Gauri Godse, J.

[1] BASIC FACTS:

1. This second appeal is preferred by the original defendants to challenge the concurrent judgments and decrees granting 1/4th share each to the plaintiffs, i.e. heirs of Sonba, Kondiba and Rangnath. The original holder of the suit property was Dashrath. Dashrath had four sons - Vitthal, Sonba, Kondiba and Rangnath. Defendants are heirs of Vitthal. Both the courts have held that all four sons of Dashrath would be entitled to 1/4th share in the suit property. Hence, the branch of each of the sons is held entitled to a 1/4th share in the suit property.

[2] The second appeal was admitted by order dated 25th November 2013 on the following substantial question of law:

"(N) Whether both the learned lower courts are justified in over looking the Mutation Entry No. 8681 at Exhibit-71 which was certified in the year 1948 which clearly indicate the name of deceased Vitthal (Predecessor of the Appellants/Original Defendants) as protected tenant in respect of the suit property".

[3] By order dated 27th August 2018, the question of law was modified, and one additional question of law was framed. Therefore, the second appeal is heard on the modified and the additional question of law, which reads as under:

(i) Whether the judgment delivered by both the lower courts suffer from ignorance of the 32M certificate issued in favour of Vitthal and its effect?

(ii) Whether the civil court has jurisdiction to consider as to whether a person holding 32M certificate holds it in an individual capacity or as Manager of the joint family?

SUBMISSIONS ON BEHALF OF APPELLANTS:

[4] Learned counsel for the appellants submitted that the certificate under Section 32M of the Maharashtra Tenancy and Agricultural Lands Act ('Tenancy Act') was issued in the defendants' name as their father, i.e. Vitthal, was the protected tenant. He submitted that the revenue record with respect to the suit property, i.e., survey no. 143 (new Gat No. 51) shows the name of Vitthal as a protected tenant. He submitted that the suit properties were excluded from the partition that had taken place amongst the parties. He submits that the mutation entry regarding the partition does not include the suit property. Learned counsel for the appellants, thus, submits that the suit property, being the independent property of Vitthal, was excluded from partition.

[5] Learned counsel for the appellants further submitted that according to the plaintiffs, Dashrath expired on 9th October 1945. However, according to the defendants, Dashrath died sometime in the year 1953. Learned counsel for the appellants submitted that all the parties participated in the proceedings under the Tenancy Act. They had appeared to oppose the grant of a 32M certificate in the name of the defendants. He submitted that after hearing all the parties, the order fixing the purchase price under Section 32G of the Tenancy Act was passed in favour of the defendants. He submits that, accordingly, the certificate under Section 32M was also issued in the name of the defendants. Learned counsel for the appellants, thus, submits that issuance of the certificate under Section 32M is the conclusive proof of title and possession of defendants. He, thus, submits that the property is Vitthal's exclusive property, and the plaintiffs are not entitled to seek partition and separate possession.

[6] Learned counsel for the appellants further submitted that the plaintiffs failed to disclose the order passed under Section 32G and the certificate issued under Section 32M. He submits that the order under Section 32G was issued on 15th July 2000. The suit was filed on 15th September 2002, suppressing the order passed under Section 32G. He, thus, submits that the plaintiffs were liable to be non-suited on the ground of suppression of material fact. Learned counsel for the appellants submitted that the first appellate court failed to consider the evidence on record and incorrectly noted the year of death of Dashrath as 1956. Learned counsel for the appellants submitted that on 8th June 1946, i.e. before the death of Dashrath, a lease deed was executed in favour of Vitthal. He submitted that the defendants filed a review petition before the first appellate court and produced a copy of the lease deed in favour of Vitthal. He, however, submitted that the first appellate court failed to consider the material evidence in the form of a lease deed, which clearly shows that Vitthal was an independent tenant in respect of the suit property.

