Dismissed

Mohammad Chandsaheb Mohammad Saheb and Another. v. Narsing Chimshete (L.Rs.) Shivaji and Others.

Bombay HC14 Jun 2012SA/141/1989

Case brief

AI extract

What is this about?

In this second appeal, the High Court dismissed the challenge to a trial court order that granted an injunction to the plaintiffs but denied a declaration of ownership over Inam land. The judge held that since the suit did not assail the Tahsildar's occupancy grant, the framed issue regarding it did not arise, and the lower courts were justified in the outcome.

What did the court decide?

Second Appeal dismissed with no costs. Injunction granted restraining respondents from obstructing appellants' possession.

Mohammad Chandsaheb Mohammad Saheb and Another. Vs Narsing… — Property and Title | Bombay HC (2012)

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1 S.A. 141.1989

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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SECOND APPEAL NO. 141 OF 1989

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Mohd. Chandsaheb Mohd. Saheb – Died – through L.Rs. & another V/s Narsinh Tukaram Chimenshete – Died – through L.Rs. & Ors.

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Mrs. Anjali Dube - Bajpai, Advocate for the Appellants.

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Mr. Chandole, Advocate holding for

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Mr. V.G.Sakolkar, Advocate for Resp. nos. 1 & 2.

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CORAM : S.V.GANGAPURWALA, J.

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DATE : 14/06/2012.

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ORAL ORDER :

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The present appellants are the original plaintiffs, who had

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filed Suit for declaration of ownership and injunction. The trial Court partly decreed the Suit to the extent of injunction and negatived the claim of the plaintiffs in respect of ownership. The plaintiffs filed Appeal before

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the District Court to the extent of non grant of relief of declaration of ownership. The District Court also dismissed Appeal confirming the Judgment and decree passed by the trial Court. Aggrieved thereby the plaintiffs have filed the present Second Appeal.

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The Second Appeal has been admitted on following grounds :

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2 S.A. 141.1989

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“ 1. Though both the Courts below concurrently record finding of fact that the suit land was under supervision of Government from 1931 to 5^th April, 1961 filed on apply current principles of law that on such land defendant/respondent can not claim right as Kabiz-e-Kadim, permanent tenant or Tenant of Inanelar as defined under Inam Act .

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2. On the clear admission of the defendant/respondent in their pleadings that they claimed occupancy on the basis of their cultivation of land in 1952, Court below failed to consider that authorities under an Act had no jurisdiction to decide the question of occupancy right ”.

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Mrs. Dube – Bajpai, learned counsel for the appellants

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submits that the Courts were swayed by the fact that the Tahsildar has granted occupancy in favour of the defendants. Under the statute, the Tahsildar has got no jurisdiction to grant occupancy rights to the defendants. Under the statute, no authority below the rank of Dy. Collector can grant occupancy rights. The occupancy rights are to be granted to the person who is in possession on the notified date. The defendants were not in possession on the notified date. As such they can not claim right and title in respect of the said land. The plaintiff’s predecessors were the Inamdars. Even the succession has been sanctioned

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in favour of the plaintiffs and as such the plaintiffs are required to be

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3 S.A. 141.1989

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declared as owners of the property. According to the learned counsel, such order of the Tahsildar granting occupancy is ab-initio, void and without jurisdiction. There is no need to assail the said order. Both the Courts have failed to consider this aspect.

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Mr. Chandole, learned counsel for the respondents submits

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that the Suit has been filed for declaration of ownership. After the Inam has been abolished, the land vests with the Government. The occupancy right has been granted in favour of the defendants. As such, no question arises of plaintiffs being declared as owners. The defendants would take recourse of law to get the possession.

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With the assistance of the learned counsel, I have gone through the Judgments.

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It is not disputed that the suit land is Inam land and the said Inam has been abolished. Necessarily implying that the said Inam was governed by the provisions of the Hyderabad Abolition of Inam and Cash Grants Act [ For short, ‘ said Act ’ ]. If the said Inam is governed by the said Act, then on the notified date, after the Inam stood abolished, the land vested with the Government and it is for the Government to re-grant the said land. There is nothing on record to show that the land

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4 S.A. 141.1989

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was re-granted to the plaintiffs. In absence of the same, the Courts below were justified in not granting the relief of declaration of ownership in favour of the plaintiffs.

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The contention of the learned counsel for the appellants that

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the Tahsildar had no jurisdiction to grant occupancy, the same can not be considered, as in the present Suit no relief was claimed with regard to the said grant of occupancy. The plaintiffs can raise all the available defences as are permissible in law in appropriate proceedings.

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The Court found the plaintiffs in possession, as such has granted injunction restraining the defendants from obstructing the plaintiff’s possession over the suit land except under due process of law.

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In view of the fact that the plaintiffs had not assailed the occupancy granted in favour of the defendants in the present Suit, the question as framed by the Court at the time of admission does not arises.

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In light of the above, the Second Appeal is dismissed. No

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costs.

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[ S.V. GANGAPURWALA,J. ]

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KNP/S.A. 141.1989

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5 S.A. 141.1989

Mohammad Chandsaheb Mohammad Saheb and Another. v. Narsing Chimshete (L.Rs.) Shivaji and Others.

Case brief

What is this about?

What did the court decide?

Mohammad Chandsaheb Mohammad Saheb and Another. v. Narsing Chimshete (L.Rs.) Shivaji and Others.

Case brief

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What did the court decide?

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