ADAM MOHMAD DARWAJKAR Vs. APPA DAUD DARWAJKAR

JUDGEMENT

(1.) Appellants, the original plaintiffs and defendant Nos. 6 and 7 have preferred this appeal against the judgment and order passed by the court of Additional District Judge, Gadhinglaj in Regular Civil Appeal No. 98 of 1997 whereby the appeal was allowed and the judgment and order passed by the learned trial Judge restraining the defendant from obstructing the plaintiffs possession of the suit land was set aside. For the sake of convenience hereafter the parties shall be referred to as plaintiffs and defendants.

(2.) Brief facts giving rise to this appeal are as under : the suit land described in detail in paragraph 1 of the plaint was originally owned by one Kelkar. According to plaintiff his father Mohammed Darwajkar, took the said land as a tenant and as per the provisions of the Bombay Tenancy and Agricultural Lands Act (hereafter referred to as BTAL Act) he became owner of the said land. Mohammed died in the year 1979 leaving behind sons plaintiffs 1 to 4, original defendants 6 and 7 the daughters. The defendant No. 1 and father of the defendants 2 to 5 were residing separately from Mohammed. The suit land was exclusively owned by Mohammed and defendant had no concern with the same. After the death of Mohammed, in the year 1992, the defendants 1 to 5 started claiming that they being co-owners of the land their names be entered in the record of rights. When enquiry in that behalf was held by the SDO, he held that though the land in question was purchased in the name of mohammed, it was for and on behalf of the joint family consisting of mohammed and his two brothers and as such it was necessary to enter their names. The SDO, therefore, remanded the matter for fresh enquiry. The plaintiffs preferred appeal against the said order. ' However, taking advantage of the fact that the SDO had observed that the land was held by Mohammed for and on behalf of joint family, the defendants started obstructing the plaintiffs possession of the suit land. The plaintiffs also alleged that even if it is assumed that defendants 1 to 5 are having some legal right in respect of the suit land, they were never in actual possession of the same since the year 1955 and as such their right has been extinguished. Hence the plaintiffs filed the present suit for declaration that they are having occupancy right in the same and defendants 1 to 5 are not having occupancy right in respect of the suit land and also prayed for permanent injunction restraining defendants 1 to 5 from obstructing plaintiffs possession of the suit land.

(3.) The defendants 1 to 5 filed their written statement at Exhibit 16 and opposed the suit claim. They admitted their relationship with Mohammed. However, they contended that the suit land was initially acquired as tenant by their common ancestor namely Dawood Darwajkar, from Kelkar and after the death of Dawood Darwajkar, his three sons namely father of plaintiffs, Appa i. e. defendant No. 1 and Abdul the father of defendants 2 to 6 became the tenants of the said land. However, Mohammed being eldest, his name was recorded in the record of rights of the suit land and the land was also purchased only in his name. They, however, contended that by virtue of the provisions of BTAL Act, they have acquired right and share in the said land. Not only that, but they are also having joint possession of the same. Hence on all these grounds the defendants 1 to 5 prayed for dismissal of the suit.