[7] With reference to the order passed in Vahivat Case, learned counsel for the appellants submitted that out of a total of 20 Hectares area, an area of 5 Acres was cultivated by Kondiba, and the rest was with Vitthal's sons. He, thus, submits that all the revenue records clearly indicate that Vitthal was the exclusive tenant of the suit property, and the plaintiffs were not entitled to seek partition and separate possession. He submitted that the order passed under Section 32G, and the certificate issued under Section 32M were never challenged by the plaintiffs. Hence, the same is binding upon the plaintiffs. Learned counsel for the appellants relied upon the documents produced by the appellants in the review petition before the first appellate court. He submitted that the first appellate court ought to have considered the material evidence produced by way of a review petition, which indicated that Vitthal was the exclusive tenant of the suit property.

[8] Learned counsel for the appellants relied upon the decisions of this court in the case of Rama Dhondu Date Vs. Krishnaji Bhikaji Kadam and Ors, 2003 4 BCR 365 Bhima Rade and Anr Vs. Thakubai Maruti Rade and Ors,2007 SCCOnlineBom 880 and Ramu Pandu Gavade and Ors Vs. Ramchandra Vishnu Kulkarni and Ors, 2007 1 MhLJ 467. He also relied upon the decision of the Hon'ble Apex Court in the case of Saraswatibai Trimbak Gaikwad Vs. Damodhar D. Motiwale and Ors, 2002 4 SCC 481.

[9] Learned counsel for the appellants submitted that the issue regarding tenancy rights could be decided by the tenancy authority, i.e. the Mamlatdar, as provided under Section 70(b) of the Tenancy Act. He, therefore, submits that the civil court cannot go beyond the order passed under the Tenancy Act. Learned counsel for the appellants, thus, submitted that the tenancy proceedings decided in favour of Vitthal's heirs under the provisions of Section 32G and 32M are binding upon the plaintiffs. To support his submissions regarding Vitthal's exclusive tenancy rights, learned counsel for the appellants relied upon the definition of 'persons' under sub-section 11 of Section 2 of the Tenancy Act. He submitted that the person includes a joint family. He, thus, submits that the tenancy proceedings decided exclusively in the name of Vitthal's heirs cannot be termed as the property belonging to a joint family.

[10] Learned counsel for the appellants further relied upon sub-section (2) of Section 85 of the Tenancy Act and submitted that there is a bar to the civil court's jurisdiction; hence, orders in favour of Vitthal's heirs passed under the Tenancy Act cannot be questioned before the Civil Court. He submitted that even otherwise, the order under Section 32G and the certificate under Section 32M issued in the name of the defendants was after hearing the plaintiffs. However, the plaintiffs failed to challenge the same, and thus, the order and the certificate are binding upon the plaintiffs. He, thus, submits that both the questions of law be answered in favour of the appellants.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

[11] Learned counsel for the respondents submitted that Vitthal's name was recorded in the revenue record on 18th November 1948, after Dashrath's death. He submitted that the trial court correctly held that Vitthal's name was recorded only after Dashrath's death. Learned counsel for the respondents relied upon mutation entry no. 11713 and submitted that the partition was recorded on 15th October 1962 as per partition dated 24th April 1959. He, thus, submits that the mutation entry shows that it was recorded on an application made by Vitthal, which indicates that he was acting as Karta or Manager of the joint family.

[12] Learned counsel for the respondents further submitted that Vitthal expired sometime in the year 1982, and the certificate under section 32M was issued in the year 2000. He, thus, submits that the defendants are not entitled to claim any exclusive right in the suit property by relying upon a certificate issued under Section 32M after Vitthal's death. He submitted that the suit property originally belonged to Dashrath, and Vitthal's name was recorded as Karta or Manager of the Hindu Joint family. Learned counsel for the respondents submitted that after the death of Vitthal, the names of his heirs and legal representatives were entered without issuing any notice to the plaintiffs. He, thus, submitted that entering the names of defendants as heirs and legal representatives of Vitthal would not create any exclusive and absolute right in favour of the defendants.

[13] Learned counsel for the respondents relied upon the evidence of defendant no. 6. He submitted that the defendant's witness admitted that 5 Acres out of the suit land was cultivated by the plaintiffs. Learned counsel for the respondents, thus, submits that the admission given by the defendant's witness shows that even plaintiffs were in possession of the suit property and were cultivating the same. Learned counsel for the respondents submits that the revenue record showing the name of Vitthal as Karta or Manager of the Hindu joint family would not give him any absolute right in respect of the suit property.

