1. SHRI CHINDHU FAKIRA SATALE AND ORS vs. 1. SAU. VITHABAI KASHINATH JADHAV (D/H) AND ORS

2016:BHC-AS:25074
sa421-13
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.421 OF 2013
WITH
CIVIL APPLICATION NO.1272 OF 2013
IN
SECOND APPEAL NO.421 OF 2013
WITH
CIVIL APPLICATION NO.282 OF 2015
IN
SECOND APPEAL NO.421 OF 2013
1. Shri Chindhu Fakira Satale. )
Age 60 Years, Occu : Agriculture )
2. Shri Vishnu Fakira Satale, )
Age 55 years, Occu : Agriculture )
3. Shri Kashinath Fakira Satale, )
Deceased L.Rs. As under )
3.1 Shri Kiran Kashinath Satale, )
Age 32 years, Occu : Agriculture )
3.2 Shri Dnyaneshwar Kashinath Satale, )
Age 30 years, Occu : Agriculture )
3.3 Shri Pappu Kashinath Satale, )
Age 20 years, Occu : Agriculture )
And Student )
3.4 Smt.Latabai Kashinath Satale, )
Age 42 years, Occu : Agriculture )
And Household )
4. Shri Pundlik Fakira Satale, )
Age 43 years, Occu : Agriculture )
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5. Shri Ashok Hari Satale, )
Age 45 years, Occu : Agriculture )
6. Smt.Rjubai Hari Satale, )
Age 48 years, Occu : Agriculture )
Above all Residing at Sangamner, )
Post – Mavadi, Taluka - Dindori, )
District Nashik )
7. Mangalabai Baraku Gangurde, )
Age 46 years, Occu : Household )
C/o : Baburtao Gangadhar Dhikale )
R/at : Khedgaon, Taluka – Dindori, )
District : Nashik ) ...Appellants
Ori.Defendants
….Versus....
1. Sau.Vithabai Kashinath Jadhav, )
Deceased L. Rs. - As under : )
1A. Shri Sadashiv Kashinath Jadhav )
Age : 44 years, Occupation )
1B. Shri Digambar Kashinath Jadhav, )
Age : 44 years, Occupation )
1C. Sau.Murabai Honaji Gangurde )
Age : 42 years, Occupation )
1D. Sau.Bibabai Hanuman Page, )
Age : 37 years, Occupation )
1E. Sau.Ranjana Lalu Dhule )
Age : 32 years, Occupation )
1F. Sau.Sarala Tanaji Kadale, )
Age : 32 years, Occupation )
Nos.1A to 1E residing at Shivre, )
Taluka – Dhandwad, Dist. Nashik )
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2. Sau.Punjabai Khandu Kadale, )
Age 72 years, Occupation )
R/at : Umbaral Khurd, Taluka )
Dindori, District Nashik ) ...Respondents
...Ori.Plaintiffs
3. The Maharashtra Rajya Saha )
Krushi and Gramin Vikas Bank, )
Branch Office, Dindori, )
Taluka Dindori, District Nashik )
4. Shivare Vividha Karyakari )
Sahakari Society, Shivare, )
Taluka Chandwad, District Nashik ) ...Respondents
Ori.Defts.8 & 9
Mr.Girish R. Agrawal for the Appellants.
Mr.Nitin Muley for the Respondent Nos.1-A and 2.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 22ND AUGUST, 2016
PRONOUNCED ON : 5TH OCTOBER, 2016
JUDGMENT :-
1. By this appeal filed under section 100 of the Code of Civil
Procedure, 1908, the appellants (original defendant nos.1 to 7) have
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impugned the judgment and decree dated 30 October, 2012, passed
by the learned District Judge – 5, Nashik, dismissing the appeal (Civil
Appeal No.112 of 2011) filed by the appellants herein by which the
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appellants had impugned the judgment and decree dated 10 August,
2006 passed by the learned Civil Judge, Junior Division, Dindori in
Regular Civil Suit No.55 of 2001 filed by the respondents herein
(original plaintiffs) thereby decreeing the suit filed by the plaintiffs and
declaring the plaintiffs as the owners of the suit land to the extent of
half area and directing the defendants to deliver the possession of the
suit land to the extent of half area to the plaintiffs. Some of the
relevant facts for the purpose of deciding this second appeal are as
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under :
2. The parties in this judgment are described as per their
status in the civil suit. It was the case of the plaintiffs that the
deceased Sonubai Shankar Gangurde and deceased Fulji Dhondi
Satale were residing together and had purchased the land bearing
survey No.18 jointly, admeasuring 6 acres and 30-R jointly from its
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erstwhile owner Narayan Vitthalrao Jathar on 19 June, 1958. The
said deceased Fulji Dhondi Satale and the said Sonubai Shankar
Gangurde had half share each in the suit land.
3. It was the case of the plaintiffs that the plaintiffs are legal
heirs of the said Sonubai Shankar Gangurde and the defendant nos.1
to 7 are the legal heirs of the said Fulji Dhondi Satale. The defendant
nos.1 to 7 however, got mutated their names for the entire area of the
suit land after the death of Sonubai Shankar Gangurde. The names
of the plaintiffs were shown in the other rights column instead of
mutating in the column of ownership insofar as half portion of the suit
land is concerned.
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4. On 30 August, 1993, the said Sonubai Shankar
Gangurde expired. It was the case of the plaintiffs that till the death
of the said Sonubai Shankar Gangurde, the said Sonubai Shankar
Gangurde and the defendants were in possession of the suit land
jointly. The defendant nos. 1 to 7 however, with a view to grab the
entire land got mutated false entries and refused to give the share to
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the plaintiffs. The plaintiffs thereafter sent a legal notice on 24
January, 2001 to the defendant nos.1 to 7 for their share in the suit
property. The defendant nos.1 to 7 however, did not comply with the
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said notice. The plaintiffs therefore filed a suit (Regular Civil Suit
No.55 of 2001) in the Court of the learned Civil Judge, Junior
Division, Dindori, Taluka and District Nashik inter-alia praying for a
declaration and mesne-profits .
5. The defendant nos.8 and 9 were impleaded as parties to
the suit in view of the fact that the defendant nos.1 to 7 had raised
loan from the defendant nos.8 and 9 and their names were appearing
in the revenue records. The suit land was irrigated land and various
crops such as onion, vegetables etc. were cultivated on the suit land.
