Mahadev Jarande & Ors. v. Rukmani Govindrao Khatmode & Ors.

C. SUBMISSIONS

11 Mr. Deshmukh, the learned counsel appearing for Petitioners would assail the Order passed by the Minister-Revenue by contending that a glaring error is committed by him in entering into the merits of the controversy when the only issue raised before the Minister-Revenue by Respondent Nos. 1 to 9 was failure to entertain First Revision by Additional Commissioner on account of death of Babu, Shantabai and Kusum (Respondent Nos.13, 15 and 16 to First Revision). Mr. Deshmukh would submit that there is no error in the Order passed by the Addl. Commissioner in directing the Appeal as abated on account of death of the three Respondents before him. Alternatively, Mr. Deshmukh would submit that if any error was indeed noticed by the Minister-Revenue in the approach of Addl. Commissioner in treating Appeal as abated, he ought to have remanded the proceedings before the Addl. Commissioner for decision on merits. That Minister-Revenue could not have directly determined merits of the controversy when issue before him was in narrow campus. He would therefore submit that the Order passed by the Minister-Revenue deserves to be set aside and the proceedings be remanded before the Addl Commissioner for decision on merits. Mr. Deshmukh would further submit that this Court would not be justified in entering into merits of the controversy which are yet to be decided by the Additional Commissioner. katkam 10/23

12 On merits, Mr. Deshmukh would contend that the decree passed in Regular Civil Suit No.184 of 1972 does not envisage handing over of possession of any portion of land in Gat No.109 to Govind Raosaheb Khatmode. On the contrary, Suit No.171 of 1969 instituted by Govind Raosaheb Khatmode seeking recovery of possession from predecessorin-title of Petitioners came to be dismissed vide decree dated 23 September 1980. Thus, Govind Raosaheb Khatmode cannot indirectly seek something which has been specifically denied by virtue of decree in Regular Civil Suit No.171 of 1969. According to Mr. Deshmukh, the decree passed in Regular Civil Suit No.184 of 1972 would only confer title on Govind Raosaheb Khatmode and the effect of decree in Regular Civil Suit No.171 of 1969 would mean continued and lawful possession of the land by the predecessor-in-title of the Petitioners. That both suits were decided by the Trial Court on the same day and the Trial Court was thus aware of the position that dismissal of Regular Civil Suit No.171 of 1969 resulted in denial of possession to Govind Raosaheb Khatmode. That the Appellate Courts have not disturbed the decree passed in Regular Civil Suit No.171 of 1969 and Govind Raosaheb Khatmode successfully lost possession battle before the District Court and this Court. That the findings about lawful possession by predecessor-in-title of Petitioners has attained finality and execution proceedings in Regular Civil Suit No.184 of 1972 cannot be utilized for misleading the revenue authorities for obtaining possession of land bearing Gat No.109, which is specifically denied by the Civil Court in Regular Civil Suit No.171 of 1969. That decree in Regular Civil Suit No.184 of 1972 cannot be subjected to katkam 11/23 interpretation for the purpose of setting at naught the rights created in favour of predecessor-in-title of the Petitioners by way of decree passed in Regular Civil Suit No.171 of 1969. He would therefore pray for setting aside the order passed by the Minister-Revenue.

13 Per contra, Mr. Kadam the learned counsel appearing for Respondent Nos.[1] to 9 would oppose the Petition and support the order passed by the Minister-Revenue. Mr. Kadam would accuse Petitioners of suppressing decree passed in Regular Civil Suit No.184 of 1972 and would pray for dismissal of the Petition on that ground. He would submit that dismissal of Regular Civil Suit No.171 of 1969 cannot and does not have any impact on right of Govind Raosaheb Khatmode to seek possession of share of Kantabai, Shantabai and Kusum out of Gat No.109. That in decree passed in Regular Civil Suit No.184 of 1972, the Trial Court has specifically directed handing over of possession of share of Kantabai, Shantabai and Kusum to Govind Raosaheb Khatmode.