[14] Learned counsel for the respondents submitted that the civil court has jurisdiction to decide the shares of the parties even if an order under Section 32G is issued in the name of one of the members of a joint family or manager of the joint family. He, thus, submits that the order in the name of Vitthal's heirs or issuance of a certificate under Section 32M in their name would not take away the civil court's jurisdiction to determine the shares of the parties as the suit property was originally belonging to Dashrath and Vitthal's name was entered only as Karta or Manager of the Hindu undivided joint family.

[15] To support his submissions, learned counsel for the respondents relied upon the decisions in the cases of Vithu Agaskar Vs Rama Agaskar,MANU/MH/1441/2018 Vithoba Vs Tanba,MANU/MH/1535/2018 Adam M. Darwajkar and Ors Vs. Appa Daud Darwajkar, 2007 2 MhLJ 340 Sarjerao Maruti Sathe Vs. Pralhad Laxman Sathe and Ors, 2010 2 AllMR 544 and Parasharam Khashaba Pawar and Ors Vs. Shrirang Bandu Pawar and Ors [Second Appeal No. 809 of 2001, dated 21st August 2018(Bombay High Court)].

CONSIDERATION OF THE SUBMISSIONS:

[16] I have considered the submissions made on behalf of the parties. The main controversy to be examined is whether there existed a Hindu joint family and Vitthal was Karta or the Manager of the Hindu undivided family after Dashrath's death and whether the certificate under Section 32M is on behalf of the joint family or in an individual capacity. The relations between the parties are not in dispute. There is a dispute between the parties on the date of death of Dashrath. The plaintiffs pleaded that Dashrath expired on 9th October 1945. According to the defendants, Dashrath died sometime in the year 1953. However, a perusal of the written statement indicates that the defendants have only denied the plaintiffs' contention that Dashrath expired on 9th October 1945. However, both courts recorded that Vithal's name was entered in revenue record after Dashrath's death.

[17] The reasons recorded by the trial court indicate that Dashrath was the original holder of the suit property. The trial court referred to the admission given by the defendants and the evidence of the defendants' witness, Yashwant, who admitted that Dashrath was originally the tenant from 1940-43. The trial court further referred to the admission given by the defendants' witness, stating that in the partition that took place in the year 1962, the suit property was excluded as it was a tenanted property. Thus, by analyzing oral evidence on record, the trial court held that the suit property belonged to the joint family of Dashrath, and after his death, all his sons continued with possession. The revenue record relied upon by the defendants was also examined by the trial court. The 7/12 extract produced at Exhibits 52 and 56A by the plaintiffs before 1945- 46, disclosed that Dashrath's name was entered as a tenant in respect of the suit property and not Vitthal.

[18] The trial court held that the revenue record produced by the defendants indicated that on 2nd September 1958, the suit property was shown to have been given to the original landlord, and later on, the landlord gave up the claim for possession. The learned trial judge has referred to mutation entry no. 8681 dated 28th October 1948 at Exhibit 71, which shows that the name of Vitthal was entered as the tenant of the suit property. However, the trial court, by analysing the oral evidence and the admissions given by the defendants, held that Dashrath, being the original tenant, the revenue record entering the name of Vitthal as the eldest son would not give him exclusive rights.

[19] The trial court referred to the order passed in the Vahivat Case, which records that 5 acres of land out of the suit property was in the possession of Kondiba. Admittedly, the said order was never challenged by the defendants. Learned counsel for the appellants, during the course of the hearing, submitted that 5 acres of land shown in possession of Kondiba was correct and that the independent tenancy right claimed through Vitthal was regarding the remaining area of the suit property. Learned counsel for the appellants sought to rely upon photocopies of the order under Section 32G and the certificate under Section 32M, which, according to him, does not include the area of 5 Acres in possession of Kondiba. However, learned counsel for the appellants could not show that these documents were exhibited and proved in evidence. Hence, for the time in this second appeal, these questions of facts cannot be examined. Thus, in the absence of any supporting evidence, the trial court has rightly held that the defendants failed to prove the exclusive title and exclusive possession of the suit property. The learned trial court, thus, rightly referred to the Vahivat Case, which indicates that the suit property belongs to the Hindu undivided joint family of Dashrath's sons.

