ANANDA VITHU SHINDE Vs. KASHINATH GALBU BORATE

JUDGEMENT

(1.) THIS petition arises out of the proceedings which were initiated by the petitioners under sections 37, 39 read with section 29 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereafter referred to as the Tenancy Act ). Land bearing Survey No. 325 admeasuring about 17 acres 20 gunthas situated at village Dahiwadi, Taluka Man, District Satara was owned by respondent No. 5 Shivaram Gopal Kashid. The father of the petitioner by name Vithu Manyaba Shinde was the tenant thereof from 1948. About 4 acres and 10 gunthas of land was sold by respondent No. 5 to the sons of Vithu Manayaba (some of the petitioners herein) by sale deed dated 18th January, 1951. The said land is given Survey No. 325/1 and the remaining land is given Survey No 325/2. The respondent No. 5 has filed an application under section 29 read with section 31 of the Tenancy Act. In those proceedings, a direction was given that half of the total land i. e. 17 acres and 20 gunthas be restored to respondent No. 5. This order was passed on 19th May, 1958. After the said order was passed, respondent No. 5 sold the entire land of 13 acres and 10 gunthas by a registered sale deed dated 22nd April, 1960 to the respondents Nos. 1 to 4. In the meanwhile, Vithu Manyaba died. On the basis of the sale deed, the respondents Nos. 1 to 4 obtained the possession on the date of the sale deed of the entire land of 13 acres and 10 gunthas. This required Vithu Manyaba to file Regular Civil Suit for possession. Points under Tenancy Act were raised and reference under section 85a of the Tenancy Act was made by the Civil Court to the Authority. This reference came to this Court in Special Civil Application No. 299 of 1973. It was decided on 15th February, 1978. The petitioners herein were also the petitioners in the said Special Civil Application. This Court observed:-

(2.) THUS, it was held that the father of the petitioners, Vithu Manyaba, had become the deemed purchaser of the land, which was ordered to be delivered to respondent No. 5 under Section 31 of the Tenancy Act on 19-5-58. Vithu Manyaba continued to remain in possession thereafter. It was also held that the sale deed dated 22nd April, 1960 executed by respondent No. 5 in favour of respondents Nos. 1 to 4 was illegal in view of the provisions contained in section 37 of the Tenancy Act.

(3.) IT is to be noted at this juncture that the civil suit came to be decreed by the learned Civil Judge, Junior Division, Dahiwadi, by order dated 27th April, 1979, holding that the present petitioners are entitled to claim possession of 4 acres and 30 gunthas from the Civil Court. It was observed that the balance of the land can be taken possession by the petitioners from the Tenancy Court and not from the Civil Court. The said finding was based on the fact that the said land of 8 acres and 30 gunthas was ordered to be given in possession of respondent No. 5 under section 31 of the Tenancy Act and hence the petitioners shall be required to approach the Tenancy Court to get possession of the same under section 37 of the Tenancy Act. As far as the balance land of 4 acres and 30 gunthas was concerned, respondents Nos. 1 to 4 were unauthorisedly in possession and hence the Civil Court was competent to grant the decree of possession. This was not challenged by any party. During the pendency of the suit. Vithu Manyaba died and petitioners were brought on record as his heirs.