Allowed

Gangadhar Sonu Sonawane,Deceased and Ors. v. Namdeo Bhausingh Sonawane and Ors.

Bombay HC19 Apr 2024SA/223/2024

Case brief

AI extract

What is this about?

This second appeal challenged the High Court's reversal of a trial court order rejecting a plaint. The plaintiff sought a declaration of ownership via adverse possession to defeat a revenue order directing delivery of agricultural land to the opposite party. The High Court held the suit was barred by Section 85 of the Tenancy Act as it attempted to subvert final revenue orders on tenancy.

What did the court decide?

The appeal is allowed; the impugned judgment of the High Court is set aside, and the Judgment and Decree of the Trial Court rejecting the plaint under Order VII Rule 11 CrPC is confirmed.

Gangadhar Sonu Sonawane,Deceased and Ors. Vs Namdeo… — Property and Title | Bombay HC (2024)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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SECOND APPEAL NO.223 OF 2024

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W ITH

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INTERIM APPLICATION NO.6972 OF 2024 IN

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SECOND APPEAL NO.223 OF 2024

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1.Shri Gangadhar Sonu Sonaware, Deceased;

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2. Smt. Satyabhama Laxman Gavade, age 60 years, Occ : Agriculture,

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3. Shri Kishor Nanasaheb Gaikwad, age 58 years, Occ : Agriculture,

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4. Smt. Pratibha Kailas Rayte, Age 52 years, Occ : Agriculture,

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5. Smt. Survarna Shantaram

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Pansare, Age 45 years, Occ : Agriculture,

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6. Smt. Snehal Prashant Ogane, Age 55 years, Occ : Agriculture,

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7. Smt. Pushpabai Nanasaheb Gaikwad, Age 62 years, Occ : Agriculture,

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8. Smt. Walhyabai Kashinath Rokade, Age : 70 years, Occ : Agriculture,

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9. Shri Malhari Dhondiram Gaikwad, Age 56 years, Occ : Agriculture,

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Digitally signed by MEGHA MEGHA SHREEDHAR SHREEDHAR PARAB PARAB Date: 2024.04.19 15:09:32 +0530

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Megha

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___ Page No. 1 of 20____

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10. Shri Prashram Ghamaji
Gaikwad, Age 50 years, Occ :
Agriculture, Appellants Nos. 2 to
10, resident of Khede, Tal.
Niphad, Dist. Nashik.

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11. Shri Pramod Manikrao Vadje,
 Age 55 years, Occ : Business and
Agriculture,R/o Mahanand
Nagar, Manmad, Tal. Nandgaon,
Dist. Nashik.

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..Appellants

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V/S.

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1. Shri Namdeo Bhausingh Sonawane, Age 80 years, Occ : Agriculture,

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2. Shri Balu Punjaram Sonawane,
Age 65 years, Occ : Agriculture,
Both are resident of Zadi,
Tal. Malegaon, Dist. Nashik.

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3. Shri Laxman Punjaram Sonawane,
Age 62 years, Occ : Agriculture,
R/o Daregaon, Tal. Chandwad,
Dist. Nashik.

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4. Smt. Akkabai Suresh Nalawade,
Age 58 years, Occ : Agriculture,
R/o Lasalgaon, Tal. Niphad, Dist.
Nashik.

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5. Smt. Bayjabai w/o Anna Pawar,
Age 48 years, Occ : Agriculture,

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6. Shri Shrawan Rama Sonawane,
Age 40 years, Occ : Agriculture,
Respondent Nos. 5 and 6 resident of
Zadi, Tal. Malegaon, Dist. Nashik.

