KARBHARI AASHRUBA INGLE Vs. DHANNULAL

JUDGEMENT

(1.) Present appeal from order has been filed by original defendants challenging the judgment and order passed in Regular Civil Appeal No.232 of 2014 by learned District Judge-12, Aurangabad on 24.02.2020, thereby setting aside the judgment and decree passed by learned 2nd Joint Civil Judge Junior Division, Kannad, District Aurangabad in Regular Civil Suit No.155 of 2011 on 22-08-2014 and remanding the suit for giving opportunity to both sides to lead the evidence, if any.

(2.) Heard learned Advocate Mr. P. F. Patni for appellants and learned Advocate Mr. V. A. Bagdiya for respondents.

(3.) It has been vehemently submitted on behalf of the appellants that the learned Trial Judge after considering the evidence on record had come to the conclusion that the suit was not within limitation. The said Court i.e. the Civil Court has no jurisdiction to try and entertain the said suit. The plaintiff had failed to prove that defendant No.1 is unauthorizedly possessing 3 Hectare 28 R land from the western side of Gut No.226 and defendant No.2 is possessing 1 Hectare 41 R land from eastern side of the said gut number unauthorizedly. The learned first Appellate Court on some surmises and interpretation held, that the suit is within limitation and the Civil Court has jurisdiction to decide the suit and remanded the matter without framing other points, which were involved in the matter. In fact, as per the case before the Trial Court, the defendants claimed that one Vitthal Aba was declared as tenant in respect of the said agricultural land. Bhikulal Kisanlal Bhartiya was the owner, however, as Vitthal Aba was declared as tenant, he was the tenant on the Tillers' day also. He became the owner of the property. He was not having any issue, but he was residing with defendant No.1. Therefore, he executed will, bequeath the suit property to defendant No.1 and the mutation to that effect had taken place in the revenue record in the year 1976 itself. Defendant No.2 had purchased 1 Hectare 41 R land from one Shankar Sukhdev, who was one of the nephew of Vitthal Aba. In fact, the declaration of tenancy in favour of Vitthal Aba was challenged up to this Court in Civil Revision Application No.570 of 1958. The interpretation of the decision by this Court has been done by both the Courts below in different way. The learned Trial Judge held that the declaration granted in favour of Vitthal Aba was not set aside by competent Court, though this Court had given a conditional order. Only upon the proof of certain facts, the concerned competent Court was to take a decision regarding cancellation of the tenancy granted to Vitthal Aba, however, the plaintiffs have not filed any such document rather the decision by the Agricultural Lands Tribunal. Under such circumstance, the learned Trial Judge had correctly held that the declaration continued and was not got set aside within limitation and, therefore, the Civil Court has no jurisdiction and the suit is not within limitation. Though the first Appellate Court accepted the position that no such record has been produced by the plaintiffs, went on to observe that when it is the question of ownership, it can be gone into by Civil Court and, therefore, the suit is within limitation. A total wrong approach has been adopted. Further, by setting aside the said order, the matter has been remanded, when it was, in fact, not even prayed for in the appeal memo. Learned Advocate for the appellants, therefore, prayed for setting aside the said judgment and order passed by the first Appellate Court.