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Babu Kallappa Khot Vs. Mhalsabai Malhar Kulkarni - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 876 of 1971
Judge
Reported in(1974)76BOMLR603; 1974MhLJ832
AppellantBabu Kallappa Khot
RespondentMhalsabai Malhar Kulkarni
DispositionAppeal dismissed
Excerpt:
.....act (bom. lxvii of 1948), sections 33b, 88c--certificated lanalord applying for possession of land for personal cultivation under section 33b--tenancy aval karkun allotting application--landlord dying during pendency of appeal before appellate authority--heirs of landlord, whether should establish by adducing evidence that they in fact require the land for personal cultivation.;where a certificated landlord has made an application for possession of land for personal cultivation under section 33b of the bombay tenancy and agricultural lands act, 1948, and at the time of his death an order for possession has already been passed in his favour, then his heirs, who are brought on record, are required only to support the order of possession on the grounds on which it was passed by the..........who makes an application for possession must strictly prove that he bona fide requires the land for personal cultivation. even in pending proceedings if the landlord dies and heirs are brought on record for prosecuting the proceedings, then heirs before they can succeed in getting possession of the land must prove that they need the land bona fide for personal cultivation. in support of these submissions mr. sali strongly relied on the following decisions of this court.9. in the case reported in shankar gopal v. prabhakar : (1970)72bomlr695 vaidya j. had to consider a somewhat similar case. one dattatraya govind had obtained a certificate under section 88c of the bombay tenancy and agricultural lands act. in proceedings under section 33b read with section 29 of the act the.....
Judgment:

Bhasme, J.

1. This application is filed by the tenant against whom an order for eviction is passed in respect of certain acreage of lands from out of three pieces held by him as tenant, A few facts will have to be stated for appreciating the contentions raised in these proceedings by Mr. Sali on behalf of the petitioner.

2. The petitioner holds as tenant three pieces of land bearing survey Nos. 181/5, 181/3 and 181/1. The three lands admeasure 3 acres and 33 gunthas assessed at Its. 17-4-0 and are situate in village Mangaon, taluka Hatkanangale in district Kolhapur.

3. Deceased Mhalsabai was the landlady and she had obtained a certificate under Section 880 of the Bombay Tenancy and Agricultural Lands Act. By a notice dated December 22, 1961 she terminated the petitioner's tenancy and on February 2, 1962 initiated the present proceedings under Section 33B of the Bombay Tenancy and Agricultural Lands Act against the petitioner on the ground that she required the lands ional fide for personal cultivation. The petitioner resisted the application, inter alia, on the ground that the notice was not legally served on him and in fact the landlady did not bona fide require the lands for personal cultivation. The Tenancy Aval Karkun, Hatkanangale allowed the landlady's application and directed the petitioner to restore possession of 2 acres of land to her. Against this order the petitioner preferred an appeal in the Court of the District Deputy Collector, Karvir Division, Kolhapur. During the pendency of the appeal the landlady Mhalsabai died and two persons i. e. respondents Nos. 2 and 5 respectively claiming to be the adopted son of the deceased and legatee under her will were brought on record as heirs of Mhalsabai. The District Deputy Collector partly allowed the petitioner's appeal and remanded the proceeding's for modification of the area to which the original applicant was entitled. According to the directions of the District Deputy Collector, the Tenancy Avval Karkun was to pass appropriate orders regarding the acreage of land after hearing both the parties.

4. The above decision was challenged by the petitioner by filing a revisional application before the Maharashtra Revenue Tribunal at Kolhapur. During the pendency of the revisional application one of the respondents, who claimed to be the adopted son of deceased Mhalsabai, died and his sons were brought on record, In the present proceedings they are shown as respondents Nos. 3 and 4. The petitioner had raised a number of contentions before the Tribunal. It was contended that no notice as contemplated by Section 33B of the Tenancy Act was served on the petitioner. The application by the deceased Mhalsabai for possession was not maintainable as she was holding the suit properties only as a limited owner for her maintenance. Lastly the tenant also disputed the fact that the landlady required the lands bona fide for personal cultivation. The Revenue Tribunal, however, confirmed the order of the District Deputy Collector subject to a slight modification. The possession of the land was to be delivered only after the right of the respondents to succeed to the property as heirs of deceased Mhalsabai or deceased Ramchandra, as the case may be, was adjudicated by the competent Court or the matter was settled by them by mutual agreement. The possession of the suit land was to be delivered to the successful landlord after the settlement of the question of title. Barring this modification, the revisional application was dismissed.

