Krishnabai Babya Navale v. Savitri Shankar Gharat

6.5. He would submit that both the lower Courts did not consider this aspect in the facts of the present case and did not decide whether the suit property came within the domain of joint Hindu family property which was the defence advanced by Appellant. He would submit that Suit filed by Plaintiff – Savitribai was clearly barred by limitation which both the lower Courts failed to consider. He would submit that Sections 85, 85-A and 32-O of the said Act bars jurisdiction of the Civil Court. He would submit that Certificate issued under Section 32M is binding and a conclusive document of ownership of Appellant since the year 1961. He would submit that Krishnabai has been cultivating the suit property since then which has been corroborated by submitting accounts of her income from cultivation standing in her name. He would therefore submit that the Suit property cannot be construed as joint family property in the aforesaid circumstances.

6.6. He would submit that in view of Krishnabai’s exclusive title to the suit property by virtue of Mutation Entry No.946 dated 29.09.1957 and Mutation Entry No.985 dated 29.09.1957 and Order under Section 32G and Sale Certificate under Section 32M issued under the said Act, the Trial Court and First Appellate Court ought to have dismissed the Suit on the ground of jurisdiction itself which goes 6 of 21 to the root of the matter. That apart, he would vehemently argue that the Suit since filed in the year 2002 clearly suffers from the vice of limitation and is not maintainable since the father of the parties expired in the year 1949 and the mother expired in the year 1978. He would therefore persuade the Court to answer the points for determination in the affirmative and allow the Second Appeal and set aside the twin judgments passed by both the Courts below.

7. PER CONTRA, Mr. Patwardhan, learned Advocate for original Plaintiff - Savitribai i.e Respondent before me would submit that the learned Courts below have considered the orders passed by the Statutory Authorities under the said Act and their legal effect. He would submit that ownership right in the suit property on Tillers day and succession of the right in the suit property pursuant to demise of the father and mother has been correctly adjudicated by the Trial Court.

7.1. He would submit that pursuant to demise of the father who was a protected tenant, mother Yenibai / Venibai succeeded to his estate as protected tenant and on 01.04.1957, Yenibai / Venibai was the protected tenant. He would argue that though Krishnabai initiated proceedings under the said Act 32G Order and 32M Sale Certificate is issued in her name, the same is essentially required to be construed in a representative capacity on behalf of all three surviving family 7 of 21 members at the then time in the year 1961 and for the benefit of the family and hence the suit property is joint family property.

7.2. He would vehemently argue that this fact has been considered in the light of Yenibai / Venibai being the protected tenant as on tillers day by both the Courts below and the Courts have therefore held that conclusion of statutory proceedings under the said Act cannot confer ownership right in the suit property exclusively in favour of Krishnabai to the complete exclusion of the other family members at the then time namely Yenibai / Venibai and Savitribai.

7.3. He would submit that Section 85 of the said Act bars the jurisdiction of Civil Court to settle, decide or deal with any question, which is to be decided by the Mamalatdar, Tribunal, Manager, Collector or Maharashtra Revenue Tribunal in Appeal or Revision or the State Government in exercise of their power or control. He would submit that the bar of Section 85 of the said Act will not apply to the present case in the aforesaid facts. He would submit that present case revolves around issue of succession and devolution of right to the legal heirs in the suit property as successors-in-title.

7.4. He would submit that Application under Section 32G was filed by Krishnabai only for herself and not on behalf of all family members, who were surviving at the then time and in that view he would argue that if Section 32G Order was granted in those facts then 8 of 21 there can be no bar on the jurisdiction of Civil Court when rights of other legal heirs were never enquired or considered by the Statutory Authorities under the said Act.

7.5. In support of this submissions, he would vehemently refer to and rely upon decision in the case of Ramakant Ganesh Naik and Ors. Vs. Anusaya Shantaram Naik and Ors.[1] passed by this Court to contend that both the learned Courts below have concurrently decided the issue of succession and right of successors-in-title to the suit property correctly in accordance with law.

7.6. On the issue of applicability of Article 65 of the Limitation Act, 1963, he would argue and submit that the said provision will not apply since the Suit filed by Plaintiff is not a Suit based on possession or title but it seeks partition of ancestral property and share of Plaintiff in the suit property. He would submit that Plaintiff’s specific case as averred in the Suit plaint is that both Plaintiff and Defendant stopped cultivating the lands for about two (2) years and therefore Plaintiff proposed the thought of partition but after the Defendant refused her proposal, Plaintiff had no option but to file the Civil Suit in the year

2002. Therefore according to Plaintiff, Article 110 of Limitation Act, 1963 would apply to the facts and circumstances of the present case and the Suit according to her is filed within limitation of 12 years from the date of knowledge of exclusion of Plaintiff from the joint family 1 2024 (3) Mh.L.J. 389 9 of 21 property.