[20] There is no dispute that there was a joint Hindu family of Dashrath, and there is also no dispute that partition effected in the year 1962 excluded the suit property. The trial court referred to the admissions given on behalf of the defendants that the suit property could not be partitioned at the relevant time as it was a tenanted property. Thus, based on the admissions given by the defendant's witnesses and the order passed in the Vahivat Case, the trial court held that the suit property belongs to the joint Hindu undivided family and the name of Vitthal was entered as Karta or Manager of Hindu undivided joint family.

[21] The first appellate court re-examined the pleadings and evidence on record and confirmed the findings recorded by the trial court. The first appellate court exhaustively discussed all the mutation entries and the decision in the Vahivat Case confirming Kondiba's possession. The reasons recorded by the first appellate court show that the admissions given by the defendants' witness that Vitthal was Karta of the joint undivided family are considered to confirm the findings recorded by the trial court that the suit property belonged to the Hindu undivided family and the name of Vitthal was entered as Karta or Manager of the Hindu undivided family.

[22] I do not find any illegality or perversity in the reasons recorded by both the courts in accepting that Vitthal's name was entered as Karta or Manager of Hindu undivided joint family and the suit property belongs to the joint family of the parties. The reasons recorded by both courts clearly indicate that the revenue record relied on both parties, and the oral evidence is thoroughly examined by both courts. Though there is no dispute that the order under Section 32G and the certificate issued under Section 32M is in the name of the defendants, nothing is shown to indicate that the order under Section 32G and the certificate issued under Section 32M were exhibited and the contents thereof were proved in evidence. Both the courts concurrently held on facts that Dashrath was the original holder of the suit property and Vitthal was acting as Karta or Manager of the Hindu undivided joint family.

LEGAL PRINCIPLES:

[23] The legal principles settled in the various decisions relied upon by the parties can be summarised as follows :

(a) The Hon'ble Apex Court, in the case of Saraswatibai Trimbak Gaikwad, was dealing with the issue regarding the execution of the civil court's decree for possession. The possession decree was passed against the lessee who purchased the land under Section 32G, read with Section 32-O of the Tenancy Act. After considering the objections filed by the plaintiffs claiming ownership of the land, the Tribunal fixed the purchase price and the certificate was issued in favour of the lessee. The lessee claimed tenancy rights through the other co-owner. Despite the orders under the Tenancy Act, the suit was decreed.

Conclusions: The Hon'ble Apex Court held that only the Tribunal can decide whether a person is deemed to be a tenant and is entitled to purchase the land held by him. It is thus held that the rights of the parties could not be decided by the civil court dehors the rights claimed under the Tenancy Act, and thus, reference to the tenancy authorities would be necessary. Thus, the Hon'ble Apex Court held that if the tribunal fixes a purchase price and issues a certificate, then that certificate would be conclusive proof of purchase. It is further held that the civil court would then be bound to give effect to the certificate and cannot ignore it. Thus, in the facts of the said case, it was held that the decree for possession passed by the civil court would be executable if the respondents therein succeeded in their challenge to the 32M certificate before the tenancy authorities.

(b) In the decision of Rama Dhondu Date, the petitioner claimed joint tenancy on the ground that his father was a joint tenant along with his brother. Hence, the petitioner challenged the orders under Section 32G of the Tenancy Act, passed in favour of his father's brother. The tenancy court dismissed the petitioner's claim by holding that the dispute between two tenants cannot be decided by the tenancy authorities.

