PAPILA BAI Vs. CHAVDAS T BHORTAKKE

JUDGEMENT

(1.) These five appeals by special leave impugn the judgment of the High Court of Judicature of Bombay, Aurangabad Bench in a common judgment rendered in Writ Petition No. 184 of 1992 along with Civil Revision Application No. 329 of 1995 and Civil Application No. 339 of 1998 and Review Application No. 5091 of 1998 along with Review Application No. 5094 of 1998.

(2.) One Hari Vithoba was the owner of land bearing Survey No. 42, admeasuring about 8 acres and 21 gunthas in Village Mehun, Taluka Edlabad, District Jalgaon, Maharashtra. Hari Vithoba mortgaged the said land by a conditional sale-deed executed in favour of one Dattatray Kulkarni, sometime in the year 1941. Although, the stipulated period of redemption was seven years, upon expiry of which the owner of the land was to get back the possession of the land on repayment of the stipulated amount, the said period expired sometime in April, 1947. The mortgagee-in-possession, Dattatray Kulkarni, had, in the meantime, inducted one Chavdas Totaram Bhortakke as his tenant and the said Chavdas Totaram got his name entered in the revenue records as the tenant of the land. The mortgagee-in-possession, Dattatray Kulkarni, died on 25-2-1957 and his wife Durgabai succeeded him. In 1977, the present appellant, who is daughter of the original owner, Hari Vithoba, filed a suit for redemption of the mortgage before the competent Court, Bhusawal, being suit R.C.S. No. 127 of 1977. The appellant and Durgabai entered into a compromise in terms of which a decree for redemption came to be passed by the Court. On 22-2-1978 the appellant filed an application before the Tahsildar and prayed that it be declared that the first respondent herein was not a tenant of the suit land, and alternatively prayed that, if it was held that the present respondent was a tenant, then a certificate under Sec. 88C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Act") be issued to her. The Tahsildar held that the first respondent herein was a tenant of the land and granted a certificate under Sec. 88C in favour of the appellant. This order of the Tahsildar came to be challenged by the heirs of late Chavdas Totaram in Tenancy Appeal No. 19 of 1980 against the grant of Sec. 88C certificate. The appellant also filed Appeal No. 26 of 1980, being aggrieved by the declaration of tenancy in favour of the first respondent. The Sub-Divisional Officer confirmed the order of the Tahsildar and dismissed both the appeals.

(3.) The heirs of late Chavdas Totaram filed Writ Petition No. 3045 of 1985 before the High Court of Judicature of Bombay challenging the grant of Sec. 88C certificate in favour of the appellant. This writ petition was dismissed by the High Court against which no proceedings were taken. Consequently, the certificate issued under Sec. 88C became final.