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Megha

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___ Page No. 2 of 20

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7. Sunita Rama Sonawane,
Age 38 years, Occ : Agriculture,

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8. Smt. Bhikubai Rama Sonawane,
Age 65 years, Occ : Agriculture,

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9. Shri Sahebrao Pundlik Sonawane,
Age 65 years, Occ : Agriculture,

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10. Shri Nanaji Pundlik Sonawane,
Age 48 years, Occ : Agriculture,

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11. Sou. Meerabai Jeevan Kuvar,
Age 70 years, Occ : Agriculture,

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12. Shri Rodu Deoba Sonawane,
Age 65 years, Occ : Agriculture,

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13. Shri Balu Deoba Sonawane,
Age 45 years, Occ : Agriculture,
Respondent Nos. 9 to 13, resident of
Zadi, Tal. Malegaon, Dist. Nashik.

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14 Smt. Yamunabai Shankar
Gaikwad, Age 55 years, Occ :
Agriculture, resident of Khede, Tal.
Niphad, Dist. Nashik.

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15. Smt. Laxmibai Nathu Gaikwad,
Age 65 years, Occ : Agriculture,
resident of Khede, Tal. Niphad,
Dist. Nashik.

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16 Shri Gopinath Nathu Gaikwad,
Age : 60 years, Occ : Agriculture,
resident of Khede, Tal. Niphad, Dist.
Nashik.

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17 Shri Mothabau Shankar Dukale,

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Megha

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Age 60 years, Occ : Agriculture,

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18. Sou. Pratibha Balu Dukale,
Age 45 years, Occ : Agriculture,

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19. Shri Balu Shankar Dukale,
Age 50 years, Occ : Agriculture,

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20. State of Maharashtra Government
Through : - Tahsildar Malegaon,
Tal. Malegaon, Dist. Nashik.

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..Respondents

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...

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Mr. Khushnood Akhtar withMr. Vinay Karodia i/b. Mr. Shivaji
Nirmale, for the Appellants.

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Mr. Hrishikesh S. Shinde for Respondent Nos. 1 to 13.

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Mr. Rahul P. Kasbekar for Respondent Nos.17 to 19.

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CORAM : SANDEEP V. MARNE, J.

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JUDGMENT RESERVED ON : 15 APRIL 2024.
JUDGMENT PRONOUNCED ON : 19 APRIL 2024.

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JUDGMENT:

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1.By this appeal, Appellants challenge Judgment and
Decree dated 16 January 2024 passed by the District Judge-3,
Malegaon, District-Nashik in Regular Civil Appeal No.73 of 2023.
The first Appellate Court has allowed the appeal filed by original
Plaintiffs (Respondent Nos.1 to 13) and has reversed the order dated
28 July 2023 passed by the Joint Civil Judge, Senior Division,
Malegaon, District-Nashik in Regular Civil Suit No.66 of 2023. The
Suit, which was dismissed by the Trial Court under the provisions of

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Megha ___ Page No. 4 of 20____

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Order VII Rule 11 of the Code of Civil Procedure, has been restored
by the first Appellate Court.

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2.Respondent Nos. 1 to 13 are Plaintiffs in Regular Civil
Suit No.66 of 2023, to which Appellants are impleaded as Defendants.
Agricultural land bearing Gat No.748, admeasuring 13 Hectors 33 R
plus pot kharaba (wastage) 1 Hector 11 R totally admeasuring 14
Hectors 44 R at Village-Zadi, Taluka-Malegaon, District -Nashik is
the ‘suit land’. Ancestors of Plaintiffs claimed tenancy rights in the
suit land and filed proceedings under Section 32-G of Maharashtra
Tenancy and Agricultural Lands Act, 1948 (Tenancy Act), which
came to be rejected by the Tehsildar and Agricultural Lands
Tribunal (ALT) by order dated 25 August 1960. The landowners
(ancestors of Defendant Nos. 1 to 13/Appellants) filed proceedings
bearing 561 of 1963 before Tehsildar for return of the suit land, which
was in possession of Plaintiff’s ancestors. Tehsildar and ALT passed
order dated 10 January 1963 directing that the possession of the suit
land be handed over to the land owners and for that purpose
ancestors of Plaintiffs, claiming to be tenants, were directed to be
summarily evicted from the suit land under provisions of Section
32P(2) of the Tenancy Act.