Though witness summons were issued to all the defendants, the
defendants did not appear and did not file any written statement. The
suit was accordingly proceeded ex-parte against the defendant nos.1
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to 7 on 31 March, 2002. The defendant nos.1 to 7 challenged the
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said order dated 31 March, 2002 before the District Court. On 13
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April, 2006, 4 Ad-hoc Principal District Judge was pleased to set
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aside the said ex-parte order dated 31 July, 2002 and remanded the
matter back to the trial Court with a direction to decide the suit afresh
by giving chance to both the parties to adduce their oral and
documentary evidence. The defendant nos.1 to 7 were directed to file
the written statement on 26thJune, 2006. The defendant nos.1 to 7
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however, did not appear on 26 June, 2006 before the learned trial
Judge and also did not file any written statement as directed by the
learned District Judge. The said suit against the defendant nos.1 to 7
therefore, once again proceeded ex-parte . The learned trial Judge
framed three issues. The plaintiffs examined plaintiff no.2 on their
behalf as a witness and also filed documentary evidence. No witness
was examined by the defendants.
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6. By a judgment and decree dated 10 August, 2006, the
learned trial Judge declared that the plaintiffs had proved that after
the death of said Sonubai Shankar Gangurde, they had succeeded
her property and became the owners to the extent of half share in the
suit property ad were entitled to get possession of the half area of the
suit land. The learned trial Judge directed the defendant nos.1 to 7 to
deliver the possession of the suit land to the extent of half area to the
plaintiffs. The learned trial Judge directed that a copy of the decree
be sent to the Collector, Nashik for effecting the partition and delivery
of actual possession of the suit land to the extent of half area as per
the said declaration and directed a separate enquiry about the
mesne-profits under Order 20 Rule 12 of the Code of Civil Procedure,
1908.
7. Being aggrieved by the said judgment and decree dated
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10 August, 2006, the defendant nos.1 to 7 filed civil appeal (Regular
Civil Appeal No.112 of 2011) in the Court of the learned District
Judge – 5, Nashik. The learned District Judge framed five points for
determination and has rendered various findings about the ownership
of the plaintiffs' half area in the suit property, for possession of the
suit property to the extent of half area of the suit land etc. The learned
District Judge also had framed an issue as to whether it was
necessary for the learned trial Court to frame an issue in respect of
the tenancy and to refer the same to the competent authority for
decision under section 85-A of the Bombay Tenancy and Agricultural
Lands Act, 1948 (for short the said “BTAL Act”). The learned District
Judge rendered a finding on the said issue in negative. By a
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judgment and decree dated 30 October, 2012, the learned District
Judge – 5, Nashik dismissed the said appeal (Civil Appeal No.112 of
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2011). Being aggrieved by the said judgment and decree dated 30
October, 2012 passed by the learned District Judge – 5, Nashik, the
defendant nos.1 to 7 filed this second appeal under section 100 of the
Code of Civil Procedure.
8. The defendant nos.1 to 7 have filed Civil Application
No.282 of 2015 in this second appeal, inter-alia praying for an order
and direction to take on record a certificate issued under section
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32(M) of the BTAL Act bearing No.ALT-V-9T/63 dated 1 September,
1963 on record and to mark the same as exhibit. The defendant
nos.1 to 7 also filed a separate civil application (1272 of 2013) in this
second appeal inter-alia praying for an injunction against the original
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plaintiffs from executing the decree dated 10 August, 2006 passed
by the learned trial Judge.
9. Mr.Agrawal, learned counsel appearing for the defendant
nos.1 to 7 submits that his clients are illiterate and are tribal and were
unable to pursue the matter before the learned trial Judge with due
diligence and also because of their agricultural responsibilities. He
submits that when the defendant no.4 visited the advocate appearing
for the defendant nos.1 to 7 in the High Court along with documents,
they came across a certificate issued by the authorities under section
32(M) of the BTAL Act in respect of the suit property. The defendant
nos.1 to 7 had already placed on record other relevant documents in
the form of 7x12 extract and mutation entries. He submits that the
name of Sonubai Shankar Gangurde was already deleted from the
ownership column and was entered in other rights column, whereas
the names of Chindhu Fakira Satale and Vishnu Fakira Satale were
entered as the owners who were brothers of Fulji Dhondi Satale and
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submits that the sale deed executed in favour of Sonubai Shankar
Gangurde has been already cancelled by the authorities as is clear
from the mutation entry nos.430 and 446 and in place of that entries,
entry no.430 is recorded according to which in view of section 32(M)
of the BTAL Act, the certificate issued under the said BTAL Act, the
certificate of sale dated 1st September, 1963 was given in favour of
Fulji Dhondi Satale in view of section 43 of the said BTAL Act.
10. It is submitted that since the said certificate issued under
section 32-M of the said BTAL Act is a public document and since the
the appellants (defendant nos.1 to 7) could not produce the same for
the reasons which were neither intentional nor deliberate, the
defendant nos.1 to 7 be permitted to rely upon the said certificate
showing the ownership of the suit land in favour of the defendant
nos.1 to 7 and be taken on record and marked as exhibit. He submits
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that in view of the said certificate dated 1 September, 1963, the
predecessor in title of the defendant nos.1 to 7 had become deemed
purchaser of the suit land and thus the plaintiffs and their
predecessor in title have no right right, title and interest of any nature
whatsoever in the suit property.
11. Mr.Agrawal, learned counsel appearing for the defendant
nos.1 to 7 placed reliance on the judgment of the Supreme Court in
case of Saraswatibai Trimbak Gaikwad vs. Damodhar D.
Motiwale & Ors. 2002(2) ALL MR 944 and in particular paragraphs
17, 19 and 24.
12. Learned counsel appearing for the defendant nos.1 to 7
placed reliance on the judgment of this Court delivered by the Full
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Bench of this Court in case of Rajaram Totaram Patel vs. Mahipat
Mahadu Patel & Ors. AIR 1967 Bombay 408 in support of the
submission that the question as to whether a person is a tenant or not
would fall within section 70(b) of the BTAL Act and has to be decided
by the Mamlatdar and not by the Civil Court. He submits that the
judgment and decree passed by the learned trial Court and the order
and judgment delivered by the first appellate Court are contrary to
section 70(b) of the BTAL Act and contrary to the principles laid down
by the Full Bench of this Court in case of Rajaram Totaram Patel
(supra).
