w w w . L a w y e r S e r v i c e s . i n

Deorao & Others v/s Dr. Punjabrao Krishi Vidyapeeth, Through its Principal Registrar, Maharajbagh, Nagpur, District Nagpur

    Second Appeal Nos. 95, 97 of 2005
    Decided On, 10 November 2022
    At, In the High Court of Bombay at Nagpur
    For the Appellants: S.P. Kshirsagar, Advocate. For the Respondent: A. Sambre, Advocate.

Judgment Text
1. Heard Shri S.P. Kshirsagar, learned Advocate for the Appellants and Shri A. Sambre, learned Advocate for the Respondent.

2. The present Appeals are filed challenging the judgment and decree dated 19/01/2005 passed by the 6th Ad-hoc Additional District Judge, Nagpur in Regular Civil Appeal Nos. 224/2000 & 106/2000 whereby the judgment and decree of the Trial Court was confirmed. Since the Second Appeal No. 95/2005 is treated as the lead Appeal, the facts and contentions in the said Appeal are set out for adjudication of the issues involved in both the Appeals.

3. It is the contention of the Appellants that without there being any evidence and proof of title, the decree dated 19/01/2005 came to be passed and was confirmed by the Appellate Court. It appears that this Court vide order dated 06/03/2007 dismissed the Second Appeal as there was no substantial question of law involved in the Appeal. The said order came to be challenged before the Hon’ble Apex Court vide Civil Appeal No. 8466/2009. The Hon’ble Apex Court considered the observation of this Court. The High Court confirmed the order passed by both the Lower Courts basically on the ground that the Appellants have not claimed tenancy and on this position, held that since the Appellants had not pleaded that they were the Tenants in the Suit Property, there was no question of referring the matter for decision to the Tenancy Court and the Civil Court had jurisdiction to decide the question of ownership of the Respondent – Krishi Vidyapeeth over the Suit Property. The Hon’ble Apex Court held that this Court erred in basing its judgment on the observation that the Appellants had not pleaded the tenancy. The Hon’ble Apex Court further observed that at several places in the Plaint, the Plaintiff claimed that the predecessor of the Plaintiff was tenant of the Government though it is not pleaded that they were the tenants of the Respondent – Krishi Vidyapeeth but that is not determinative of any issue in this case. The fact remains that they have clearly pleaded that they were the Tenants of the State in the Suit and they had even pleaded that the Respondent – Krishi Vidyapeeth had no right or title in the said land. It is further observed that “assuming that the Appellants did not have any right or title in respect of the aforesaid land, it was necessary for the High Court to determine if the Respondent – Krishi Vidyapeeth had any right or title in the said land.” In such circumstances, the judgment passed by this Court in Second Appeal Nos. 95/2005 & 97/2005 was set aside and the matter was remanded to the High Court for decision afresh on all the points including certain substantial questions of law which may be framed at the instance of either of the party. It appears that vide order dated 09/12/2020, this Court, upon agreement of both the Counsel, framed the following substantial question of law, which reads as under:-

“(i) Whether Respondent – Dr. Punjabrao Krishi Vidyapeeth is the owner of the land and, therefore, it can file a suit for possession.”

4. It appears that thereafter time was granted for filing private paperbook and it was extended from time to time. Thereafter, the Application under Order XLI Rule 27 of the Civil Procedure Code bearing No. 899/2022 is filed by the Counsel for the Respondent. The matter was closed for judgment on 29/08/2022 & also for orders on Civil Application (S) No. 899/2022. The Application under Order XLI Rule 27 of the Civil Procedure Code filed by the Respondent was opposed by the Appellants. By the said Application, the Respondent seeks permission to place on record the original Notifications dated 20/05/1968 and 13/10/1969. By the Notification dated 20/05/1968, Section 7 of the Punjabrao Agricultural University (Krishi Vidyapeeth) Act, 1968 (hereinafter referred to as “the said Act”) came into force w.e.f. 01/06/1968. In the said Application, the Respondent states that Suit land was unequivocally transferred to the Respondent on 01/06/1968 in view of Section 7 of the said Act. It is submitted that as per the Notifications dated 20/05/1968 and 13/10/1969, there is no doubt that the Respondent is the owner of the Suit land.

5. The Appellants opposed the said Application by filing reply. It is contended that though Notifications were within the knowledge of the Respondent, it failed to place on record for such a long period.