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3.It is the case of Plaintiffs that despite passing of order
dated 10 January 1963, ancestors of Defendants did not take any
steps for recovery of possession of the suit land from Plaintiffs and
that accordingly, the suit land remained in their possession. The

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Megha

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___ Page No. 5 of 20

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ancestors of Plaintiffs filed proceedings before the ALT under Section
32G of the Tenancy Act bearing Case No.07 of 1988, which came to
be rejected by order dated 20 September 1993 on the ground that the
tenancy claims were earlier decided on 25 August 1960. The
Plaintiff’s ancestors filed appeal before Sub-Divisional Officer,
Malegaon (SDO), bearing Tenancy Appeal No.1 of 1995, which came
to be rejected on the ground of delay on 25 August 1995. Appeal
No.24 of 1996 was filed before Maharashtra Revenue Tribunal, which
came to be partly allowed on 29 October 1996 and SDO was directed
to decide the appeal on merits. Accordingly, SDO Malegaon decided
the appeal on merits and rejected the same by order dated 6 February
1998. It appears that in the meantime, Defendant Nos. 1 to 13
executed sale deed of suit land in favour of Defendant Nos.14 to 17.

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4.The Defendants in the said Suit filed proceedings bearing
Case No.2 of 2017 before Tehsildar and ALT for seeking recovery of
possession of the suit land in pursuance of order dated 11 October
1963. The said case was allowed on 9 March 2018, against which,
Plaintiffs filed appeal before the SDO, Malegaon, which came to be
rejected on 21 February 2019. The further appeal filed by the
Plaintiffs before the Additional Collector, Malegaon came to be
rejected by order dated 23 July 2019.

¶71

5.In the above background, Plaintiffs filed Regular Civil
Suit No.130 of 2018 before Civil Judge, Senior Division, Malegaon,
seeking direction that the order passed by Tehsildar in Tenancy Case
No.2 of 2017 for deletion of name of tenant was illegal and cannot be

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Megha ___ Page No. 6 of 20____

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implemented. The Plaintiffs also sought injunction against Defendant
Nos. 2 to 7 therein from interfering with their possession without
following due process of law. The Plaintiffs also sought declaration
that they have become owners by adverse possession of the suit land.
Some of the Defendants in that Suit, filed applications in Regular
Civil Suit No.130 of 2018 seeking rejection of Plaint under Order VII
Rule 11(d) of the Code. By order dated 20 June 2018, the Trial Court
allowed the applications and rejected the Plaint in Regular Civil Suit
No.130 of 2018. Appeal filed against that order of rejection of Plaint
is pending before the District Court.

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6. Tehsildar, Malegaon issued Notice dated 15 December 2022 for
handing over possession of the suit land in favour of Defendant Nos. 1
to 13.

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7.Taking issuance of notice by Tehsildar on 15 December
2022 for recovery of possession as the cause of action, Plaintiffs filed
one more suit bearing Regular Civil Suit No.66 of 2023 before the
Court of Civil Judge, Senior Division, Malegaon, seeking a
declaration that they have become owners of suit property by adverse
possession and seeking injunction against the Defendants therein.In
Regular Civil Suit No.66 of 2023, some of the Defendants therein filed
application at Exhibit-33 seeking rejection of Plaint under Order VII
Rule 11 of the Code. The said application came to be allowed by the
Trial Court by order dated 28 July 2023 and the Plaint in Regular
Civil Suit No.66 of 2023 came to be rejected.

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Megha

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8.Aggrieved by the order passed by the Trial Court passed
on 28 July 2023, Plaintiffs filed Regular Civil Appeal No.73 of 2023
before the District Judge-3 Malegaon. By Judgment and Decree
dated 16 January 2024, the first Appellate Court has allowed the
appeal filed by Plaintiffs and has set aside order of rejection of Plaint
dated 28 July 2023. The first Appellate Court has restored Regular
Civil Suit No.66 of 2023 to be decided on merits. Aggrieved by the
Judgment and Decree dated 16 January 2024 passed by the first
Appellate Court, the Appellants have filed the present appeal.

