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Atmaram Panduji Tidke Vs. Prabhawatibai Dattatraya Pakode and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 486 of 1967
Judge
Reported inAIR1971Bom148; (1971)73BOMLR470; 1970MhLJ805
ActsBombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 - Sections 36, 100, 100(2), 100(12), 120, 124, 125 and 145; Specific Relief Act, 1963 - Sections 6; Code of Criminal Procedure (CrPC) , 1898 - Sections 145, 145(4) and 145(6); Tenancy Laws; Madhya Pradesh Land Revenue Code - Sections 250 and 257
AppellantAtmaram Panduji Tidke
RespondentPrabhawatibai Dattatraya Pakode and ors.
Appellant AdvocateP.G. Palshikar, Adv.
Respondent AdvocateR.M. Joharapurkar, Adv.
Excerpt:
.....145 of the code. the decision of the civil court will prevail by virtue of section 145(6) of the code.;a suit under section 6 of the specific relief act, 1963 is not barred by section 124 of the bombay tenancy and agricultural lands (vidarbha region) act, 1958.;nathu v. dilbande hussain [1967] a.i.r. m.p. 14, distinguished. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain..........on 4th may 1966 atmaram served a notice on dattatraya asking him to restore possession of the suit land to him, contending that the surrender dated 7th may 1963 was contrary to the provisions of the bombay tenancy and agricultural lands ( vidarbha region) act, 1958. dattatraya received the said notice on 14th may 1966 and it is alleged by atmaram that as a result of this notice dattatraya gave him possession of the suit land. the question of this possession is also a matter in dispute. on 5th april 1966 atmaram applied to the tahsildar for determination of the price to be paid by him to dattatraya on the contention that on 1st april 1963 he had become the owner of the land under the said bombay tenancy and agricultural lands (vidarbha region) act, 1958. it appears on 5th april 1967.....
Judgment:

1. This is a revision application by the original defendant No. I against the judgment dated 21st November 1967 of the learned Civil Judge. Senior Division, Yeotmal, deciding certain preliminary issues pertaining to the jurisdiction of the Court against the applicant.

2, The dispute is about survey No. 51 of village Madni, tahsil and district Yeotmal, admeasuring about 35 acres 36 gunthas. One Dattatraya, who is the defendant No. 2 in the suit, was the owner of the said land. Atmaram, the defendant No. 1. was his tenant in the year 1958-59. However, on 7th May 1963 Atmaram executed a receipt in favour of Dattatraya surrendering pos-session of the said land to Dattatraya. Thereafter, on 7-12-1964 by a registered partition deed between Prabhawatibai wife of Dattatraya and her husband, the said Dattatraya, the said land came to the share of the said Prabhawatibai. Whether Prabhawatibai was put in separate possession of the land pursuant to the deed of partition or not is a question in dispute. It also appears that Dattatraya, the defendant No. 2 and Prabhawatibai his wife, the plaintiff, are not on good terms with each other. On 4th May 1966 Atmaram served a notice on Dattatraya asking him to restore possession of the suit land to him, contending that the surrender dated 7th May 1963 was contrary to the provisions of the Bombay Tenancy and Agricultural Lands ( Vidarbha Region) Act, 1958. Dattatraya received the said notice on 14th May 1966 and it is alleged by Atmaram that as a result of this notice Dattatraya gave him possession of the suit land. The question of this possession is also a matter in dispute. On 5th April 1966 Atmaram applied to the Tahsildar for determination of the price to be paid by him to Dattatraya on the contention that on 1st April 1963 he had become the owner of the land under the said Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. It appears on 5th April 1967 Dattatraya appeared before the Tahsildar and stated that he was willing to sell the suit land to Atmaram for Rs. 1200/-. Thereupon, on 28th April 1967 the Tahsildar made an order directing Atmaram to pay Rs. 1200/- on or before 31st March 1968, and on 6th June 1967 Atmaram deposited Rs. 1200/- with the Tahsildar. It appears all these proceedings between Atmaram and Dattatraya were without the knowledge of and over the head of the plaintiff, and Dattatraya was acting in the manner he did notwithstanding his being a party to the registered partition deed dated 7-12-1964.

