High Court

Legal Reasoning

1 sa 288.24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD41 SECOND APPEAL NO.288 OF 2024Vijesingh Nimji Gavit And AnotherVERSUSJerma Shegya Gavit Died Through L Rs. Mamata Jerma GavitAnd Others...Advocate for Appellants : Mr. A.S. Abhyankar a/w Mr. N.S.Shah h/f Mr. S.V. Natu ______________________________________________________CORAM :S. G. CHAPALGAONKAR, J.Dated:December 16, 2024FINAL ORDER :-1.The appellants/original defendants impugns thejudgment and decree dated 5.1.2024 passed by the PrincipalDistrict Judge, Nandurbar in Regular Civil Appeal No.28 of2018, upholding the judgment and decree dated 2.11.2018passed by the learned Civil Judge Jr. Division, Nandurbar onobjection to execution of decree filed at Exhibit 18, in RegularDarkhast No.2 of 2012, which has been filed seeking executionof decree passed in R.C.S No. 44 of 1999 and confirmed up toSupreme court of India thereby, directing present appellants todeliver possession of suit property to respondents.The Summery of basic facts is as under 2 sa 288.24.odt2.Appellants were original defendants in RegularCivil Suit No.44 of 1999. Suit was decreed in favour ofrespondents/plaintiffs thereby directing defendants to handover possession of the suit property to plaintiffs. Defendantspreferred Regular Civil Appeal No.4 of 2006 before the DistrictJudge. The same was dismissed. The defendants then filedSecond Appeal No.298 of 2012 which was summarilydismissed. Special Leave Petition filed by defendants beforethe Hon’ble Supreme Court is also rejected.3.Plaintiffs/respondents filed Regular Darkhast No.2of 2012 for execution of the decree. Defendants/J.Ds. filedapplication at Exhibit-18 thereby raising objection to executionof the decree on the ground that decree is not executable asCivil Court had no jurisdiction to decide title of the party inlight of provisions of section 85 and 85 (a) of the BombayTenancy and Agricultural Lands Act (for short “the Act”) asTenancy Court is only competent to decide validity of thepartition of new tenure agriculture land. Secondly, in light ofprovisions under section 36 (c) of the Maharashtra LandRevenue Code, the order passed by the competent authority inrespect of new tenure land cannot be challenged before the 3 sa 288.24.odtCivil Court. Executing Court rejected aforesaid objection videorder dated 2.11.2018 and directed issuance of possessionwarrant against the defendant/J.Ds., The defendant/J.Ds.assailed the order dated 2.11.2018 passed in R.D. No.2 of 2012by filing Regular Civil Appeal no.28 of 2018 before DistrictJudge, Nandurbar. However, said appeal came to be dismissedvide order dated 5.1.2024. Hence this second Appeal.Oral and Written Submissions 4.Learned advocate Mr. Abhyankar a/w Mr. Shah h/fMr. S.V. Natu, appearing for appellant submits that both theCourts have failed to appreciate scope of inquiry under section21 Rule 97, 98, 101 of the Civil Procedure Code while dealingwith objections of appellants to the execution of decree.Neither issues were framed by Executing Court, nor hasAppellate Court framed necessary points for consideration. Mr.Abhyankar submits that, defendants derived title in the suitproperties on the basis of tenancy right and consequentialpurchase of the suit land as a separate property. Consequently,section 85 and 85-A of the Act bars jurisdiction of the CivilCourt. Decree under execution is therefore nullity. Similarly,partition sanctioned by the revenue authorities in the year 4 sa 288.24.odt1985 could not have been challenged in the suit after twelveyears.5.The Jurisdiction of the Civil Court was barred inview of section 36 (C) of the Maharashtra Land Revenue Codeas parties are Scheduled Tribes. He would further submit thatprior to institution of R.C.S 44 of 1999, plaintiffs had institutedR.C.S. No.13 of 1999 seeking decree of perpetual injunction.In that suit, relief claimed in R.C.S 44 of 1999 could have beenclaimed. However, they failed or omitted to claim such relief.Therefore, R.C.S. No.44 of 1999 was not maintainable or suitwas barred by Order II Rule 2 of Code of Civil Procedure. Insupport of such objection, certified copies of documents weretendered before First Appellate Court in R.C.A. No.28 of 2018,but appellate court failed to appreciate and consider thisaspect.6. Mr Abhyankar in support of his submissions reliesupon the following judgments :-i.Shripati Ganpati Jadhav and ors. Vs. ChandrakantGanpati Jadhav and ors. Reported in 2011 (2)Mh.L.J. 689. 5 sa 288.24.odtii.Brahmadeo Choudhary Vs. Rishikesh PrasadJaiswal and another reported in 1997 (1) Mh.L.J.(SC) 817.iii.Mani Nariman Daruwala (deceased) and ors. Vs.Phiroz N. Bhatena and ors. Reported in 1991 (1)Mh.L.J. 376.iv.Foreshore Co-operative Housing Society Ltd. Vs.Praveen D. Desai (D)through L.Rs. And ors.Reported in 2015 SAR (Civil) 789.v.Nusserwanjji E. Poonegar and ors. Vs. Mrs.Shirinbai F. Bhesania and ors reported in AIR 1984Bombay 357.vi.Bhandara Zilla Sahakari Shetki Kharedi and ors. Vs.Damodar and ors. Reported in AIR 1984 Bombay362.vii.Saraswatibai Trimbak Gaikwad Vs. Damodhar D.Motiwale and ors. Reported in 2002 (3) Mh.L.J. 69.viii.Shakuntala Devi Vs.Kamla and ors. Reported in2005 SAR (Civil) 400.ix.Sarup Singh and Anr. Vs. Union of India and Anr.Reported in 2011 SAR (Civil) 40.x.Arulmighu Nellukadai Mariamman Tirukkoil Vs.Tamilarasi (dead ) by Lrs. Reported in 2019 SAR(Civil) 704.xi.Narayan