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Shewa Lachha Banjar Vs. Bhawarilal Ganeshmal Marwadi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 191 of 1969
Judge
Reported inAIR1973Bom139; 1973MhLJ726
ActsEvidence Act, 1872 - Sections 44 and 114
AppellantShewa Lachha Banjar
RespondentBhawarilal Ganeshmal Marwadi and ors.
Appellant AdvocateJ.N. Chandurkar, Adv.
Respondent AdvocateF.B. Gandhe, Adv.
Excerpt:
the case discussed on the scope and applicability of section 44 of the evidence act, 1872 - the court held that section 44 of the evidence act was applicable to execution matters - it was further held that the section permitted the leading of evidence that the order to be executed was passed by mistake or fraud and was not binding - - he will also take into consideration the effect of the orders made in a separate proceeding conferring statutory ownership on the present petitioner shewa and, after giving opportunity to all the parties concerned, pass appropriate orders with respect to the rights of the petitioner shewa as well as with respect to rights of bhawarilal baijnath marwadi, the respondent no......the act have consistently rejected the application, appeal and revision application filed by the present tenant. that is how the tenant is driven to this court.2. simultaneously, it appears, this petitioner shewa s/o laccha banjar was served with notice for suo motu conferment of statutory ownership right under the very same act relating to the very same piece of property. the record of that case which has been called in this petition has been perused by me. there the tenancy authorities have treated one parasmal kundanlal marwadi as the eland-holder of the very same land and it appears that the petitioner's name has been properly shown as the tenant of the land. on the basis of the revenue record an enquiry was made by the agricultural lands tribunal, darwha, and by an order dated.....
Judgment:
ORDER

1. The present petition has peculiar facts of its own. The respondent No.1 Bhawarilal claiming to be the purchaser as per sale-deed dated December 20, 1952, which is produced in this case, appears to have applied under Section 36 (2) of the Bombay tenancy and Agricultural Lands Act, 1958, for possession of the land styling Gawarishankar (respondent No. 2) as the tenant and Mangayya (respondent No.3) as the sub-tenant. Those proceedings were registered separately and came to be determined in favour of Bhawarilal in which an order for possession in his favour as landlord was made. In the execution of that order, the present petitioner, who claimed to be in physical possession of the property and as tenant of the land, came to know about this order. Therefore, he applied to the Naib Tahsildar, Darwha, that he was a tenant of the land and was physical possession of the land and that he is being dispossessed in an execution proceeding upon the basis of the order obtained by Bhawarilal. Though the objection was of vital importance and reached the very basis of such an execution, a cryptic order was made rejecting the application on February 29, 1968. It must be observed that even in execution if it is shown that the order was made upon mistake or fraud which affects the very validity of the order under execution rendering it ineffective, it can properly be questioned by an one. Section 44 of the Evidence Act in terms applies to such matters and permits a person to lead evidence to show that the order is not binding in any such proceeding. Completely oblivious of the salutary principle in this regard, all the authorities under the Act have consistently rejected the application, appeal and revision application filed by the present tenant. That is how the tenant is driven to this Court.

2. Simultaneously, it appears, this petitioner Shewa s/o Laccha Banjar was served with notice for suo motu conferment of statutory ownership right under the very same Act relating to the very same piece of property. The record of that case which has been called in this petition has been perused by me. There the tenancy authorities have treated one Parasmal Kundanlal Marwadi as the eland-holder of the very same land and it appears that the petitioner's name has been properly shown as the tenant of the land. On the basis of the revenue record an enquiry was made by the Agricultural Lands Tribunal, Darwha, and by an order dated December 28, 1967, this very property is statutorily conveyed to the present petitioner. An appeal was taken against that order, so also the revision, and the matter is concluded by an order made by the Maharastra Revenue Tribunal in Tenancy Revision Application No-Ten-A-1242/1968. There the question relating to Gawarishankar and Bhawarilal also appears to have been considered and the Tribunal has observed that Parasmal Kundanlal is fighting out the litigation in which he has no interest and the person who is interested is doing nothing. Thus, on the one hand the petitioner has been conferred with the statutory ownership under the provisions of the Act being the tenant in possession and on the other, an order is being executed against the very same land on the process being taken out by one Bhawarilal, the respondent No.1, against the respondents Nos. 2 and 3.

3. It has to be pointed out that the provisions of the Bombay Tenancy and Agricultural Lands Act, 1958, confer an obligation coupled with duty upon the authority to do justice between the parties with respect to their valuable rights. Section 100 speaks of duty to decide whenever the question is raised whether a particular person is a tenant of the land or not. That power can be invoked either by an application in the original proceeding or in the manner done, as in the case, even in an execution proceeding if such a finding would render the execution a nullity under the Act. If for instance the allegations made in the application by Shewa were correct, then his possession could not be disturbed by an order made in favour of one Bhawarilal and obtained behind the back of the tenant. It is plain that by not deciding the application filed by Shewa, the revenue authorities have declined to exercise their jurisdiction expressly conferred by the statute. Shewa was contending that he was the tenant and record shows that he has been conferred with the statutory ownership of the land too. No proceeding, therefore, could proceed to execution to his detriment if Shewa was in possession of that land, as tenant.

4. The only course that the ends of justice in this case dictate is to set aside and quash all the three orders made by the revenue authorities which are produced in this petition at Annexes. Nos. 1, 2 & 3 and to send back the case to the Naib Tahsildar, Darwha, with Tenancy Powers, to find out who was in possession of the land as a tenant under the provisions of the Act. He will also take into consideration the effect of the orders made in a separate proceeding conferring statutory ownership on the present petitioner Shewa and, after giving opportunity to all the parties concerned, pass appropriate orders with respect to the rights of the petitioner Shewa as well as with respect to rights of Bhawarilal Baijnath Marwadi, the respondent No.1 in this petition. The parties will have opportunity to lead evidence if they so desire and also of hearing on all questions involved in this case.

5. As the statutory ownership has been conferred upon petitioner Shewa and has been affirmed by the Maharastra Revenue Tribunal in the case mentioned above, it is but natural that possession should be with the present petitioner Shewa s/o Laccha Banjari. The petitioner will get the possession and shall be restored to it by the authorities under the provisions of the Tenancy Act.

6. In the sum, the present petition is allowed. the orders passed by the Maharashtra Revenue Tribunal and the lower authorities are set aside and the matter is remitted to the Naib Tahsildar, Darwha, for deciding the application of petitioner Shewa keeping in view the observations made above. The petitioner to get the costs from the respondent No.1.

7. Application allowed.


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