TANAJI Vs. ANGAD

JUDGEMENT

(1.) The appellant-original plaintiff Tanaji had instituted a suit bearing R.C.S. No. 90 of 1994 for a decree of perpetual injunction restraining the defendant from obstructing his possession over the suit property i.e. the agricultural land Survey No. 46/B-01 (new Gat No. 18) ad-measuring 4 acres 23 gunthas (01 H. 55 Arrs.) situated at village Shirsi Hangarga, Taluka Nilanga. According to the appellant/plaintiff, he had purchased the suit land on 31/3/1990 under a registered sale deed for a valuable consideration of Rs.55,000.00from the original owner Vithoba Nagu Surwase However, since Gudi Padwa in the year 1987, the appellant-plaintiff was in possession of the suit property on batai basis. On 17/4/1990, Mutation Entry No. 414 came to be sanctioned. According to him, the father of the respondent/defendant himself voluntarily surrendered his right as a protected tenant. So, on 7/11/1959, name of the father of the respondent/defendant came to be deleted from the tenancy register. Thus, since Gudi Padwa 1987 till institution of the suit, the appellant-plaintiff was in possession of the suit property. However, since 13/2/1994, the respondent-defendant had started obstructing plaintiff's possession. It is the contention of the appellant-plaintiff that the father of respondent-defendant had instituted a civil suit in respect of the northern half portion ad-measuring 10 acres 39 gunthas of Survey No. 46 against the vendor of the appellant-plaintiff. However, the said suit bearing R.C.S. No. 32 of 1958 came to be decreed to the extent of 2 acres 39 gunthas, In the said suit, it was held that the father of the respondent/defendant was not concerned with the remaining 8 acres of land. As per the judgment delivered in R.C.S. no. 32 of 1958, the original owner Vithoba Nagu Surwase (the vendor of the appellant-plaintiff) was held as the owner of the remaining 8 acres of land. Out of the 8 acres of land, the appellant-plaintiff has purchased the land ad-measuring 4 acres 23 gunthas and he is in possession of the same. Even the father of the respondent-defendant had not made any claim in his life time in respect of the suit land. Thus, the respondent-defendant has no right, title or interest in respect of the suit land, nor he is in possession of the same. The appellant-plaintiff has also filed his written statement to the counter claim at Exhibit 26 and he has almost reiterated all the contentions taken by him in the plaint. According to the appellant-plaintiff, the counter claim is not maintainable.

(2.) The respondent/original defendant Angad had filed a written statement along with a counter claim Exhibit 18. He had denied the entire contentions. According to him, the alleged sale deed is null and void and not binding on him. His father was declared as a protected tenant. In the year 1955, his father had entered into a contract of sale with the original owner. His father was in possession of the suit land and now the respondent/defendant is in possession of the suit property as a tenant. It is contended that the appellant-plaintiff himself is obstructing the respondent/defendant's possession over the suit property. Therefore, he had filed a counter claim seeking perpetual injunction restraining the appellant-plaintiff from obstructing his possession over the suit property along with compensatory cost. According to the respondent-defendant, it was held by the Collector in the judgment in File No. 1990-GB-ROR-A-27 that the appellant-plaintiff is not in possession of the suit land. In view of the same, the sanction of Mutation Entry No. 414 loses its significance. According to the defendant, his father entered into an agreement of sale with the original owner and paid him Rs.2,500.00 in the year 1955. Originally, the father of the defendant was in possession of the suit land as a tenant. However, subsequently, his possession was of the purchaser of that land and Mutation Entry No. 34 was also passed to that effect. The respondent-defendant has denied specifically the surrender of tenancy on 7/11/1959 as alleged. It is further contended that the father of the respondent-defendant though requested the original owner Vithoba to execute a sale deed, but he had denied to execute a sale deed. The original owner Vithoba had no right to execute the sale deed in favour of the appellant-plaintiff. The father of the respondent-defendant, being the protected tenant of the suit land, had a preferential right to purchase the northern one-half portion out of land Survey No. 46 ad-measuring 21 acres. Even the original owner had executed an agreement to sale to that effect. According to the respondent-defendant, his father had therefore instituted R.C.S. No. 31/A of 1958. However, the said suit came to be compromised and as per the terms of the compromise, the father of the respondent-defendant got 4 acres 23 gunthas of the land i.e. the present suit land and the remaining land was sold by the original owner to one Venkatrao Patil. Therefore, the original owner Vithoba was not having any land and such, he was not competent to execute a sale deed in favour of the appellant-plaintiff. It is contended that the record created by the concerned Consolidation Officer is totally false. The defendant is in exclusive possession of the suit land.

(3.) On the basis of the rival pleadings of the parties to the suit, the trial court framed issues and the parties led oral and documentary evidence in support of their rival claims. Learned 2nd Joint Civil Judge Junior Division, Nilanga, by judgment and order dtd. 28/9/2001, dismissed the suit with costs and decreed the counter claim with costs. The plaintiff (the defendant to the counter claim) is perpetually restrained from obstructing defendant's (the plaintiff to the counter claim) possession over the suit properties along with the compensatory costs of Rs.3,000.00.