Gramani and ors. Vs. Mariammal and ors.Reported in 2019 SAR (Civil) 52.xii.Dadu Dayaly Mahasabha, Jaipur (Trust) Vs. MahantRam Niwas and Anr. Reported in 2008 SAR (Civil)468.xiii.Pramod Kumar and Anr. Vs. Zalak Singh and ors.Reported in 2019 Supp. (2) SAR (Civil) 77.Analysis of Submissions 6 sa 288.24.odt7. Apparently all these contentions are raised by way ofobjection to the execution of decree, which has been confirmedup to the Supreme Court of India. All such objections wereavailable to be raised in original proceeding of suit or appeal; ifthe judgment debtor who contested suit but failed to take upsuch plea in proceeding of suit or before first and secondappellate court, he cannot be permitted to raise the same byway of objection to execution of decree, unless, it isdemonstrated that decree under execution is nullity, non est orwithout jurisdiction.8.So far as contention that section 85 and 85(A) ofAct bars jurisdiction of the Civil Court to determine the titlederived from the Tenancy Land, both the Courts have observedthat such a plea was not raised in the suit. Even there was noissue framed on this point. It can be observed that JivlyaGhonya was conferred with certificate under the provisions ofthe Act. Two sons of Jivalya were allotted land in gat no.6/1and 6/2 and then mutation entry was effected. However,record in RCS no.44 of 1999 demonstrate that there was nowhisper in the pleadings and evidence as regards to TenancyRight of either of the parties in respect of the suit property. 7 sa 288.24.odtThe issue of bar of jurisdiction was never been raised orpressed into service. In fact, it has come on record that Ghoshawas common ancestor. He died leaving behind two sonsnamely Jivalya and Raylya. The Jivalya was in possession ofland as Tenant since 1936 onward. He was declared asprotected Tenant. Consequential ownership certificate wasissued. Therefore, Rahilya / predecessor of defendants had noright in land. It is observed by this court while disposing offSecond Appeal no.298 of 2012 that no right of Rahilya hasbeen brought on record in respect of the suit property. Courtsnowhere dealt with the issue of tenancy nor any such issue wasinvolved in the suit. Further, it is settled that once thecertificate of ownership of land is issued under the TenancyAct, land vests with tenant as owner. Revenue Record clearlyshows that the plaintiff’s predecessor Jivalya was tenant overthe suit land. Certificate of ownership granted to him underthe provisions of Tenancy Act is final and conclusive.Therefore, issue of title of plaintiffs father needed no referenceto Tenancy Court. Even from pleading of defendants in suit, itcan be observed that no claim based on tenancy was everasserted by them. They pleaded that suit land is ancestralproperty of plaintiff and defendants and claims right based on 8 sa 288.24.odtpartition and consequential Mutation Entry. There is nothingon record to show that any issue required to be dealt with anddecided under section 85 or refereed under section 85(A) ofthe Act was ever arose in R.C.S. No.44 of 1999. As observed bySupreme Court in case of Balawwa VS Hasanabi reported in2000 (9) SCC 272, civil court cannot be said to be ousted ofthe jurisdiction, in granting the relief sought for. It is too wellsettled that when special Tribunal is created under a specialstatute and the jurisdiction of the civil court is sought to beousted under the said statute, it is only in respect of thosereliefs which could be granted by special Tribunal underspecial statute, the jurisdiction of the Civil Court can be said tobe ousted.9.Second contention is that R.C.S. No.44 of 1999was not maintainable or it was barred Under Order II Rule 2 ofthe Civil Procedure Code as relief of possession, thoughavailable as cause of action in the previous suit, same was notraised. The First Appellate Court dealt with this objection andspecifically observed that the suit property in previous suit i.e.R.C.S. 13 of 1999 was different than suit property in R.C.S.No.44 of 1999. Therefore, the bar of jurisdiction as sought to 9 sa 288.24.odtbe raised would not attract for R.C.S. No.44 of 1999.Apparently objection regarding bar under Order II Rule 2 wasnever raised in R.C.S. No.44 of 1999 or before the First orSecond Appellate Court. First time such objection is sought tobe pressed into service in execution of the decree. TheAppellate Court on perusal of record of both the suits observedthat subject matter of R.C.S. no.13 of 1999 was land gatno.6/1-B admeasuring 2H 40R, whereas land gat no.6/1-Aadmeasuring 1H 24R is the subject matter of R.C.S. No.44 of1999. Nothing is placed before this Court to dislodgecorrectness of observations made by the First Appellate Courtin R.C.A. no.28 of 2018.10.The last objection is based on section 36 of MLRCode 1966. Admittedly both parties to suit are Tribal. It is notthe case of Transfer of land owned by Tribal to Non-Tribal. Asrightly held by first appellate court no issue covered undersection 36, 36-A or 36-B was directly or indirectly arose in suitto attract bar of jurisdiction 36-C of M.L.R Code 1966.11.Although, there cannot be quarrel on prepositionsof law espoused in cases cited by Mr Abhyankar, in light of 10 sa 288.24.odtfactual scenario as discussed above, none would help appellantto advance his cause. 12.Hence, Second Appeal stands dismissed. No costs. ( S. G. CHAPALGAONKAR ) JUDGE...aaa- (f)