13. Learned counsel for the defendant nos.1 to 7 placed
reliance on the judgment of this Court in case of Tulsiram Adku
Marape & Anr. vs. State of Maharashtra & Ors. 2011(1) ALL MR
22 and would submit that since no sanction of the Collector was
obtained under section 36(2) of the Maharashtra Land Revenue
Code, 1966 before transfer of the suit property by the plaintiff, the
plaintiff being tribal, the sale transaction was void.
14. Learned counsel for the defendant nos.1 to 7 placed
reliance on the judgment of this Court in case of Smt.Savita Bapu
Shinde & Ors. vs. Rau Rama Shinde & Anr. 2006(1) ALL MR 423
in support of his submission that since a certificate under section 32-
M of the BTAL Act was issued by the authority, the same could be
challenged by the plaintiffs only before the higher forum provided
under the said BTAL Act and therefore the Civil Court cannot go into
the validity of the said certificate issued by the authority and the same
being conclusive insofar as the title of the party, who has been
declared as a deemed purchaser under the provisions of the BTAL
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Act is concerned.
15. Learned counsel for the defendant nos.1 to 7 submits that
though his clients could not produce a copy of the certificate issued
under section 32-M of the BTAL Act before the trial Court, this Court
will have to consider the said document, the same being a public
document and can set aside the judgment and decree passed by the
trial Court and the first appellate Court after considering the said
document.
16. Learned counsel for the plaintiffs on the other hand
submits that the predecessor of the defendants was entitled to half
share in the right, title and interest in the suit land. Her name was
recorded in the mutation entry as the joint owner. The said Sonubai
Shankar Gangurde had issued a notice of partition. He submits that
though the first appellate Court had granted an opportunity to the
defendants to file a written statement after remanding the matter back
to the learned trial Judge, the defendants did not file the written
statement. The defendants also did not lead any oral evidence before
the learned trial Judge. The matter against the defendants thus rightly
was proceeded ex-parte . He submits that the plaintiffs however, had
led oral as well as documentary evidence.
17. It is submitted by the learned counsel for the plaintiffs that
the learned counsel for the defendant nos.1 to 7 never relied upon
any such alleged certificate under section 32-M issued under the
provisions of the BTAL Act before the learned trial Court and even
before the first appellate Court. There was no pleading about the said
certificate in any of the proceedings. He submits that the Revenue
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Court cannot declare the sale deed void. He submits that even if any
such certificate was issued by the authority, the declaration of the
sale deed executed in favour of the plaintiffs by the Revenue Court is
totally illegal and void. He submits that the issue before the Civil
Court was relating to partition of the suit property and not in respect
of the tenancy. It is submitted that the Civil Court has not declared the
issue of tenancy as canvassed by the defendant nos.1 to 7.
18. Learned counsel for the plaintiffs placed reliance on the
judgment of his Court in case of Pulmati Shyamlal Mishra & Anr.
vs. Ramkrishna Gangaprasad Bajpai & Ors. 1981 Mh.L.J. 321 and
would submit that the Civil Court is not bound to frame and remit the
issue of tenancy mechanically merely because the same was being
raised in the written statement, without judicial satisfaction of its
necessity and justification. He submits that in this case, since there
was no plea and / application for referring the issue of the alleged
tenancy to the authority under section 85-A of the BTAL Act, the trial
Court even otherwise could not have referred the issue of the alleged
tenancy to the authority.
19. Learned counsel for the plaintiffs placed reliance on the
judgment of this Court in case of Laxman Siddu Pote vs. Shri
Govindrao Koregaonkar Dharmadaya Sanstha Managing
Trustees, AIR 1981 Bombay 33 and in particular paragraph 14 and
would submit that finality of certificate under section 32-M is of
limited character and does not oust the jurisdiction of the Civil Court
to go beyond the certificate and to see whether the certificate had
been issued by a Court of Competent jurisdiction after verifying
whether the conditions precedent for granting such certificate existed
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or not. He submits that in this case, no notice was issued by the
competent authority to the plaintiffs before issuing any such certificate
under section 32-M of the BTAL Act and thus the said certificate
having issued without following the procedure under the provisions of
the BTAL Act was even otherwise void and illegal.
20. Learned counsel for the plaintiffs placed reliance on the
judgment of this Court in case of Rama Hariba Khavale vs. Gopika
Ramling Survase & Ors. 2003(4) ALL MR 554 and in particular
paragraphs 10, 12 and 13 and would submit that it is the duty of the
Court to examine the substance and to refuse to frame and remit any
issue raised in view of the provisions of section 85-A of the BTAL Act
if such issue appears to be demonstratively frivolous and mala-fide .
He submits that the Court has to also consider the stage at which
such plea is raised. It is submitted that since the issue of certificate
under section 32-M was not raised in the trial Court and since the
application is made now in civil application in second appeal at this
stage, the Court has to reject such application in view of the fact that
such belated application at this stage is with a view to prolong the
litigation.
21. In support of this submission, learned counsel for the
plaintiff invited my attention to the annexures to the civil application
i.e. Exhibit “B” which is relied upon by the defendant nos.1 to 7 at
this stage. He submits that even if a copy of such certificate annexed
as Exhibit “B” is passed by this Court, it is clear that a true copy of
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the said certificate was issued by the authority on 13 January, 2004.
The said certificate however was not relied upon by the defendant
nos.1 to 7 before the learned trial Court which delivered the judgment
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and decree on 10 August, 2006. He submits that though the second
appeal was filed by the defendant nos.1 to 7 in the month of April,
2013, the defendants nos.1 to 7 have filed the application for seeking
permission to rely upon such certificate only in the civil application
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filed on 28 November, 2014. He submits that in view of the gross
delay on the part of the defendant nos.1 to 7 in placing reliance upon
such alleged certificate at this stage for the first time, this Court
cannot consider such alleged certificate at this stage. He submits that
the whole purpose of relying upon such certificate at this stage is to
cause further delay the out come of the proceedings which were
initiated by the plaintiffs as far back in 2001.
22. Learned counsel for the plaintiffs placed reliance on the
judgment of this Court in case of Madhav Kesu Khuspe vs.
