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Digamber & Anr. Vs. Kachru (D) throgh LRS. & Ors.

[Civil Appeal No. 4382]

R. Banumathi, J.

1. This appeal arises out of the judgment dated 13.01.2005 passedby the High Court of Bombay at Aurangabad Bench in Writ PetitionNo.1389 of 1989 whereby the High Court held that the predecessors intitle of the appellants namely Vasudeo and Chandu cannot takeadvantage of Section 5 of the Hyderabad Tenancy and Agricultural LandsAct, 1950.

2. Kisan Punde, predecessor in title of the respondents namely Vithal,Tukaram, Kachru and Madan (erstwhile respondents No.1 to 4) was theowner of the agricultural land. The suit land was owned by KisanPunde/father of respondents No.1 to 4 herein and the land wasmortgaged to one Vasudeorao for Rs.200/- in 1941 and which wasfurther mortgaged to Chandu Narsingh Pardeshi/father of appellants in REPORTABLE the year 1942. Possession of the suit land was given to Vasudeorao whogave possession to the father of the appellants. Appellants are thus themortgagees of the suit land admeasuring 29 acres and 4 gunthassituated at Dhondalgaon, Aurangabad and they are in possession since1942 vide mortgage deed dated 25.02.1942. Chandu/father of appellantshas alienated 5 acres of land to respondents Bakru s/o Rangnath andSheelabai w/o Uttamrao Deshpande.

3. Aggrieved by such alienation, sons of Kisan namely Vithal,Tukaram, Kachru and Madan filed petition before the Additional Collector,Aurangabad for termination of the mortgage and restoration ofpossession under Section 10 of the Prevention of Agricultural LandsAlienation Act, 1939 read with Section 103 of the Hyderabad Tenancyand Agricultural Lands Act, 1950. The said application was allowed exparteon 27.07.1984. The said order was challenged before theAdditional Commissioner. The Additional Commissioner in appealremanded the case to the Additional Collector on 12.03.1986 with adirection to decide the matter afresh after giving opportunity of hearing toboth the parties.

4. The Additional Collector after consideration of evidence placedbefore him, by order dated 14.05.1988, recorded a finding thatrespondents No.1 to 4 - sons of Kisan are entitled to have possession ofthe suit property as per Section 10 of the 1939 Act and allowed theapplication filed by sons of Kisan. Revision filed by the appellants beforeAdditional Commissioner was dismissed vide order dated 30.03.1989confirming the order of the Additional Collector.

5. Aggrieved by the order of Additional Commissioner, appellants filedthe writ petition. The said Writ Petition No.1389 of 1989 filed by theappellants before the High Court was dismissed vide impugned orderdated 13.01.2005 holding that the proceedings initiated by the sons of Kisan namely Vithal, Tukaram, Kachru and Madan is maintainable. TheHigh Court held that Section 5 of the Hyderabad Tenancy and AgriculturalLands Act, 1950 excludes the mortgagee in possession to be termed as“deemed tenant. Aggrieved by the above order, appellants havepreferred this appeal. Respondents No.1, 2 and 6 were deleted from thearray of parties at the risk of the appellants vide order of this Court dated23.08.2011.

6. We have heard learned counsel appearing on behalf of the partiesand perused the materials on record.

7. Mr. Babasaheb Govindrao Kale representing the purchasers(respondents No.1 to 9) and Mr. Devidaas Madan Punde for originalowner (representing respondents No. 10 to 17) are personally present inthe Court.

8. During the course of hearing, all parties concerned havenegotiated the matter and have amicably settled the matter. The variousparties who are having interest in the suit property have filed interventionapplications to become part of the settlement. The interventionapplications are allowed. Apart from the parties in appeal, all theconcerned parties viz. Barku Raghunath Raut, Janabai Barku Raut,Shriram Kashinath Wakle, Annapurna Shriram Wakle, BabasahebShriram Wakle, Kushinath Eknath Kale, Rajendra Eknath Kale, VimalbaiBabasaheb Kale, Yogesh Babasaheb Kale, Devidas Madan Punde,Kailas Madan Punde, Bhimabai Madan Punde, Indubai Surybhan Tathe,Sindhubai Dadasaheb Pawar, Dnyaneshwar Sarjaram Pawar andGayabai Machindra Pawar have filed their affidavits sworn in by themindividually stating that they have amicably settled the matter and thatthey have entered into a Memo of Compromise. They have stated that interms of Compromise Memo (Annexure-A3) and Sketch (Annexure-A5),the appeal may be disposed of.

