MADHAV KESU KHUSPE Vs. SUNDRABAI MUGUTRAO PHADATARE

JUDGEMENT

(1.) THIS second appeal is by the plaintiff. The learned Assistant Judge, Satara, by his judgment and decree dated August 18, 1970, allowed the defendants' appeal, set aside the decree passed by the trial Court and dismissed the plaintiff's suit with costs.

(2.) AT all times material, the plaintiff was the tenant of Sundrabai, the original defendant No. 1, in respect of nine pieces of agricultural lands within the limits of village Nidhal, Taluka Khatav, District Satara. Sundrabai was a widow -landlady. She died after the suit was dismissed and her heirs prosecuted the civil appeal. Defendant No. 2, a relative of Sundrabai, falsely claimed that he was cultivating the suit -lands on behalf of defendant No. 1. Defendant No. 2 also is one of the heirs of defendant No. 1 in the civil appeal. Defendant No. 3 has no part to play in the present litigation, but he is also one of the heirs of Sundrabai. The plaintiff's, case is that he has been illegally dispossessed of the suit -lands on March 9, 1966 without holding a proper enquiry under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called as 'Bombay Tenancy Act'), and without following the provisions of the said Act governing the case of a widow landlady and her tenant. After he was dispossessed, he came to know that the Agricultural Lands Tribunal (hereinafter described as 'A.L.T.') had held an enquiry under Section 32G. The notice of the enquiry was served upon his brother and after recording his brother's statement, the purchase of the suit -lands was declared ineffective. This was followed by an order dated September 20, 1961 for handing over possession of the suit -lands to Sundrabai, but possession was not taken for nearly four and half years. On March 9, 1966. Kabje Patti, exh. 82, was purported to be executed and it was falsely stated therein that there was no crop and possession was taken from the plaintiff and delivered to Sundrabai without any objection. It was also stated in exh. 82 that on one of the suit -lands, crop of onion/ burijal and garlic was grown and that the plaintiff was absent at the time of the delivery of possession.; The plaintiff contended that possession was taken without intimation to him. He also alleged that Sundrabai and her relative Tukaram -defendant No. 2 in collusion with the Talathi got mutation entry No. 4428 made as of March 9, 1966 on the strength of the Kabje Pom', exh. 82, without notice to him. When the plaintiff became aware of all these facts, he filed Tenancy Appeal No. 219 of 1966 against the order dated September 20, 1961 of the A.L.T. No. II, Khatav, in the Court of the Assistant Collector, Phaltan Division. The appellate Court issued stay order dated August 19, 1966. Tukaram -defendant No. 2 filed Criminal Case No. 313 of 1966 in the Court of Judicial Magistrate, First Class, Vaduj, against the family members of the plaintiff under Sections 447, 590, 323 read with Section 34, Indian Penal Code in respect of the suit -lands and falsely alleged that he was cultivating the suit -lands on behalf of Sundrabai. The plaintiff filed the present suit on January 16, 1967 for permanent injunction. Thereafter, the plaintiff amended the plaint and alleged that the defendants had forcibly dispossessed him after the filing of the present suit and prayed for possession.

(3.) DEFENDANT No. 2 adopted the contentions raised by defendant No. 1. Defendant No. 3 did not file his written -statement.