14 Mr. Kadam would further submit that Regular Civil Suit No.171 of 1969 came to be dismissed on account of Govind Raosaheb Khatmode claiming title and possession in respect of entire land admeasuring 8 Acres 25 Gunthas. That since the Sale Deed dated 25 November 1966 was held to be voidable in respect of Babu and Subhash, Plaintiff in RCS 171/1969 (Govind Raosaheb Khatmode) has not been declared as owner in respect of the entire land and it is on that count alone, the relief of katkam 12/23 possession of entire land bearing Gat No.109 has been declined. He would submit that the District Court has clarified this position in paragraph 8 of its judgment, in which it is specifically held that Govind Raosahbe Khatmode purchased only one half of the share belonging to the three granddaughters. That therefore dismissal of RCS No.171 of 1969 is inconsequential for execution of the decree passed in RCS No.184 of 1972.

15 So far as the propriety on the part of the Minister-Revenue in entering into the merits of controversy is concerned, Mr. Kadam would submit that the decree passed in RCS No.184 of 1972 on 23 September 1980 has not been executed for the last 43 long years and Respondent Nos.[1] to 9 cannot be made to endlessly litigate for execution of the decree on account of technical objections raised by the Petitioners. That the Order passed by the Minister-Revenue saves one round of litigation between the parties and therefore the order may not be disturbed. He would pray for dismissal of the Petition.

D. REASONS AND ANALYSIS

16 The first issue is about the propriety on the part of the Minister- Revenue in entering into the merits of controversy while determining the correctness of order dated 5 August 2015 passed by the Additional Commissioner, Pune. As observed above, in pursuance of precept send by the Civil Court under Section 54 of the Code, the Tehsildar, acting for the katkam 13/23 Collector, passed order dated 7 April 2007 directing that out of Gat No.109, land admeasuring 2H 63R be handed over to Govind Raosaheb Khatmode and 80 R to Subhash Krishna Mergal (Plaintiff No.5). The Tehsildar’s decision was upheld by Sub Divisional Officer by dismissing Appeal of Petitioners on 29 July 2007. The Additional Collector however partly reversed the Tehsildar’s decision. He maintained order for handing over possession of land admeasuring 80 R to Subhash Krishna Mergal (Plaintiff No.5). However, the Additional Collector set aside the Tehsildar’s direction for handing over possession of land admeasuring 2 H 63 R to Govind Raosaheb Khatmode. The Additional Commissioner, Pune was determining correctness of the Order dated 21 November 2009 passed by the Additional Collector, Solapur. The Additional Commissioner however decided not to enter into merits of the First Revision No.64 of

2010. He noticed that Babu Dagudu Kantode, Shantabai Maroti Gavde and Kusum Mahadev Gavde (Respondent Nos.13, 15 and 16 before him) had expired and their legal heirs were not brought on record. On this technical ground, the Additional Collector, Pune proceeded to hold that the Appeal had abated and disposed of the same. In my view, the Additional Commissioner, Pune, was in clear error in disposing of the entire First Revision on account of death of Babu, Shantabai and Kusum. He ought to have appreciated that Govind Raosaheb Khatmode was seeking recovery of possession in pursuance of decree passed in Regular Civil Suit No.184 of 1972 from the legal heirs of Sambha Bapu Jarande (Respondent Nos. 1 to 12 before him). No relief was sought against Respondent Nos.13, 15 and 16. In such circumstances, the Additional katkam 14/23 Commissioner could not have disposed of the entire First Revision filed by Govind Raosaheb Khatmode on technical ground of death of Babu, Shantabai and Kusum. Thus the Order passed by the Additional Commissioner, Pune on 5 August 2015 suffered from serious flaw.

17 The Minister-Revenue has noted the folly committed by the Additional Commissioner. In ordinary circumstances, the Minister- Revenue ought to have restored the proceeding on the file of Additional Commissioner, Pune by setting aside his order. However, the Minister- Revenue has proceeded to venture into the merits of the controversy. This is strongly objected to by Mr. Deshmukh, who accuses the learned Minister-Revenue of committing impropriety in venturing into the merits of the controversy. While Mr. Deshmukh cannot be said to be entirely wrong in submitting that the learned Minister need not have gone into the merits of the controversy and could have remanded the proceedings for decision on merits, the chronology of events narrated above would indicate long legal battle ensuing between the parties since the year

