KONDAJI SHIVRAM WAJE Vs. GOVINDA ANANDA WAJE

JUDGEMENT

(1.) All that this petition reflects upon is the frantic & desperate bid of the petitioner to delay and protract the litigation and to bring the contesting respondents to the end of their wits.

(2.) It is the suit filed by the respondent who is admittedly the owner of the suit land, for injunction restraining the present petitioner (hereafter, the defendant) that he himself was in possession of the suit land as the plaintiffs tenant. He came out with this pleading invited an issue from the Civil Court that he was a tenant of the plaintiff in respect of the suit land, got the issue referred to the Tenancy Court, contested the consequent proceeding before the Tahsildar, dragged and drove the owner/plaintiff to the Dy. Collector in appeal, then to the Revenue Tribunal in revision, back to the Tahsildar, on remand & once again to the Dy. Collector in appeal. The Dy. Collector examined the entire evidence with noticeably unusual carefulness and found that the petitioner was never in possession of the suit land as tenant at all but was in possession of the same, for some time by way of security and for repayment of Rs. 6000/- lent to the plaintiff, by the defendants mother for enabling him, the plaintiff to redeem the mortgage on the suit land. The Dy. Collector, thus, recorded a finding that the defendant was not a tenant of the suit land. The petitioner/defendant dragged the respondent/plaintiff to the Revenue Tribunal in revision (second journey, this). Even the Revision Tribunal examined, the evidence once again, that too with unusual keenness and found that the defendants possession, whenever he was in possession, was never that of a tenant but for and by way of security & repayment of the amount of Rs. 6000/- loaned by the petitioners mother to the plaintiff. The finding of the Dy. Collector that the petitioner was not a tenant is thus confirmed by the Tribunal. The present petition is the defendants somersault to contend that the reference to the Tenancy Court invited by himself was without jurisdiction. As will be presently pointed out fresh inning and perpetuation of litigation is all that he wants. I have to consider whether this Courts writ jurisdiction under Article 227 should be allowed to be thus abused.

(3.) The facts are very simple. The land Gut No. 102 (Survey No. 435/2) admeasuring 65 Acres, situate at village Dubere, admittedly belongs to the present Respondent (who will be referred to hereafter as the "plaintiff"). Admittedly the land was mortgaged by the plaintiff to one Marwadi. He had no monies to repay the mortgage. The plaintiff and the defendant are admittedly near relations, belonging almost to the same family. On 23-01-19761 a sum of Rs. 6000/- was advanced by the defendants mother to the plaintiff and he executed in her favour a document styled as Thev Pavti (Deposit Receipt). But it is almost a matter of admission by now that the plaintiff was not such a wealthy & affluent person that the mother of the defendant would have any reason to keep any monies as deposit with him. The deposit receipt shows that the monies have been deposited with the plaintiff without interest. As will be presently pointed out, the defendants own mother stepped into the witness-box and has stated that no interest was to be paid by the plaintiff for the amount of Rs. 6000/- taken by him from her, but that the income (usufruct) of the suit land was to be taken by her son, the defendant, as a consideration for the mortgage. Obviously this means that according to the defendants own mother, the income from the suit land was to be regarded as interest for the deposit of Rs. 6000/-.