STATE OF MAHARASHTRA Vs. LAXMIBAI

JUDGEMENT

(1.) This first appeal by the State of Maharashtra original defendant No. 1 - is against the decree passed by the Civil Judge, Senior Division, Parbhani, granting (i) a declaration in favour of Laxmibai wife of Ladaji Jamge and her step-daughter Dhurpadabai wife of Kondiba Raut - Original plaintiffs Nos. 1 and 2, to the effect that the order passed under the Maharashtra Agricultural Lands (Ceiling on Holding) Act, 1961 ("the Act" for short) including field survey Nos. 71,72,73, 74 all of village Kaudgaon, taluka Gangakhed, district Parbhani, as being held on the relevant date by Balaji Ladaji-Original defendant No. 2, the natural son of Laxmibai - plaintiff no. 1, as null and void, (ii) a further declaration that not defendant No. 2 Balaji but plaintiff no. 1 Laxmibai was holding survey nos. 73 and 74 and plaintiff no. 2 Dhurpadabai was holding field survey Nos. 71 and 72 and (iii) perpetual injunction restraining the state from taking any further proceedings for taking possession of the suit land from the respective holders.

(2.) The case of the plaintiffs in a suit filed on 27th July, 1973, shortly stated, is as under : plaintiff no. 1 Laxmibai is the step-mother of plaintiff no. 2 and natural mother of defendant No. 2. One Ladaji - husband of Laxmibai - died long ago leaving behind these three heirs and a co-widow Anusaya - the natural mother of plaintiff no. 2 Dhurpadabai as heirs. Anusaya later on died. Field survey Nos. 73 and 74 were given to plaintiff no. 1 "as per her her rights" which are confirmed by a decree in 1955. She got actual possession but entires wrongly continued in the name of Balaji, who at best could be only the trustee of the lands. Field survey Nos. 71 and 72 were gifted to plaintiff no. 2 by Balaji and she had become owner also by adverse possession. Balaji filed a return under the Act showing these properties as being held by respective owners, i.e. plaintiffs nos. 1 and 2 who also suo motu appeared and supported the stand for Balaji. The Deputy Collector (Ceiling), Parbhani, considering the return filed by defendant no. 2 on 26th July, 1962 proposed the proceedings on 25th May, 1966 accepting the stand of the land holder and held that no land was surplus. In exercise of the revisional powers vested in the Commissioner under section 45 of the Act, the proceedings were remanded for further enquiry on 13th January, 1971. After the remand, the Deputy Collector passed an order dated 29th April, 1972 (Ex. 102) including the disputed four fields in the holdings of Balaji after rejecting the story of transfer in favour of the plaintiffs and declaring a total area of 144.17 acres as surplus. Balaji preferred an appeal before the Maharashtra Revenue Tribunal in terms of section 33 of the Act. A small relief to the extent of 29 acres on some other point was granted in appeal vide order dated 26th October, 1972 (Ex. 104) without desturbing the basic finding as far as four lands in question are concerned. These orders are passed without noticing the plaintiffs and hence they are nullity and not binding on them.

(3.) The defendant no. 1 resisted the suit on facts as well as on law raising, inter alia, a contention about bar of section 41 of the Act to the maintainability of such a suit.