HAUSU DHONDBA UIKE Vs. SAHEBRAO CHINTAMAN SALAM

JUDGEMENT

(1.) This appeal is preferred against judgment and decree passed on 03/5/2003 in Regular Civil Appeal No.217 of 2002 by Second Additional District Judge, Nagpur thereby reversing judgment and decree passed in Regular Civil Suit No.17 of 1999 on 22/4/2002 by Civil Judge, Junior Division, Katol.

(2.) The appellants are the brothers, so also the respondents are brothers. Respondent No.1 is cousin of the appellants. The appellants owned agricultural field bearing Survey No.110 situated at village Wai, as particularly described in plaint paragraph1. The financial condition of the appellants being poor and respondent No.1 being cousin of the appellants, the appellants decided to allow respondent No.1 to cultivate the field in stead of letting it lie fallow. Therefore, about 7 to 8 years prior to filing of the suit, the suit was filed in the year 1999, the appellants permitted respondent No.1 to cultivate the said field (hereinafter referred to as 'the suit field') and that was how the respondents came to be in possession of the suit field. During the year 1999, the appellants, upon enquiry, learnt that the Government had given fertilizers bags to the respondents to facilitate cultivation of the suit field effectively and, therefore, they demanded half of the fertilizers bags from the respondents. The respondents, however, refused to part with the same and even asserted that they had become the owners of the suit field and that the appellants were no longer its owners. Upon further enquiry, it was learnt by the appellants that the respondents had also mutated their names in the revenue record as owners of the suit field on the basis of alleged sale deed executed on 02/01/1991 in their favour by the appellants. The appellants submitted that they had never executed any sale deed of the suit field in favour of the respondents nor had received any consideration from them. Therefore, they demanded back the possession of the suit field from the respondents and on being denied the same by the respondents, the appellants filed the suit for declaration and possession against the respondents.

(3.) The respondents resisted the suit. They submitted that by virtue of the sale deed executed on 02/01/1991, they became the owners of the suit field and thus were in lawful possession of the suit field. However, they submitted that for some reason, the document of sale deed dated 02/01/1991 remained to be registered. Further, they submitted that as a part of the agreement to sell, possession of the suit field was delivered by the appellants to them. They alternatively submitted that since they were in lawful possession of the suit field and cultivating the same and they being not the members of the owners' family or servants on wages payable in cash or kind or without being hired labourers, were deemed tenants as per the provision of Section 6 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as, 'the Tenancy Act'). On these grounds they urged for dismissal of the suit.