GANPATRAO ALIAS GANPU BALIRETEKALE Vs. NAGORAO DIGAMBERRAO TEKALE

JUDGEMENT

(1.) Being aggrieved by the judgment and decree passed by the learned District Judge, Osmanabad, in Regular Civil Appeal No. 78 of 1973, the original plaintiffs, who were Respondents Nos. 1 to 4 in that appeal, have filed this second appeal.

(2.) The dispute relates to Survey No. 299, admeasuring 10 acres 16 gunthas ; Survey No. 300, admeasuring 30 acres 1 guntha ; and Survey No. 301 admeasuring 25 acres 11 gunthas situated at Bhoom, Taluka Bhoom, District Osmanabad. Regular Civil Suit No. 129 of 1970 was originally filed by four real brothers, namely, Ganpatrao, Eknath, Rangnath and Namdeo, for possession of lands described above against two defendants, namely, Nagorao Tekale and Antaji Deshpande, in the Court of the Civil Judge, Junior Division, Bhoom. The case of the plaintiffs in the lower Court was that on 10-3-1956, they entered into possession of the suit lands as the lessees of defendant No. 2, that is, deceased Antaji, who was the original owner of these lands. The plaintiffs claimed to be in actual possession of the suit lands as tenants from 10-3-1956 and they alleged that by agreement dated 9-5-1958, defendant No. 2 agreed to sell the said lands to them for consideration of Rs. 500 and he executed registered sale-deed to that effect in their favour on 31-10-1958 on receiving full consideration of Rs 500. They thus claimed to be in possession of the lands as owners from 31-10-1958. According to the plaintiffs, they started proceedings for validation of sale under section 988 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as "the Hyderabad Tenancy Act", before the Tahsildar, Bhoom on 29-12-1960 and the said transaction dated 31-10-1958 was validated and validation certificate was issued by the Tahsildar in their favour on 2nd February, 1961. It appears that defendant No. 1 Nagorao preferred an appeal against the order of the Tahsildar, thereby raising objection to the validation of sale and claiming himself to be tenant of the suit lands, but the said appeal was d ismissed by the Deputy Collector, Land Reforms, Osmanabad, and this order of validation of sale had become final as against defendants Nos. 1 and 2. The plaintiffs further alleged that earlier to the aforesaid decision, that is, on 26th April, 1957, defendant No. 1 Nagorao made an application to the Tahsildar, Bhoom, and also to the Special Tahsildar, Land Reforms, Osmanabad, on 15th March, 1958, for a declaration that he was a protected tenant in respect of the suit lands. Similarly, on 3rd June, 1957, defendant No. 1 also made an application to the Tahsildar, Bhoom, for protecting his possession over the suit lands and the said application was allowed by the Tahsildar. This decision of the Tahsildar in proceedings under section 32 (1) of the Hyderabad Tenancy Act regarding the possession was maintained by the Deputy Collector, the Maharashtra Revenue Tribunal and also by the High Court. The plaintiffs contended that the decisions given by the Tahsildar on 30th August, 1968 in file No. 67/TNC- C-189 and by the Maharashtra Revenue Tribunal on 28-4-1970 were not binding on them, since they were not parties to those proceedings. The plaintiffs also alleged that they were dispossessed from the suit lands by defendant No. 1 on 3lst July, 1970 in view of the order of the Tahsildar, Bhoom, dated 30th August, 1968 and hence, they filed this suit for declaration of ownership in respect of the suit fields and also for possession of the same.

(3.) Defendant No. 2 filed his consent written statement in the lower Court. The suit was, however, resisted by defendant No. 1 Nagorao by filing a written statement, in which he denied that there was any agreement of sale between defendant No. 2 and the plaintiffs as also the sale-deed dated 31-10-1958 executed by defendant No. 2 in favour of the plaintiffs in respect of the suit fields. According to him, the said sale-deed was a sham and bogus document and it was invalid under the provisions of the Hyderabad Tenancy Act. He admitted that on 26th April, 1957, he had applied to the Tahsildar, Bhoom, for declaration of tenancy rights and that his tenancy rights were upheld by the Maharashtra Revenue Tribunal as also by the High Court. He, however, denied that the plaintiffs were in possession of the suit lands on the strength of the alleged sale-deed and thus he denied their right to claim declaration as also possession, which was the prayer made in the plaint. According to him, he was in possession of the suit fields in the capacity of a tenant and as such, the plaintiffs had no right to claim possession of the lands from him in the Civil Court.