5. Mr. Sali, who appears for the petitioner, has raised three points in support of the application. He says that the landlady had failed to establish that proper notice was served on the tenant. The application was liable to be dismissed in limine. It appears from the evidence that the registered packet containing the notice was returned by the postal authorities with an endorsement that the addressee had refused to accept the same. On behalf of the landlady a postman was examined to prove the endorsement appearing on the packet. The postman, who had made the endorsement, was not available as a witness. In the circumstances the landlady had established the service of notice. There is no substance in the first contention.

6. Then Mr. Sali argued that Mhalsabai had no full title to the suit lands and her application for possession is not maintainable. But Mhalsabai had obtained a certificate under Section 88C of the Bombay Tenancy and Agricultural Lands Act. The petitioner, who was a party to those proceedings, cannot at this stage challenge the title of Mhalsabai as a certificated landlord.

7. The third contention raised by Mr. Sali is a substantial one and assumes importance in the present case. Mr. Sali relies upon certain decisions of this Court and submits that heirs of Mhalsabai can only succeed in getting possession of the land under Section 33B of the Tenancy Act, if they establish by adducing evidence that they, in fact, required the lands for bona fide personal cultivation. Mhalsabai may have. succeeded in the Court of first instance in getting an order for possession after establishing her bona fides. As the Tribunal has not considered this aspect and the appellate Court was also not aware of the changed circumstances, Mr. Sali submits that the proceedings should be remanded to the trial Court for finding out whether or not the heirs of Mhalsabai, in fact, required the suit lands bona fide for personal cultivation.

8. Mr. Sali relies on Section 33B(7) of the Bombay Tenancy and Agricultural Lands Act, which enables a certificated landlord after giving notice and making an application for possession to resume the lands provided the landlord bona fide requires such land for cultivating it personally. The landlord, who resumes the lands, must prove his bona fides as the land is liable to be restored to the tenant under Section 37(7) of the Tenancy Act, if the landlord fails to use the land for any of the purposes specified in the notice within one year from the date on which he took possession or ceased to use it at any time for any of the aforesaid purposes within twelve years from the date on which he took such possession. Mr. Sali says that it is personal right of the landlord and, therefore, the condition must be strictly established. He says that even after the death of the certificated landlord the certificate will not lapse, but the successor-in-interest who makes an application for possession must strictly prove that he bona fide requires the land for personal cultivation. Even in pending proceedings if the landlord dies and heirs are brought on record for prosecuting the proceedings, then heirs before they can succeed in getting possession of the land must prove that they need the land bona fide for personal cultivation. In support of these submissions Mr. Sali strongly relied on the following decisions of this Court.

9. In the case reported in Shankar Gopal v. Prabhakar : (1970)72BOMLR695 Vaidya J. had to consider a somewhat similar case. One Dattatraya Govind had obtained a certificate under Section 88C of the Bombay Tenancy and Agricultural Lands Act. In proceedings under Section 33B read with Section 29 of the Act the Tenancy Avval Karkun ordered that possession of the suit lands should be given to Dattatraya Govind Kulkarni. Against this order the tenants preferred an appeal. During the pendency of the appeal, Dattatraya Govind Kulkarni died and his heirs were brought, on record. The Special Deputy Collector allowed the appeal and set aside the order passed by the Tenancy Avval Karkun on the ground that the heirs of deceased Dattatraya Govind Kulkarni were not entitled to the benefits of the order for possession passed in favour of the deceased. The heirs filed a revisional application and the Maharashtra Revenue Tribunal reversed the order of the Special Deputy Collector. This order was challenged before Vaidya J. Vaidya J. modified the order and remanded the case to the Mamlatdar with a direction to give an opportunity to the heirs to establish that they bona fide required the lands for personal cultivation.