9. As per the terms of Compromise Memo, the following is thepresent Family Holdings of the Suit Land i.e. 25 acres and the samereads as under:-

I. Digamber Chandu Shingrule Family(Party in all roceedings being the Lease Holder) : 8 Acres 5 R
II. Vimalabai Babasaheb Kale Family : 5 Acres 1 R
III. Barku Raghunath Raut Family (Barku Raghunath is the party in all the courts) : 7 Acres 33 R
IV. Shriram Kashinath Wakle Family : 4 Acres 2 R
V. Bhaskar Eknanath Pansare (All above said family are r/o Dhondalgaon, Taluka Vaijapur, Aurangabad District, Maharashtra) : 1 Acre


: 25 Acre 40 R = 26 Acre

The respondents herein are agreeable to take 15 acres of land from the above saidfamily holdings in the following manner:-

I. Digamber Chandu Shingrule Family : 6 Acres
II. Vimalabai Babasaheb Kale Family : 2 Acres
III. Barku Raghunath Raut Family (Barku Raghunath is the party in all the courts) : 5 Acres
IV. Shriram Kashinath Wakle Family : 2 Acres
V. Bhaskar Eknanath Pansare : 0


15 Acre

10. As per the Memo of Compromise, how the lands are to bedistributed among the parties as shown by way of Chart of allotment ofland is as under:-

Respondent - Original Land Owners
Sl. No. Branch No. A Allotted
Kachru Kishan Punde (Dead) Plot No. Area HR
1. Dnyaneswar Sharjaram Pawar 4B 0.75
2. Gayabai Machhindra Pawar 4C 0.36
3. Gayabai Machhindra Pawar 16 0.44


1.55 3 Acre 35 Gunthe
Branch B
Madan Kisan Punde (Dead) Plot No. Area HR
1. Kailash Madan Punde 4A 0.26 R
2. Kailash Madan Punde Kailas Madan Punde 5 0.17 R
3. Kailash Madan Punde 9 0.34 R
4. Devidas Madan Punde 1 0.61 R
5. Devidas Madan Punde 7 0.17 R


1.55 R 3 Acre 35 Gunthe
Branch C
Tukaram Kisan Punde (Dead) Plot No. Area HR
1. Hausabai Tukaram Punde 19 0.49 R
2. Hausabai Tukaram Punde 18 C 0.22 R
3. Hausabai Tukaram Punde 18A 0.13 R
4. Hausabai Tukaram Punde 17 0.36 R
5. Hausabai Tukaram Punde 24 0.40 R


1.60 R 4 Acre
Total Land to Respondent 4.70 R
1. Janyabai Barku Raut 2 0.50 R
2. Barku Raghunath Raut 3 0.63 R
3. Shriram Kashinath Wakle 6 0.23 R
4. Annapurna Shriram Wakle 8 0.23 R
5. Babasaheb Shriram Wakle 10 0.46 R
6. Kushinath Eknath Kale 12B 0.20 R
7. Kushinath Eknath Kale 20 0.20 R
8. Kushinath Eknath Kale 22 0.20 R
9. Vimalbai Babasaheb Kale 12A 0.20 R
10. Vimalbai Babasaheb Kale 14A 0.20 R
11. Rajendra Eknath Kale 14B 0.20 R
12. Rajendra Eknath Kale 21 0.20 R
13. Yogesh Babasaheb Kale 11 0.20 R
14. Yogesh Babasaheb Kale 13 0.20 R
15. Yogesh Babasaheb Kale 23 0.20 R
16. Parigabai Digamber Shrigule 18B 0.05 R


4.10 R 10 Acre 10Gunthe
Particular of Total Land
Branch A 1.55 R 3 Acre 35 Gunthe
Branch B 1.55 R 3 Acre 35 Gunthe
Branch C 1.60 R 4 Acre


4.70 R 11 Acre 30 Gunthe
Intervenor 4.10 R 10 Acre 10 Gunthe
Water Project 2.84 R 7 Acre 4 Gunthe
Total Land 11.64 R 29 Acre 4 Gunthe

The above suit land is divided into plots and allotted as indicated in thechart are marked in the map/sketch filed (Annexure-A5). The personswho are parties to the settlement of the matter have also filed individualaffidavits endorsing the compromise entered into between the parties.

11. The appeal is disposed of in terms of Memo of Compromise. Theterms of Compromise (Annexure-A3) and the maps/sketches (Annexure-A5) filed thereon showing the division of the properties amongst theparties, shall form part of this judgment.

12. The Registry is directed to draft a decree in terms of the Memo ofCompromise effected between the parties. The terms ofCompromise/Memo of allotment of shares to the concerned parties(Annexure-A3) and also map/sketch filed thereon showing the division ofthe properties amongst the parties (Annexure-5) shall form part of thedecree also.

13. Parties are directed to co-operate with each other in effectingmutation by moving appropriate applications before the concernedauthority. The concerned authority is directed to take note of thecompromise between the parties and effect mutation accordingly.

14. It is further directed that the parties concerned are at liberty to filethe decree before the concerned Sub-Registrar for registration of thedecree who shall register the same on compliance with the Rules and inaccordance with law.

15. The appeal is accordingly, disposed of in above terms

.............................J. [R. BANUMATHI]

............................J. [A.S. BOPANNA]


DECEMBER 02, 2019.


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