TATYA SAVLA Vs. YESHWANT KONDIBA

JUDGEMENT

(1.) THIS is a second appeal from the decree of the learned Assistant Judge of Ahmednagar who dismissed the appeal which was filed by the original defts. 1, 5 and 6 against the decision of the learned Civil Judge, Junior Division, at Karjat, decreeing the pltfs. ' suit.

(2.) THE pltfs. filed the suit against deft. 1 who was described as their tenant in respect of the suit lands, defts. 2, 3 and 4, the sons of deft. No. 1 and defts. Nos. 5 and 6 who claimed to be sharers of the pltfs. under certain entries which were made in the Record of Rights. There had been prior litigation between the pltfs. and deft. No. 1, a suit, being Suit No. 418 of 1942, having been filed by the pltfs. against him, to evict him from the suit lands. In that suit deft. 1 had disclaimed the pltfs. ' title and had set up a title in the suit lands in defts. Nos. 5 and 6. Because of this disclaimer of the pltfs. ' title the pltfs. ' contended in this suit which was filed by. them on 9-11-1944, that they were entitled to evict deft. No. 1 from the suit lands. Defendants 1, 5 and 6 made common cause. It was contended on behalf of the defts. that the pltfs. were not the sole owners of the suit lands and that defts. 5 and 6 were sharers along with them in the same and that therefore the suit was not maintainable by the pltfs. as framed. It was also contended that here was no valid notice to quit given by the pltfs. in accordance with the provisions of Section 84, Bombay Land Revenue Code, that the tenancy had not determined and that therefore the pltfs. were not entitled to maintain this suit in eviction.

(3.) IN regard to the title of the pltfs. both the Courts below held that the pltfs. were the exclusive owners of the suit lands. That finding is a finding ot fact and is binding not only on deft. 1 but also on defts. 5 and 6. That finding has not been challenged, as it could not be by Mr. B. N. Gokhale appearing for defts. 1, 5 and 6 who are the applts. in this appeal before us. Apart, however, from this finding as to the pltfs. being the exclusive owners of the suit lands, the trial Court held that by reason of the disclaimer of the pltfs. ' title by deft 1 in Suit No. 418 of 1942 there was a forfeiture of the lease and therefore there was no necessity of giving the notice under Section 84, Bombay Land Revenue Code. The trial Court, therefore, decreed the pltfs. ' claim. The lower appellate Court also held that the pltfs. were entitled to possession of the suit lands and dismissed the appeal of defts. 1, 5 and 6. It is against this judgment of the lower appellate Court that this second appeal was filed. This second appeal came in the first instance before Dixit J. , sitting alone and he referred it to a division bench. It has now come before us for hearing and final disposal.