10. The above decision of Vaidya J. was cited before Deshpande J. in Laxmibai Balkrishna Ambike v. Ramu Sadhu Patole (1971) Special Civil Application No. 1138 of 1967, decided by Deshpande J., on April 6, 1971 (Unrep.) Under similar circumstances Deshpande J. held that the heirs of the deceased certificated landlord, who prosecute the proceedings under Section 33B of the Tenancy Act, should establish their bona fide requirements before resuming the lands in possession of the tenant.

11. The decision of Vaidya J. was also cited before Wagle J. in Damu Sakharam Fiilzade v. Bhaskar Pralhad Patil (1971) Special Civil Application No. 2365 of 1967, decided by Wagle J., on August 17, 1971 (Unrep.) Wagle J. felt that the ratio of the decision was contrary to the decision of the Division Bench in Parvatibai Ram Chandra v. Mahadu : AIR1967Bom428 . It was held in Parvatibai's case that the right of a certificated landlord to apply under Section 33B of the Bombay Tenancy and Agricultural, Lands Act, 1948 for possession of land from an excluded tenant does not lapse on his death and can be exercised, within the specified time, by his successor in interest. No doubt Vaidya J. had referred to Parvatibai's case while deciding the abovementioned Shankar Gopal's case. Wagle J. also felt that the judgment in Madhav Vithoba v. Dhondudas (1966) 68 Bom. L.R. 524 was not brought to the notice of Vaidya J. In this judgment it was held that the circumstances as obtainable at the date of the application had to be taken into consideration while deciding the claim of the landlord for possession under Section 33B of the Tenancy Act.

12. When Special Civil Application No. 794 of 1969 came up for arguments be fore Hajarnavis J. on February 15, 1973 the judgments of Vaidya J. and Wagle J. were cited at the bar. Hajarnavis J. while referring the matter to a larger bench made the following observations:

The facts in this case and the cases decided by Wagle, J. and Vaidya, J. are almost identical inasmuch as a certificated landlord died after initiating the proceedings and that too while appeals were pending in all the cases. In my opinion it is, therefore, necessary that this conflict should be resolved as the matter is important and I am told that there are a number of cases pending on this point. It is, therefore, necessary that the matter should be placed before a larger bench. The case papers be placed before the learned Chief Justice for orders.

13. The Special Civil Application, therefore, came up for consideration before the Division Bench of Deshmukh and Shah JJ. in Hariba Keshav v. Smt. Motibai (1973) 76 Bom. L.R. 595. Before I refer to the ratio of the decision of the Division Bench, it will be necessary to set out a few relevant facts. The suit land belonged to one Dipchand and it was in possession of one Keshav as his tenant. Dipchand was the certificated landlord. He made an application on January 9, 1962 under Section 33B of the Act before the Tenancy Avval Karkun. Keshav died during the pendency of the application before the Tenancy Awal Karkun. His heirs were brought on record. The Tenancy Avval Karkun rejected the application of Dipchand on, the ground that he did not require the suit land for personal cultivation. This decision of the Tenancy Awal Karkun was challenged by Dipchand by filing an appeal before the Special Deputy Collector (Tenancy Appeals), Sholapur. During the pendency of the appeal, on December 1, 1964 Dipchand died and his heirs were brought on record. The Appellate authority reappreciated the evidence and passed an order for delivery of possession on the basis that the deceased landlord had proved that he required the land bona fide for his personal cultivation. The Appellate authority allowed the appeal and passed an order for delivery of possession of the entire land in favour of the heirs of Dipchand. This order was confirmed by the Tribunal in revision. It is clear, therefore, that when Dipchand died during the pendency of the appeal, no order for possession was subsisting in his favour. When his heirs were brought on record they were only to prosecute the proceedings initiated by Dipchand during his lifetime. The Division Bench considered the conflicting decisions of Vaidya J. and Wagle J. and also the rulings reported in Madhav Vithoba v. Dhondudas and Parvatibai Ram Chandra v. Mahadu. In the result the Division Bench held that if after the application by the original landlord, the landlord died during the pendency of the proceedings, then the heir, who is brought on record, is certainly entitled to prosecute the application. But he will have to establish his own bona fides. Otherwise on that ground alone his application would be liable to be dismissed. However, the heir of the deceased-landlord in such a case should be called upon to prove his bona fide requirements on the date of his being brought on record as an heir of the original applicant.

