High Court · 1992

Legal Reasoning

(1) SA-625.1992.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD SECOND APPEAL NO. 625 OF 19921.Shankar Shivram GunjaleSince Deceased Through LRs1-a.Durgabai wd/o Shankar GunjaleAge : 80 yrs, occ : household1-b.Shivlal Shankar Gunjale(Already arrayed as appellant No.5)2.Hiraman Punjaji GunjaleAge : 54 yrs, occ : agri.,3.Ramchandra Chagan GunjaleAge : 49 yrs, occ : agri.,4.Babulal Ramchandra GunjaleAge : 29 yrs, occ : agri.,5.Shivlal Shankar GunjaleSince Deceased Through LRs5-I.Tulsabai wd/o Shivlal GunjaleAge : 65 yrs, occ : household5-II.Keshavrao Shivlal GunjaleAge : 42 yrs, occ : agri.6.Sonaji Hiraman GunjaleAge : 25 yrs, occ : agri.,All r/o Harsul, Taluka andDistrict AurangabadAppellants.Versus1.Dhansing Raoji RathodAge : 59 yrs, occ : agri.,2.Dhanaji Dhansingh RathodAge : 32 yrs,occ : agri.,3.Waman Dhansingh RathodAge : 26 yrs, occ : agri.,4.Narayan Dhansingh RathodAge : 23 yrs, occ : agri., (2) SA-625.1992.odt5.Khemchand Dhansingh RathodAge : 19 yrs, occ : agri.,All above r/o Harsul, Taluka andDistrict Aurangabad6.Bhausingh Sitaram GunjaleSince deceased through LRs6-a.Dhanabai wd/o Bhausingh GunjaleAge : 75 yrs, occ : householdR/o Harsul, Taluka and DistrictAurangabad6-b.Gangadhar Bhausingh GunjaleAge : 52 yrs, occ : agri.,R/o as above.6-c.Ramdas Bhausingh GunjaleAge : 48 yrs, occ : agri.,R/o as above.6-d.Heerabai w/o Maniram HarneAge : 58 yrs, occ : agri.,R/o as above.6-e.Meerabai w/o Harichandra WaniAge : 56 yrs, occ : agri.,R/o Padegaon, Taluka andDistrict Aurangabad.6-f.Sundarabai w/o Subhash PachloreAge : 46 yrs, occ : agri.,R/o Harsul, Taluka and DistrictAurangabad.6-g.Kaduba s/o Bhausingh GunjaleSince deceased through LRs6-i.Yamunabai wd/o Kaduba GunjaleAge : 60 yrs, occ : agri.,6-ii.Sanjay Kaduba GunjaleAge : 39 yrs, occ : agri.,6-iii.Raju Kaduba GunjaleAge : 37 yrs, occ : agri.,6-iv.Sunita w/o Ramkrishna HarneAge : 35 yrs, occ : household (3) SA-625.1992.odt6-v.Anita w/o Suresh BakleAge : 33 yrs, occ : household6-vi.Kavita w/o Swami DubeyAge : 30 yrs, occ : householdAll above r/o Harsul Sawangi,Tal. and District AurangabadRespondents...Mrs. Pooja V. Langhe, Advocate holding for Mr. N.D. Zinzurde Patil, Advocate for the appellants.Mr. A.S. Bajaj, Advocate for respondent Nos. 1 to 5....CORAM :SANDIPKUMAR C. MORE, J.Judgment Reserved on:06.02.2024Judgment Pronounced on:25.04.2024Judgment :1.The appellants, who are the original defendants,have preferred this appeal challenging the judgment andorder passed by the first Appellate Court i.e. the learned 2ndAdditional District Judge-Aurangabad dated 30.10.1992 inR.C.A. No. 151/1977. Under the said judgment and order, thelearned first Appellate Court has reversed the judgment anddecree passed by 2nd Joint Civil Judge (Junior Division),Aurangabad (hereinafter referred to as “the learned trialCourt”) on 2nd May 1992 whereby the suit of the presentrespondents/plaintiffs has been dismissed.2.Brief facts leading to this appeal are as under : (4) SA-625.1992.odtPresent respondents/plaintiffs had filed suit forsimplicitor injunction against the present appellants/defendants by contending that they are cultivating the landsSurvey Nos. 280 and 283, both admeasuring 20 Acres 30Gunthas known as “Mullacha Inam” situated at Harsul,Taluka and District Aurangabad. According to therespondents/plaintiffs, they are cultivating the suit lands incapacity of tenant of Mutawalli of Dargah Banemiya ShriArifuddin s/o Amiruddin. According to respondent No.1, hehad taken the suit lands on lease since 1975-76, butsubsequently he took his sons, who are the otherrespondents, alongwith him as tenant with the consent ofMutawalli from 1984-85. Respondents/plaintiffs claimed thatthe present appellants/defendants were cultivating adjacentland and they were nowhere concerned with the suit lands.However, the appellants/defendants interfered possession ofthe respondents/plaintiffs and also forcibly harvested cropfrom the suit lands and therefore, due to their suchinterference on 30.11.1988 the respondents/plaintiffs wereconstrained to file suit for perpetual injunction against theappellants/defendants.3.On the contrary, the appellants/defendants (5) SA-625.1992.odtresisted the suit by filing written statement (Exh. 30) andthereby contended that they were in fact cultivating the suitlands since the time of their forefathers as tenant withpermission of the then Mutawalli Ramzali. According tothem, respondent No.1 being their servant, was looking afterthe suit lands and falsely shown him tenant and cultivator ofthe suit lands. Accordingly, they prayed for dismissal of thesuit.4.Learned trial Court, on the basis of pleadings,framed issues and tried the suit, and