Thaku Ramji Tajane v. Ganpat Kondaji Hule & Ors.

The above Second Appeal takes exception to the Judgment and Decree dated 13.10.2000 passed by the learned 3rd Additional District Judge, Pune by which the Judgment and Decree dated

1.4.1999 passed by the trial Court i.e. Civil Judge, Junior Division, Ghodegaon came to be set aside. 2

The Appellant is the original Plaintiff who had filed Regular Civil suit No.58 of 1984 for injunction in respect of the suit properties. The suit properties have been described in the plaint of the said suit. The Appellant/Plaintiff claimed injunction on the ground that she is occupying the suit properties in the capacity of a tenant.

The Respondents herein, who are the original Defendants, denied the claim of the Appellant/Plaintiff. It was the case of the Respondents that the Plaintiff Shevantabai had surrendered the lands in question which were in her possession and the the said lands were sold to the Respondents by registered sale deed on 17.2.1984. The Respondents/Defendants on the basis of the said sale deed claimed ownership and possession of the said lands.

The parties went to trial. The trial Court, on the basis of the evidence, particularly the 7x12 extract, payment of tax etc, held that though the Plaintiff did not exercise the right under Section 32(G) of 3 the Bombay Tenancy and Agricultural Lands Act, 1948, the Plaintiff was in possession of the suit property and, therefore, decreed the said suit.

The matter was carried in Appeal by the Defendants by filing Regular Civil Appeal No.332 of 1999. The Lower Appellate Court on a re-appreciation of the evidence and on considering the evidence produced on behalf of the Defendants recorded a finding that the Plaintiff was not in possession of the suit properties, but it is the Defendants who were in possession of the suit properties pursuant to the said sale deed dated 17.2.1984. The Lower Appellate Court, therefore, set aside the decree passed by the trial Court by allowing the said Appeal.

It is sought to be contended on behalf of the Appellant that the well reasoned judgment of the trial Court is sought to be set aside by the Lower Appellate Court brusquely without any reasons. It is further contended that though the Plaintiff did not avail of the benefit 4 of the provisions of Section 32(G) of the Bombay Tenancy and Agricultural Lands Act, 1948, the Plaintiff was in fact in possession of the properties in question.

In my view, the submissions made on behalf of the Appellant are mis-founded. The Lower Appellate Court on the re- appreciation of the evidence on record has recorded a finding that the Plaintiff was not in possession and it is the Defendants who were in possession of the suit properties and, therefore, it cannot be said that the said finding of the trial Court has been upset without any reason by the Lower Appellate Court..

In so far as issue of possession is concerned, the issue is one of fact and the Lower Appellate Court having recorded a finding that the Defendants are in possession and the Plaintiff is not, in my view, the challenge raised in the above Second Appeal does not give rise to any substantial question of law for exercise of jurisdiction under Section 100 of the Code of Civil Procedure. 5

Another fact which requires to be taken into consideration is that the Appellant had filed the above Appeal impugning the judgment and decree dated 13/10/2000 in the year 2002. There was, therefore, delay in filing the above Appeal for condonation of which, the Appellant had filed an Application being Civil application No.1029 of

2003. In the said Civil application, the Respondents herein had filed their reply opposing the said Civil Application. In which reply, in Para thereof it has been specifically mentioned that out of the suit land major portion of the land has been sold by registered sale deeds in favour of third parties namely Tanaji K. Jambukar, Lahu Rambhau Jambukar and Gorak Sahaju Jambukar, and that the sale deeds have been executed on 9.10.2003 and 13.11.2003. It is further mentioned in the said para 4 of the affidavit that out of 4 gats involved in the suit, two gats have been sold as aforesaid and only two gats admeasuring 13 gunthas are still with the present Respondents. The said affidavit in reply is dated 28.1.2004. In spite of the disclosure made in the said 6 affidavit in reply, no steps were taken to implead the third parties in the above Second Appeal. Confronted with this fact, the learned advocate for the Appellant submitted that he would join the said parties at this stage and maybe permitted to do so.

In my view, the said fact having been brought to the notice of the Appellant in the year 2004, the Appellant cannot at this stage in the year 2008 be permitted to amend the above Second Appeal so as to array the third parties as the parties to the Second Appeal. The Second Appeal is, therefore, required to be dismissed on the said ground also. Therefore, on both the aforesaid grounds, the Second Appeal is dismissed.

[R.M.SAVANT, J]