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Bombay High Court
Shri. Krishnanand Narayan Londhe vs Shankar Narayan Londhe on 1 July, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:29049 905 SA 344.22 WITH IA 2496.22.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.344 OF 2022
WITH
INTERIM APPLICATION NO.2496 OF 2022
Shri. Krishnanand Narayan Londhe ...Appellant
Versus
Shri. Shankar Narayan Londhe ...Respondent
Mr. Sudhir Prabhu, Advocate for Appellant/Applicant.
CORAM: MADHAV J. JAMDAR, J.
DATED : 1st July 2025
JUDGMENT:
1. Heard Mr. Sudhir Prabhu, learned Counsel appearing for the
Appellant.
2. In this Second Appeal, the challenge is to the legality and
validity of the Judgment and Decree dated 29 th December 2014
passed by the learned Joint C.J.J.D., Malvan in Regular Civil Suit
No.9 of 2008 as well as to the Judgment and Decree dated 13 th
December 2021 passed by the learned District Judge-2,
Sindhudurg. The said suit has been filed by the Respondent-
Plaintiff seeking permanent injunction with respect to Survey
No.30 (738), Pot Hissa No.2/5 admeasuring 0.182 R. Potkharaba
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situated at Devbaug, Tal. Malvan. The learned Trial Court decreed
the suit and the learned First Appellate Court confirmed the said
decree.
3. Mr. Prabhu, learned Counsel submits that the following
substantial questions of law arise in this Second Appeal.
i. Whether both the Courts below were right in deciding
the issue which was required to be dealt with and to
be decided by the authority under the provisions of
the Maharashtra Tenancy and Agricultural Lands Act,
1948 when jurisdiction of Civil Court is barred by
Sections 85 and 85A of the said Act?
ii. Whether both the learned Courts below were right in
not considering the fact that Civil Court has inherent
lack of jurisdiction and even in case of non-raising of
that point it does not get jurisdiction to decide
tenancy issue?
iii. Whether the concurrent findings recorded by the
learned lower Courts are without considering
provisions of the Maharashtra Tenancy and
Agricultural Lands Act and therefore without
jurisdiction and bad in law?
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4. It is the submission of Mr. Prabhu, learned Counsel for the
Appellant that the suit property is tenanted property of the family
of the Appellant (Defendant) and the Respondent (Plaintiff) and
therefore, in view of Section 85 read with Section 70(b) of the
Maharashtra Tenancy and Agricultural Lands Act, 1948 (“Tenancy
Act“) the issue whether the family of the Appellant and the
Respondent is tenant of the suit premises should have been
referred to the Mamlatdar. He submitted that both the Courts have
not taken into consideration provisions of the Tenancy Act and
therefore both the impugned Judgments and Decrees are illegal.
5. Before considering the substantial questions of law raised by
the Appellant, it is necessary to set out certain factual aspects:
i. The suit property is Survey No.30 (738), Pot Hissa No.2/5
admeasuring 0.18.2 R. Pot kharaba 0.02.6 R situated at Devbaug,
Tal. Malvan (“suit land”).
ii. Admittedly, the adjoining land to the suit land bearing
survey No.24 (736), Hissa No.19-B + 20-B is the ancestral tenancy
property of the family of the Plaintiff and the Defendant.
iii. By registered Sale-Deed dated 7th January 1998, the
Respondent-Plaintiff purchased the suit property as also tenancy
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905 SA 344.22 WITH IA 2496.22.DOCrights of vendors i.e. Bhaskar Tukaram Chindarkar, Smt. Mangala
Madhusudan Sartandel, Smt. Vaishali Jaysing Methar and Mr.
Suresh Tukaram Chindarkar for consideration of Rs.80,000/-.
iv. The Appellant-Defendant filed Regular Civil Suit No.97 of
2007 for declaration that the suit property is joint property of
family of Plaintiff, Defendant and other brothers and also claimed
injunction. After the temporary injunction application has been
rejected the Respondent-Plaintiff withdrew the said suit.
v. The Plaintiff filed Suit bearing Regular Civil Suit No.9 of
2008 in the Court of Civil Judge, Junior Division, Malvan seeking
permanent injunction against the Defendant. It is the contention of
the Plaintiff in the Plaint that between the suit property and the
adjoining ancestral tenanted property, boundary wall was existing,
however, the Plaintiff destroyed the boundary wall and therefore
the Suit has been filed seeking injunction.
vi. In the written statement, it is contended that the Suit land
has been purchased by the Plaintiff for the joint family.
vii. The learned Trial Court has recorded finding that the
Defendant has failed to prove that the Suit property has been
purchased from joint family funds and that the Plaintiff has proved
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that the suit land has been purchased by the Plaintiff
independently. The Trial Court has also recorded finding that the
Defendant has obstructed peaceful possession of the Plaintiff and
therefore, granted relief of injunction.
viii. The learned Appellate Court has after analyzing the
evidence on record held that the Plaintiff has purchased the
permanent tenancy rights of the suit property from his own
earning from the erstwhile tenants and it is the self-acquired
property of the Plaintiff. The learned Appellate Court further held
that the Defendant has failed to prove that the suit property has
been purchased for the joint family and the Defendant has
contributed Rs.25,000/- for purchase of the suit property.