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9.When the Second Appeal came up for admission, the
same came to be admitted by order dated 15 April 2024 by
formulating the following substantial questions of law:-

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(i) Whether the first Appellate Court is justified in reversing the order passed by the Trial Court rejecting the plaint in Regular Civil Suit No.66 /2023 under Order 7 Rule 11 of the Civil Procedure Code?

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(ii) Whether the suit filed by the Plaintiffs bearing Regular Civil Suit No.66/2023 is barred by the provisions of Section 85 of the Maharashtra Tenancy and Agricultural Lands Act, 1948?

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(iii) Whether the Plaintiffs are entitled to file fresh suit on same cause of action under Order 7 Rule 13 of the Civil Procedure Code?.

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10.Mr. Akhtar, the learned counsel appearing for Appellants
would submit that the first Appellate Court has erred in reversing the
order passed by the Trial Court rejecting the Plaint under Order VII

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Megha

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Rule 11(d) of the Code. That the Appellants have secured an order
from Tehsildar and ALT in the year 1963, under which
Plaintiffs/their ancestors were supposed to handover possession of
the suit land to Appellants. That despite passage of more than 61
years, Appellants are not able to enjoy the fruits of the order passed
on 11 October 1963. That Plaintiffs filed numerous proceedings to
establish their tenancy claims in respect of the suit land and that all
their claims have been rejected. That after rejection of their tenancy
claims, Plaintiffs have come out with a novel idea of seeking
declaration of acquisition of ownership by adverse possession. Mr.
Akhtar would submit that the Plaint in Regular Civil Suit No.130 of
2018 filed seeking the same relief of declaration of ownership by
adverse possession, has been rejected by the Trial Court by order
dated 20 June 2018. That therefore Plaintiffs cannot be permitted to
institute one more suit seeking the same relief.

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11.Mr. Akhtar would further submit that Regular Civil Suit
No.66 of 2023 is otherwise barred by provisions of Section 85 of the
Tenancy Act. That Plaintiffs are seeking a declaration contrary to
the orders passed by the Revenue Authorities and therefore their suit
is clearly barred under Section 85. That the first Appellate Court has
erred in not appreciating the fact that repeated suits are being filed
by Plaintiffs to somehow delay delivery of possession of the suit land
in pursuance of orders passed by the Revenue /Tenancy Authorities,
which have attained finality. He would pray for setting aside the
order passed by the first Appellate Court.

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Megha

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12.Per contra, Mr. Shinde, the learned counsel appearing for
Respondent Nos.1 to 13 would oppose the appeal and support the
order passed by the first Appellate Court. He would submit that bar
under Section 85 of the Tenancy Act is not attracted for seeking a
declaration of acquisition of ownership by adverse possession. That
while deciding application under Order VII Rule 11(d) of the Code,
the Court is required to take into consideration only the averments
made in the plaint, which clearly indicate that Plaintiffs did not seek
any prayer in respect of their tenancy claims. Mr. Shinde would also
rely upon provision Order VII Rule 13 of theCode in support of his
contention that filing of fresh suit is not barred if the plaint is
rejected under Order VII Rule 11. Mr. Shinde would further submit
that the suit land is being possessed by the Plaintiffs’ ancestors for
the last several decades as the names of their ancestor-Tukaram
Dashrath Bhil was recorded by mutation entry Nos.536 and 537 in
‘other rights’ column. That though the proceedings filed by
Plaintiff’s ancestors for declaration of ownership under provisions of
Section 32G of the Tenancy Act were dismissed on 25 August 1960,
possession of Plaintiffs has not been disturbed even once after
dismissal of those proceedings on 25 August 1960. That Plaintiff’s
ancestors filed proceedings for determination of purchase price of the
suit land and it cannot be stated that Plaintiffs or their ancestors
recognised the rights of Defendant Nos. 1 to 13 at any point of time.
That on account of undisturbed possession of Plaintiffs, they have
acquired ownership in respect of the suit land by adverse possession.
Mr. Shinde would further submit that Appellants/Defendant Nos.1
to 13 have already sold the suit land in favour of Defendant Nos. 14
to 17 and that therefore the proceedings filed by them to seek

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Megha

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possession of the suit land are totally baseless. That Plaintiffs must
be permitted to prove their claim of adverse possession, unconnected
with any tenancy proceedings, by taking the Suit to trial Mr. Shinde
would pray for dismissal of the appeal.

