BAPU MAHADU. MALI & ORS.

VITHALRAO BHAUSAHEB DESHMUKH AND ANR.

NOVEMBER 2, 1995

(K. RAMASWAMY AND B.L. HANSARIA, JJ.J

Code of Civil Procedure, 1908:

Suit for possession-Decreed in favour of rival reve1:1io11e1:r-Re111ained in jJossession for 1norc than 12 yean1--Presc1ibed title by adverse possession-Tenancy agreenzent with 1ival reversioners-Hence other patty estopjJed from denying title to landlords-Contention not canvassed before Cowts

below-Raised for the first time before Supreme Cmut-No clinching evidence 11roduced--Hence contention rejected.

Bombay Tenancy and Agiicultura/ Land Act, 1948 :

S.31-Applicabi/ity of

In a suit for possession by the rival re:versioners, the appel lants-landlords were the defendants. The suit was decreed against the appellants as the respondents remained in possession for more than 12 years and they had prescribed title by adverse possession. The appellants having entered into a tenancy agreement with the respondents they were estopped under S.116 of the Evidence Act to deny the title to the landlords.

Thus, unable to succeed in the Courts below, the appellants preferred the present appeal by special leave.

Dismissing the appeal, this Court

HELD : The contention that when a notice was issued to the appellants to pay Nazrana after the abolition of wattan, the appellants had paid the same and thereby became entitled to remain in possession and Section G 31 of the Bombay Tenancy and Agricultural Lands Act, 1948 has no application was rejected by the appellate authorities recording the finding that the respondents paid the Nazrana but this finding was not canvassed either before te Revenue Tribunal or the High Court. No clinching evidence has been produced before this Court to show that the appellants H had paid Nazrana. The contention, therefore, has no substance. [747-G] 746

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B.M. MALI v. V.B. DESHMUKH 747

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10420 of A 1995.

From the Judgment and Order dated 21.6.83 of the Bombay High Court in W.P. No. 1730 of 1983.

V.N. Ganpule and A.S. Bhasmc for the Appellants.

Yatcnder ShJrnia and A.M. K.hanwilkar for the Respondents.

The following Order of the Coort was delivered :

Leave granted.

We do not find any justification warranting interference in this appeal.

The only point before the Revenue Tribunal and the High Court was of the title. For valid reasons the contention was rejected.

Admittedly, there was a suit for possession by the rival revcrsioncrs.

The appellants-landlords were the defendants in the snit. The suit ended against the landlords-appellants and thereby the title remained with the other side of the reversioners. Since the respondents remained in possession for more than 12 years they have prescribed title by adverse possession. That apart, the appellants' having entered into a tenancy agreement with the respondents they are estopped under Section 116 of the Evidence Act to deny the title of the landlords. Having these insurmountable difficulties in the way, Shri V.N. Ganpule, learned senior counsel for the appellants, contended that when a notice was issued to the appellants to pay Nazrana after the abolition of wattan, the appellants had paid the same

and thereby became entitled to remain in possession and Section 31 of the Bombay Tenancy and Agricultural Lands Act, 1948 has no application.

This contention was rejected by the appellate authorities recording the finding that the respondents paid the Nazrana but this finding was not canvassed either before the Revenue Tribunal or the High Court. No G clinching evidence has been produced before us to show that the appellants had paid Nazrana. The contention, therefore, has no substance.

The civil appeal is accordingly dismissed \vithout costs.

G.N.

Appeal dismissed. H