PUSHPALATA NARAYAN THORBOLE Vs. PURSHOTTAM DATTATRAY PRABHU

JUDGEMENT

(1.) This second appeal is filed by the original plaintiff assailing the judgment and decree dated 1.4.2014 passed in Regular Civil Appeal No. 145 of 2001 by the Principal District Judge, Sindhudurg, confirming the judgment and decree dated 21.7.2001 passed in Regular Civil Suit No. 93 of 1995 by the Civil Judge, J.D. Kudal. The matter relates to the scope and evidentiary value of 32M certificate.

(2.) The present Appellant had filed Regular Civil Suit No. 93/1995 in the court of Civil Judge, J. D. Kudal against the present respondents. The subject matter of the suit were two agricultural lands, viz. (i) Survey No. 95/6, admeasuring 95 R + 30 R (fallow land), (ii) Survey No. 85/3, admeasuring 21.5 R + 3.5 R (fallow land). The plaintiff averred that the suit land was of defendant Nos. 1 and 2 as ancestral land. It it was not in their cultivation. It was cultivated by the plaintiff's husband Narayan as a tenant. As per the provisions of Bombay Tenancy and Agricultural Lands Act, the land was sold to the plaintiff's husband Narayan on payment of price fixed by the competent authority and on 31.11993 a certificate under S. 32(m) was issued in his favour. However, the effect of 32 (m) certificate remained to be given in the revenue record. After the death of Narayan, the property came in possession of the plaintiff. She was cultivating paddy crops. Defendant Nos. 1 and 2 were not concerned with the suit land. In spite of these facts, defendant Nos. 1 and 2 on 10th August, 1995 tried to claim ownership over the suit property by visiting the suit land. The plaintiff, therefore, claimed declaration and perpetual injunction to restrain the defendants from disturbing possession of the plaintiff. In the alternative, it was claimed that if the defendants were found in possession of the suit land, the vacant possession of the same should be given to the plaintiff.

(3.) Defendant Nos. 1 and 2 by writtenstatement vide Exhibit 20 opposed the suit. They denied that the plaintiff's husband was ever tenant in the suit land. They were not aware about any 32G proceeding being conducted and about issuance of 32M certificate. Since the issue of tenancy was raised, the civil court has no jurisdiction and the issue should be referred to the tenancy court. There are fruit bearing big trees like mango, jack fruits and other in the suit land. The defendants have cut those trees with the permission of forest department. The suit lands are either orchard or fallow land. There was no growing of paddy crop in the suit land. Defendant No. 3 Laxman was apppointed by defendant Nos. 1 and 2 as watchman. In April, 1960 his name was wrongly mutated in the revenue record as tenant. The said mutation was cancelled. Thereafter, the plaintiff's husband had wrongly obtained Mutation Nos. 1418 and 1419 to record his name as tenant, but those were cancelled with a direction to the plaintiff to get his tenancy rights determined under S. 70(b). The plaintiff had filed tenancy proceeding bearing No. 157 of 1994 before the Nayab Tahsildar. The defendants appeared in the proceedings, but they were told that the said proceedings were withdrawn by the plaintiff. The contentions regarding tenancy and issuance of 32M certificate are false. The suit lands were always in the possession of the defendants, and their cultivation is also recorded in the revenue record. Hence, the suit should be dismissed with costs.