In the high court of judicature Bombay

Bench at Aurangabad
Urgent appln no
Copy ready by
Copy examined by
Copy verified on
Copy applied on
Copy ready on
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Certified copy is being issued from the office of the
registrar high court of Bombay bench at Aurangabad
the certified copy of
at exh. In proceeding no
of the court of received
in this high court in proceeding no
In the court of joint district judge at nanded
(Before: Mr.v.b.patil)
B.sc.ll.b.

Exh . no.( 18 )

1. Bhalchandra s /o Kishsnrao Khodve,

2. Rajaram s /o Kishanrao Khodve,age
40 years ,occu: Service r/o at present
Nanded
3 Anant s /o Kishanrao Khodev, age 38
4 Madhukar s /o Kishanrao khodve ,age
36 years ,occu : Agriculture .
5 Radhabai w /o Kishanrao Khodve ,age
70 years , occu:hous ehold (Delted)
Nos .3 to 5 r /o mazre vithalwadi
Under village loha tq .Kandhar .

Versus
1 Laxman s /o nagoji badruk , age 65 yrs
Occu :agri . r/o Pangri tq .kandhar .
2 Vithal s /o maruti sadruk , age 25 yrs ,
Occu:Agri . r /o as above .
3 The state of maharashtra , through
The Collector ,nanded .

Claim : - Recovery of possession of land

Mr.s.v.Ardhapurkar ,advocate of the appellants .
Mr .v.d. patnoorkar,Advocate for ap respondent nos .1 and 2
Mr.k.m.anwaruddin ,asstt .govt .pleadar ,for respondent no .3
J U D

M E N

(Deliver on this 21 st day of march .1996)

This appeal is directed against the decree
Passed by the learned iiird Joint civil judge ,senior

Division, Nanded, in Regular civil suit No. 36/85 vide

Judgment and order dated 28.10.1991, whereby the
Suit of the plaintiffs for recovery of possession
Of land survey No.27/B gut No.59 situated at village
Pangri Tqluka kandhar Dist. Nanded, with declaration
That, the rights of protected tenant declared by the
Tahsildar, kandhar, in favour of deceased Naroji s/o
Vithoba in the year 1952 is null and void, is
dismissed.

2)

It is the case of the plaintiffs that, the

Father of plaintiff Nos. 1 to 4 namely Kishan Guru

died
In the year 1980. One Datta Guru elder brother of
Kishan Guru was the Karta of the joint family
property.
One Ainath Guru was another brother of Kishan Guru.
The elder brother of Kishan Guru namely Datta Guru
had
Purchased survey No.25 admeasuring 24 acres 30
gunthas
From one Haribhau s/o Madhavrao Ganjewar
residence of
Kandhar vide registered sale-deed, Dattatrya was in
Possession of that land till his death. His name was
Entered in the name of revenue record to the said
land.
Defendant No.2S father Maruti s/o Nameji was the
Police Patil and Patwari of village Pangri. Since
Prior to his death in 1950 the defendant No. 1
Laxman
Is nephew of deceased Maruti Name ji. The said
Maruti and
His brother Naru Vithoba had no concern with survey
No. 27.

They never cultivated the suit land. However, maroti

Nameji
Being a influential person prepared some false
entries
In his name in the pahani patrak of the village
regarding
The suit land for the year 1358 Fasli. He also
managed
to enter the name of his brother Naru Vithoba in
the
Protected tenancy rights record in the year
1950-51. The said Naru Vithoba was adopted by
One Indirabai w/o Vithoba Budruk. He never
cultivated
The land In the year 1950. There was partition of the
Joint family property and the suit land came to the
Share of plaintiffs father Kishan and he came in
Possession of the suit land exclusively. In the
Year 1952, The Tahsildar, Kandhar, without holding
Any enquiry and without following procedure of law,
Recorded the name of Naru Vithoba in the revenue
Record of the suit land as a protected tenant.
3)