14. Mr. Sali strongly relied on the decision of Vaidya J. and the ratio of the later decision of the Division Bench mentioned above for the proposition that in all cases where the certificated landlord dies during the pendency of the proceedings the heirs brought on record should establish their own bona fide requirements of the land for personal cultivation.

15. Mr. Mandrekar, who appears for the respondents, however, submitted that the broad proposition propounded by Mr. Sali cannot be accepted in view of the legal position enunciated by the Supreme Court in a recent decision reported in Smt. Phool Rani v. Naubat Rai Ahluwalia [1973] II S.C.J. 589 Mr. Mandrekar submitted that no doubt the decision was given while considering the provisions of Section 14(7)(e) of the Delhi Rent Control Act, 1958, but as the relevant provisions of the Act contained a similar condition about personal requirement of the landlord, the ratio of the decision will be applicable to the facts of the Present case. In that case the landlord had sought possession of the premises from the tenant on the ground that the premises were required by the plaintiff for occupation as residence for himself and members of his family. The plaintiff's application was dismissed by the Additional Rent Controller, Delhi, on the preliminary ground that the notices to quit were not valid. Plaintiff filed an appeal against that decision and during the pendency of the appeal, he died. His heirs were brought on record and the tenant opposed the application. The Appellate Tribunal set aside the finding on the preliminary issue and remanded the application for decision on merits. As the order of remand was not stayed during the pendency of the second appeal, an order for ejectment of the tenant in favour of the heirs was passed on the ground that the heirs required the premises bona fide for their personal occupation. The tenant's appeal was rejected by the Rent Control Tribunal. In the second appeal filed by the tenant, the High Court of Delhi took the view that the right to sue did not survive to the heirs of the plaintiff and on that ground it rejected the ejectment application, leaving it open to the heirs to bring a fresh proceeding founded on their own requirements. The Supreme Court, however, reversed the decision of the Delhi High Court and came to the conclusion that the cause of action did survive and the heirs were entitled to claim possession of the premises. According to Mr. Mandrekar the ratio of this decision will apply to the facts of the present case. He says that even if a certificated landlord dies without initiating proceedings under Section 33B, his heirs are entitled to take benefit of the certificate. Even if the certificated landlord dies during the pendency of the proceedings, his heirs can prosecute the proceedings and succeed in resuming the land from the tenant. So far there is no doubt and Mr. Sali rightly concedes that the heirs of the deceased certificated landlord will be entitled either to initiate or to prosecute the resumption proceedings under Section 33B of the Tenancy Act. The controversy in the present case centres round the narrow issue about the bona fide requirement of the applicant who wants the land for personal cultivation. Mr. Sali rightly relied on the decision of the Division Bench when he submitted that the heirs brought on record during the pendency of the proceedings initiated by the certificated landlord will have to prove afresh that they require the lands bona fide for their personal cultivation. In my opinion the point which arises for consideration in the present case is somewhat different from the case decided by the Division Bench. But if the ratio of the decision of Vaidya J. is correct, then the broad proposition propounded by Mr. Sali will have to be accepted as sound law. But in view of the statement of law contained in the abovementioned Supreme Court decision, I think that I will not be in a position to accept the principle of law enunciated by Vaidya J. in Shankar Gopal v. Prabhakar. The following observations of Vaidya J. at page 696 may be quoted here:.Section 37 of the Bombay Tenancy and Agricultural Lands Act, 1948 lays down that after the landlord takes possession of the land upon the termination of the tenancy under Section 33B, if he fails to use it for any of the purposes specified in the notice given under Section 83B, within one year from the date on which he took possession or if he ceases to so use it within 12 years from that date, the tenant is entitled to restoration of possession. Section 33B requires the landlord to satisfy the tenancy authorities that the land is required for bon it fide personal cultivation. Section 37 manifestly implies that whoever gets possession for personal cultivation in the proceedings under Section 83]) must be cultivating the land after getting possession. It follows that the tenancy authorities must be, therefore, satisfied in all cases that the land is required for bona fide personal cultivation by the person getting possession thereof.

