DHONDI RAMA BHALEKAR Vs. PRADIP RAMCHANDRA MUTALIK DESAI

JUDGEMENT

(1.) While admitting this second appeal on 16/4/1991, the following substantial questions of law have been framed for consideration:-

(2.) The land admeasuring 3 Hectares and 76 Ares located in R. S. No. 32 of village Shipur in Taluka gadhinglaj of Kolhapur District originally belonged to balkrishna Desai and it was inherited by Smt. Shantabai wife of Sadashiv Mutalik Desai. It appears that the said land was put in possession of Dhondi Rama bhalekar sometimes prior to the year 1954-55. However, after the tiller's day i. e. 1/4/1957 the half portion on the eastern side of the said land was sold by the landlady to Shri Lingu Kabji Patil and this transaction appears to have taken place sometime in year 1959-60. Consequently, the remaining half portion on the western side remained in possession of dhondi Rama Bhalekar. In the year 1961-62 the land owner filed proceedings under Section 70 (b) of the bombay Tenancy and Agricultural Lands Act, 1948 ("the act" for short) for a negative declaration that Dhondi rama Bhalekar was not a tenant of the suit land. These proceedings came to be registered as Tenancy case No. 94 of 1961-62 and the Avval Karkun, gadhinglaj, acting as the Mamlatdar Court, allowed the application on 30/7/1962. Against the said order, a belated appeal came to be filed which was registered as Appeal No. 70 of 1973 and it was allowed by the Sub divisional Officer, Gadhinglaj Division, Gadhinglaj on 28/2/1974, by remanding the case to the Mamlatdar for fresh inquiry. This order passed by the SDO came to be challenged by the land owner before the Maharashtra revenue Tribunal, Kolhapur and the revision came to be registered as MRT. KP. 120/75 and the same was allowed by the Judgment and Order dated 17/12/1975 holding that the appeal filed by the occupant before the SDO was not maintainable under Section 74 of the Act.

(3.) The land owner approached the Civil Court in regular Civil Suit No. 127 of 1982 and prayed for restoration of the suit land as well as the mesne profit of Rs. 1200/- (at the rate of Rs. 400/- per annum) , on the ground that the occupant i. e. defendant no. 2 had illegally started cultivation of the suit land. The defendant no. 1 was Gangaram lingioji Patil who had purchased the eastern half portion of the land. The defendant no. 2 (the present appellant) filed his Written Statement and opposed the suit on the ground that the land was under cultivation right from the beginning and he had become a deemed tenant over the suit land. The learned Civil Judge, jr. Division at Gadhinglaj decreed the suit vide his judgment and Order dated 29/8/1985 by directing the defendant no. 2 to hand over the vacant possession of the suit land to the plaintiff and to pay an amount of rs. 1200/- by way of mesne profit. This decree came to be challenged by the present appellants in Regular civil Appeal No. 314 of 1985 and the learned 5th additional District Judge, Kolhapur was pleased to dismiss the same vide his Judgment and Order dated 31/1/1991. The trial court held that the suit was tenable and the defendant no. 2 was illegally and without the consent of the land owner had cultivated the suit land. The trial court further proceeded to hold that the defendant no. 2 was in illegal possession of the suit land and the plaintiff was entitled for damages at the rate of Rs. 400/- per annum for three years. It was further held that the defendant no. 2 failed to prove that the decisions rendered in Tenancy case No. 94 of 1961-62 and Tenancy Appeal No. 30 of 1975 were illegal. All these findings have been confirmed by the Lower Appellate Court while dismissing the appeal filed by the appellants.