6. Learned Counsel for the Appellants, in support of his contentions, relied on the following judgments:-

(a) Judgment in the case of S.Rajagopal vs. C.M. Armugam & others in Civil Appeal No. 1553/1967 reported in AIR 1969 SC 101; and

(b) Judgment in the case of Union of India vs. Ibrahim Uddin & another reported in (2012) 8 SCC 148;

7. Learned Counsel for Appellants, while opposing the Application for adducing the additional evidence, relied on S. Rajgopal (supra), wherein the Hon’ble Apex Court held that in Appeal before the Supreme Court, request for direction to produce certain register of Baptismal maintained by the church was made. It is held that even if register is produced, oral evidence to prove that register and to meet inferences following from that register is necessary. In view thereof, a request for summoning of that register was rejected. Fact involved in present matter are distinguishable. In the present matter, the Government Notification is placed on record. It needs no evidence which is published in the Official Gazette. Moreover, there is no such claim made by the Appellants that they want to lead evidence on these two documents. Thus, fact involved in the matter of Rajgopal (supra) is distinguishable and cannot be applied in the present set of facts.

8. Learned Counsel for the Appellants also relied on Union of India Vs. Ibrahim Uddin (supra). However, in view of the said judgment, the Appellate Court may permit additional evidence only and only if the conditions laid down in this Order XLI Rule 27 of the Civil Procedure Code are found to exist. In the present matter, the copies of the Notifications were before the Lower Court. In view of the order passed by Hon’ble Apex Court, this Court finds it necessary that the original Notification ought to be placed on record. As such, for proper adjudication of the issue, the Application needs to be allowed.

9. Learned Counsel for the Respondent, in support of his contentions, relied on the following judgments:-

(a) Judgment in the case of Manohar Ramchandra Deshpande (Dead) Through his Legal Heirs & others vs. Pralhadrao S/o Ramchandra Deshpande (Dead) through Legal Heirs & others in Writ Petition No. 3962/2017 reported in 2019(5) ALL MR 337; and

(b) Judgment in the case of Sanjay Kumar Singh vs. State of Jharkhand reported in AIR 2022 SC 1372.

10. Learned Counsel for the Respondent – Vidyapeeth relied on judgment of this Court in Writ Petition No. 3962/2017 i.e. Manohar Ramchandra Deshpande (dead) (supra), wherein this court held that:

“19. A perusal of the impugned order, therefore, shows that the District Court has failed to enter into the enquiry as required under Order 41 Rule 27(1)(b) of the CPC to examine as to whether the documents sought to be brought on record by the petitioners are required for pronouncing judgment. Since the entire appeal and evidence was and is before the District Court for consideration, such an enquiry and a finding thereon is necessary before deciding as to whether the petitioners could be granted permission to place the said additional documents on record. The petitioners have claimed that the said additional documents go to the very root of the matter and that they are absolutely necessary for pronouncing judgment. Therefore, it was all the more necessary for the District Court to have conducted the said enquiry and pronounced upon the same, while disposing of the application preferred by the petitioners under Order 41 Rule 27 of the CPC. But, it has failed to do so.”

Similar view is taken in Sanjay Kumar Singh (supra).

