Mr v. D. Gunale
Legal Reasoning
(1) sa-125-2018.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADSECOND APPEAL NO.125 OF 2018WITHCIVIL APPLICATION NO.2943 OF 2018INSECOND APPEAL NO.125 OF 20181.Jyotiram /o Bhagu ChopadeDied Through L. Rs.1-A. Uttam s/o Jyotiram Chopade, Age:- 62 years, Occ. Agri.,1-B.Vinayak s/o Jyotiram Chopade, Since deceased Through L. Rs.1-B-1. Smt. Meerabai w/o Vinayak Chopade, Age:- 63 years, Occ. Household,1-B-2. Ku. Pooja d/o Vinayak Chopade, Age:- Major, Occ. Nil,1-B-3. Ku. Pallavi d/o Vinayak Chopade, Age:- Major, Occ. Nil,1-B-4. Sagar s/o Vinayak Chopade, Age:- Major, Occ. Nil,Appellant No. 1-A to 1-B-4 R/o Chincholirao Tq. and Dist. Latur1-C. Padminibai Jyotiram Chopade, Age:- 83 years, Occ. Household, R/o Chincholirao Tq. and Dist. Latur1-D. Bhagirathibai Nagnathrao Shinde, Age:- 55 years, Occ. Household, R/o Khandapur, Tq. & Dist. Latur1-E. Sunita w/o Sambhajirao Patil, Age:- 50 years, Occ. Household, R/o Warwanti, Tq. & Dist. Latur..Appellants (Orig. Deft. No.2 to 2-E)Versus
Legal Reasoning
(2) sa-125-2018.odt1.The State of Maharashtra,Through The Collector, Latur2.Devabai w/o Shivnath Adsule...Died Abated3.Shrawan S/o Shivnath Adsule,Since deceased Through L. Rs.3-a] Suman w/o Sharawan Adsule, Age:- 65 years, Occ. Household, R/o Chincholirao, Tq. & Dist. Latur3-b] Jayshri w/o Prakash Gade, Age:- 47 years, Occ. Household, R/o Chincholirao, Tq. & Dist. Latur At Present R/e Jyoti Pride, Satara Parisar, Aurangabad-4310053-c] Samadhan s/o Shrawan Adsule, Age:- 44 year, Occ. Agri., R/o Chincholirao, Tq. & Dist. Latur At Present R/o Milind Nagar, Pimpri, Pune-174.Sonerao s/o Shivnath Adsule,Age:- 50 years, Occ. Labour, R/o As above5.Sopan s/o Shivnath Adsule,Age:- 48 years, Occ. Labour, R/o As above6.Mainabai w/o Prakash Kamble,Age:- 45 years, Occ. Household, R/o As above7.Pushpbai w/o Shyam Bansude,Age:- 40 years, Occ. Household, R/o As above8.Bhagabai w/o Yadeo Ghodke,Age:- 38 years, Occ. Household, R/o As above9.Anita w/o Ashtuk Lomte,Age:- 49 years, Occ. Household,R/o. At Post Thodsarwadi (3) sa-125-2018.odtTq & Dist. Osmanabad...Respondents(Resp. No.1 and 9 are Deft. No.1and 2-F and Resp. No.2 to 8 are Orig. Plaintiffs.) …Mr. V. D. Gunale, Advocate for the Appellants.Mr. V. S. Badkh, AGP for Respondent No.1-State.Respondent No.2-Died/Abated.Ms. Madhaveshwari Mhase, Respondent Nos.3-a to 3-c and 4 to 8.Respondent No.9 is served.… CORAM : S. G. CHAPALGAONKAR, J.DATED 02nd DECEMBER, 2024.ORDER:- 1.The appellants/legal representatives of original plaintiff takeexception to judgment and decree dated 22.08.2017 passed by Ad-hoc District Judge-1, Latur in Regular Civil Appeal No.11/1994,thereby reversing judgment and decree dated 12.04.1991 passed by2nd Joint Civil Judge Senior Division, Latur in Regular Civil SuitNo.554/1988.2.The plaintiff filed Regular Civil Suit No.554/1988 seekingdeclaration that order dated 26.04.1982 passed by Special DeputyCollector, Osmanabad under Section 98 of the Hyderabad Tenancyand Agricultural Lands Act (in short ‘the Act’) in respect of suitland as well as order dated 22.11.1982 passed by M.R.T.,Aurangabad in Appeal No.191/A/1982 is null and void. Theplaintiffs further sought declaration that confirmation of certificateunder Section 38(E) of the Act in favour of defendant no.1 is invalidand ineffective in view of default in payment of purchase price (4) sa-125-2018.odtwithin stipulated period and also sought relief of permanentinjunction from executing impugned orders of revenue authorities.3.According to plaintiffs, name of Shivnath Limba Adsule waswrongly recorded as protected tenant over suit land, although hehad surrendered suit land in the year 1951. The plaintiff wascontinuously in possession of suit property. However, declarationof ownership under Section 38(E) of the Act has been made infavour of defendant-Shivnath without any notice to plaintiff. Thedefendant no.2 made application under Section 98 of the Actalleging that on 17.04.1963 he has been conferred with ownershipof suit land. However, he has been dispossessed by plaintiff andsought relief for restoration of his possession under Section 98 ofthe Act before the Revenue Authorities. The Special DeputyCollector, Osmanabad entertained such application withoutjurisdiction and passed order dated 26.04.1982 directingrestoration of possession of tenan. The said order was challengedby appellant before M.R.T., Aurangabad, but his appeal has beendismissed. In alternative, plaintiff pleaded that his title isperfected by way of adverse possession. It is further contendedthat defendant has not deposited purchase price within stipulatedperiod and lost his right accrued under Section 38(E) of the Act. 4.The defendant contested the claim contending that he wasprotected tenant. The purchase certificate is issued to him by (5) sa-125-2018.odtcompetent authority and his name is mutated in the record asowner on 08.07.1975. He never surrendered tenancy right infavour of plaintiff. The suit is not