pleased to dismiss thesame on the ground that the respondents/plaintiffs could notadduce satisfactory documentary evidence in respect of theirpossession over the suit land and so called MutawalliArifuddin, son of earlier Mutawalli Amiruddin also failed toproduce certain documents which could have beenestablished the tenancy as alleged by the respondents/plaintiffs. However, the learned first Appellate Court reversedthe dismissal of suit of the respondents/plaintiffs and allowedthe same. Hence, this Second Appeal.5.Learned Counsel for the appellants submits thatthe first Appellate Court has not properly appreciated thedocumentary evidence on record. According to her, when the (6) SA-625.1992.odtplaintiffs had claimed tenancy over the suit lands, the learnedtrial Court as well as learned first Appellate Court shouldhave held that the claim of plaintiffs is not maintainablebefore the Civil Court. She claimed that respondent No.1 wascultivating the lands on behalf of the appellant BhausingGunjale, but fraudulently got entered his name in the recordof rights of suit lands as cultivator. She also claimed that thesuit property being Waqf property, the jurisdiction of CivilCourt is totally barred. The learned Counsel for theappellants specifically pointed out that the learned firstAppellate Court did not give any weightage to the documentsat Exhs. 80 to 87 showing cultivation of appellants from theyear 1989 to 1992. Besides oral submissions she relief on thefollowing judgments :(i)Bhagwanrao s/o Jijaba Auti vs Ganpatrao Mugaji Raut1987 (3) Bom.C.R. 258(ii)Tanaji Narayandeo Pawar vs Angad Shamrao Suryawanshi, 2022 (1) ALL MR 270(iii)Balasubramanian and another vs M. Arockiasamy(2021) 12 SCC 529(iv)Basharatulla s/o Syed Asraf Mohiuddin vs The Stateof Maharashtra & ors, 1997 (4) ALL MR 303(v)Judgment of Hon’ble Apex Court in Civil Appeal Nos.5575-5576 of 2021 (Kayalulla Parambath Moidu Hajivs Namboodiyil Vinodan) decided on 07.09.2021 (7) SA-625.1992.odt(vi)Amrutrao Shankarrao Deshmuky and another vsLaxman Tulshiram Pawar and others 2011 (6) Bom.C.R. 136.On the contrary, learned Counsel for respondents/plaintiffs supported the judgment of the learned firstAppellate Court. According to him, though initially theinjunction was granted in favour of plaintiffs for certain partof the suit lands, but the then appellate Court grantedinjunction in favour of respondents/plaintiffs in respect of theentire suit land. Even this Court had maintained the saidinjunction as it is while dismissing Civil Revision ApplicationNo.705 of 1989. Moreover, police aid was also granted to therespondents/plaintiffs to safeguard the injunction order. Hepointed out that since 1989 uptil now the injunction isoperating in favour of present respondents/plaintiffs, andtherefore, the documents showing possession of theappellants over the suit land from Exhs. 80 to 87 have nosignificance at all. Further, according to him, since the suitlands are service Inam lands, the same are exempted from theprovisions of Hyderabad Tenancy and Agricultural Lands Act,1950, as per Section 102A (c). According to him, when theplaintiffs/respondents have not claimed any declaration astenant in the instant matter, no issue regarding tenancy is (8) SA-625.1992.odtrequired to be decided. Moreover, the Waqf Act also came inforce in the year 1995 and the Tribunal came in existence inthe year 2000, and therefore, the bar under Waqf Act is not atall applicable to the instant matter. As such, he prayed fordismissal of the appeal. He also placed reliance on thejudgment of the Hon’ble Apex Court in the case of NarayanRajendra and another vs Lekshmy Sarojini and others in CivilAppeal No. 742 of 2001, wherein it is observed that re-appreciating the evidence in Second Appeal is notpermissible.7.Heard rival submissions. Also perused documentson record.8.It is significant to note that the learned Counselfor the appellants pointed out that Ground Nos. 3, 4, 5, 9, 20and 22 raised substantial questions of law in the presentappeal. On going through the aforesaid grounds from appealmemo, following substantial questions of law being raised inthis appeal, can be summarised :(i)Whether the first Appellate Court justified inholding possession of the respondents/plaintiffs over the suit lands by ignoring theevidence of adjacent lands owner? (9) SA-625.1992.odt(ii)Whether the first Appellate Court drew wronginference that the respondents / plaintiffs arecultivating the suit lands on behalf of InamdarArifuddin on Thoka basis at the rate of Rs.1500/- per year?