Sundrabai Mugutrao Phadatare & Ors. 1978 Mh.L.J. 289 and in
particular paragraph 15 in support of the submission that since the
certificate issued under section 32-M of the BTAL Act by the authority
is void and illegal, this Court even otherwise is not bound to consider
such certificate and is not required to remand the matter back to the
learned trial Judge for consideration of such certificate.
23. Learned counsel for the plaintiffs placed reliance on the
judgment of this Court in case of Husein Miya Dosumiya vs.
Chandubhai Jethabhai & Ors. AIR 1954 Bombay 239 and in
particular paragraph 3 and would submit that the jurisdiction of the
Civil Court can be ousted only in respect of valid orders passed by
the Mamlatdar. He submits that since the order passed by the
Mamlatdar was totally incompetent and was void and ultra-vires , the
said order was nullity and it could be challenged in the Civil Court.
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24. Learned counsel for the plaintiffs placed reliance on the
judgment of this Court in case of Uttam Sambha Deshmukh & Ors.
vs. Yamunabai w/o Chandrabhan Bhoyar & Ors. 1998(3) ALL MR
625 and in particular paragraph 3 and would submit that since there
was no plea of tenancy by the defendant nos.1 to 7 in compliance
with the order 6 Rule 2 of the Code of Civil Procedure, the learned
trial Judge rightly did not frame any such issue of alleged tenancy. He
submits that the issue as to whether the certificate under section 32-
M of the BTAL Act was issued after following requisite procedure or
not, can be gone into by the Civil Court.
25. Learned counsel for the plaintiffs invited my attention to a
copy of the certificate annexed to the civil application and would
submit that even the said so called certificate shows the name of the
original owner and not the name of the predecessor of the plaintiffs.
He submits that the certificate thus issued by the authority is based
on the wrong premise about the true and correct owner of the suit
property.
26. Learned counsel for the plaintiffs placed reliance on the
judgment of this Court in case of Dada Savla Yadav vs. Vasant
Anant Sultane, 1960, Bombay Law Reporter 471 and would submit
that once the landlord had obtained possession of the lands from the
tenant in pursuance of a surrender, Mamlatdar could not have
decided the question as to whether such a surrender was a nominal
or was a sham surrender within the ambit of section 70 of the BTAL
Act. He submits that the jurisdiction of the Civil Court is thus not
ousted.
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27. Learned counsel placed reliance on the judgment of the
Supreme Court in case of Gurbax Singh s/o Chanda Singh vs.
Financial Commissioner & Anr., 1991 Supp.(1) SCC 167 and in
particular paragraph 19 in support of his submission that since the
Mamlatdar has not acted in conformity with the fundamental
principles of judicial procedure while issuing the certificate under
section 32-M of the BTAL Act, the jurisdiction of the Civil Court to
examine the said certificate is not ousted.
28. It is submitted by the learned counsel for the plaintiffs that
the predecessor of the plaintiffs had become the joint owner. The
Revenue Authority thus could not declared the sale deed as illegal
and had no jurisdiction to declare the sale deed as illegal. He submits
that since the predecessor of the plaintiffs had already become the
half owner of the suit property, such ownership could not have been
divested by the competent authority.
29. Mr.Agrawal, learned counsel appearing for the defendant
nos.1 to 7 in rejoinder submits that the certificate under section 32-M
of the BTAL Act has been already annexed to the civil application for
stay filed by the defendant nos.1 to 7and since the said certificate is a
public document, the same can be relied upon by the defendant
nos.1 to 7 even at this stage. He submits that under section 84-B of
the BTAL Act, the Mamlatdar is empowered to set aside the sale
transaction. Learned counsel distinguished the judgment of this Court
in case of Husein Miya Dosumiya vs. Chandubhai Jethabhai &
Ors. AIR 1954 Bombay 239 on the ground that there was no prayer
in the plaint that the certificate was nullity. He submits that the
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defendant nos.1 to 7 had already produced 7x12 extract before the
first appellate Court. It is submitted by the learned counsel that the
certificate issued under section 32-M of the BTAL Act can be
considered as nullity only if the same is issued not for the purpose of
the BTAL Act or was not required under the said Act and not
otherwise.
30. Learned counsel for the defendant nos.1 to 7 distinguished
the judgment of this Court in case of Uttam Sambha Deshmukh &
Ors. vs. Yamunabai w/o Chandrabhan Bhoyar & Ors. 1998(3)
ALL MR 625 on the ground that there was no proper plea raised by
the defendants in the written statement. In this case however, the
defendant nos.1 to 7 had produced the mutation entry before the first
appellate Court.
31. Learned counsel for the defendant nos.1 to 7 distinguished
the judgment of the Full Bench of this Court in case of Rajaram
Totaram Patel vs. Mahipat Mahadu Patel & Ors. AIR 1967
Bombay 408 on the ground that in that matter no documents were
produced by the defendants, whereas in this matter, the defendant
nos.1 to 7 had produced the mutation entry and 7x12 extract.
32. Learned counsel also distinguished the judgment of the
Supreme Court in case of Saraswatibai Trimbak Gaikwad vs.
Damodhar D. Motiwale & Ors. 2002(2) ALL MR 944 on the ground
that in this case it was not the case of the plaintiffs that the certificate
issued under section 32-M of the BTAL Act was beyond the purpose
of the BTAL Act or was beyond the powers of the Mamlatdar. It is
submitted that the 7x12 extract produced by the defendant nos.1 to 7
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could not have been ignored by the learned trial Judge. Learned
counsel placed reliance on the judgment of the Supreme Court in
case of Shikharchand Jain vs. Digamber Jain Praband Karini
Sabha & Ors., AIR 1974 SC 1178 and the judgment of this Court in
case of Tulsiram Adku Marape & Anr. vs. State of Maharashtra &
Ors. 2011(1) ALL MR 22 . It is submitted by the learned counsel that
in any event, since the certificate issued by the Mamlatdar was 30
years old document, in view of section 114(e) of the Evidence Act,
the same can be relied upon by the defendant nos.1 to 7.
33. Learned counsel for the defendant nos.1 to 7 distinguished
the judgment of this Court in case of Pulmati Shyamlal Mishra &
Anr. vs. Ramkrishna Gangaprasad Bajpai & Ors. 1981 Mh.L.J.