maintainable in this form. TheCivil Court has no jurisdiction to entertain the prayer in the suit.5.The Trial Court framed issues based on pleadings of theparties and recorded finding that Tenancy Courts acted withoutjurisdiction. Consequently, declared plaintiff as owner anddefendants certificate of ownership as void ab initio. The TrialCourt further held that suit is within limitation and Civil Courthas jurisdiction to entertain the suit for grant of relief as prayed.6.The legal heirs of defendant no.2 preferred Regular CivilAppeal No.11/1994 before District Court at Latur, who reversed thedecree holding that orders of Tenancy Court were in accordancewith law and Civil Court has no jurisdiction to make declaration inrespect of orders of Tenancy Court. It is further held that suit isbarred by limitation. Consequently, judgment and decree passedby Trial Court has been quashed and set aside and suit came to bedismissed.7.Mr. Gunale, learned Advocate appearing for the appellantssubmits that appellants are in possession of property. They cannotbe dispossessed by taking recourse to Section 98 of the Act. Thedeclaration of ownership under Section 38(E) of the Act was never (6) sa-125-2018.odtacted upon and it was not valid. The appellants were never givenopportunity of hearing before passing such order. The Trial Courthad rightly decreed the suit after considering relevant provisions oflaw and appreciation of evidence. However, Appellate Courterroneously reversed the decree.8.Per contra, Ms. Mhase, learned Advocate appearing forrespondent nos.3A to 3C and 4 to 8 supports the impugnedjudgment and decree passed by the Appellate Court. She pointsout that defendant was declared as protected tenant of the suitland and he was put into possession since 17.04.1963. His namewas consistently appearing in the revenue record as tenant inpossession. However, he was illegally dispossessed. Consequently,defendant/tenant had moved an application under Section 98 of theAct for restoration of possession. The same has been granted bythe competent authority. The order passed by the revenueauthority is confirmed in Appeal by M.R.T., Aurangabad. Shewould further submit that Appellate Court has rightly concludedthat suit is not maintainable, so also it is barred by limitation.9.Having considered submissions advanced, it can be observedthat defendant was tenant in possession of suit land. Accordingly,he was declared as protected tenant. The tenancy certificate hasbeen issued in his favour under Section 38(E) of the Act, which isconclusive proof of ownership. It appears that, on 24.06.1978 the (7) sa-125-2018.odtdefendant had moved an application under Section 98 of the Actseeking summery eviction of plaintiff from the land. The saidapplication was allowed since defendant was already declared asprotected tenant and he was entitled to remain in possession of suitland. The M.R.T., Aurangabad confirmed the order of summeryeviction in Appeal No.191/A/1982 filed by plaintiff. In thisbackground, First Appellate Court recorded finding that suitseeking declaration against orders passed by the revenueauthorities under special Act cannot be entertained. Reference isgiven to the provisions of Section 99(2) of the Act, which lays downexpress bar to the jurisdiction of Civil Court.10.The Appellate Court on appreciation of material on recordconcluded that no material irregularity or jurisdictional error isshown in the orders of revenue authorities, by which Civil Courtwould assume jurisdiction to declare such order as invalid.11.Secondly, Appellate Court concluded that suit is barred bylimitation, since first cause of action arose to plaintiff in the year1975, when learned Special Deputy Collector passed order ofrestoration of possession under Section 98 of the Act, which hasbeen later on confirmed in the year 1982 by M.R.T., Aurangabadwhile dismissing Appeal of plaintiff/landlord. The present suit isinstituted in the year 1988 seeking declaration against such orders.Since, record shows that plaintiff participated in proceeding before (8) sa-125-2018.odtM.R.T., Aurangabad and he was aware about the orders passed byrevenue authorities, he could have filed suit within a period ofthree years, as prescribed under Article 58 or 113 of the LimitationAct. The plaintiff can said to have first cause of action, when orderwas passed by the Special Deputy Collector in the year 1975 andsecondly, when M.R.T., Aurangabad confirmed it in the year 1982.The plaintiff was expected to file suit within a period of three yearsfrom the date, when first cause of action arose. However, suit isinstituted in the year 1988. Consequently, suit is hopelesslybarred by limitation.12.In light of aforesaid discussion, no substantial question of lawarises for consideration in this second appeal. Hence, SecondAppeal stands dismissed.13.In view of dismissal of Second Appeal, Civil Application doesnot survive and stands disposed of accordingly.(S. G. CHAPALGAONKAR)JUDGEDevendra/December-2024