(iii)Whether the learned first Appellate Court hasnot properly appreciated the documents onrecord and discarded the possession ofappellants over the suit lands wrongly?9.Learned Counsel for the appellants/defendantssubmitted that jurisdiction of the Civil Court is barred in theinstant matter since the issue of tenancy is involved in thismatter. For that purpose, she relied on various judgments.In the judgment of this Court in the case of Bhagwanrao vsGanpatrao (supra), it is observed that as per HyderabadTenancy and Agricultural Lands Act, 1950, if any issue oftenancy is involved in the suit, it has to be decided byCompetent Authority under the aforesaid Act and for thatjurisdiction of the Civil Court is barred. Similar observationis there in the judgment of this Court in the case of Tanaji vsAngad (supra) that the suit involving the issue as to thetenancy required to be decided in terms of the provision ofHyderabad Tenancy Act only. Further, this Court in the ofBasharatulla vs State of Maharashtra (supra) has discussedthe same issue. Further, the judgment of this Court in the (10) SA-625.1992.odtcase of Amrutrao vs Laxman (supra) involves similar issue i.e.whether the status of occupant under 1954 Act can bedetermined by Civil Court?10.Admittedly, the respondents/plaintiffs in theinstant case have based their possession over the suit landsin the capacity of tenant of Mutawalli. However, the nature ofpresent suit is only a suit for perpetual injunction i.e. theinjunction simplicitor suit. The respondents/plaintiffs havenot claimed any declaration as regards their tenancy. It issettled that the bar under both the aforesaid Acts namely theWaqf Act as well as Hyderabad Tenancy and AgriculturalLands Act is only in respect of adjudication of tenancy rightsand when there is no such obligation to adjudicate the issueof tenancy as to who is the real tenant, the bar does notapply. As such, injunction simplicitor suit withoutadjudication of tenancy of the parties is very wellmaintainable in the Civil Court. As such, the objection to thejurisdiction raised by the learned Counsel for theappellants/defendants is not at all sustainable in the instantcase.11.Learned Counsel for the appellants also relied onthe judgment of Hon’ble Apex Court in the case of Kayalulla (11) SA-625.1992.odtvs Namboodiyil (supra) wherein it is observed as follows :“it has been clearly held that if the matterinvolves complicated questions of fact and lawrelating to title, the court will relegate the partiesto the remedy by way of comprehensive suit fordeclaration of title, instead of deciding the issuein a suit for mere injunction”As stated earlier, the present suit is not at all fordeclaration in respect of title of the parties. On the contrary,the respondents/plaintiffs have only based their possessionover the suit lands in the capacity of tenants of Mutawalli. Assuch, this being a simplicitor injunction suit, the Court on itsown cannot force the parties to seek any additional relief in aparticular manner. As such, the observation of the Hon’bleApex Court is totally inapplicable in the instant case. Thelearned Counsel for the respondents/plaintiffs though reliedon the observation of the Hon’ble Apex Court in the case ofNarayanan vs Lekshmy (supra) observing that re-appreciationof evidence in the Second Appeal is not permissible, but theHon’ble Apex Court in the case of Balasubramanian vs M.Arockiasamy (supra) has held as follows :“The restraint against inference with findingsof fact of the courts below in second appeal isnot absolute rule. When there is perversity infindings of the court which are not based onany material or when appreciation of evidencesuffers from material irregularity, the HighCourt would be entitled to interfere on aquestion of fact as well”. (12) SA-625.1992.odt12.Here, in this case, there are divergent views takenby the courts below. Moreover, the learned Counsel for theappellants has also raised substantial questions of lawmentioning that the learned first Appellate Court did notconsider the documentary evidence favouring the appellants.In view of the same, the documents on record can be goneinto, to ascertain the rival contentions of the parties.13.It is significant to note that nobody can giveevidence in civil proceeding contrary to the documents onrecord, and therefore, the oral evidence adduced by rivalparties needs to be discussed in the light of the documents onrecord. So far as the case of the respondents / plaintiffs isconcerned, they are claiming that initially respondent No.1alone was cultivating the lands on Thoka basis from the thenInamdar Amiruddin. However, there is no documentaryevidence to that effect as regards the said Thoka or leasebasis. It appears that the learned trial Court refused to acceptthe possession of respondents/plaintiffs over the suit landsmerely