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13.Rival contentions of the parties now fall for my
consideration.

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14.A perusal of order dated 28 July 2023 passed by the first
Appellate Court would indicate that the Trial Court has rejected the
Plaint under provisions of Order 7 Rule 11(d) of the Code on
essentially two grounds. Firstly, it held that the cause of action for
filing of Regular Civil Suit No. 66 of 2023 is passing of orders in
Tenancy Case No.2 of 2017 and that therefore, the Suit is barred by
Section 85 of the Tenancy Act. Secondly, it held that for same cause
of action Regular Civil Suit No.130 of 2018 was filed, Plaint in which
has already been rejected under Order 7 Rule 11(d) of the Code. The
Trial Court has further held that Appeal No. 93 of 2018 is already
pending before the District Court, Malegaon, challenging the order of
rejection of Plaint in Regular Civil Suit No.130 of 2018 and therefore
in the event of the appeal being allowed, the Regular Civil Suit
No.130 of 2018 would be restored. Thus, broadly on twin reasonings
of bar under Section 85 of the Tenancy Act and similarly in the relief
sought in Suit Nos.130 of 2018 and 66 of 2023, the Trial Court has
rejected the Plaint under Order VII Rule 11(d) of the Code.

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Megha

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15.The first Appellate Court has reversed the order of the
Trial Court by holding that bar of res judicata cannot be a ground for
rejection of Plaint under Order VII Rule 11(d) of the Code. The first
Appellate Court has also held that Order VII Rule 13 of the Code
permits institution of a fresh suit upon same cause of action. The first
Appellate Court has held that the Plaintiffs are the dominus litis and
therefore it is for them to decide the reliefs to be sought on the
strength of particular factual matrix based on a cause of action. The
first Appellate Court has held that Plaintiffs have not attempted to
challenge Notice issued by Tehsildar, even though issuance of notice
ispleaded as cause of action for institution of the Suit. The first
Appellate Court has further held that in absence of any challenge to
order passed by any revenue authority, bar under Section 85 of the
Tenancy Act cannot come into play. It has further held that
institution of two similar Suits cannot be a ground for invocation of
provision under Order VII Rule 11(d) of the Code. The Appellate
Court thereafter referred to provisions of Section 151 of the Code and
according to it, the Court can curb institution of two or more similar
Suits. On the above particular reasonings, the first Appellate Court
has proceeded to reverse the order of rejection of Plaint and has
restored Regular Civil Suit No.66 of 2023.

¶105

16. It is well settled principle that for deciding application for rejection of plaint under Order VII Rule 11 of the Code, averments in Plaint are required to be taken into consideration. I have gone through the Plaint filed in Regular Civil Suit No.66 of 2023. Plaintiffs have narrated the entire history of litigation that ensued between the parties relating to tenancy rights. They have pleaded that the suit Megha ___ Page No. 12 of 20____

