RAMESHWAR BHURALAL SHARMA Vs. VITHAL SUKHDEO RATHOD

JUDGEMENT

(1.) Petitioner Rameshwar purchased an area of 2 acres 36 gunthas out of survey number 162/3 situated at village Nandura vide sale-deed dated 9-12-1954 from Ramkrishna Dattatraya, who, along with (1) Vasant (2) Ramkrishna (3) mangabai (4) jagannath and (5) Shrikrishna formed a joint Hindu family. Thus the land in dispute was their coparcenery property and on the date of transfer in favour of the petitioner it constituted a property belonging to undivided Hindu family and what was sold by Ramkrishna was his undivided share therein. Eventually, therefore, Ramkrishna filed a suit for partition and separate possession of his share in the coparcenery property. The said suit was registered as Civil Suit No. 44-A of 1955 and in this suit a preliminary decree in favour of Ramkrishna was passed on 9-7-1957 . To the said suit Vithal and Laxman were parties. The respondents nos. 2 to 4 are the heirs of deceased Laxman. As per this preliminary decree the property in question was allotted to the share of Ramkrishna. After the preliminary decree was passed, a precept was issued to the Collector vide his letter dated 22-4-1964 informed the Civil Judge, Junior Division, malkapur that the partition has been effect as per the precept sent by the Civil Court and necessary demarcation has been made by the Revenue Inspector before the parties and their respective shares have been also shown to them. However, the Collector informed that physical possession of the filed could not be given to the parties as the fields were subject to tenancy. In the said partion of the property the land in dispute was allotted to the share of Ramkrishna and thus Rameshwar, who was also party to the suit, became entitled to the possession of said property after the partition of the property, that is, on or about 22-4-1964. Thereafter Rameshwar fled an application for placing him into the possession of the property and the Civil Court placed him in actual possession of the property vide receipt dated 17-10-1964, which is at record pages 21 and 22. From this Tabe Paoti it seems that Rameshwar was placed in possession of the land n question with standing crops. No further proceedings were taken by Vithal or laxman before the Civil Court in that behalf. However, they filed application under Section 36 (1) of the Bombay Tenancy and Agricultural lands (Vidarbha Region) Act, 1958, referred to hereinafter as the Act, fro the possession of the disputed property and such an application was filed on 16-10-1967. In this application it was contended by Vithal and Laxman that the land in dispute was leased out to them by who formed a joint Hindu family along with Shrikrishna, Ramkrishna and Vasant in the summer of 1952 and this they were protected lessees. According to them, they were in possesses such till 17-10-1964 when they were dispossessed by Rameshwar otherwise than in due course of law.. Therefore, according to them, they were entitled to restoration of possession.

(2.) In the meantime it seems that laxman died and his legal representatives were brought on record.

(3.) This claim was resisted by petitioner Rameshwar on various grounds. He contended that Vithal and Laxman were not the tenants. he further contended that assuming they were the leases, the lease given by Jagannath being invalid, they were not lawfully cultivating the filed, and therefore, were not the tenants. He further contended k that he was placed in possession of the suit land as a consequence of the decree passed in the sit for partition to which Vithal and Laxman were the parties, According to him, they were bound by the decree and the said decree, therefore, operates as res judicata. Even otherwise according to Rameshwar, as they did not challenge the decree or raised a question regarding there tenancy the suit itself, the judgment and decree passed in the said suit is binding upon them and it is not open for them to raise the same question over again the present proceedings in view of the provisions of Section 11, Explanation IV, Code of Civil Procedure.