16. The learned Judge, therefore, held that the heirs, who were brought on record during the pendency of the proceedings initiated by the certificated landlord, must establish by additional evidence that they bona fide required the land for personal cultivation. This is also the view of the Division Bench in the case referred to above.

17. In my opinion the rule laid down by Vaidya J. and the Division Bench will apply to all cases where the proceedings initiated by the certificated landlord are pending at the time of his death and no order for possession is passed in his favour. If, at the time of his death, an order for possession is passed in his favour, then the heirs, who are brought on record, are required only to support the order of possession on the grounds on which it was passed by the authority at the appropriate time. In such a case the heirs will not be required to establish the grounds afresh for supporting the order, which is already passed in favour of the deceased certificated landlord. My view receives considerable support from the statement of law contained in the abovementioned Supreme Court judgment. At p. 591 Chandrachud J. observes:

The survival of the right to sue on the death of a plaintiff is a problem that has often to be solved on a permutation of several facts and circumstances. But it would be out of place in this judgment to embark upon an abstract disquisition of the question as to in what classes of eases, the right to sue survives in favour of the legal representatives. In some cases under the Rent Acts, the maxim actio personal a moritur cum persona has been attempted to be applied on the death of a necessary party to a. suit or proceeding but that oft quoted maxim is oft misunderstood.

After considering the issue of bona fide requirement with reference to the facts of the particular case, the learned Judge in a nutshell states the legal position thus (p. 592):

Several decisions were cited before us but those falling within the following categories are to be distinguished :

(i) cases in which the death of the plaintiff occurred after a decree for possession was passed in his favour; say, during the pendency of an appeal filed by the unsuccessful tenant;

(ii) cases in which the death of the decree-holder landlord was pleaded as a defence in execution proceedings; and

(iii) cases in which, not the plaintiff but the defendant-tenant died dining the pendency of the proceedings and the tenant's heirs took the plea that the ejectment proceedings cannot be continued against them.

Cases of the first category are distinguishable because the decisions therein are explicable on the basis, though not always so expressed, that the estate is entitled to' the benefit which, under a decree, has accrued in favour of the plaintiff and therefore the legal representatives are entitled to defend further proceedings, like an appeal, which constitute a challenge to that benefit.

18. It, therefore, follows that the case before me will fall in the first category when the certificated landlord i.e. the landlady Mhalsabai wife of Malhar Knlkarni, died during the pendency of the appeal. The heirs, who came on the record, were required to defend the further proceeding's so as to support the order for possession, which was already passed by the trial Court in favour of deceased Mhalsabai.

19. In the result the decision of the Tribunal is correct and will have to be confirmed.

20. It is necessary, in order to obviate complications, that there is some further clarification of the final order passed by the Tribunal. The District Deputy Collector, Karvir Division, Kolhapur, who allowed the appeal partly, had directed the trial Court to modify the order as to acreage and pass suitable orders after hearing both the parties. The Maharashtra Revenue Tribunal had further slightly modified the order of the District Deputy Collector by directing delivery of possession of the land only to the rightful owner of the property of deceased Mhalsabai. There is an inter se conflict between the heir who claimed through the adopted son and the heir who claimed under the will of Mhalsabai. For avoiding any confusion I direct that the trial Court, after finding out the total acreage to which the landlord (landlady in the present case) is entitled, will put in possession only the person who is found to be the legal heir of deceased Mhalsabai by competent Court.

21. Subject to this clarifiaction, the rule is discharged. There will be no order as to costs.


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