321 on the ground that in that matter the defendant had not
produced any documents for consideration of the Court to refer the
dispute to Mamlatdar, whereas in this case the defendant nos.1 to 7
had produced 7x12 extract before the learned trial Court and has now
produced the certificate issued under section 32-M of the BTAL Act.
He submits that the certificate issued under section 32-M of the BTAL
Act is conclusive evidence of purchase of the land under the
provisions of the BTAL Act.
34. It is submitted that unless the the said certificate issued
under section 32-M of the BTAL Act is set aside in appropriate
proceedings, the issue of tenancy cannot be decided by the Civil
Court.
35. Learned counsel for the defendant nos.1 to 7 placed
reliance on the judgment of this Court in case of Tulsiram Adku
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Marape & Anr. vs. State of Maharashtra & Ors. 2011(1) ALL MR
22 and would submit that since in this case the transfer of the land
was from one tribal to another tribal, permission of the authority was
mandatory before transfer of the land.
REASONS AND CONCLUSIONS :-
36. There is no dispute that the defendant nos.1 to 7 were
served with the writ of summons. The defendant nos.1 to 7 did not file
any written statement. The trial Court had accordingly passed an
order to proceed against the defendant nos.1 to 7 ex-parte . The said
st
order dated 31 July 2002 was challenged by the defendant nos.1
to 7 by filing an appeal before the District Court. The District Court,
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by an order dated 13 April 2006, was pleased to set aside the ex-
st
parte order dated 31 July 2002 and remanded back the matter to
the learned trial Judge for deciding it afresh by giving an opportunity
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to the defendant nos.1 to 7 to file written statement on 26 June
2006. It is not in dispute that though the matter was remanded back
to the learned trial Judge with an opportunity to the defendant nos.1
to 7 to file written statement before the trial Judge, the defendant
nos.1 to 7 once again failed and neglected to file any written
statement. The learned trial Judge thus once again passed an order
to proceed with the matter against the defendant nos.1 to 7 ex-parte
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on 10 July, 2006.
th
37. A perusal of the judgment and decree dated 10 August
2006 passed by the learned trial Judge indicates that the learned
trial Judge framed three issues which are extracted as under :-

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38. A perusal of the copy of the plaint filed by the parties for
perusal of this Court indicates that the dispute before the learned
trial Judge was in respect of the ownership of half share of the
plaintiffs in the suit property which they were claiming through
Sonubai Shankar Gangurde being her legal heirs who was residing
jointly with Fulji Dhondi Satale and both had jointly purchased the
land bearing Survey No.18 from its erstwhile owner Narayan Vitthal
th
Jathar on 19 June, 1958. The plaintiffs did not dispute the half
share of the legal heirs of Fulji Dhondi Satale i.e. the defendant
herein in the suit property. It was however the case of the plaintiffs
that after the death of Fulji Dhondi Satale and Sonubai Shankar
Gangurde, the defendant nos.1 to 7 illegally got their names mutated
in respect of the entire suit property and the names of the plaintiffs
were illegally shown in the other rights column. In view of this act on
the part of the defendant nos.1 to 7, the plaintiffs filed a suit for
declaration of their half share in the suit property claiming through
the said Sonubai Shankar Gangurde who had half share in the suit
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property. The plaintiffs had also issued a notice on 24 January,
2001 through their advocate to the defendant nos.1 to 7. The
defendant nos.1 to 7 however did not comply with the notice issued
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by the plaintiffs.
39. A perusal of the order passed by the learned trial Judge
indicates that the learned trial Judge has considered the copy of
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7x12 extract of the suit land and the copy of the sale deed dated 19
June 1958 and has rendered a finding that the names of the said
Fulji Dhondi Satale, predecessor of the defendants and Sonubai
Shankar Gangurde, predecessor of the plaintiffs were shown as
owners and in possession of the land bearing survey no.18. The
learned trial Judge also held that the said Fulji Dhondi Satale and
Sonubai Shankar Gangurde had purchased the suit property from
Narayan Vitthal Jathar for consideration of Rs.850/-. The learned trial
Judge has rendered the said finding on the basis of the documents
produced by the plaintiffs and the oral evidence led by the plaintiffs
and on the ground that the said evidence led by the plaintiffs
remained uncontroverted by the defendant nos.1 to 7.
40. A perusal of the plaint as well as the order passed by the
learned trial Judge clearly indicates that there was no issue of
tenancy involved before the learned trial Judge raised by either party.
41. A perusal of the judgment and decree passed by the
th
learned District Judge on 30 October, 2012 indicates that the first
appellate Court framed five points for determination. The first
appellate Court also considered the oral and documentary evidence
led by the plaintiffs. In view of the issue raised by the defendant nos.1
to 7 before the first appellate Court for the first time that the learned
trial Judge ought to have framed the issue in respect of the tenancy
and referred the matter to the competent authority for decision in
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view of Section 85-A of the BTAL Act, the first appellate Court
framed the said issue no.4. The first appellate Court also after
considering the oral and documentary evidence has rendered a
finding that the plaintiffs had proved that they had become owners of
half share in the suit property being daughters of deceased Sonubai
Shankar Gangurde and were entitled to get half share of the suit
land.
42. In so far as the issue no.4 framed by the first appellate
Court is concerned, it is held that no certificate under Section 32-M
of the BTAL Act was produced by the defendant nos.1 to 7. There
was no dispute that the sale deed was executed by Fulji Dhondi
Satale and Sonubai Shankar Gangurde and that they were occupying
the suit property, originally owned by Narayan Vitthal Jathar and the
same property was being cultivated not alone by Fulji Dhondi Satale
but also by Sonubai Shankar Gangurde. The ancestors of the
plaintiffs and the ancestors of the defendants, both were protected
tenants of the suit property and after death of their ancestors were
also in joint cultivation of the property. It is held that since Fulji
Dhondi Satale and Sonubai Shankar Gangurde succeeded the suit
property which was in possession of their father Dhondi Satale as
protected tenants, it cannot be said that jurisdiction of the Civil Court
was barred.
43. The first appellate Court accordingly rightly refused to
refer the matter under Section 85-A of the BTAL Act to the competent
authority in view of unchallenged testimony of the plaintiffs and the
documents on record made available. The first appellate Court also
held that the plaintiffs had established that Sonubai Shankar
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Gangurde had purchased the property along with Fulji Dhondi Satale
from Narayan Vitthal Jathar and nothing was placed on record to
show that the sale deed was cancelled by the authority.