Conclusions: This court held that the petitioner was not only raising the dispute with regard to the declaration in favour of the respondent, i.e., his father's brother, but was also asking to declare him as deemed purchaser jointly with the respondent. With reference to these facts, this Court held that civil court cannot decide such questions. This court also held that Section 85 of the Tenancy Act postulates 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 the Tenancy Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal. This court further held that if the petitioner was forced to take the matter to the civil court, then surely the civil court would be obliged to make a reference to the tenancy authority by virtue of the mandate of Section 85 of the Tenancy Act, relegating the petitioner to the tenancy authorities. Hence, this court set aside the orders passed by the tenancy authorities and remanded the matter to the Agricultural Lands Tribunal to decide the proceedings under Section 32G afresh.

(c) This court, in the case of Bhima Rade, discussed the issue of the effect of the 32M certificate under the Tenancy Act. In the facts of the said case, the defendant therein claimed that there was prior partition and that the defendant was the exclusive owner based on the 32M certificate issued in his favour. In the facts of the said case, there was no dispute that the father of the parties was a protected tenant. The plaintiff therein claimed that the father of the parties was the karta of the joint family and cultivated the land on behalf of the joint family. The plaintiffs contended that after the father's death, the members of the joint family cultivated the land as joint tenants. Thus, the plaintiff claimed to have a share on the ground that the plaintiff and defendants were joint tenants through their father. In the said case, the certificate under Section 32M was issued in the name of the defendant, who claimed tenancy rights based on a lease in his favour. He contended that the father had surrendered tenancy 5 to 6 years prior to his death.

Conclusions: This court held that there was no material to indicate that the authorities decided to grant the purchase certificate to the defendant on behalf of the joint family. This court further held that the decree for partition could not be rendered as it would cause a breach of Section 43 of the Tenancy Act, and the civil court would not have jurisdiction to examine the questions required to be dealt with by the Tenancy Court. This court further held that in view of the bar under Section 85 of the Tenancy Act, the civil court could not have gone into the question as to whether defendant no. 1 was alone tenant purchaser or he had purchased the suit land on behalf of a joint family. This court referred to the legal principles settled by the Hon'ble Apex Court in the case of Saraswatibai Trimbak Gaikwad and held that the question of the correctness of surrender of tenancy that arose in the facts of the said case could not be reagitated in the civil proceedings and thus the defendant became the exclusive owner of the suit land as a statutory purchaser in view of the certificate issued in his favour under Section 32M. Thus, this court held that the civil court could not have rendered the decree for partition.

(d) This court, in the case of Ramu Pandu Gavade, was dealing with the rejection of objections raised by defendants to oppose the civil court's decree for joint possession. The defendants claimed ownership based on a 32M certificate.

Conclusions: This court followed the legal principles settled by the Hon'ble Apex Court in the case of Saraswatibai Trimbak Gaikwad. This court held that the civil court's decree cannot be executed so long as the certificate under Section 32M is in subsistence.

(e) The Hon'ble Full Bench of this court, in the case of Rajaram Totaram Patel, was deciding a reference on the question as to the proper construction of Section 70(b) read with Section 85 of the Tenancy Act. The Hon'ble Full Bench dealt with the issue of whether the dispute between two persons claiming tenancy rights would fall within the ambit of Section 70(b) and whether the civil court could not have tried it.

Conclusions: The Hon'ble Full bench held that it is the function of the Mamlatdar to decide whether a person is a tenant, and when the legislature used that expression, there is no reason for curtailing its amptitude by saying that the issue which the Mamlatdar has to decide is only an issue whether a person is a tenant of a particular landlord. The Hon'ble Full Bench thus held that whenever an issue is raised in any suit, whether a person is a tenant; by whomsoever it is raised, the issue will have to be decided by the Mamlatdar. The Hon'ble Full Bench thus concluded that the issue involving the decision of the question of whether the defendant was the sole tenant or the plaintiffs and the defendant were joint tenants involves the decision of a question whether the plaintiffs or the defendant or both were the tenants, would fall within the ambit of Section 70(b) of the Tenancy Act and therefore a civil court cannot try that question, and it will have to be referred to the Mamlatdar for decision.

(f) This court, in the case of Vithu C. Agaskar, was examining a challenge to an order of apportionment for compensation passed in a land acquisition reference. In the facts of the said case, a certificate under Section 32M was held to have been issued on behalf of a joint family.

