BHORU L BINNAR Vs. KALU D KARWAR

JUDGEMENT

(1.) This application, u/A. 227. is directed against the judgment and order passed by the M. R. T,, Pune, on 28-6-74. Few relevant and material facts leading to this application are : That admittedly one Kashinath Vithoba was the owner of the disputed lands. He died long back leaving behind him his wife Thakubai Kashinath and mother Thakubai Vithoba At the material time the mother of Kashinath Vithoba had no light in the property except the right of maintenance and his wife Thakubai Kashinath sold the property after the death of Kashinath, The Petitioners purchased the suit lands from Thakubai Kashinath Respondent 1 claimed to be the tenant of the suit lands through Thakubai Vithoba He contended that the lands were given to Thakubai Vithoba for her maintenance & she had inducted him as a tenant of the suit lands.

(2.) The dispute arose between the parties as to possession of the disputed lands and it is. therefore, the respondent tenant filed Reg C. S. No- 12/67 in the Court of Civil Judge, J. D., Akola, for injunction, and an application for ad interim injunction for restraining the defendants from interfering with his possession of the suit lands, was given by him and was granted. After the filing of the W. S., the issues were framed by the Civil Judge and the relevant two issues were : 1 Whether the plaintiff proves that he is a lawful tenant of the suit lands? 2 Whether he proves that he was in possession as a-tenant of the suit lands on the date of filing of the suit? To get decided these two issues, a reference was made uls. 85A of the Tenancy Act to the Mamlatdar, Akola.

(3.) The said reference was tried by the Mamlatdar, Akola. He recorded the finding on 26-2-1969 to the effect that the plaintiff was not the lawful tenant and not a person in lawful possession as a tenant of the suit lands. On appeal, the judgment of the Mamlatdar was reversed and the case was remanded to the trial Court. On remand the case was tried again by the Addl. Tahsildar. Akola, snd on 1.3.1972, he held that the respondent is a lawful tenant of the suit lands and tnat he was in possession of the suit lands on 222.1967 as a lawful tenant. The petitioners preferred an appeal which came to be dismissed confirming the order passed by the Addl. Tahsildar Similarly, the H. A. filed by the petitioners also came to De dismissed by the M. R. T. Against tne said judgment and order, the present Spl. C. A. has been filed. Shri. R. G. Samant, for the petitioners contended that Thakubai Vithoba had no right to create the tenancy, because she had only a right of maintenance in the suit land and. Therefore, there couid not be a contractual tenancy. Shri. Samant may be right, but the legal position in the present case is that admittedly Thakubai Vithoba was put in possession of the suit lands and she has to get income from the said land for her maintenance. It is also an admitted position that the respondent Kalu Karwar was inducted by Thakubai Vithoba as a tenant and he cultivated the land as a tenant. Respondent 1's possession of the suit lands cannot be said to be an illegal possession. He was in lawful possession of the suit lands and will be a deemed tenent under the provisions of s 4 of the Tenancy Act. In my view, all the three Courts below were right to come to the conclusion that the respondent Kalu Dhondu Karwar was a tenant of the suit lands and I do not find any error much the less an error apparent on the face of the record to disturb concurrent finding recorded by the courts below.