1/9 5 Indirabai was entitled to continue her possession in respect of the suit land bearing S.No.122/2 was the only question to be determined. She was not inducted as a tenant by deceased Bhimabai. It is pertinent to note that deceased Taterao was not declared as a protected tenant. Obviously, the lis remained between the plaintiffs and defendant No.1/9 Indirabai i.e. subsequent purchaser from Taterao. 8. Counsel for the appellants would submit that in view of finding of the Tenancy Court, the possession could not be delivered to the plaintiff when the issue of tenancy is decided by the Tribunal and the Civil Court is incompetent to go into such aspect. He would submit that even the appellant No.1/9 would acquire tenancy rights which will remain intact though the sale deed is executed in her favour by other legal representatives of deceased Taterao. I find it difficult to countenance the arguments. The appellant No.1/9 Indirabai is the married daughter of deceased Taterao. She is not a family member of Taterao so as to inherit the 6 tenancy rights along with his sons. The counsel would rely on certain observations in "Ramprasad S/o Chandulal Brahman (since deceased by L.Rs.) and another Vs. Syed Hussain S/o Syed Noor Halwai (since deceased by L.Rs.) 2009 (1) ALL MR 18 and "Saraswatibai Trimbak Gaikwad Vs. Damodhar D. Motiwale and others" 2002 (3) Mh.L.J.69. In case of "Saraswatibai Trimbak Gaikwad Vs. Damodhar D.Motiwale and others (supra) certificate of ownership was issued in favour of deemed tenant and it has been held that unless the Certificate stands cancelled or is not set aside in appropriate proceedings under the Tenancy Act, a decree for recovery of possession by a Civil Court can not be executed against deemed tenant. The status of appellant No.1/9 Indirabai can not be elevated to the position of deemed tenant. 9. It is well settled that after the alienation, the tenancy rights get merged in the rights of ownership. A deemed tenant having statutory ownership under the Tenancy Act may fall back on the tenancy rights. However,the purchaser from deceased Taterao who was ordinary 7 tenant can not claim immunity from the eviction decree. 10. It is also argued that the suit was barred by limitation inasmuch as the sale transaction dated 16.8.1066 was challenged in 1974. True, the plaint presented on 11.3.1974. However, the declaratory relief was incidental inasmuch as the sale transaction was void abinitio to the extent of S.No.122/2 because Bhimabai had no title to pass in favour of said Taterao because ownership rights in respect of the land of Nagu were inherited by the plaintiffs. It is also pointed out that original plaintiff No.1 Gangubai died and her three (3) daughters are not taken on record. That does not enure to the benefit of the appellants. For, any one of the co-owner would be competent to sue for recovery of possession of the property from unauthorised occupant thereof. 11. Considering these aspects of the matter and having regard to the concurrent findings of the Courts below, the Second Appeal is dismissed. 8 12. At request of Mr.Solshe, learned advocate the execution of the decree for possession may be stayed for six (6) weeks. (V.R.KINGAONKAR,J.) asp/office/sa37809