Conclusions: This court thus held that the certificate would be conclusive proof of purchase against the landlord and not against the rights of joint tenants, and therefore, the right of joint tenant cannot be negated only based on the certificate under Section 32M.

(g) This court, in the case of Vithoba and Others, decided the second appeal filed by the defendant, challenging the decree of the first appellate court, which reversed the trial court's decree in favour of the defendant. The trial court had allowed the counterclaim of the defendant for possession. It was contended by the defendant that he became deemed purchaser as the sale in his favour was validated by the tenancy authorities under the provisions of the Bombay Tenancy and Agricultural Land (Vidharbha Region) Act, 1958. In the facts of the said case, the defendant had earlier filed a civil suit against his brothers and mother for possession. The suit was dismissed by holding that the property belonged to the joint family. In the second suit, the plaintiffs prayed for a decree of injunction on the ground that despite the findings in the earlier suit that the property belonged to the joint family, the defendant obstructed the plaintiffs' possession. As against these contentions, the defendant in the second suit contended that the findings recorded by the civil court in the earlier suit filed by him were without jurisdiction as the civil court could not have adjudicated on the nature of the suit property as the sale in favour of the defendant was validated by the tenancy authorities. In the facts of the case, this court observed that in the earlier suit, it was held that there was no partition, and the defendant could not prove that he was a sole tenant, and thus, it was held that the property was a tenanted property of the joint family. This court observed that in the earlier suit, the trial court held that the defendant had become the owner by private negotiations and not under the provisions of the said Act.

Conclusions: Thus, it was held that as there was no earlier partition, the sale deed in favour of the defendant would not give him any exclusive ownership. Therefore, the trial court in the earlier suit did not decide on any issue that was to be dealt with under the Tenancy Act. Thus, in view of the findings recorded by the trial court in the earlier suit, this court held that there was no reason to refer to the issues in the earlier suit to the Tenancy Court. Hence, with these observations, this court dismissed the second appeal and confirmed the findings recorded by the first appellate court, holding that the findings in the earlier suit on the suit property belonging to the joint family property cannot be said to be without jurisdiction.

(h) This court, in the decision of Adam M. Darwajkar, was dealing with an issue as to whether the suit land belonged to the plaintiff along with his two brothers jointly, as indicated in the revenue record. The certificate under Section 32M of the Tenancy Act was issued only in the name of the plaintiff.

Conclusions: This court held that the civil court could decide whether defendants were also co-owners, and reference to the tenancy authorities was not necessary. This court thus held that the question involved in the facts of the said case was whether the defendants were also the co-owners, which could have been properly decided by the civil court, and the reference was not necessary. This court thus held that on the material available in the facts of the said case, the civil court was competent to decide the issue involved regarding the nature of the suit property, and there was no issue involved required to be referred and decided only by the tenancy court.

(i) In the case of Sarjerao Maruti Sathe, this court was dealing with whether the appellant could claim exclusive ownership based on the order under Section 32G. In the facts of the said case, after the death of the original tenant, the tenancy continued only in the name of the defendant as his brothers were minors at the relevant time. In the said decision, the issue regarding the civil court's jurisdiction was not raised. The legal principles settled by this court were with reference to the exclusive right claimed by the defendant based on the order under Section 32G.

Conclusions: This court held that the provisions of Section 32G of the Tenancy Act contemplate the issuance of notice to all interested persons. This court, in the facts of the said case, held that there was no evidence that such notice was issued or whether interested persons had consented to the order under Section 32G in favour of the defendants. Thus, this court held that the defendant could not claim exclusive rights and that the purchase made by him must enure for the benefit of the sharers of the joint family.

(j) This court, in the decision of Parasharam Khashaba Pawar, referred and relied upon the legal principles settled by the Hon'ble Apex Court in the case of Saraswatibai Trimbak Gaikwad, and the legal principles settled by this court in the cases of Vithu C. Agaskar and Sarjerao Sathe. This court held that the tenancy rights of the joint tenant cannot be negated solely on the ground that the certificate of purchase was issued in favour of one member of the family.