44. The first appellate Court accordingly held that since the
sale deed in favour of Sonubai Shankar Gangurde and Fulji Dhondi
Satale was established, the said Sonubai Shankar Gangurde and
Fulji Dhondi Satale, both had share in the suit property and
consequently, the legal representatives of both these parties jointly
have half share in the suit property each and are entitled for
possession of their share in the suit land.
45. A perusal of the said judgment and decree passed by the
first appellate Court also clearly indicates that no issue of tenancy
could be established by the defendant nos.1 to 7 for referring the
same to the competent authority for decision under Section 85-A of
the BTAL Act. I am thus not inclined to accept the submission made
by the learned counsel for the defendant nos.1 to 7 that two Courts
below were bound to refer the said alleged issue to the competent
authority under Section 85-A of the BTAL Act. Reliance placed by
the learned counsel for the defendant nos.1 to 7 on the judgment of
the Full Bench of this Court in the case of Rajaram Totaram Patel
(supra) is thus misplaced. In my view, since the defendants did
not file any written statement inspite of opportunities given by the
learned trial Judge twice and more particularly not raising any issue
of tenancy, the learned trial Judge even otherwise could not have
referred any alleged issue of tenancy to the competent authority.
The judgment of the Full Bench of this Court in the case of Rajaram
Totaram Patel (supra) does not apply to the facts of this case and is
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clearly distinguishable.
46. In so far as the submission of the learned counsel for the
defendant nos.1 to 7 that the certificate alleged to have been issued
by the authority under Section 32-M of the BTAL Act being a public
document and has to be considered by this Court though the same
is produced by the defendant nos.1 to 7 at this stage by allowing the
civil application filed by the defendants is concerned, it is not in
dispute that the said alleged certificate under Section 32-M of the
rd
BTAL Act was alleged to have been issued on 23 September 1963.
A photocopy of the certified copy of the said alleged certificate is
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issued on 13 January, 2004. The trial Court has passed a judgment
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and decree dated 10 August, 2006. The civil appeal filed by the
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defendants (112 of 2011) was dismissed on 30 October, 2012.
Though the certified copy of the said alleged certificate was made
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available with the defendant nos.1 to 7 at least on 13 January,
2004, the same was not produced before the learned trial Judge as
well as before the first appellate Court.
47. A perusal of the record further indicates that though the
second appeal was filed by the defendants in this Court sometime in
the month of May, 2013, the defendant nos.1 to 7 filed an application
under Order XLI Rule 27 of the Code of Civil Procedure, 1908
inter-alia praying for permission to place reliance on the said alleged
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certificate only on 28 November, 2014 i.e. much after filing of the
second appeal. In my view, learned counsel for the plaintiffs is right
in his objection in opposing the said civil application (282 of 2015)
filed by the defendant nos.1 to 7 for seeking permission to rely upon
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the said alleged certificate dated 1 September, 1963 under Section
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32-M of the BTAL Act and to mark the same as exhibit at this stage.
48. A perusal of the averments made in the civil application
indicates that it is averred by the defendant nos.1 to 7 that they are
illiterate, rustic villagers and also tribals and due to their agricultural
responsibilities were unable to pursue the matter with full diligence.
It is alleged that the applicant no.4 and the applicant no.1 visited
the advocate on record along with the documents after the second
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appeal was placed for admission on 28 November, 2014 and
showed the said document to the advocate on record for the first
time. It is alleged that after going through the record recently
procured by the defendant nos.1 to 7, the advocate on record came
across the said certificate issued under Section 32-M of the BTAL
Act. The defendant nos.1 to 7 had thus placed on record the other
relevant documents by filing the said civil application. It is also
alleged in the said civil application that the defendant nos.1 to 7 had
filed the mutation entry nos.430 and 346 in the appeal filed before
the learned District Judge and as per the mutation entry no.430, the
sale deed executed in favour of the Sonubai Shankar Gangurde
was cancelled being illegal. It is alleged that the entry no.346 was
deleted and in that place, entry bearing no.430 was recorded
st
according to which the certificate of sale dated 1 September, 1963
under Section 32-M of the BTAL Act was issued.
49. A perusal of the averments made in the civil application
by the defendant nos.1 to 7 indicates that the defendant nos.1 to 7
have not explained as to why the application for certified copy of the
said alleged certificate under Section 32-M was made for the first
time in the year 2004 though the said certificate was alleged to have
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been issued in the year 1963. It is also not explained as to why the
application for certified copy was made and for what purpose. The
suit was filed by the plaintiffs in the year 2001. Though the
opportunities were given by the learned trial Judge twice to file
written statement, the defendant nos.1 to 7 chose not to appear
before the learned trial Judge. The matter was accordingly
proceeded with against the defendant nos.1 to 7 ex-parte . Though
the certificate was alleged to have been issued in the year 1963
and the certified copy thereof was alleged to have been obtained in
the year 2004, the defendant nos.1 to 7 did not bother to produce
the said alleged certified copy before the learned trial Judge and
even did not bother to produce the same before the first appellate
Court. In these circumstances, I am not inclined to permit the
defendant nos.1 to 7 to place reliance on the said alleged certificate
issued in the year 1963 at this stage. No case is made out by the
defendant nos.1 to 7 for not producing the said alleged certificate
though the defendant nos.1 to 7 had possessed the certified copy
thereof in the year 2004.
50. The next question arises for consideration of this Court is,
that even if the defendant nos.1 to 7 would have produced such
certificate at the relevant time before the learned trial Judge for
consideration, whether the learned trial Judge, without deciding the
relevance thereof is bound to refer the issue of alleged tenancy to
the competent authority for determination or not.
51. The plaintiffs had applied for declaration of their
ownership and had applied for injunction. The question of referring
any alleged issue of tenancy by the Civil Court to the competent
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authority therefore even otherwise did not arise.
