Chandrakant Baban Motkari . vs Gotiram Laxman Motkari(D) By Lrs.

2. The land located at Survey Nos.789, 791 and 786 was owned by one Raghunath Hari Phadake. The land was taken on lease for cultivation by Govind, Sadashiv and Nivrutti (the younger son of Yashwant) by execution of a Kabuliyatnama, on 16.5.1944. It appears that Laxman (the elder son of Yashwant) was an attesting witness to this Kabuliyatnama. It is of some relevance to also note that Laxman had obtained a Government job in the Office of the Sub Registrar as a peon; prior to the execution of the Kabuliyatnama.

5. The case sought to be set up subsequently by the legal heirs of Laxman is that rights were derived in pursuance of this document, and payments were made by Nivrutti out of the joint family funds.

6. The next development was the proceedings which commenced for the rights of the tillers in pursuance of Section 32 of the said Act. The Deputy Collector initiated proceedings under Section 32G of the said Act to determine the price of the land to be paid by the tenants, which resulted in the order dated 9.8.1961. The benefit of this order, from the 3 array of parties was to the tenants – Govind, Sadashiv and Nivrutti. The payments were made, and a certificate was issued under Section 32M of the said Act in 1967 in favour of the said three parties.

7. The three owners sought partition amongst themselves of the said land, which resulted in a Mutation entry No.23330, in terms whereof Nivrutti was recognized as the individual owner of Survey Nos.789/3 and 791/3. However, some part of the land which fell in Survey Nos.789/4 and 791/4 was still held by the owners jointly.

8. It appears that the wife of Laxman and his children sought to assail the mutation solely in the name of Nivrutti, on the ground that the payments for the land were made out of joint family funds and, thus, they were also liable to be included in the certificate issued under Section 32M of the said Act. These proceedings, however, were not successful and the revision application filed against the same also met the same fate vide order dated 18.11.1991, noticing that since the certificate under Section 32M of the said Act has been issued in favour of Nivrutti and the other co-owners, vide entry No.12378, on partition, the land was mutated 4 in the name of Nivrutti Mutation No.23330. The matter was not carried further.

9. There appears to have been a silence on the part of the legal heirs of Laxman till the institution of a plaint, as Special Civil Suit No.148/2003 before the Civil Judge, Senior Division, Nashik. The alleged cause of action for the same is stated to be the notices issued by the legal heirs of Nivrutti. The public notices brought to light the endeavours of the legal heirs of Nivrutti to transact the land in question. The case set up in the plaint is that the parties constituted a Joint Hindu Family, and the properties belonged to the same. Thus, the grandsons of Laxman claimed rights in the property. These grandsons sued as plaintiffs, arraying the two sons of Laxman as the first two defendants while the legal heirs of Nivrutti were arrayed as the remaining defendants. This appears to have been so done because defendant Nos.1 & 2, being the sons of Laxman, along with their mother, had already instituted proceedings against the mutation of the land in favour of Nivrutti alone, but those proceedings ended in the year 1991. The first two defendants were really in the nature of supporting parties. 5

11. The suit was tried and was dismissed, vide judgment dated 4.2.2009. The first appeal, filed before the High Court was also 6 dismissed vide impugned order dated 8.6.2009.

12. It may be noticed that in order to establish their case, the appellants sought to bring in various documents to substantiate their plea, the main one being the Agreement to Sell dated 7.5.1956. However, since no sale deed had been executed in pursuance thereto, the courts below refused to rely on the same.

28. We are, thus, unequivocally of the view that these long drawn out proceedings initiated by the grandsons of Laxman were proceedings by “side wind”, which have dragged on since the year 2003, for the last 16 years.

29. The appeal is completely without merit and is, thus, dismissed.

August 27, 2019.