11. Before I proceed to decide the main Appeal, it would be appropriate to decide Civil Application (S) No. 899/2022 by which the Applicant prayed for producing additional evidence under Order XLI Rule 27(1)(b) of the Civil Procedure Code. It is a matter of record that the Hon’ble Apex Court was pleased to remand the matters by it’s common judgment dated 25/10/2018 for holding fresh decision to determine whether the Respondent – Krishi Vidyapeeth/Agriculture University has any rights or title about the Suit land. At the time of hearing, the Xerox copies of the Gazette Notifications dated 28/05/1968 and 13/10/1969 were referred by the Counsel for the Respondent – Krishi Vidyapeeth copies of which were on record of Lower Court. Therefore, the Respondent was asked to place the original copies of the same Gazette Notifications along with Application under Order XLI Rule 27 of the Civil Procedure Code. It is contended by the Respondent that the Appellants themselves, in their examination–in–chief, exhibited 7/12 Extract at Exhibit Nos. 73 and 74 which are in respect of Survey No. 180/1, wherein there is reference in ownership column as ‘J.E. Punjabrao Krishi Vidyapeeth, Akola’ and in the remark column, it is categorically mentioned that as per the Maharashtra Government Agriculture and Co-operative Department Notifications dated 28/05/1968 and 13/10/1969, the land belonging to agriculture department of Government is directed to be transferred to Punjabrao Krishi Vidyapeeth, Akola. It is further submitted that as per Section 157 of the Maharashtra Land Revenue Code, there is presumption of correctness of entries in the record of rights, there is no challenge to this entry by the Appellants before any Authority. As per Section 7 of the Punjabrao Agricultural University Krishi Vidyapeeth Act, 1968 (hereinafter referred to as “the said Act”), all the properties of the State Government in relation to the institutions of the department of agriculture of the State Government shall stand transferred & vest in the Respondent from the date as specified in the Notification in the Official Gazette in this behalf. The Notification dated 28/05/1968 came into force with effect from 01/06/1968. The Notifications dated 28/05/1968 and 13/10/1969 shows that the Suit land was transferred to the present Respondent – Krishi Vidyapeeth on 01/06/1968, in view of Section 7 of the said Act. Thus, these two Notifications are material and which will assist this Court to resolve the controversies and to pronounce the judgment. Thus, though the Respondent opposed the Application, I am inclined to allow the Application. It is the contention of the Respondent that it is not the title document. In fact on the basis of these two documents. The revenue entries were modified and name of the Respondent – University is entered into Revenue Records long back. These documents are material to decide the issue in questions. Section 7 of the said Act, which reads as under:-

“7. (1) Notwithstanding anything contained in the Maharashtra Agricultural University (Krishi Vidyapeeth) Act 1967, The colleges of agricultare at Parbhani, at Nagpur and Akola and the Veterinary College at Nagpur shall cease to be constituent colleges of the Maharashtra Krishi Vidyapeeth, and shall pass to and be maintained by the University as its constituent colleges, from such date as the State Government may by notification in the Official Gazette specify:

Provided that, the Maharashtra Krishi Vidyapeeth shall be competent to declare the results and to award degrees, diplomas, certificates or other academic distinctions to the students of the said colleges or to any post-graduate or other students, who may have appeared at any examination held by or on behalf of that University before such specified date.

(2) The control and management of the colleges specified in sub-section (1) as from the said date shall stand transferred to the University, and all properties and assets and liabilities of the Maharashtra Krishi Vidyapeeth in relation thereto shall stand transferred to, and vest in, the University.

(3) Where before the date notified under sub-section (1), the Maharashtra Krishi Vidyapeeth has made any contract in relation to any of the said colleges, that contract shall be deemed to have been made by the University, and any reference therein to the Maharashtra Krishi Vidyapeeth shall be construed as a reference to the University.

12. In view of this Section if read along with Notifications, the properties of State Government in relation to Institutions of the Department of Agriculture stands transferred and vested in the Respondent from the date as specified in the Notifications in Official Gazette in this behalf. In view of the Hon’ble Apex Court’s order, the said Notifications are very much material and important to decide the question in controversy. As such, those are taken on record by allowing the Application as discussed above. These documents clearly goes to show that the Government Land has vested in the Respondent – Agricultural University including the Suit land.

13. The case of the Appellants is that the Appellants herein who are the original Defendants in R.C.S. No. 196/1997 had discharged their burden to prove that they were in the legal possession of the Suit land on the date of presentation of the Suit as their claim was based on the possession. They have filed khasra vide Exhibit No. 83. The extract at Exhibit No. 83 is in respect of the years 1974-75 to 1977-79 and the extract at Exhibit No. 84 is the extract of 7/12 in respect of the years 1980-81 upto 1994-95. Exhibit No. 83 which is khasra entry do not show the possession of the Defendants or their any ancestors. On the contary, it is mentioned below heading “Kabjedar” Government Owner, Government Experiment Farm. So far as Exhibit No. 84 is concerned, it is 7/12 Extract wherein owner shown as Government J.E. Punjabrao Krishi Vidyapeeth, Akola (Krishi Mahavidyalaya, Nagpur). It is in respect of 180/1. This extract pertains to years 1980 to 1995 wherein it is specifically mentioned that Goma is not in possession. However, in 1988-89, remark is there that it is learnt that some portion of the road side is in possession of Santosh Bhongade. There was also 7/12 Extract at Exhibit No. 73 of the year 1988-89 which only shows the name of the Plaintiff in Column No. 2. Column No. 2 shows that Punjabrao Krishi Vidyapeeth Agricultural University/Plaintiff was cultivating the field in 1989-90. The 7/12 Extract at Exhibit No. 74 shows that the agricultural department is the owner and cultivator of the field. The learned Trial Court, after considering these entries in detail, concluded that the Defendants/Appellants failed to prove that they were in possession of the Suit land at the time of institution of the Suit. Though it is claimed by the Appellants that their forefathers were brought from U.P. by British Government, however, there are no supporting documents placed on record. The Appellants placed on record the document of the year 1914- 15 at Exhibit No. 71. However, it is in respect of Goma Narayan. However, land shown belongs to Government Experiment Farm. They also relied on the notice (Exhibit No. 77) issued by the Nagpur Improvement Trust dated 24/09/1957 which shows that deceased Santoshrao – father of the Appellants encroached on the road, however, the said notice is in respect of encroachment of road of NIT i.e. the road in Khasra No. 180 and not in respect of the Khasra No. 180/1.