52. In so far as the judgment of the Supreme Court in the
case of Saraswatibai Trimbak Gaikwad (supra) relied upon by the
learned counsel for the defendant nos.1 to 7 is concerned, it is held
by the Supreme Court that so long as the certificate issued under
the provisions of the BTAL Act declaring ownership stands, the
decree cannot be executed against the parties holding such
certificate. In the said judgment, it is clarified that the decision of the
revisional authority or the appellate authority must be based only
on the provisions of the BTAL Act. It is not in dispute that the
defendant nos.1 to 7 never produced the alleged certificate under
Section 32-M before the learned trial Judge as well as the before the
first appellate Court. Learned counsel for the defendant nos.1 to 7
also could not produce any material before this Court to demonstrate
that the said alleged certificate was issued by the competent
authority after issuing any notice upon the owners whose names
were recorded in the record of the rights or that any procedure
prescribed under the provisions of the BTAL Act before issuing of
such certificate under the provisions of the BTAL Act was followed
by the competent authority.
53. This Court in the case of Laxman Siddhu Pote (supra)
has held that finality of certificates is of limited character. The
finality does not oust the jurisdiction of the Civil Court to go beyond
the certificate and to see whether the certificates have been issued by
a Court of competent jurisdiction after verifying whether the conditions
precedent to grant the certificates existed or not.
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54. A perusal of the alleged certificate under Section 32-M
relied upon by the defendant nos.1 to 7 indicates that the said
certificate refers to the name of Narayan Vitthal Jathar as landlord
and not the names of Fulji Dhondi Satale and Sonubai Shankar
Gangurde as landlords. If by virtue of the sale deed executed in
favour of Fulji Dhondi Satale and Sonubai Shankar Gangurde in
respect of the suit land and they were already the owners of the suit
property prior to the date of issuance of the said alleged certificate
st
dated 1 September, 1963, Fulji Dhondi Satale could not have been
declared as tenant and the original owner and the joint owners
could not have been divested of their ownership under the said
alleged certificate by declaring one of the co-owner as a tenant.
55. A perusal of the said alleged certificate further indicates
that a note is appended in the said certificate to the effect that the
said land shall not be transferred by sale, gift, exchange, mortgage,
lease or assignment or partition of the land without the previous
sanction of the Collector provided under Section 43 of the BTAL
Act. In my view, the said Fulji Dhondi Satale could not have been
declared as a tenant since he was one of the co-owner in the suit
property. The principles laid down by this Court in the case of
Laxman Siddhu Pote (supra) squarely applies to the facts of this
case. I am thus not inclined to accept the submission of the learned
counsel for the defendant nos.1 to 7 that the said alleged certificate
shall be considered as conclusive and until the same is set aside in
the appropriate proceedings, decree of the two Courts in favour of
the original plaintiffs cannot be executed.
56. This Court in the case of Rama Hariba Khavale
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Vs.Gopika Ramling Survase & Ors. (supra) after adverting to the
judgment of this Court in the case of Fulmati Shivlal Mishra & Anr.
Vs.Ramkrishna Gangaprasad Bajpai & Ors. , 1981 Mh.L.J. 321
and in the case of Ramu Shivappa Agalawe & Ors. Vs. Imam
Kashim Pathan & Ors., 1992 (3) BCR 560 has held that the Court
has a duty to examine the substance and refuse to frame and remit
any such issue to the authority under Section 85 or 85-A of the
BTAL Act, if the same appears to be demonstrably frivolous and
mala-fide . This Court also held that though the issue as to whether a
person is a tenant or not has to be decided by a tenancy Court, a
reference to tenancy Court cannot be made for the sake of asking.
The judicially trained mind of the Court must scrutinize the pleadings
and the documents, make the necessary inquiry and find out whether
the plea is genuine or is mala-fide and fraudulent aimed at
procrastinating the litigation. Vague pleadings, unsubstantiated by
prima facie material will put the Court on guard.
57. It is held that the Court will also consider the stage at
which the plea is raised. If the issue is never raised in the trial Court
and application is made belatedly at the appellate stage then it may
be a sure indication of an attempt to prolong the agony of litigation.
While dealing with such application at the appellate stage, the Court
will have to be more cautious. In my view, the principles laid down
by this Court in the case of Rama Hariba Khavale Vs.Gopika
Ramling Survase & Ors. (supra) squarely apply to the facts of this
case. The defendant nos.1 to 7 did not file any written statement
though the opportunities were rendered by the learned trial Judge at
the first instance and thereafter by the first appellate Court while
remanding the matter back to the learned trial Judge for giving an
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opportunity to file written statement. Though the alleged certificate
under Section 32-M was issued in the year 1963 and the certified
copy thereof was issued in the year 2004, admittedly the defendant
nos.1 to 7 neither cross-examined the witness examined by the
plaintiffs nor produced the said alleged certificate before the learned
trial Judge as well as before the first appellate Court.
58. A copy of the alleged certificate is produced belatedly in
the year 2014 i.e. much after filing of the second appeal and that
also without rendering any sufficient explanation for not producing
the said copy of the alleged certificate for last more than 50 years in
any proceedings or no alleged rights have been asserted based on
such alleged certificate in any correspondence. It is clear beyond
reasonable doubt that the defendant nos.1 to 7 against whom the
decree for possession is passed by the learned trial Judge which is
upheld by the first appellate Court has made such application at this
belated stage obviously with a view to further prolong the agony of
litigation. In my view, the defendant nos.1 to 7 thus cannot be
allowed to rely upon such alleged document at this stage and cannot
be allowed to succeed in their intention of further prolonging
litigation which is pending for last more than 15 years.
59. This Court in the case of Madhav Kesu Khuspe (supra)
has held that the express provisions of Section 32-G have not been
complied with, inasmuch as no notice was served upon the plaintiff
and no statement of the plaintiff was recorded and thus the enquiry
was patently in breach of Section 32-G. The principles of natural
justice were also not observed as the enquiry was held without notice
to the plaintiff, and any decision without notice to the person likely to
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be affected and without giving him an opportunity of being heard
would be not in conformity with the fundamental principles of judicial
procedure. This Court rejected the contentions of the opponent that
unless the certificate issued by the authority was set aside, the same
would be binding on the parties on the ground that if the order itself
is ultra vires then it is a nullity and there is no obligation upon a party
against whom the order is made to prefer an appeal against that
order.