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land bearing erstwhile Survey Nos.294 and 295 were in possession of
Tukaram Bhil (Plaintiffs’ ancestor) and therefore his name was
entered in ‘other rights’ column of revenue records as protected
tenant vide mutation entry Nos.536 and 537. That thereafter name of
Bhausing Kedu Bhil was entered in ‘other rights’ column of revenue
records vide mutation entry No.855 effected on 2 January 1957.
Plaintiffs thereafter pleaded about initiation of proceedings under
Section 32G of the Tenancy Act for determination of purchase price
by their ancestors. The said proceedings were however, rejected by
ALT vide order dated 25 August 1960. Plaintiffs pleaded that despite
rejection of Section 32G proceedings on 25 August 1960, the suit land
remained in their ancestor’s possession. Plaintiffs have thereafter
pleaded about filing of Tenancy Case No. 561 of 1963 by ancestors of
Defendant Nos.1 to 13 for recovery of possession of the suit land
under Section 32P (2) of the Tenancy Act. The said case was allowed
on 11 October 1963 directing Plaintiffs /their ancestors to handover
possession of the suit land in favour of Defendant Nos. 1 to 13 /their
ancestors. According to Plaintiffs despite order dated 11 October
1963, the suit land remained in their ancestor’s possession.

¶108

17. Plaintiffs thereafter averred in the Plaint about proceedings initiated by them under Section 32G of the Tenancy Act bearing Case No.7 of 1988 and its rejection by order dated 20 September 1993. They pleaded about rejection of appeal by the SDO on the ground of delay on 25 August 1995. Thereafter they pleaded about filing of the appeal in Maharashtra Revenue Tribunal, its partial success and remand of proceedings before the SDO for decision on merits. They thereafter pleaded about rejection of the Megha ___ Page No. 13 of 20____

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appeal by the SDO on merits on 6 March 1998. This is how the
Plaintiffs pleaded about unsuccessful attempts made by them/their
ancestors for establishment of their tenancy claim and for
determination of purchase price in respect of the suit land and
ultimate rejection of those proceedings on 6 March 1998.

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18.Plaintiffs thereafter pleaded in the Plaint about failure on
the part of Defendant Nos.1 to 13 /their ancestors to seek recovery of
possession during the period from 11 October 1963 till the year 2017
and filing of Tenancy Case No.2 of 2017 for recovery of possession.
They pleaded about order passed by the Tehsildar on 9 March 2018
allowing Tenancy Case No.2 of 2017, filing of appeal by the Plaintiffs
before the SDO, its rejection on 21 February 2019, filing of further
appeal before the Additional Collector by Plaintiffs and its rejection
on 23 July 2019. Thus, this attempt of Plaintiffs to protect their
possession also failed. This is how Plaintiffs narrated detailed
chronology of attempts made by their ancestors for fixation of
purchase price of the suit land, once during 1960 and second time
during 1988 to 1998. They also narrated chronology of orders passed
in proceedings for recovery of possession in favour of Defendant Nos.1
to 13 during the year 2017 to 2019. Plaintiffs thereafter averred in
paragraph 10 of the Plaint that despite passing of order dated 11
October 1963 for delivery of possession of suit land in favour of
ancestors of Defendant Nos. 1 to 13, they failed to recover possession
of suit land from Plaintiffs/ their ancestors and that therefore the
Plaintiffs have become owners by adverse possession. Plaintiffs
pleaded about improvements done in the suit lands by them by
incurring expenditure and how they acquired title by prescription.

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Megha ___ Page No. 14 of 20____

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Plaintiffs thereafter pleaded about issuance of Notice by Tehsildar
dated 15 October 2022 directing Plaintiffs to handover possession of
the suit land to Defendant Nos. 1 to 13 on 9 January 2023. Plaintiffs
thereafter pleaded about transactions executed by Defendant Nos. 1
to 13 in favour of Defendant Nos.14 to 17 and contended that the said
sale transaction are not binding on them. The cause of action as
pleaded in paragraph 15 of Plaint is sending of Notice by Tehsildar
for for recovery of possession.On above broad pleadings, Plaintiffs
sought prayer for declaration that they have become owners by
adverse possession. They also sought relief that sale transaction
effected in favour of Defendant Nos.14 to 17 are not binding on them.
They further sought injunction against Defendants.

