CHINDHU GOTU SONAR Vs. VANA MUNJI PATIL

JUDGEMENT

(1.) THIS is a defendant's second appeal against the judgment and decree dated April 2, 1968, passed by the Extra Assistant Judge, Nasik, setting aside the decree passed by the Civil Judge, Junior Division, Satana, dismissing with costs and suit filed by the plaintiff, by his judgment dated December 18, 1965.

(2.) THE plaintiff had filed the suit in the Court of the Civil judge, Junior Division, Satana, on June 19, 1964, praying for a declaration that the order of the Deputy Collector dated April 24, 1964, in pursuance of which the Mamlatdar, taluka Baglan, directed the plaintiff to hand over the possession of the suit land to the defendant, was ultra vires and for an injunction restraining the defendant from obtaining possession of the suit land on the strength of the said order. The suit land is Survey No. 186 situate in village Vanoli. The land originally belonged to one Govind Keshav, who is not a party to the suit. The defendant was cultivating the land as a tenant protected under the Bombay Tenancy and Agricultural Lands Act, 1948. There was another land in the same village bearing Survey No. 152 which originally belonged to the defendant. The defendant had sold the same to the plaintiff. The plaintiff alleged that he and the defendant entered into an agreement by which he agreed to reconvey Survey No. 152 to the defendant and the defendant agreed to give him half of Survey No. 186 as tenant of Govind Keshav In pursuance of this agreement, the plaintiff got possession of the northern half portion of Survey No. 186 on July 12, 1958. A possession receipt or Taba Pavti or Kabje Pavti was executed on the same. Since then the plaintiff claimed to be in possession of the northern half of the land. he averred that he gave possession of S. No. 152 to the defendant; but in spite of this, the defendant filed a criminal case against the plaintiff being Criminal Case No. 1586 of 1959 in the Court of the Judicial Magistrate, First Class, Satana, under Section 441 of the Indian Penal Code, alleging falsely that the plaintiff had no interest in the suit land and yet he forcibly entered into the land and removed the Kulith crop of the defendant and caused damage to the kulith crop. The plaintiff was acquitted in that case by the judgment dated November 19, 1959, passed by the Judicial Magistrate, because of the aforesaid Kabje Pavti. The defendant further filed two applications bearing Nos. 197/58 and 4/59 under Section 29 of the Bombay Tenancy and Agricultural Lands Act, 1948, in the Court of the Tenancy Avval Karkun, Baglan. By an order dated August, 12, 1959, the Tenancy Avval Karkun dismissed the applications on the ground that the defendant should move under Section 84. The appeals filed by the defendant against it were also dismissed. Thereafter, the defendant filed an application under Section 84, of the Bombay Tenancy and Agricultural Lands Act, which was dismissed by the Deputy Collector on October 14, 1959, on the ground that the defendant should apply under Section 29. The plaintiff has further averred that in proceedings under Section 32-G the defendant was declared to have purchased the land bearing S. No. 186. The plaintiff preferred an appeal against the decision of the Agricultural Lands Tribunal, challenging merely the fixing of the price of the land, but the plaintiff's appeal was dismissed. By his said order dated April 25, 1964, the Deputy Collector further directed the Mamlatdar to restore possession of half the land, which is the suit land, to the defendant. Thereafter on the strength of the decision of the Prant Officer, the Mamlatdar passed an order on June 9, 1964, directing the Village Officer, Vanoli, to deliver possession of the land of the northern portion of S. No. 186 to the defendant. The plaintiff contended that the Mamlatdar had no jurisdiction to pass the said order.

(3.) IN his written statement at Ex. 14 and the additional written statement at Ex. 19 the defendant resisted the suit contending inter alia that he was the tenant of the land and that he had not agreed to give possession of the northern half portion of the land to the plaintiff. He also denied that in pursuance of the alleged agreement the plaintiff reconveyed to the defendant S. No. 152. he contended that the agreement alleged by the plaintiff was against the provisions of the Bombay Tenancy and Agricultural Lands Act. The plaintiff could not claim any right, title or interest to Survey No. 186 under the alleged agreement. He submitted that Taba Pavti was executed by him on account of undue influence and fraud committed by the plaintiff. It was also contended that the Civil Court had no jurisdiction to try the suit.