because they could not produce the said documentand that the subsequent Inamdar Arifuddin also could notproduce the receipt of those Thokas. However, it is significantto note that the learned trial Judge had granted ad-interim (13) SA-625.1992.odtinjunction in favour of the respondents/plaintiffs which wasmade absolute to the extent of certain portion of suit lands.However, the respondents/plaintiffs had preferred R.C.A. No.12/1989 before the then District Judge, Aurangabad and inthe said appeal, injunction was granted in favour ofrespondents/plaintiffs in respect of the entire suit lands.Moreover, the Civil Revision Application No. 705 of 1989preferred by the present appellants before this Court was alsorejected on 20.02.1992. As such, the injunction granted infavour of the present respondents/plaintiffs is still in force.14.Further, the 7/12 extracts at Exhs. 44 and 45which are from 1960-61 to 1987-88 filed by the respondents/plaintiffs indicate that respondent No.1 Dhansingh waspossessor and cultivator of the suit lands since 1974-75 to1983-84 and since 1984-85 to 1987-88. Besides respondentNo.1, Dhansingh has also specifically deposed that Inamdar ofthe suit lands i.e. Amiruddin got possession of the suit landsfrom Jail Authority and then gave those lands to him onThoka basis. According to him, after the death of Amiruddin,his son Arifuddin also continued his possession over the suitlands. It is not in dispute that during certain period theGovernment had attached the suit lands and the same were (14) SA-625.1992.odtgiven in the possession of Central Jail Authorities forcultivation. Certified copy of letter Exh.47 issued byMarathwada Waqf Board requesting the Collector to releasethe lands which were attached by the Government is onrecord. Further, Exh. 48 is the certified copy of the letter dt.25.07.1972 issued by Collector to the Tahsildar in connectionwith the letter (Exh.47). In the said letter Tahsildar wasdirected to release the suit lands alongwith other to InamdarAmiruddin. Thus, there is reliable documentary evidence onrecord to show that Amiruddin got possession of the suit landafter the same were released by Government. Moreover, acopy of notice issued by Tahsildar to respondent No.1Dhansingh dated 16 December 1983 is on record at Exh. 49and certified copy of report submitted to Tahsildar by theconcerned Talathi dated 26 June 1984 is also on record atExh. 50. Both these documents clearly indicate thatrespondent No.1 Dhansingh alone was in possession of thesuit lands.15.On the contrary, the present appellants hadclaimed that one Ramzali Kasam Ali was Inamdar of the suitlands. However, from Khasra Patrak filed by the appellants atExhs. 66 and 68 in the trial Court had in fact indicated (15) SA-625.1992.odtAmiruddin as Inamdar of the suit lands. As such, the claimof the appellants that they were tenants of one RamzaliInamdar is not supported by reliable documentary evidence.The appellants also tried to interpret the entry of respondentNo.1 alongwith others in the cultivation column of 7/12extracts for the year 1984-85 to 1987-88 by contending thatthe word “others” in fact represented them as cultivator of thesuit lands. However, such inference cannot be drawn sincerespondent No.1 had specifically deposed that he under thepermission of Inamdar of the land included his sons ascultivators of the suit lands, and therefore, it is quite probablethat the word “others” might have represented his sons andnot the appellants.16.Learned Counsel for the appellants also raisedgrievance that the learned first appellate Court did notappreciate the documents at Exhs. 80 to 87 filed by thepresent appellants showing their alleged cultivation over thesuit lands. However, those documents are relating to theperiod from 1989 onwards i.e. after filing of the suit. It issignificant to note that injunction is operating in favour of thepresent respondents/plaintiffs since inception of the suit tilltoday, and therefore, even if such documents are showing (16) SA-625.1992.odtpossession of the appellants over the suit lands, it is contraryto the order of this Court. Therefore, it cannot be consideredfor holding possession of the appellants over the suit lands.Thus, considering all these aspects and even on re-appreciation of evidence on record, it is evident that therespondents/plaintiffs have established their possession overthe suit lands through Inamdar Amiruddin and thereafterArifuddin, and therefore, they are entitled for injunction asprayed for. As such, the substantial questions of law asraised by the appellants, do not survive. Accordingly, theSecond Appeal being devoid of merit, stands dismissed.(SANDIPKUMAR C. MORE, J.)VD_Dhirde