¶115

19.In my view, perusal of the Pleadings in the Plaint filed in
Regular Civil Suit No.66 of 2023 would clearly indicate that though
the suit filed ostensibly for seeking a declaration of acquisition of
ownership by adverse possession, the same is aimed essentially at
defeating the Notice dated 15 December 2022 issued by Tehsildar for
recovery of possession. Paragraph 15 of the Plaint makes it explicitly
clear that issuance of the said notice by Tehsildar is the cause of
action for filing the Suit. Perusal of the detailed pleadings in the
Plaint would leave no room for doubtthat though no order of any
Tenancy /Revenue Authorities is challenged, the entire suit is aimed
at defeating various orders passed by the Revenue /Tenancy
Authorities. The suit seeking declaration of ownership by adverse
possession is cleverly filed after receipt of notice by Tehsildar issued
on 15 December 2022 for the purpose of implementation of orders
dated 11 October 1963 and 9 March 2018 in Tenancy Case No. 2 of

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Megha ___ Page No. 15 of 20____

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2017. Plaintiffs have failed in their attempts to challenge the orders
passed in Tenancy case No. 2 of 2017 and now they desire to defeat
implementation of orders passed in those proceedings by raising a
plea of acquisition of ownership by adverse possession.

¶119

20. The claim of acquisition of ownership by adverse
possession is again referrable to the orders passed in tenancy
proceedings as the period of 12 years is computed by Plaintiffs by
referring to order dated 11 October 1963. Thus, the claim for adverse
possession is clearly linked to the order passed by the ALT on 11
October 1963.

¶120

21. Section 85 of the Tenancy Act provides thus:-

¶121

85. Bar of jurisdiction.

¶122

(1) No Civil Court shall have jurisdiction to settle, decide or deal
with any question (including a question, whether a person is or was
at any time in the past a tenant and whether any such tenant is or
should be deemed to have purchased from his landlord the land held
by him) which is by or under this Act required to be settled, decided
or dealt with by the Mamlatdar or Tribunal, a Manager, the
Collector or the Maharashtra Revenue Tribunal in appeal or
revision or the State Government in exercise of their powers of
control.

¶123

(2) No order of the Mamlatdar, the Tribunal, the Collector or the
Maharashtra Revenue Tribunal or the State Government made
under this Act shall be questioned in any Civil or Criminal Court.

¶124

Explanation.–– For the purposes of this section a Civil Court shall
include a Mamalatdars Court constituted under the Mamlatdars
Courts Act, 1906.

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Megha

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22. Thus there is absolute bar of jurisdiction of Civil Court to
settle. decide or deal with any question, which is required to be
settled, decided or dealt with by the ALT. Though Plaintiffs did not
seek any declaration with regard to their alleged tenancy rights in the
Suit, what they actually seek to do is to defeat the notice issued for
implementation of order passed under the Tenancy Act. Tenancy
Tribunal has held that Plaintiffs are not entitled to become owners
nor can possess the suit land. The suit is filed to protect possession by
raising a claim of acquisition of ownership by adverse possession.
Plaintiffs thus seek dealing with something which is already dealt
with by Tenancy Tribunal. Plaintiffs’ suit can clearly be held to be
the one directly linked with the issue decided by the Tenancy
Tribunal under the provisions of Tenancy Act. Once ALT directed
delivery of possession of the suit land in favour of Defendant Nos.1 to
13/ their ancestors under provision of Section 32P (2) of the Tenancy
Act, no suit can be filed in Civil Court to protect possession contrary
to the said order passed by the ALT.

¶129

23.The declaration of acquisition of ownership by adverse
possession is cleverly sought in the present case with a view to defeat
implementation of order dated 11 October 1963 passed by the ALT
under provisions of Section 32P(2) of the Tenancy Act. Under
Section 85 of the Tenancy Act no suit can be filed with a view to
defeat any order passed under the provisions of the Tenancy Act.
What Plaintiffs are doing in the present case is that they are
deliberately omitting to challenge the order dated 11 October 1963 or
order dated 9 March 2018 passed in Tenancy Case No.2 of 2017. Both
orders dated 11 October 1963 as well as 9 March 2018 directed them

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Megha ___ Page No. 17 of 20____

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to handover possession of the suit land to Defendant Nos.1 to 13.
Plaintiffs have already unsuccessfully challenged the order dated 9
March 2018 by filing two hierarchical appeals before the SDO and
Additional Collector. Now the suit is aimed at defeating the order
dated 9 March 2018. In my view, therefore Regular Civil Suit No.66
of 2023 filed by the Plaintiffs clearly barred under the provisions of
Section 85 of the Tenancy Act.