1969. Govind Raosaheb Khatmode purchased the land in question on 25 November 1966. Going by his age declared in Regular Civil Suit No.171 of 1969, Govind Raoshabe Khatmode’s age as on the date of purchase in the year 1966 appears to be 38 years. He apparently spent most part of his life in seeking to recover possession of the purchased land by endlessly litigating before various courts and fora. During last days of his life, he was litigating before the Additional Commissioner, Pune by filing First Revision in the year 2010. He even filed Writ Petition No.1954 of 2016 in katkam 15/23 this Court challenging the Additional Commissioner’s decision dated 5 August 2015. This Court granted him liberty to file Second Revision before the State Government and at this stage apparently, he passed away after fighting long litigation since the year 1969. This is how Govind Raosaheb Khatmode has virtually devoted his entire life to recover possession of land that he purchased on 25 November 1966. Though he was unsuccessful in gaining title in respect of the entire portion of the land on account of decree passed on 23 September 1980 in Regular Civil Suit No.184 of 1972, he later continued his battle to recover possession of the land coming to the share of Kantabai, Shantabai and Kusum admeasuring 2 H 63 R. He instituted execution proceedings in the year 1987 by filing Darkhast No.29 of 1987. Till his death, the decree could not be executed. Now his legal heirs are fighting the battle for execution of the decree passed 43 years ago in Regular Civil Suit No.184 of 1972.

18 In fact it would have been much easier for this Court to pass a simple order of remand of proceedings before the Additional Commissioner, Pune by setting aside the learned Minster’s Order and in ordinary course, this Court would have adopted such a course of action. However, considering the long legal battle that has ensued between the parties and also considering the fact that both Mr. Deshmukh and Mr. Kadam have advanced extensive submissions on merits of the controversy, I deem it appropriate to examine the Order passed by the learned Minister on merits, rather making an order of remand. katkam 16/23

19 The decree passed by the Trial Court in RCS No.171 of 1969 and RCS No.184 of 1972 may appear to be contradictory in the first blush. This is more so because the decree passed in RCS No.171 of 1969 denies possession of any portion of land bearing Gat No.109 to Govind Raosaheb Khatmode. On the contrary, decree passed in RCS No.184 of 1972 suggests grant of possession of land falling to the share of Kantabai, Shantabai and Kusum to Govind Raosaheb Khatmode. However on a deeper scrutiny of both the decrees, it is clear that there is no such contradiction. It would be necessary to reproduce the relevant findings recorded in both the decrees. In RCS No.171 of 1969, the Trial Court had framed issues and recorded findings with regard to possession of Sambha Bapu Jarande (predecessor-in-title of Petitioners) as under: “Issues Findings

1) Does plff. proved his exclusive title in the suit lands? In negative.

2) Does plff. prove that deft. unauthorisedly occupied suit lands on or about 11-1-67? In negative.

3) Does deft. Prove that he is tenant in the suit lands and in capacity as a tenant he is in actual possession of suit lands? In negative.

4) Is plff. entitled to get actual possession of suit lands? NO. 5) Is plff. entitled past mesne profits of Rs.300/- for the year 1966 and 1967 and future mesne profits? Does not arise.

6) Does deft. prove that, sale deed executed by Sadashiv Bapu Hagare, for himself and for guardian of minors in favour of plff. is illegal? In affirmative.

7) What order and decree ? See final order. katkam 17/23

10) Issue No.2:- It is the case of the plaintiff that, the defendant is trespasser in the suit land from 11/1/67 because his tenancy is terminated by the Tenancy Court, Karmala from the suit land. It is no doubt true that, tenancy of the defendant is terminated from the suit land by the tenancy court, Karmala by its judgment vide Exh.65, but it does not mean that, from 11/1/67 the defendant was unauthorisedly occupying the suit land because prior to that, he was cultivating the suit land with the consent of Maruti Atole and Sonabai Atole. Defendant has filed the 7/12 extract of the suit land which shows that, cultivating the suit land as tenant of the Maruti Ranu Atole vide Exh.88 on the basis of tenant. Unfortunately for the defendant his tenancy over the suit land is legally terminated by the Tenancy Court. It does not mean that, he was illegally in possession of the suit land on 11/1/67 and prior to that.