ANALYSIS AND CONCLUSIONS:

[24] In the present case, there is no dispute between two persons claiming tenancy in an individual capacity. The plaintiffs claimed partition and separate possession on the ground that (i) the original holder of the suit property was Dashrath, and the property was an ancestral joint family property, (ii) in the prior partition suit property was excluded as it was a tenanted property, (iii) after the death of Dashrath all his sons were jointly cultivating the suit property, (iv) father of the defendants-Vitthal was the eldest son of Dashrath; hence, his name was entered in the revenue record as he was acting as karta of the joint family, (v) though the certificate under Section 32M was issued in the name of defendants, i.e. heirs of Vitthal, the plaintiffs had a share in the property.

[25] Defendants opposed the suit claim on the ground that (i) Dashrath was not the tenant, (ii) Vitthal's name was entered in the revenue record as a tenant, (iii) Vitthal's heirs, i.e. the defendants applied for fixation of price under Section 32G and the certificate is issued in the name of defendants and thus, (iv) suit property is independent property of defendants through Vitthal.

[26] There is no dispute about (i) the relations between the parties, (ii) the existence of the joint Hindu family, and (iii) the exclusion of the suit property from the prior partition. The grounds for claiming the suit property to be the independent property of Vitthal are based on the revenue entries in the name of Vitthal. In the suit, neither is there a challenge to issuing the 32M certificate nor do the plaintiffs claim any independent tenancy rights or joint tenancy along with Vitthal or his heirs. The claim for partition is on the ground that the suit property belongs to the joint Hindu family. Thus, the controversy in the suit did not involve any issue to be decided or settled by the tenancy court. None of the issues that arose in the suit would amount to agitating the issues required to be dealt with by the tenancy authorities under its exclusive jurisdiction. The issue to be decided in the suit was about the existence of a joint Hindu family and whether the suit property belonged to the joint Hindu family.

[27] In the case of Saraswatibai Trimbak Gaikwad the dispute was between a tenant claiming title based on 32M certificate and a co-owner in whose favour there was a decree of possession passed by a civil court directing the tenant to handover possession. In the case of Rama Dhondu Date the issue was on a claim for declaration of being deemed purchaser along with the party in whose favour order under section 32G was passed. In the case of Bhima Rade, exclusive title was claimed based on a 32M certificate issued by accepting that the original tenant had surrendered his tenancy. In the case of Ramu Pandu Gavade the issue was regarding execution of a civil court's decree against a person holding 32M certificate. In the case of Rajaram Totaram Patel Hon'ble Full Bench decided the scope of section 70(b) and held that issues raised by whomsoever, if involves a question as to who is a tenant cannot be decided by civil court, as it would fall within the ambit of section 70(b).

[28] Whereas in rest of the case the issue was pertaining to the property owned by joint family. Therefore, this court in the case of Vithu Agaskar held that the 32M certificate will not negate the rights of joint tenant. In the case of Vithoba, this court held that the findings recorded on the property belonging to the joint family cannot be said to be without jurisdiction of the civil court. This court in the case of Adam M Darwajkar held that the civil court was competent to decide the issue involved regarding the nature of the suit property. In the case of Sarjerao Maruti Sathe, the 32M certificate was not issued after notice to all the interested persons; therefore, this court held that the certificate must enure for the benefit of the sharers of the joint family. In the case of Parasharam Khashaba Pawar, also this court held that tenancy rights of joint tenant cannot be negated solely on the ground that the certificate is issued in the name of only one member of the joint family.

[29] Therefore, only when the controversy before the civil court invovles an issue which is exclusively to be tried by the tenancy authorities as contemplated under the Tenancy Act, the bar provided under Section 85 of the Tenancy Act would apply to the civil court's jurisdiction. However, when the controversy before the civil court involves an issue which cannot be tried and decided under the Tenancy Act or when the issue involved pertain to the exclusive province of the civil court, the bar under Section 85 of the Tenancy Act would not take away the civil court's jurisdiction to try and decide such an issue. In view of Section 9 of the Civil Procedure Code, 1908, civil court shall have jurisdiction to try all suits of a civil nature excepting suit of which their cognizance is either expressly or impliedly barred. Therefore, unless the issue before the civil court expressely or impliedly falls within the ambit of the Tenancy Act, required to be decided under any of the provisions of the Tenancy Act, the dispute of a civil nature before the civil court would fall within the civil court's jurisdiction and the bar under Section 85 of the Tenancy Act would not apply.