¶133

24.Since Regular Civil Suit No.66 of 2023 is held to be
barred under Section 85 of the Tenancy Act, it is not necessary to
decide the second aspect of rejection of Plaint on the ground of
permissibility to file multiple proceedings seeking the same relief.
Suffice it to observe that in Regular Civil Suit No.130 of 2018 also the
Plaintiffs had sought declaration of acquisition of ownership by
adverse possession. The said suit was filed on the cause of action of
passing of order dated 9 March 2018 in Tenancy Case No.2 of 2017.
The only difference between causes of actions in the two suits is that
while Regular Civil Suit No.130 of 2018 was filed on the cause of
action of passing of order dated 9 March 2018, Regular Civil Suit
No.66 of 2023 is filed on the cause of action issuance of Notice by
Tehsildar for implementation of order dated 9 March 2018. True it is
that there is difference in some of the reliefs sought in the two suits as
well as in the Defendants impleaded in the two suits. However, the
purpose of filing both the suits is common. In the light of findings
recorded by me that Regular Civil Suit No.66 of 2023 is barred by
provision of Section 85 of the Tenancy Act, I do not wish to delve
deeper into the objection of res judicata being considered for rejection
of plaint under Order VII Rule 11 of the Code.

¶134

Megha

¶135

___ Page No. 18 of 20____

¶136

sa_223_2024 withia 6972_2024fc.docx

¶137

25.Though in my view, the first Appellate Court has erred in
relying on Order VII Rule 13 of the Code, it is not necessary to go
into that aspect in view of the findings recorded about bar under
Section 85 of the Code.

¶138

26.The substantial questions of law framed in the present
Second Appeal are accordingly answered by holding that the suit
filed by the Plaintiffs (Regular Civil Suit No.66 of 2023) is barred by
provisions of Section 85 of the Tenancy Act. The Plaintiffs are not
entitled to file a fresh suit on the same cause of action under Order
VII Rule 13 of the Code. The first Appellate Court was not justified
in reversing the order passed by the Trial Court rejecting the Plaint
in Regular Civil Suit No.66 of 2023 under Order VII Rule 11 of the
Code.

¶139

27.The order passed by the first Appellate Court is thus
indefensible. The appeal accordingly succeeds and I proceed to pass
the following order:

¶140

(i) Judgment and Decree dated 16 January 2024 passed by the District Judge-3, Malegaon, DistrictNashik in Regular Civil Appeal No.73 of 2023 is set aside.

¶141

(ii) Order dated 28 July 2023 passed by the Joint Civil Judge, Senior Division, Malegaon, District-Nashik in Regular Civil Suit No.66 of 2023 is confirmed.

¶142

Megha

¶143

___ Page No. 19 of 20

¶144

sa_223_2024 withia 6972_2024fc.docx

¶145

(iii) Consequently, Plaint in Regular Civil Suit No.66 of 2023 is rejected under the provisions of Order

¶146

VII Rule 11 of the Code.

¶147

28.With the above observations the Second Appeal is
allowed with costs.

¶148

29.The interim application stands disposed of.

¶149

SANDEEP V. MARNE, J.

¶150

Megha

¶151

___ Page No. 20 of 20____

Gangadhar Sonu Sonawane,Deceased and Ors. v. Namdeo Bhausingh Sonawane and Ors.

Case brief

What is this about?

What did the court decide?

Gangadhar Sonu Sonawane,Deceased and Ors. v. Namdeo Bhausingh Sonawane and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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