11) As against this, it is the case of the plaintiff that, he may be in possession of suit land on the basis of sale deed vide Exh.96. Hence, in short I answer issue No.2 accordingly by taking into consideration the reasonings given in issues in Regular C. Suit No. 184 of 1972.

12) Issue No.3:- It is the case of the defendant that, he is a tenant of the suit property and in that capacity he was in possession of the suit land. Therefore, the matter in Regular Civil Suit No.184/72 the issue No.6 was referred to the Tenancy Court vide Section 85-A of B.T. & A.L. Act, 1948 for necessary finding on this issue. The Tenancy Court decided this issue against the defendant as per judgment of Tenancy Authority in Appeal No.415 of 68. It is declared that the defendant and one Kokne are not the tenants of the suit property. The necessary judgment of the Tenancy Court is at Exh.65 in Regular Civil Suit No.184/72. Therefore the same findings is applicable to the present issue No.3 and on relying with the judgment of Tenancy Court, it may be said that, the defendant is not a tenant of the suit land on the date of the suit. So his possession over the suit land is of trespasser. Hence, I answer issue No.3 in negative.

13) Issue No.4:- In view of finding given in issue No.1 and 2, and Issue No.6 it may be said that, the plaintiff is not entitled to get actual possession of the suit land. Therefore, I answer issue No.4 accordingly.’ katkam 18/23

20 Thus in RCS No.171 of 1969 the Trial Court held that though tenancy of Sambha Bapu Jarande was lawfully terminated by the Tenancy Court, his cultivation in the land continued with consent of the previous owner. The Trial Court therefore concluded that his possession was not illegal. However the Trial court also held that his possession over the land was that of a trespasser.

24. Issue no.12.-In view of reasonings given in issue nos.[1] to 5, it may be said that Plaintiff No.1 and Plaintiff No.5 are entitled to the possession of the suit lands to the extent of their share which I have already stated while giving reasonings for issue no.10. The Plaintiffs Nos. 2 to 4 are not entitled for their shares because their share are already purchased by Defendant No.1 vide sale-deed at exhibit 77. So for the shares of Plaintiffs Nos, 2 to 4 the Defendant No.1 will be in picture and for the shares of Plaintiff No.1 and Plaintiff No.5 they are entitled for the possession of the suit lands. In other words, the Plaintiff No.1 is entitled to the extent of his 3/5th share in the suit lands and Plaintiff No.5 will be entitled to her share to the extent of 2/5th in both the suit lands. Hence Plaintiffs are not entitled directly to take possession of suit lands from Defendant No.2. The matter will have to be referred to the Collector, Solapur for partition and separate possession of the suit lands to the extent of share of Plaintiff No.1 and Plaintiff No.5. I will pass that order at the end of my discussion. Hence, I answer issue no.12 in negative by answering it as no. and it may be further held that Plaintiffs cannot directly take possession of the suit land for Defendant No.2”