It is further contention of the plaintiffs that,

As Naru Vithoba was never in possession of the suit

Land for the period as required as per Section 3 4 of

The Hyderabad Tenancy and Agricultural Lands Act,

Therefore, he was not at all entitled to be declared
As a protected tenant over the suit land. Therefore,
The entry in the revenue record regarding the
protected
Tenancy in respect of the suit land is illegal and
Void. Infact, the plaintiffs father Kishanrao was
In actaal possession of the suit land on the basis of
The partition. The defendant nos. 1 and 2 who are
heirs
Of Nagoji and Maruti respectively
Dispossessed the plaintiffs father Kishan Guru
From the suit land and forcibly occupied it in the
Month of June 1975. The possession of the
Defendant nos. 1 and 2 over the suit land is in a
Capacity of trespasser. As the plaintiff nos. 1 to 4
Ae the legal heirs of deceased Kishan Guru, they are
Entitled to recover the possession of the suit land
On the basis of ownership right.
4)
written

The defendant Nos. 1 and 2 filed their

Statement at Exh. 22 interalia denying the claim of.

The plaintiff. It is the contention of the defendants
That, Dattatrya or any of the suit owner have never

Cultivated the suit land. Maroti s/o namaji and

Naru s/o Vithoba jointly cultivated the suit land
On crop share basis. Accordingly, their names were
Entered in the revenue record as tenant over the
Suit land. After coming into force the Hyderabad
Tenancy and Agricultural Lands Act, the name of
Naru
s/o Vithoba was entered in the Register as a
protected tenant after holding enquiry by the
Tahasildar.
The said entry was never challenged by the father of
Kishan.
5)
that,

It is further contention of the defendants

They never dispossessed Kishan Guru from the suit

land
In the year 1975. Naru Vithoba was in possession
Of the suit land till his death and thereafter they
Continued in the possession of the suit land. They
were
In possession of the suit land as a protected tenant
And not as trespasser.
6)

The defendant no. 3 State of Maharashtra

filed
Its w.s.at Exh. 26 interalia contending that, as per the

Revenue record Naru Vithoba was in actual

possession
Of the suit land, therefore, he was declared as a
protected
Tenant. They had denied the contention of the
plaintiffs
That, the declaration was made without any enquiry
And further challenged the jurisdiction of the Court.
7)
parties,

On the basis of the pleadings of the

The learned trial court had framed issued at Exh. 27

And in the result of the trial, dismissed the suit
Vide judgment and order dated 28.10.91 by holding
that,
The plaintiffs have failed to prove that, the
Declaration of the protected tenancy rights in the
Name of Naru Vithoba in the year 1952 and the
Tenancy certificate issued in his name is illegal
Unlawful and void abinitio and the plaintiffs
Are not entitle for the possession of the suit land.
The decree passed by the learned trial court vide
Judgment and order dated 28.10.91 is under
challenge
In this appeal.

8)
appellants

Heard the learned counsel for the

And the learned counsel for respondents and learned

Asstt.Govt.Pleader. perused the record. Following
Points arise for my determination, which are
answered
Accordingly.
Points
Findings
1) Whether the certificate Exh. 73
Declarating the deceased Naroji
s/o Vithoba as a protected tenant
in the year 1952 is null and void? In negative.
2 Whether the suit is within limitation In
negative.
3 Whether the decree passed by the
Learned trial court is justified?
. Yes.
4 What order?
.. As per
final
Order.
Reasons
9

The learned counsel appearing for the

Appellants submitted that, there was a partition

Of the joint family and the memorandum of partition
Is at EXh. 55, which clearly shows that, the suit land

Was given to the share of deceased kishan Guru.