7.7. He would therefore pursue the Court to answer the points for determination in the negative in the facts and circumstances of the present case. He has placed reliance on the decision in the case of Ramakant Ganesh Naik and Ors. (Supra) to vehemently argue that in the facts of the present case even though Section 32M Sale Certificate is issued in the name of Krishnabai (Defendant), mere purchase of property by Krishnabai in her individual name under the provisions of 32G and 32M of the said Act cannot make her the exclusive owner thereof and the suit property continued to be joint family property and most importantly Civil Court has jurisdiction to decide entitlement and share of co-parceners in such suit property purchased in the name of one of the co-parceners under the said provisions in the event of nonconduct of any enquiry into that issue by the Agricultural Land Tribunal / Tahasildar.

7.8. He would submit that both Yenibai / Venibai and Savitribai were both surviving heirs and alive at the then time in 1961 and therefore Krishnabai cannot claim exclusivity of title in her favour in respect of the suit property under the BTL Act to their exclusion. He would therefore urge the Court to dismiss the Second Appeal comprehensively in view of concurrent orders passed by both the Courts below. 10 of 21

8. I have heard, Mr. Joshi, learned Advocate for Appellant and Mr. Patwardhan, learned Advocate for Respondents and with their able assistance perused the record of the case. Submissions made by both the learned Advocates at the bar have received due consideration of the Court.

9. In the present case, it is seen that original Plaintiff - Savitribai and original Defendant - Krishnabai are both daughters of Ramji Patil. Ramji Patil was a tenant in respect of the suit property. Admittedly much prior to the tillers day, he expired in the year 1949 pursuant to which the name of Yenibai / Venibai was mutated in the Revenue Record vide Mutation Entry No.680 as protected tenant. Thus on Tillers day i.e. 01.04.1957, Yenibai / Venibai was the protected tenant. Yenibai / Venibai expired in the year 1978. Between 1952 – 1978 certain incidents took place. These incidents primarily relate to creation and relinquishment of substantial rights in the suit property. Firstly, even though on 01.04.1957 Yenibai / Venibai, mother of Plaintiff and Defendant was the protected tenant of the suit property and it is argued on behalf of original Plaintiff that she became the deemed purchaser of the suit property. However what has transpired thereafter is of material consequence and significance.

10. It is seen that Krishnabai one of the daughter succeeded in obtaining a 32G Order on the strength and basis of Mutation Entry 11 of 21 No.946 dated 29.09.1957 whereby name of Yenibai / Venibai was deleted and by a subsequent Mutation Entry No.985 dated 29.09.1957 Krishnabai’s name was mutated as protected tenant of the suit property. In what circumstances this was done is crucial and goes to the root of the matter. Pursuant to this sale price was fixed by the Statutory Competent Authority namely Tahasildar and Agricultural Land Tribunal at Rs.510.59 on 25.02.1961 and Sale Certificate under Section 32M was issued in favour of Krishnabai. Krishnabai admittedly paid the purchase price determined under the Sale Certificate in installments over the next few years.

11. Mutation Entry No.946 is appended at page No.34 of the paper book. It was taken on record and marked as ‘Exhibit No.50’ in the trial. Mutation Entry No.985 is appended at page No.19 of the paper book. It was taken on record and marked as ‘Exhibit No.33’ in the trial. Sale Certificate under Section 32M is appended at page No.27 of the paper book. It was taken on record and marked as ‘Exhibit No.38’ in the trial. The effect of the aforesaid statutory documents and fructification of title of Krishnabai is the question to be decided by this Court for determination of the twin points for determination in the present Second Appeal.

12. There are two specific arguments advanced by Mr. Patwardhan, learned Advocate for original Plaintiff - Savitribai in 12 of 21 support of the twin judgments which are impugned in the present Second Appeal. He would submit that as on 01.04.1957 i.e. on Tillers day mother Yenibai / Venibai was the protected tenant and thus she automatically became the deemed purchaser. However, admittedly he is unable to show fructification of title as deemed purchaser in favour of Yenibai / Venibai or whether any 32G Order or 32M Certificate was obtained by the said Yenibai / Venibai. His second limb of argument is that the suit property was ancestral property belonging to the father of Plaintiff and Defendant namely Ramji Patil which devolved upon his wife Yenibai / Venibai after his demise in the year 1949. He would submit that pursuant thereto assuming for the sake of argument that Krishnabai was even declared as protected tenant (kul ) of the suit property, her such declaration was representative in character on behalf of the estate of Ramji Patil for the benefit of all 3 family members alive at that time. He would lay thrust on the ratio of the decision cited by him in the case of Ramakant Ganesh Naik and Ors (Supra) to contend that even though the Sale Certificate issued under Section 32M must be accepted as a document of title in the facts and circumstances of the present case, mere purchase of the suit property by Krishnabai in her individual name under the provisions of Section 32G and 32M of the said Act does not make her the exclusive owner of the suit property and the suit property all along continued to be a joint family property. He would therefore submit that both the learned 13 of 21 Courts below have completely disregarded the effect of Section 32G and 32M proceedings in the present case due to the aforesaid reasons. Mr. Patwardhan would have been right in his above contention only if there was specific evidence on record either in the form of admission of Krishnabai or that of the landlord of the suit property that the tenanted land was in cultivation of the entire family from their forefathers / predecessors-in-title. Reliance on the decision in the aforesaid citation is prima facie misplaced rather misconceived in the facts and circumstances of the present case.

13. In the case of Ramakant Ganesh Naik and Ors. (Supra), not only there was specific evidence on record in the form of admission given by the protected tenant himself that the tenanted land was in cultivation of the entire family but most importantly in that case the landlord had given specific evidence before the Trial Court that the suit property was owned by his forefather and while purchasing the said land the protected tenant had given a statement that property was a joint family property being cultivated by the entire family. Once this is the situation, then it is conclusively proved that even though the property may stand in the name of protected tenant, it stand proven that the tenanted land was joint family property and in joint cultivation of all family members, such is not the case herein.

14. It is seen that Ramji Patil was survived by his wife – Yenibai 14 of 21 / Venibai and two daughters Savitribai and Krishnabai. From 1952 – 1957 the name of Yenibai / Venibai was mutated as tenant in respect of the suit property pursuant to demise of Ramji Patil in the year 1949. In the year 1957, name of Krishnabai was mutated as protected tenant. However Plaintiff - Savitribai has failed to show that the name of Krishnabai was mutated as tenant in a representative capacity on behalf of the entire family. There is virtually no evidence led by Savitribai in this regard. She has failed to show that the suit property was joint family property and in joint cultivation of the family members all along. There is no iota of evidence in this regard which impels the Court to determine the questions of law namely points for determination framed by this Court while admitting the present Second Appeal so as to consider applicability of the ratio of Ramakant Ganesh Naik and Ors. (Supra) to the Plaintiff’s case.

15. What is the significance of 32G Order and 32M Certificate is evident from the facts and circumstances of each case. The ratio in the case of Ramakant Ganesh Naik and Ors. (Supra) cannot be ipso facto applied to all cases where mutation of tenanted property takes place in the name of one of the family member to contend that the said transfer cannot create any individual right of the said family member and the suit property would all along continue to be joint family property. Unless and until there is evidence placed on record to justify the aforesaid, the same cannot be held against the transferee. 15 of 21

16. In the present case, the only point of contention made by Plaintiff - Savitribai is that name of Krishnabai was entered as protected tenant without making any enquiry in the year 1957. If that is the issue raised, then nothing prevented Savitribai from approaching the Court of law within a reasonable time to agitate her right. In the first instance at the threshold it was incumbent upon Savitribai to prove that enquiry made before granting Section 32G Order and 32M Certificate was issued to Krishnabai was without following the due process of law. Savitribai has failed to prove the same. Save and except her statement in the suit plaint amended for the first time in the year 2002 cannot be considered as true and correct without there been substantive evidence to substantiate the said statement.

17. In the suit plaint filed by Plaintiff in paragraph No.4 it is Plaintiff’s contention that pursuant to demise of her father and mother in 1949 and 1978 the suit property ought to have been partitioned. Admittedly, no steps were taken by her whatsoever. She has averred that two years prior to filing the Suit, she was unable to visit the suit land for cultivation and therefore she called upon Defendant to partition the suit property which was denied by Defendant leading to filing of the Suit in the year 2002. Prima facie such contention and averment made in the suit plaint without any substantive evidence in that regard is not tenable at all. Neither any evidence has been led by the Plaintiff to show that she cultivated the Suit property jointly 16 of 21 alongwith Krishnabai and shared the spoils / rewards. Both the learned Courts have clearly erred in accepting the case of Plaintiff that the suit land was in cultivation of Plaintiff and Defendant jointly without there being any evidence. There is no evidence whatsoever led by Plaintiff in this regard to show her nexus with the suit property.

18. Sale Certificate under Section 32M of the said Act fixing purchase price dated 24.02.1961 is appended to the paper book. From the said order it is gathered that Krishnabai was cultivating paddy in the suit property since several years. It is gathered that a public notice calling upon all tenants and all interested persons was published in the village on 17.04.1960 and after its publication, individual notices were served on all interested persons specifying the date of hearing and accordingly all parties appeared before the Competent Authority and recorded their objections to determine the six points for determination as stated in the said order.

19. The stoic silence of Plaintiff - Savitribai from the year 1957 onwards until 2002 speaks volumes. There is not a thread of evidence produced by Savitribai between the aforesaid period which would lend credence to her claim. Substantial documents are produced before the Trial Court issued by the Competent Authority and Agricultural Land Tribunal addressed to Krishnabai during the aforesaid period. The Mutation Entry which has been carried out has been effected after 17 of 21 following the due process of law after recording the aforesaid facts. Exhibit Nos.41 to 50 are the copies of 7/12 extracts of the suit property at various points of time which justify the existence of Krishnabai in the suit property.

20. I have perused the evidence which has been led by respective parties. On behalf of Plaintiff, her son stepped into the witness box. He averred and deposed that his knowledge of the facts and circumstances of the present case are derived from his mother. He has stated that his mother got wedded into the Gharat family 55 years ago i.e. around

1950. It is seen that the Gharat family was residing in Village Jambhulpada, Taluka Uran situated at 7 kms. from Village Vindhane where the suit property is situated. Plaintiff’s witness has given a categorical admission in cross-examination that there is no evidence made available by Plaintiff except the say of Plaintiff to show that the suit property is /was joint family property. There is further categorical admission of Plaintiff’s witness that there is no material or evidence to show that cultivation of the suit property was undertaken or done by Plaintiff jointly with the Defendant. This virtually gives away the case of the Plaintiff.

21. Plaintiff’s witness admitted that in the year 2002 a challenge was maintained to the Section 32M Sale Certificate dated 24.02.1961 before the Competent Authority / SDO. In the cross-examination of 18 of 21 Defendant, she has categorically answered that challenge to the Sale Certificate on behalf of Plaintiff was rejected by the SDO. On behalf of Krishnabai herself stepped into the witness box. She has categorically deposed that from 1957 – 1978 by way of 19 installments the entire purchase price of the suit property was paid by her and her husband to the Competent Authority pursuant to which 19 original receipts of payments were issued in her name which were produced in evidence by her.

22. On an overall reading of the evidence of the parties, the evidence of Plaintiff completely falls short of proving the fact that the suit property was in joint cultivation of both the sisters namely Savitribai and Krishnabai and as observed above there is not an iota of evidence to substantiate this claim. On the contrary in the crossexamination Plaintiff’s witness has categorically admitted the fact that Plaintiff is not in a position to place on record any evidence whatsoever in this regard. This is the primary reason as to why the facts and circumstances in the present case are clearly distinguishable with the ratio in the case of Ramakant Ganesh Naik and Ors. (Supra). Therein there was a categorical deposition of the tenant that the property was joint family property and more importantly the landlord / owner of the property also deposed that cultivation of the property was undertaken jointly by the entire family which led to the decision in that case. No such deposition is there in the present case. In the present case 19 of 21 Plaintiff’s witnesses deposition is rather to the contrary. The facts in the present case are therefore clearly distinguishable on this issue.

23. There is no challenge maintained whatsoever to the title of Krishnabai by Savitribai until filing of the partition Suit in the year 2002 for the first time alongwith the Revenue proceedings. In order to overcome limitation the stance taken by Savitribai that she was cultivating the suit property alongwith Krishnabai prior to two years of filing of the Suit has not been proven prima facie by her in evidence by leading any cogent evidence whatsoever.

24. In that view of the matter, the ratio of the decision in the case of Ramakant Ganesh Naik and Ors. (Supra) cannot be made applicable to the facts and circumstances of the present case.

25. In view of the above observations and findings, learned Trial Court in the first instance ought to have made a reference to the Civil Court rather than treating the claim of Plaintiff for partition under the law of Succession in view of the subsistence and existence of 32G Order and 32M Certificate alongwith the Mutation Entries standing in favour of Defendant - Krishnabai.

26. In that view of the matter, both the judgments passed by both the Courts below clearly suffer from the aforesaid legal infirmity and therefore I answer the twin law points for determination framed by this Court on 03.07.2017 in the affirmative. 20 of 21

27. Hence both the judgments dated 08.02.2006 and 21.01.2017 passed by the learned Trial Court and the learned first Appellate Court in First Appeal are quashed and set aside.

28. Suit filed by Plaintiff namely Regular Civil Suit No.50 of 2002 is dismissed as a consequence thereof. Record and proceedings including all original records which are placed in the present Second Appeal are directed to be returned back to the Trial Court. The original record is permitted to be taken back by the Defendant – Krishnabai at the request made by Mr. Joshi. If any such request is made, the same shall be considered by the Trial Court after the Appeal period is over without any further delay in accordance with law.

29. All parties to act on a server copy of this Judgment downloaded from the website of the High Court.

30. Second Appeal is allowed and disposed in the above terms. [ MILIND N. JADHAV, J. ] Ajay 21 of 21 TRAMBAK UGALMUGALE