22 The operative portion of the decree in RCS No.184 of 1972 reads thus: katkam 19/23 “Order No. 1.- Suit is partly decreed. Both the parties shall bear their own costs. No. 2. - It is declared that sale deed vide exhibit 77, is voidable for the case of Plaintiff No.5. It is not binding on the Plaintiff No. 1. It is binding for the case of Plaintiffs Nos.[2] to 4 in view of their compromise pursis at exhibit 36. No. 3.- Plaintiffs Nos.[1] and 5 are not entitled for perpetual injunction against the Defendants Nos.[1] and 2. No. 4.- Plaintiff No. 1 and Plaintiff No. 5 are not directly entitled for possession of the suit land from Defendant No. 2. No. 5.- Sale deed at exhibit 7, is declared as voidable transaction. No. 6.- It is held that Plaintiff No.1 has only 3/5th share in both the suit lands as he is a son of Janabai Dagdu Kantode and Janabai was daughter of Maruti Ranu Atole. No. 7.- The Plaintiff No.5 has 2/5th share in the suit lands as she is a daughter of Anusayabai w/o Sadashiv Hajare and admittedly Anusayabai was daughter of Maruti Atole. No. 8.- The Defendant No.1 stands in the shoes of Plaintiff Nos.[2] to 4 for the possession of the suit land in view of sale-deed at exhibit 77. He will be entitled for the shares of Plaintiffs Nos. 2 to 4 in the suit land. No. 9.- Matter be referred to the Collector, Solapur for partition and separate possession of the suit land to the extent of share of Plaintiffs Nos.[1] and 5 and Plaintiffs Nos.[2] to 4 vide section 54 of C. P. C. No. 10- Decree be drawn accordingly.” 23 The combined reading of the decrees passed on 23 September 1980 in RCS Nos.171 of 1969 and 184 of 1972 would indicate that the Trial Court did not direct or permit the sharers in land in Gat No.109 (Dagudu, Babu, Subhash and Govind Raosaheb Khatmode) to directly katkam 20/23 obtain possession of land coming to their share from Sambha Bapu Jarande, who was held to be in possession of the land as trespasser. This is why the Trial Court directed that ‘hence plaintiffs are not entitled directly to take possession of suit lands from defendant no.2’ instead it directed that the reference be made to the Collector, Solapur for partition and for separate possession. Though Mr. Deshmukh has sought to lay emphasis on mention of only Plaintiff No.1 and Plaintiff No.5 by the Trial Court for ordering reference for separate possession, I do not find any logic behind excluding Defendant No.1 (Govind) who had stepped into the shoes of Plaintiff Nos.[2] to 4 (Kantabai, Shantabai and Kusum) for separate possession of land coming to their share. Thus, the net effect of the two decrees passed on 23 September 1980 in RCS No.171 of 1969 and RCS No.184 of 1972 is that the parties, in whose favour share in suit land was allotted, were expected to be handed over possession by Collector after effecting partition. Till handing over of such separate possession after effecting of partition by the Collector, possession of Sambha Bapu Jarande’s was protected. This would be the harmonious construction of the two decrees passed by the Trial Court on same day who was aware of the fact that decree passed in one suit could not negate benefit granted by way of decree passed in another suit.

24 If Mr. Deshmukh’s contention about finality to denial possession to Govind Raosaheb Khatmode in RCS No.171 of 1969 is to be accepted, the same would render the decree passed in Regular Civil Suit No.184 of 1972 in favour of Govind Raosaheb Khatmode to be nugatory. katkam 21/23 Mr. Deshmukh did attempt to suggest that the decree in RCS No.184 of 1972 envisaged handing over of possession only to Babu (Plaintiff No.1), Subhash (Plaintiff No.5) about whom the Petitioners have no dispute. However, such interpretation sought to be made by Mr. Deshmukh would completely nullify the direction of the Trial Court for grant of possession of share allotted to Govind Raosaheb Khatmode in decree passed in RCS No.184 of 1972. In my view, therefore, the correct reading of two decrees would envisage effecting of partition in pursuance of preliminary decree drawn by the Trial Court in RCS No.184 of 1972 and handing over of possession of land allotted to the share of Babu, Subhash and Govind by the Collector. Upon effecting partition by the Collector, Sambha Bapu Jarande and his legal heirs were to lose possession of land Gat No.109 to the extent of shares allotted to Babu, Subhash and Govind.

25 The order passed by the Minister-Revenue, clearly recognizes the above position. I therefore do not find any patent error in the order passed by the Minster-Revenue, which results in final determination of the rights between the parties with regard to possession of the land in pursuance of the partition effected for execution of decree in RCS No.184 of 1972. The parties have fought a long legal battle over the issue of possession. Time has come to draw curtains on unending litigation between the parties. I am, therefore, not inclined to order remand of the proceedings to the Additional Commissioner which would result in three more rounds of litigations (before Additional Commissioner, Minister- Revenue and this Court) between the parties. katkam 22/23

E. ORDER

26 I therefore do not find any error being committed by the Minster- Revenue, in passing the impugned order. The Writ Petition, being devoid of merits, is dismissed with no orders as to costs. Rule is discharged. (SANDEEP V. MARNE, J.)

27 After the judgment is pronounced, Mr. Deshmukh, the learned Counsel appearing for the Petitioners would request for continuation of the interim order. Request is opposed by Mr. Kadam, the learned Counsel appearing for the Respondent Nos.[1] to 9. Considering the fact that interim relief is operational for a long period, same is extended for a period of six weeks from today. (SANDEEP V. MARNE, J.) katkam 23/23