NAGKUNVERBA BALVANTSINH Vs. PARTHIVBHAI LOMESHPRASAD

JUDGEMENT

(1.) As all the matters are inter-connected and common questions arise for consideration, they are being considered by this common judgement. The short facts of the case are that one Mohmed Albha was holding the land situated in the sim of Village Kanbha somewhere in the year 1945. The said Mohmed Albha mortgaged the land with one Dr.Lomeshprasad Desai. The said Dr.Lomeshprasad Desai gave the very land on lease basis for cultivation to Mohmed Albha. Thereafter, as Mohmed Albha was in arrears of the rent, Dr.Lomeshprasad Desai commenced the proceedings under Section 21 read with Section 14 of Bombay Tenancy and Agriculture Land Act (hereinafter referred to as "the Act" for short) for recovery of the possession of the land. It appears that on 12.9.1956, ultimately the order was passed by the Bombay Revenue Tribunal, confirming the order for giving possession to Dr.Desai in the revision proceedings No.2812 of 1956. Thereafter, on 12.3.1957, Dr.Lomeshprasad Desai obtained actual possession of the land in question from Mohmed Albha and as per the petitioner, Dr.Lomeshprasad Desai continued to be in possession up to 1962. However, in the year 1963, as per the petitioner, Dr.Lomeshprasad Desai inducted the petitioner as the tenant of the land in question. In the meantime, Dr.Lomeshprasad Desai filed Civil Suit No.41/1955 against Mohmed Albha and others for recovery of the dues and on 20.10.1961 the decree was passed in the said suit and as per the said decree of the Civil Court, Mohmed Albha and other co-defendants were directed to pay Rs.16,998/- to Dr.Lomeshprasad Desai. The execution application for recovery of amount was also filed by Dr.Desai - respondent No.1 herein.

(2.) It appears that in the meantime, the widow of one Bhaiba Sathi filed Civil Suit in the Court of learned Civil Judge, Karjan in the year 1959 for declaration to the extent of her share in the property which was mortgaged by Mohmed Albha in favour of respondent No.1 " Dr.Desai. The said suit was transferred to the Court of Jt. Civil Judge and it was re-numbered as Civil Suit No.44 of 1961. In the said suit, respondent No.1 as well as Mohmed Albha were parties, but as per the petitioner, they were not impleaded as parties. The said suit was decreed in favour of Bhaiba Sathi and others as co-owner and it was declared by the Court that the mortgage created by Mohmed Albha in favour of respondent No.1 was binding to the extent of share of Mohmed Albha and was not binding qua the share of Bhaiba Sathi and others.

(3.) In the year 1964, Bhaiba Sathi, as got her share in the property, filed the application under Section 84 of the Tenancy Act against the present petitioners on the ground that they were in unauthorised possession of the land. The Prant Officer had passed the order of eviction against the petitioner. The matters were carried before the Tribunal in revision and ultimately as per the decision dated 25.1.1966, the Tribunal allowed the revision. It appears that thereafter the matters were carried before this Court being SCA Nos.904 to 907 of 1966 and in the said petitions, this Court (Coram: D.A.Desai, J. - as he then was) vide order dated 11.8.1970 observed, inter alia, as under: