NOOR MOHAMMAD YUSUF NAKADE Vs. ALISAHEB MOHAMED MUKADAM

JUDGEMENT

(1.) HEARD Shri Rege for the appellant, Shri Kazi for the respondent. The brief factual background is as under : the respondent herein was the original plaintiff who had filed a simplicitor suit for a perpetual injunction restraining the defendant i. e. the appellant herein from causing any obstruction to his possession of the suit land. In the said suit the respondent had also prayed for the relief that if he was not in possession, a decree for possession should be passed in his favour. This was Regular Civil Suit No. 76 of 1983. It was the case of respondent before the trial Court that the land was originally in possession of one Hamid Fakirmiya Mukadam and after a family partition the plaintiff, namely the respondent herein was in possession and became a owner and kabjedar of the land. This pertains to Survey No. 303-A Hissa No. 3 admeasuring 5 Gunthas of land situated at village Karabude. It is an admitted position that this land was originally "khoti land" and it was also "khoti nisbat land" as per the provisions of Bombay Khoti Abolition Act, 1949. Section 3 of the said Act abolishes the Khoti tenure and section 4 confers legal rights on its tenants to be the occupants as per the provisions of Maharashtra Land Revenue Code. The trial Court framed basically two issues i. e. whether the respondent herein has the exclusive title to the suit land as a purchaser of Khoti nisbat land and also whether the plaintiff proves that he was in possession of the suit land and in view thereof whether the plaintiff is entitled to a permanent injunction. The trial Court had primarily relying on the mutation entries held that the respondent herein was the owner of the suit land. The trial Court also comes to the conclusion that respondent herein was in possession of the suit land. In view of the above findings the trial Court granted a relief of permanent injunction restraining the appellant herein from disturbing the possession of the respondent herein.

(2.) AGAINST the said order, appellant preferred an appeal being Appeal No. 74 of 1987 with regard to the above decree dated 29th September, 1987 passed in Regular Civil Suit No. 76 of 1983. The lower Appellate Court also strongly relied on mutation entries and held that the respondent herein had become the kabjedar of the suit land as per the provisions of the Bombay Khoti Abolition Act, 1949. Whereas, as far as the possession is concerned the lower Appellate Court holds that the respondent herein was not in possession of the said land and also holds that he was not entitled to any perpetual injunction in that behalf. Ultimately, the appeal was dismissed after recording the findings that the respondent was not in possession of the suit land but lower Appellate Court suo motu on its own granted relief to the respondent that he be put in possession and rejected the relief of perpetual injunction, without any cross-objections being filed by the respondent.

(3.) SHRI Rege, learned Counsel for the appellant, took me through the judgment and order of both the lower courts which have strongly relied upon the mutation entries and only on the basis of mutation entries, both the courts below have come to the conclusion that the respondent herein is owner of the said suit land.