60. In my view, the judgment of this Court in the case of
Madhav Kesu Khuspe (supra) squarely applies to the facts of this
case. The defendant nos.1 to 7 could not produce any material
before this Court to show that the procedure prescribed under
Section 32-M and other provisions of the BTAL Act which are
required to be complied with before issuance of the certificate under
Section 32-M of the BTAL Act was at all complied with by the
competent authority. In my view, the said alleged certificate alleged
to have been issued by the competent authority thus cannot be
considered as conclusive and final and binding upon the plaintiffs
and thus the impugned decree passed by the two Courts below
cannot be stayed or execution thereof cannot be denied on that
ground. In these circumstances, in my view even if such alleged
certificate would have been produced by the defendant nos.1 to 7,
the trial Court could not have referred the issue of alleged tenancy
to the competent authority under Section 85-A of the BTAL Act.
61. This Court in the case of Husein Miya Dosumiya
(supra) has held that jurisdiction of the Civil Court is ousted under
Section 85(2) only in respect of valid order made by the Mamlatdar. It
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is held that if the order passed by the Mamlatdar is incompetent or
' ultra vires ', then the order is a nullity and it can be challenged in a
civil Court. In my view, the principles laid down by this Court in the
case of Husein Miya Dosumiya (supra) squarely applies to the facts
of this case.
62. This Court in the case of Uttam Sambha Deshmukh &
Ors. (supra) has held that unless the material facts constituting the
plea of tenancy in accordance with Order VI Rule 2 of the Code of
Civil Procedure, 1908 have not been pleaded in the written statement,
viz. as to when the tenancy commenced, who was the landlord, what
were the terms and conditions of the tenancy, what was the rent
fixed etc., the issue of alleged tenancy cannot be referred to the
competent authority. In this case, admittedly no written statement
was filed by the defendant nos.1 to 7 and thus this Court cannot be
asked to refer the issue of tenancy to the competent authority and
that also at this stage. In my view, the principles laid down by this
Court in the case of Uttam Sambha Deshmukh & Ors. (supra)
squarely applies to the facts of this case.
63. In my view, the issue of tenancy raised by the defendant
nos.1 to 7 at this stage appears to be patently frivolous and is raised
with a view to prolong the litigation further and thus cannot be
accepted. This Court in the case of Dada Savla Yadav (supra) has
held that once the landlord obtains possession of the land from a
tenant in pursuance of a surrender which is accepted by the
Mamlatdar in accordance with the provisions of the Tenancy Act,
the question whether such a surrender was a nominal or sham
surrender does not fall within the ambit of Section 70 of the Tenancy
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Act. The jurisdiction of the Civil Court to decide that question cannot
be held to be ousted by virtue of Section 85 of the Tenancy Act. In
my view, the said Fulji Dhondi Satale and Sonubai Shankar
Gangurde having acquired right, title and interest in the suit property
much prior to the date of such alleged certificate could not have been
divested of their title and thus the joint ownership of the two parties
could not have been converted into a tenancy by virtue of the said
certificate under Section 32-M of the BTAL Act.
64. Supreme Court in the case of Gurbax Singh Chanda
Singh (supra) has held that if the provisions of the statute have not
been complied with or the statutory tribunal has not acted in
conformity with the fundamental principles of judicial procedure, the
civil Courts have jurisdiction to examine those cases. In my view,
since the alleged certificate issued under Section 32-M of the BTAL
Act is without following the mandatory procedure under the provisions
of the BTAL Act, the same being nullity and thus cannot bind the
plaintiffs and thus no cognizance thereof can be taken by this Court.
65. In so far as the judgments in the cases of Rajaram
Totaram Patel (supra) , Tulsiram Adku Marape & Anr. (supra) ,
Saraswatibai Trimbak Gaikwad (supra) and Smt.Savitra Bapu
Shinde & Ors. (supra) relied upon by the learned counsel for the
defendant nos.1 to 7 are concerned, none of those judgments would
assist the case of the defendant nos.1 to 7. The defendant nos.1 to 7
not having raised plea of alleged tenancy before the learned trial
Judge, inspite of having rendered opportunities to file written
statement twice, the defendant nos.1 to 7 cannot be allowed to raise
a plea that the learned trial Judge ought to have referred the issue of
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tenancy to the competent authority under the provisions of the BTAL
Act. The judgments relied upon by the learned counsel for the
defendant nos.1 to 7 are thus clearly distinguishable.
66. In so far as the submission of the learned counsel for the
defendant nos.1 to 7 that the defendant nos.1 to 7 had already relied
upon the mutation entry before the first appellate Court and thus the
first appellate Court ought to have referred the issue of tenancy to
the competent authority is concerned, the mutation entry is not
conclusive to prove the title in respect of the suit property. The
defendant nos.1 to 7 had never disputed that the sale deed was
executed in favour of Fulji Dhondi Satale and Sonubai Shankar
Gangurde by the original owner Narayan Vitthal Jathar. Learned
counsel for the defendant nos.1 to 7 could not demonstrate before
this Court as to how the sale deed executed between Fulji Dhondi
Satale and Sonubai Shankar Gangurde and Narayan Vitthal Jathar
could be declared as void by the competent authority and in any
case without following the procedure of law.
67. In my view, the findings recorded by the two Courts below
are concurrent findings of facts which are rendered after considering
the oral and documentary evidence produced by the plaintiffs which
remained uncontroverted and being not perverse cannot be interfered
with by this Court under Section 100 of the Code of Civil Procedure,
1908. There is no substantial question of law arises in this appeal. I
am not inclined to allow the Civil Application No. 282 of 2015 filed
by the defendant nos.1 to 7 inter-alia praying for taking the alleged
st
certificate under Section 32-M of the BTAL Act dated 1 September,
1963 on record by marking the same as exhibit for the reasons
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already recorded aforesaid. In my view, the second appeal as well
as civil application are totally devoid of merits.
68. I therefore pass the following order :-
i). Second appeal is dismissed with costs quantified at
Rs.25,000/- which shall be paid by the appellants to the respondents
within two weeks from today.
ii). Civil Application No.282 of 2015 is dismissed.
iii). In view of the dismissal of the appeal, Civil Application
No.1272 of 2013 does not survive and is accordingly dismissed.
(R.D. DHANUKA, J.)
Learned counsel appearing for the appellants seeks
continuation of the ad-interim relief granted by this Court for a period
of eight weeks, which is vehemently opposed by the learned counsel
for the respondents. In my view, no case is made out for continuation
of ad-interim relief granted by this Court. The application for
continuation of the ad-interim relief is rejected.
(R.D. DHANUKA, J.)
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