14. It is the case of the Plaintiff that the Plaintiff is a statutory Agricultural University duly constituted under the provisions of the Maharashtra Agricultural Universities (Krishi Vidyapeeths) Act. For the purpose of research and experiments and agricultural development, the State Government allotted the agricultural land to the College of Agriculture at Nagpur. All such lands came to be vested to the Punjanbrao Deshmukh Krishi Vidyapeeth constituted under the Punjabrao Agricultural University Act. On consolidation of four different Krishi Vidyapeeths Acts, the land and property i.e. property and Vidyapeeth came to be vested and all properties movable, immovable and all rights, interest, title or whatever kind of powers and privileges of existing University came to be transferred to the Punjabrao Krishi Vidyapeeth. It is contention of the Plaintiff that with the malafide intention, and thereby to grab the property bearing Khasra No. 180/1, ad-measuring 0.30 R the Defendants encroached the land at Mouza Lendra. The Defendants in the name of their father filed Regular Civil Suit No. 478/1989 for declaration and permanent injunction and on the basis of order of ex-parte temporary injunction, secured possession of the disputed property. The same property is at the Eastern side of Bajaj Nagar Square, opposite to P.K.V. Guest House, Nagpur. As per the Plaintiff/Krishi Vidyapeeth, prior to 1957-1958, late Goma Narayan was cultivating the suit land as a Tenant and in the year 1958-1959, the Suit land was taken back from the said Tenant with consent for Congress Session and thereafter, the possession was continuously with the Plaintiff till the ex-parte order of injunction was passed in the Civil Suit filed by Santosh Bhongade.

15. According to the Defendants/Appellants, the ancestors of the Defendants are from Uttar Pradesh and they were brought to Nagpur by British Government for the purpose of farming and they were granted lease of the land of Gat Nos. 103/150/151/101. The Defendants denied statutory status, ownership and possession of the Plaintiff. The Defendants/Appellants contention is that, the Suit is not maintainable in view of Regular Civil Suit No. 478/1989 was pending. It is also the contention that the Defendants are the protected Tenants and are governed by the Bombay Tenancy and Agricultural Lands Act, 1975. The learned Trial Court as well as the Appellate Court held that the Plaintiff/Krishi Vidyapeeth is entitled for permanent injunction and also entitled for possession of Suit Property. The Plaintiff proved his ownership over the Suit Property. There is concurrent finding recorded by both the Courts below. The only substantial question of law framed by consent of the parties was whether the Respondent – Dr. Punjabrao Krishi Vidyapeeth is the owner of the land and, therefore, it can file the Suit for possession.

16. As discussed earlier, in view of the Notifications, the Government land was transferred to the Plaintiff – Dr. Punjabrao Krishi Vidyapeeth. Though it is vehemently argued by the Defendants that they were the Tenants, on perusal of Exhibit No. 83, which is the extract of the land record i.e. Khasra in respect of 1973 to 1979, the Government is shown as the owner and the land is shown as experiment farm in the Suit land. Exhibit No. 84 shows owner as Government J.E Punjabrao Agricultural University, Akola (Krishi Mahavidyalaya, Nagpur). There is a reference of Notifications by the State of Maharashtra, Agricultural Land Cooperative Department Notifications dated 20/05/1968 and 13/10/1969. The land of Agricultural Department was transferred to Dr. Panjabrao Krishi Vidyapeeth, Akola as per direction. In the column of remark, it is mentioned that “Goma is not in possession”. There is an Office of Agricultural Department. This entry is of 1980. In entry of 1988-1989, there is remark that “it is learnt that on the road side, there is possession of Santosh Bhongade”. However, it is not recorded that Santosh Bhongade is in possession.

