SHANKAR POPAT GAIDHANI versus HIRMANI UMAJI MORE (DEAD) BY LRS. AND ORS.

Citation: [2003] 1 S.C.R. 1189 · Decided: 14-02-2003 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Judgment (excerpt)

}. 
SHANKAR POPAT GAIDHANI 
v. 
HIRMANI UMAJI MORE (DEAD) BY LRS. AND ORS. 
FEBRUARY 14, 2003 
[S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.] 
land laws and Agricultural Tenancy: Bombay Tenancy and Agricultural 
lands Act, 1948; Ss. 29(JA). 64, 70(b), 80, 85 and 88A: 
A 
B 
Agreement of sale of agricultural land by the owner and receipt of part C 
payn1ent in consideration thereoffrorn Vendee-Owner avoiding execution of 
sale deed-Trial Court issued directions to execute-On appeal by owner, 
• 
High Court directed delivery of possession of suit land to Vendee-On appeal 
• 
.le 
by the tenant in possession of the disputed land-Held: since Vendee neither 
preferred an appeal nor filed cross objection in appeal, and the disputed land D 
li'as in possession of agricultural tenant, High Court committed an error in 
granting relief in favour of the Vendee purporting to modify relief in the 
appeal-Hence part of the Judgment directing delivery of possession in favour 
of Vendee set aside-Direction issued-Civil Procedure Code, 1908; Order 
41; Rule 33 and Order 41; Rule 22-Practice and Procedure. 
E 
Appellant was an agricultural tenant in the disputed land/property 
of defendant No.I in a suit filed before the Civil Court. Earlier, defendant 
No. I entered into an agreement with the plaintiff and in consideration 
thereof received part payment as well. However, he avoided execution of 
sale deed in respect of the disputed land/property in favour of plaintiff, F 
who later on filed a suit for specific performance of the agreement to sell 
off disputed land. Trial Court decreed the suit in favour of the plaintiff. 
Defendant No. I preferred an appeal which was dismissed by the High 
Court directing delivery of possession of the suit land by defendant No.I/ 
legal heirs to the plaintiff. The present appeal has been filed by the 
aggrieved agricultural tenant in possession of the suit lands. 
G 
It was contended for the appellant that the Civil Court had no 
jurisdiction to determine any issue concerning agricultural tenancies; and 
that since Trial Court did not pass decree for possession in favour of 
plaintiff, High Court committed an error by directing delivery of 
1189 
H 
1190 
SUPREME COURT REPORTS 
f2003] I S.C.R. 
A possession of the disputed land in favour of plaintiff. 
Partly allowing the appeal, the Court 
HELD: t. 1. The plaintiff did not question the judgment and decree 
passed by the Trial Court. Evidently, the Court did not grant a decree 
B for recovery of possession so far as the suit land is concerned. In that view 
of the matter, the High Court committed a serious error in granting relief 
in favour of the plaintiff in an appeal filed by Defendant No. I purporting 
to modify relief particularly in view of the fact that amongst others, the 
appellant claimed himself to be in physical possession of the lands in 
C question. The appellant indisputably was not a party to the said agreement 
for sale. [1193-F, G) 
1.2 The High Court also could not have exercised its jurisdiction 
in issuing the direction for recovery of possession even under Order 41, 
Rule 33 of the Code of Civil Procedure inasmuch the said provision could 
D not be invoked by one respondent as against another as therefor it was 
obligatory on the part of the plaintiff to file a cross objection in terms of 
Order 41, Rule 22 of the Code of Civil Procedure and give notice in 
relation thereto to the parties who claimed independent possession Qver 
the suit land. Hence part of the judgment under appeal whereby possession 
has been directed to be delivered in favour of the plaintiff is set aside. It 
E is clarified that the judgment of the trial Court is not being interfered with. 
ll193-H; t 194-A-B) 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2283 of 1998. 
From the Judgment and Order dated 14.12.1990 of the Mumbai High 
F Court in F.A.No. 640 of 1979. 
A.S. Bhasme and Shivaprabhu S. Hiremath, for the Appellant. 
V.B. Joshi and K.K. Gupta (NP) for the Respondent. 
G 
In-person (NP) for the Respondent No. 6. 
The Judgment of the Court was delivered by 
S.B. SINHA, J. This appeal arises out of a judgment and decree dated 
14.12.1990 passed by the Bombay High Court in First Appeal No.640 of 
H 1979 affirming a judgment and decree passed by the Comt of Civil Judge, 
·-t 
- ... 
• 
SP. GAIDHANI i- HIRMANI UMAJI MORE [S.B. SINHA. J.] 
1191 
Senior Division at Nashik in Special Civil Suit No.57 of 1974. 
A 
The appellant herein is said to be an agricult

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