6. The substantial questions of law raised by the Appellant-
Defendant are required to be considered in view of above factual
position.
7. As noted herein above, both the Courts by appreciating the
evidence on record has recorded concurrent findings that the suit
property is self acquired property of the Plaintiff and further that
the Defendant has failed to prove that the suit land has been
purchased from the funds of the joint family or other brothers have
contributed for acquiring the said land. In fact, it is required to be
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noted that the Regular Civil Suit No.97 of 2007 filed by the
Appellant seeking said relief has been withdrawn by the Appellant.
Thus, in effect the suit raising said claim has been dismissed as
withdrawn.
8. In the light of above position, it is required to consider
substantial question of law raised by the learned Counsel
appearing for the Appellant.
9. It is the contention of Mr. Prabhu, learned Counsel for the
Appellant that as the Defendant has raised the contention that the
property is purchased in the name of the Plaintiff for the joint
family and therefore the joint family inter alia consisting of the
Plaintiff and the Defendant is the tenant of the suit property. It is
his submission that the said question has to be referred by the Civil
Court to the Mamlatdar for deciding the same, in view of Section
85 read with Section 70-B of the Tenancy Act. To substantiate said
contention, Mr. Prabhu, learned Counsel relied on the full Bench
Judgment of this Court in the case of Rajaram Totaram Patel Vs.
Mahipat Mahadu Patel1 as also the Judgment of the Supreme Court
in the case of Mudakappa Vs. Rudrappa2.
1 1967 69 Bom LR 282 / AIR 1967 Bom 408
2 (1994) 2 SCC 57
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10. In the Full Bench Judgment of this Court in the case of
Rajaram (supra), it has been held that if the issue involves the
decision of a question concerning whether the party to the suit is
tenant, it has to be referred to the tenancy Court. In the case of
Mudakappa, it has been held that the question whether the
Appellant or joint family is the tenant, that question has to be
decided by the learned Tribunal under Section 48-A read with 133
of the Karnataka Land Reforms Act, 1961 and the Civil Court has
no power to decide the said issue.
11. However, the factual position as set out hereinabove clearly
show that the suit property is acquired exclusively by the plaintiff
by the registered Sale-Deed dated 7th January 1998. It is the only
contention of the Defendant that the suit property has been
acquired by the Plaintiff not exclusively but for the joint family
inter alia consisting of the Plaintiff and the Defendant. Thus the
question raised is not regarding the tenancy rights but whether the
suit land has been acquired by the Plaintiff exclusively or for joint
family. Both the Courts have concurrently recorded the finding that
the Plaintiff has purchased the suit property through his own funds
and exclusively and the property has not been acquired for joint
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family or by the joint family. Thus, this is the case where the issues
raised are not covered by the Tenancy Act.
12. Section 70-b of Tenancy Act on which Mr. Prabhu, learned
Counsel for the Appellant relied on provides that for the purpose
said Act i.e. the Tenancy Act, the Mamlatdar has jurisdiction to
decide whether a person is or was at any time in the past, a tenant
or protected tenant or a permanent tenant. Section 85 concerning
bar of jurisdiction provides that 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. Thus, Section
70-B read with Section 85 of the Act provides that no Civil Court
shall have jurisdiction to decide the issues for the purpose of the
said Act i.e. Tenancy Act. In this particular case, the issue raised is
whether the suit land has been purchased by the Plaintiff
exclusively or the same has been acquired for the benefit entire
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joint family or acquisition is by entire joint family in the name of
the Plaintiff. Thus, it is clear that the issues raised are not under
the Tenancy Act.
13. It is also required to be noted that the Appellant has filed
Regular Civil Suit No.97 of 2007 for declaration that the suit
property is common property of joint family of Plaintiff, Defendant
and other brothers and also claimed injunction. After the
temporary injunction application has been rejected the
Respondent-Plaintiff withdrew the said suit. Thus, the said claim is
deemed to have been rejected.
14. Accordingly, there is no substance in any of the substantial
questions of law raised on behalf of the Appellant. Resultantly, the
Second Appeal is dismissed, however, with no order as to costs.
15. In view of dismissal of the Second Appeal, nothing survives
in the Interim Application, and the same is also disposed of.
(MADHAV J. JAMDAR, J.)
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