3. On 27th July 1966 the plaintiff made a complaint to the police alleging that she was in possession of the suit land and Atmaram was attempting to take forcible possession of it from her. On 2-8-1966 she instituted proceedings against Atmaram under Section 145 of the Code of Criminal Procedure. On 16th November 1966 as a result of inquiry under Section 145 of the Code of Criminal Procedure, the learned Magistrate held that Atmaram was in possession of the suit land. He, therefore, prohibited the plaintiff from interfering with the possession of Atmaram except by due process of law. Consequently on 15th December 1966 the plaintiff filed the suit from which the present revision application arises. This suit was based on title and prayed for possession and also impugned the order under Section 145 ofthe Code of Criminal Procedure. On 3rd August 1967 the plaintiff amended the plaint with the leave of the Court, dropped her prayers as to declaration of title and impugning the order under Section 145 of the Code of Criminal Procedure, and confined her case to the allegation that within six months prior to the date of the suit she had been hi possession of the suit property but had been dispossessed by Atmaram, defendant Ho. 1, within the said six months. She converted the suit to one under S. 6 of the Specific Relief Act.

4. Atmaram contended that he was a tenant in respect of the property and that he was in possession having obtained the same from the defendant No. 2 on 14th May 1966. He took up the contentions to the effect that as the question of tenancy, was involved, the matter should be referred to the Revenue Authorities under the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. and that it was not open to the plaintiff to recover possession under Section 6 of the Specific Relief Act without impugning the order under Section 145 of the Code of Criminal Procedure and having it set aside.

5. The learned trial Judge framed issues in the matter and tried the issues as to the question of tenancy being referred to the Revenue Authorities and the maintainability of the suit without getting the order under Section 145 of the Code of Criminal Procedure set aside and decided the same against the defendant No. 1 who is the present applicant. The present revision application has been filed against the said order.

6. Before dealing with the contentions of the applicant, it is necessary to consider the scope of a suit under S. 6 of the Specific Relief Act. 1963. It is a suit by a person dispossessed of immovable property within a period of six months prior to the suit for recovery of possession of the said property from the person who has dispossessed him. This is a suit of a summary nature only in the sense that no question of title is involved in it and no appeal lies from the decision. The decision in it does not bar a suit to establish title. The only question for determination in a suit under Section 6 is whether the plaintiff was in possession within six months prior to the date of the suit and whether the plaintiff has been dispossessed otherwise than in due course of law.

7. The first contention of the applicant is that under the provisions of Section 100, sub-sections (2) and (12), of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, it is the duty of the Tahsildar to decide whether a person is a tenant and to decide an application for possession under Sec-tion 36. Section 125 of the said Act provides that if any suit is instituted in any Civil Court which involves any issues which are required to be settled, decided or dealt with by a revenue authority. the civil Court shall stay the suit and refer such issues to the revenue authority. It is therefore submitted that as the defendant No. 1 has contended that he is a tenant, the civil court must refer the question of his tenancy to the revenue authority. I, however, find no substance in this contention. In this suit, there is no question whether the defendant No. 1 was or was not a tenant. There is also no application by him under Section 36 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act for possession. Even if the defendant No. 1 be a tenant he has no right to recover forcible possession from a person except by due process of law. The only question for determination in a suit Under Section 6 of the Specific Relief Act is whether the plaintiff was in possession within six months prior to the date of suit and whether the plaintiff has been dispossessed within that period. The question of the status of the person dispossessing or the title of the plaintiff is not involved in the suit. If the Court finds that the plaintiff was not in possession of the suit property within six months prior to the date of the suit, the plaintiff will fail. If the Court finds that the plaintiff was in possession and the defendant has dispossessed her within that period, the plaintiff will succeed and it will be open to the defendant No. 1 to take what proceedings he likes under the provisions of the Tenancy Act.