17. In both these Exhibit Nos. 100 and 101, the Punjabrao Krishi Vidyapeeth - Plaintiff is shown as the owner & name of the farm is Kanhaiya Dungi. It is cultivation sheet showing land in the years 1982- 83 & 83-84 under cultivation of Krishi Vidyapeeth. From perusal of entry of Exhibit No. 84 in remark column of year 1988-89, it is mentioned that “it is learnt that on the roadside, on some portion, possession of Santosh Bhongade is there”. Entry of the years 1980-81 to 1987-88 in remark column, it is specifically noted that Goma is not in possession and there is office of Agriculture Department. It is not specifically mentioned that Santosh Bhongade is in possession, but the concerned Authority learnt that on the roadside, there is a possession of one Santosh Bhongade, nor specific area is mentioned. Though it is claimed by the Defendants/Appellants that they were Tenants, it is admitted by the Defendants that no document is produced in the evidence by the Defendants nor any rent receipt. No any rent receipts in respect of either by Deorao or Piraji is placed on record. Moreover, in the Suit filed by the Defendants, they have not joined the Government as a party. If at all they are claiming tenants of Government, it is necessary to join Government as party.

18. It appears that one legal notice was sent by the father of Defendants Santosh along with Goma. However, Goma was not alive on the date of issuance of notice. There is no pleading how Goma is in relation with the Defendants. It is admitted by the Defendants in cross, that the Defendants, for the first time in evidence, deposed that Goma is the brother of Piraji without there being any pleading. The facts are duly considered by the learned Trial Court that Defendants are not aware when Goma died, how many children he had and also not aware whether Piraji was son of Narayan (father of Goma). The Defendants are not aware how many sons were there to Narayan other than Goma. As such, there is nothing on record to establish the Defendants’ relation with Goma – son of Narayan. The name of Santosh’s father is Piraji Bhongade whereas name of father of Goma is Narayan. There is no pleading that Goma Narayan was in relation with the Defendants whereas in the evidence, for the first time, he deposed that Goma Narayan is the brother of his grandfather. He admitted that there is no evidence to show relations of Goma Narayan and his grandfather Piraji except his oral words. There is no Tenancy Agreement or docum

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ent in respect of Sontosh Piraji Bhongade since 1957, till filing of the Suit. He has not paid any lease amount to the Government or to the Punjabrao Krishi Vidyapeeth. He further admitted that Exhibit No. 78 is a false notice issued in the name of Deceased Goma. The notice issued by the Defendants did not mention surname of Goma Narayan nor there is mention of any relation of Santosh Bhongade with Goma Narayan. As such, it appears that the Defendants with a malafide intention want to take disadvantage of entry of one Goma Narayan (whose surname is not mentioned) whose possession over land was taken back by the Government long back for Congress Session. The said Goma Narayan never claimed his possession during his lifetime. Taking advantage of fact that surname of Goma Narayan not mentioned in record issued false notice in the name of Goma though he was not alive. This Court, while deciding Review Nos. 375 and 376 of 2007, has observed that last line in Paragraph 3 of the Plaint is added after dismissal of the Second Appeal that is about “after death of Goma, tenancy is heritable”. 19. As such, I conclude that the Plaintiff had duly established that it is the owner of Suit land and the land is transferred by the Government by statute. The original Notifications are taken on record. The Defendants miserably failed to establish either their tenancy and possession over the suit land, till they obtain possession by misrepresenting the Court. In pursuance to ex-parte injunction passed in Regular Civil Suit No. 478/1989, they obtained possession. They also failed to establish that they are having any relation with Goma Narayan. As such, I do not see any illegality in the judgments and orders passed by learned Trial Court as well as the Appellate Court. In view of additional evidence placed on record, this Court has already come to the conclusion that Dr. Panjabrao Krishi Vidyapeeth is the owner of the land and therefore, it can file Suit for possession. As such, the substantial question of law is answered in the affirmative. For the aforesaid discussion and finding recorded, the Second Appeal No. 97/2005 is also liable to be dismissed. Hence, I proceed to pass the following order:- ORDER (a) Second Appeal Nos. 95/2005 and 97/2005 are dismissed. (b) Civil Application No. 899/2022 is hereby allowed. (c) Decree be drawn up accordingly. (d) R. & P. be sent back to the Trial Court.