BHANABHAI HARIBHAI PATEL Vs. MANGABHAI MITHABHAI HALPATI

JUDGEMENT

(1.) Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") has been preferred by the appellant herein original defendants to quash and set aside the impugned judgment and decree dated 26.12.1984 passed by the learned Civil Judge (Senior Division), Navsari in Regular Civil Suit No.127 of 1971 by which the learned trial Court decreed the said suit in favour of the plaintiff and passed the decree for possession and held that the plaintiffs to recover from the defendants peaceful possession of the suit agricultural lands as well as the impugned judgment and order passed by the learned Appellate Court learned District Judge, Valsad @ Navsari in Regular Civil Appeal No.31 of 1985 by which the learned Appellate Court has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court.

(2.) That the original plaintiff instituted the Regular Civil Suit No.127 of 1971 in the Court of learned Civil Judge (Senior Division), Navsari against the appellants herein original defendants for recovery of the possession of the suit lands/ agricultural lands and for damages. It was the case on behalf of the plaintiffs that the lands were being cultivated by the plaintiffs and there forefathers as koshias since last three generations. It was also the case on behalf of the plaintiffs that though the suit land did not belong to any private person or trust, it was got registered under the Bombay Public Trust and behind the back of the plaintiffs and without their knowledge. It was also the case on behalf of the plaintiffs that they have also got their huts on the suit lands and residing in those huts. It was the case on behalf of the plaintiffs that they were also paying the land revenue of the suit lands upto 1966. It was also the case on behalf of the plaintiffs that defendants forcibly took away the possession of the suit land from the plaintiffs in the year 1966 which was absolutely illegal and unauthorized. It was the case on behalf of the plaintiffs that in case they are considered to be the tenant of the suit land in view of their cultivating the same since the time of their forefathers, they have become the owners of the suit lands under the law as well as by adverse possession. Therefore, the plaintiffs instituted the suit for aforesaid relief of possession. They have also prayed for damages/mesne profit of Rs.1000/- for use and occupation of suit land for last three years.

(3.) Shri Dhirendra Mehta, learned advocate appearing on behalf of the appellants original defendants has made only one submission that despite the fact that Mamlatdar & ALT who is the competent authority under the Bombay Tenancy Act declared the original plaintiffs has tenant/deemed tenant/owner under Section 32 of the Bombay Tenancy Act, still for recovery of the possession, the plaintiffs have to approach the authority under the Bombay Tenancy Act only as provided under Section 32(1B) and Section 70(n) of the Bombay Tenancy Act and therefore, in view of bar under Section 85 of the Bombay Tenancy Act, the Civil Court would not have any jurisdiction to pass the decree of possession and directing the defendants to hand over the possession of the suit agricultural lands to the plaintiffs.