8. It is also contended by the applicant that a suit under Section 6 of the Specific Relief Act is not maintainable without impugning and having set aside the order under Section 145 of the Code of Criminal Procedure. Without having that order set aside, the plaintiff cannot succeed in a suit under Section 6 and that the cause of action of the plaintiff is the making of the order under Section 145. There appears to me to be no substance in this contention also. Under Section 145 (4) of the Code of Criminal Procedure, the Magistrate dealing with proceedings under Section 145 has to hold an inquiry as to possession and not as to title. If he decides that one of the parties was in possession he shall under the provisions of sub-section (6) issue an order declaring such party entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of that possession until such eviction. All that S. 145 (6) talks of is that a person who is found by the Magistrate not to be in possession must evict the person who is found to be in possession in due course of law. If the aggrieved person chooses to file a suitunder Section 6 of the Specific Relief Act for possession and recovers possession under a decree in such a suit, it will be an eviction of the person found by the Magistrate in possession in due course of law. Sub-section (6) of S. 145 nowhere enjoins a suit on title, nor is there any requirement that the party must seek to have the order of the learned Magistrate set aside. In fact, it will not be open to a civil court, without an express statutory provision to that effect, to determine whether the learned Magistrate was right or wrong. Such a question could only be determined in an appeal against the order under Section 145 of the Code of Criminal Procedure or in revision thereafter. It would be sufficient for a civil court to come to the conclusion as to whether the plaintiff was or was not in possession within six months prior to the date of the suit and whether the plaintiff has or has not been dispossessed within that period. It would not be necessary for the civil court to go into the rights and wrongs of an order under Section 145. The decision of the Civil Court would prevail by virtue of Section 145 (6) of the Code of Criminal Procedure.

9. There is a third point taken by Mr. Palshikar on behalf of the applicant. He has fairly conceded that this point was not taken in the trial Court. I have, however, heard him on this point and find no substance in it. The contention taken by him is that under Section 120 (c) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act. 1958, a person in wrongful possession of agricultural land may be summarily evicted by the Collector, and Section 124 of the said Act bars the jurisdiction of a civil court in respect of questions which are required to be settled under the Act. He therefore contends that a suit under Section 6 of the Specific Relief Act would be barred by Section 124 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act in respect of agricultural lands. In my opinion although the applicant is not entitled to take this contention, not having taken it in the trial Court there is also no substance in it. Section 120 provides a remedy by way of summary eviction. There is no compulsion to resort to it and there is no compulsion on the Collector to grant a relief under it. No one is required to have to resort to Sec, 120. It is merely an available alternate remedy and not an exclusive remedy. If the remedy were granted it would by itself be subject to the result of a suit. As no one is required to resort to that remedy, Section 124 will be no bar. there being no element of compulsion in resorting to that remedy. Mr. Palshikar has invited my attention to the judgment of the Madhya Pradesh High Court inNathu v. Dilbande Hussain, : AIR1967MP14 where under Section 250 of the Madhya Pradesh Land Revenue Code, the Tahsildar was 'empowered' to decide certain questions and Section 257 of that Code barred the jurisdiction of a civil court in respect of such questions, and it was held that a remedy of suit under Section 9 of the old Specific Relief Act was not available. This case is clearly distinguishable because under Section 257 of the Madhya Pradesh Land Revenue Code the jurisdiction of civil court was excluded in respect of all questions which the revenue authorities were 'empowered' to decide and not in respect of questions which the revenue authorities were 'required' to decide. There is a clear distinction between Section 124 of our Act and Section 257 of the Madhya Pradesh Land Revenue Code, and the decision would have no application to the facts of our case.

10. In the result, the civil revision application is dismissed with costs.

11. Revision application dismissed.


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