[30] In view of the well-established legal principles as discussed above, the controversy regarding the existence of a joint Hindu family and whether the certificate issued under Section 32M was issued on behalf of a joint Hindu family or in an individual capacity cannot be decided by the Tenancy Court as it would be the exclusive province of the civil court to decide such controversy. In the present case, the civil court has not decided the validity of the 32M certificate. None of the issues required to be dealt with and settled under the exclusive jurisdiction of the tenancy court arose in the facts of the present case. Thus, in the facts of the present case, only the civil court was competent to decide whether the plaintiffs were also co-owners, and thus, reference to the tenancy authorities was not necessary.

[31] There is no substance in the submissions made on behalf of the appellants that there was a lease created in favour of Vitthal after Dashrath's death. The learned counsel for the appellants submitted that by filing a review application before the first appellate court, the appellants produced photocopies of the order under Section 32G and the certificate under Section 32M and lease in favour of Vitthal to support their submissions that Vitthal was a tenant in his individual capacity and that the order under Section 32G was passed after hearing the plaintiffs. However, nothing is shown to indicate that either of these documents were exhibited and proved, and the truthfulness of the contents was proved in evidence. In any event, the mere production of photocopies of these documents would not indicate exclusive ownership of the defendants. Even otherwise, the validity of the orders or the certificate issued by the tenancy authorities was not dealt with by both courts.

[32] There is also no substance in the submissions made by the learned counsel for the appellants that the plaintiffs had suppressed the order under Section 32G and the certificate under Section 32M in favour of the defendants. A perusal of the record indicates that the plaintiffs pleaded that despite the order under Section 32G and the certificate under Section 32M in favour of the defendants, the plaintiffs would be entitled to a share in the suit property through Dashrath, as it was a Hindu joint family property.

[33] A perusal of both the judgments indicates that the entries in the revenue records, the Vahiwat case confirming cultivation by defendants and Kondiba, i.e. father of plaintiffs nos. 7 to 9, and the certified copy of the 32M certificate is thoroughly examined by the trial court. The trial court has exhaustively discussed the defendant's claim based on the certified copy of the certificate under Section 32M produced by the defendants. The first appellate court has reexamined all the documentary and oral evidence. The defendants could not prove that the 32M certificate was issued by holding that Vithal was a tenant in his individual capacity. It is not the case of the defendants that Dashrath had anytime surrendered the tenancy rights. By analysing the documentary and the oral evidence, both courts have recorded a concurrent finding that the suit property is the joint family property of the parties and is not exclusively owned by the defendants. Reliance placed by the learned counsel for appellants on the definition of 'person' under Section 2(11) of the Tenancy Act, supports the plaintiffs' contentions, in as much as the definition of 'person' includes a joint family. Therefore, only issuance of 32M certificate in the name of defendants would not defeat the plaintiffs right to seek partition on the ground that the suit property belongs to the Hindu joint family.

[34] Hence, given the well-established principles of law, the findings recorded by both the courts in holding Dashrath as the original owner and Vitthal as Karta or Manager of the Hindu undivided joint family cannot be said to be beyond the civil court's jurisdiction. Hence, both the questions of law are answered accordingly in favour of the plaintiffs. For the reasons recorded above, no fault can be found in the impugned judgments and decrees.

[35] Hence, the second appeal is dismissed. The impugned judgments and decrees are confirmed.

[36] After the judgment was pronounced, learned counsel for the appellant seeks continuation of the interim relief operating in the second appeal.

[37] The impugned judgments and decrees are for partition and separate possession. Hence, as requested by the learned counsel for the appellants, actual handing over of physical possession as per the impugned decree shall remain stayed for a period of 12 weeks.

[38] It is clarified that proceedings for division of the suit property as per the impugned decree shall proceed.

[39] For a period of 12 weeks, the parties shall not create any third party interest in the suit property