He was in possession of the suit land. The Tahsildar,
Kandhar, had declared the deceased Naru Vithoba as a
Protected tenant and issued a Certificate Exh. 73
Which is null and void, as it was issued without
Following due procedure of the law. The finding of
The learned trial court is, therefore, perversed and
Deserves to be set aside.
10

The learned counsel for the respondents

Submitted that, Naru Vithoba was found in possession

Of the suit land and after holding enquiry the Tahsildar
Has declared his as a protected tenant in the year 1952.
The plaintiffs have not filed the suit within one year
Challenging the declaration made in favour of deceased
Naru vithoba as a protected tenant over the suit land.
Therefore, the suit is not tenable.
11)
appellants

the learned counsel appearing for the

Further submitted that the order declaring deceased

Naru Vithoba as a protected tenant was itself void
Abinitio. Therefore, the provisions of Art. 100
Limitation Act is not attracted. The suit is filed
Within 12 years for possession which is, therefore, within

Limitation.
12)

In order to establish that Certificate Exh. 73

Regarding the declaration in favour of naru Vithoba

As a protected tenant is null and void and that, the
Plaintiffs were in possession of the suit land
Till 1975 the plaintiffs have examined Ananat Kishaanrao
Andproduced 7/12 extracts at Exhs. 5 and 6 to show that,
They were in possession of the suit land till 1975.
13)

The 7/12 extract Exh. 5 pertains to the

Year 1971-72 wherein for the year 1971-72 it was

Show that, it is cultivated personally by the owner.
It further discloses that, Kishan Namdeo becomes
owner because of the partition. For the year 1971-72,
the column of cultivation is kept blank. Thereafter,
for the year 1973-74, 1975 it is shown
that Naru Vithoba cultivated the suit land.
The defendants have filed the 7/12 extracts of the
Suit land which is at Exhs. 67,68 and 69 and 69. The said
7/12 extract discloses that, Naru Vithoba was
Cultivating the suit land since/1960-61/to 1975-76
And in the year 1976-77 Laxman Naroji and Mahadevrao
Namaji had cultivated the suit land. The entries
In the 7/12 Extract Exh.5 are scored by making cross

Line. The plaintiffs have not brought on record why

Such entries were scored by defendants at Exhs. 67 to
Exh.69 clearly indicates that, for the year 1974-75 and
1975-76 Naru Vithoba and Marotrao Namaji have
cultivated
The suit land. The revenue record filed by the
Plaintiffs shows that ,though for the year 1971-72
It was shown that ,the land was cultivated personally
By the land owner the entries for the subsequent
Years till 1975-76 appears in the name of naru vithoba
The 7/12 extrct filed at exh 6 pertains to the year
1983-84 wherein the name of laxman naroji and vithal
Maroti is shown the extract of register of protected
Tenancy for the year 1950-51 is filed in the file which
Is below exh 6 which indicates that narojio vithyoba was
Protected tenant over the suit land bearing survey
It is the contention of the plaintiffs that
Deceased naroji vithoba had not cultivated the suit
Land he was never in pos session of che suit land
In the year 1950-51 the declaration made in his favour
That he is a protected tenantover the suit land in the
Year 1952 is without ehout enquiry and that in the year

1975 there father kishan was dispossessed by

defendantnos
1 and 2 the plaintitiggs have examined only one witness
xx that ins pw1 annat kishanrao. It has come in his
evidence that the suit land wad purchased by dattatraya
when they were joint. They were joint till 1950.
His uncole died issueless on 30.03.49. there was partition
amongst his father and his and his brother. Under the
partition
The suit land came to the share of hisfather the
Memorandum of partition is produced his father died
In the3 year 1980 it has sped fically come in the evidence
of anant kishanrao who is examined on behalf
Of plaintiffs that maroti namaji and naru vithoba
Started cultivating the suit /land after parti tion
They cultivated the suit land tilol1971 they
Cultivated the suit landon crop share basis and
After 1971 they started cultivating the suit land
They had cultivated the suit land till 1975-76
Maroti namaji and naru vithoba obtained the possession
Of the suit land in the year 1976 this has came
In the examination-in-chief of plaintiffs withess