1. Petitioner Rameshwar purchased an area of 2 acres 36 gunthas out of survey number 162/3 situated at village Nandura vide sale-deed dated 9-12-1954 from Ramkrishna Dattatraya, who, along with (1) Vasant (2) Ramkrishna (3) Mangabai (4) jagannath and (5) Shrikrishna formed a joint Hindu family. Thus the land in dispute was their coparcenery property and on the date of transfer in favour of the petitioner it constituted a property belonging to undivided Hindu family and what was sold by Ramkrishna was his undivided share therein. Eventually, therefore, Ramkrishna filed a suit for partition and separate possession of his share in the coparcenery property. The said suit was registered as Civil Suit No. 44-A of 1955 and in this suit a preliminary decree in favour of Ramkrishna was passed on 9-7-1957 . To the said suit Vithal and Laxman were parties. The respondents nos. 2 to 4 are the heirs of deceased Laxman. As per this preliminary decree the property in question was allotted to the share of Ramkrishna. After the preliminary decree was passed, a precept was issued to the Collector vide his letter dated 22-4-1964 informed the Civil Judge, Junior Division, malkapur that the partition has been effect as per the precept sent by the Civil Court and necessary demarcation has been made by the Revenue Inspector before the parties and their respective shares have been also shown to them. However, the Collector informed that physical possession of the filed could not be given to the parties as the fields were subject to tenancy. In the said partion of the property the land in dispute was allotted to the share of Ramkrishna and thus Rameshwar, who was also party to the suit, became entitled to the possession of said property after the partition of the property, that is, on or about 22-4-1964. Thereafter Rameshwar fled an application for placing him into the possession of the property and the Civil Court placed him in actual possession of the property vide receipt dated 17-10-1964, which is at record pages 21 and 22. From this Table Patois it seems that Rameshwar was placed in possession of the land n question with standing crops. No further proceedings were taken by Vithal or laxman before the Civil Court in that behalf. However, they filed application under Section 36 (1) of the Bombay Tenancy and Agricultural lands (Vidarbha Region) Act, 1958, referred to hereinafter as the Act, fro the possession of the disputed property and such an application was filed on 16-10-1967. In this application it was contended by Vithal and Laxman that the land in dispute was leased out to them by who formed a joint Hindu family along with Shrikrishna, Ramkrishna and Vasant in the summer of 1952 and this they were protected lessees. According to them, they were in possesses such till 17-10-1964 when they were dispossessed by Rameshwar otherwise than in due course of law.. Therefore, according to them, they were entitled to restoration of possession.
2. In the meantime it seems that laxman died and his legal representatives were brought on record.
3. This claim was resisted by petitioner Rameshwar on various grounds. He contended that Vithal and Laxman were not the tenants. he further contended that assuming they were the leases, the lease given by Jagannath being invalid, they were not lawfully cultivating the filed, and therefore, were not the tenants. He further contended k that he was placed in possession of the suit land as a consequence of the decree passed in the sit for partition to which Vithal and Laxman were the parties, According to him, they were bound by the decree and the said decree, therefore, operates as res judicata. Even otherwise according to Rameshwar, as they did not challenge the decree or raised a question regarding there tenancy the suit itself, the judgment and decree passed in the said suit is binding upon them and it is not open for them to raise the same question over again the present proceedings in view of the provisions of Section 11, Explanation IV, Code of Civil Procedure.
4. Both k the parties adduced evidence before the Tenancy Naib Tahsildar. The Tenancy Naib Tahsildar vide his order dated 9-3-1968 held that Laxman and Vithal were the protected lessees of the disputed filed and they were cultivating the same in that capacity till 17-10-1964 when they were illegally dispossessed by petitioner Rameshwar. In this view of the matter the Tenancy Naib Tahsildar allowed the application filed by them and held that they are entitled to restoration of possession.
5. Being aggrieved by this order petitioner Rameshwar filed k an appeal which was heard and decided by the Sub-Divisional Officer, Malkapur. The Sub-Divisional Officer dismissed the appeal by his order dated 30-12-1968. He confirmed the findings recorded by the Tenancy Naib Tahsildar.
6. Thereafter petitioner Rameshwar filed a revision application before the Maharashtra Revenue Tribunal and the Revenue Tribunal by its order dated 16-9-170 dismissed the revision application filed by Rameshwar. Against these orders the present writ petition has been filed by petitioner Rameshwar.
7. Shri Munshi, the learned counsel of the petitioner, contended before me that as the possession of the filed in dispute was taken by the petitioner under a decree passed by the Civil Court, it cannot be said that the possession was obtained by the petitioner in contravention of the provisions of the law,. including the Bombay Tenancy and Agricultural Lands (vidarbha Region) Act, 1958 , Assuming that the possession granted by the Civil Court was illegal, the only remedy to the aggrieved person was to file an application under Section 47 of the Code of Civil Procedure. Therefore, according to hi,, the Revenue Court has no power or jurisdiction to sit in appeal over the Civil Court's order, nor he can disturb the possession of the petitioner which has been granted to him by the Civil Court in execution of the decree. He further contended that the question regarding the tenancy was not raised by opponent Vithal or laxman in the suit itself. Therefore, it is not now open for them to raise the said question which they ought to have raised in the suit in view of the provisions of Section 11, Explanation IV, Code of Civil Procedure. According to him, the said suit was a suit for partitioned possession and if the defendants wanted to resist the said suit for possession they ought to have raised plea of tenancy as a ground in their defence. As the same has not been done by them,. they cannot now raise the same question over again in these proceedings.
8. It is no doubt true that the suit instituted by Ramkrishna was a suit for partition and separate possession. It is also an admitted position that Vithal and laxman were joined as parties to the said suit. A copy of the plaint in the said suit ha been placed before me s Annexure R-1. Vithal and Laxman were joined as parties to the said suit, because according to the plaintiff, the said defendants were in possession of the land and were liable to put the plaintiff in possession of the same after partition. Rameshwar, the petitioner before this Court, was also joined as a party to the said suit. After the preliminary decree was passed the papers were forwarded to the Collector for effecting the actual partition by metes and bound as per provisions of Section 54 of the Code of Civil Procedure. After effecting the partition, the Sub-Divisional Officer, malkapur had informed the civil Judge vide his letter dated 22-4-1964 that physical possession of the fields could not be given to the parties as the fields are subject to tenancy. Thus it is quite clean that only symbolical possession is quite clear that only symbolical possession was given to Rameshwar. One fails to understand how thereafter on an application filed by Rameshwar the Civil Court could deliver actual physical possession of the suit filed to Rameshwar in execution of the said decree. Obvisouly, therefore, the possession delivered by the Civil Court to Rameshwar was without jurisdiction and illegal. Such a view has been taken by this Court in Keshav v. Waman, : AIR1971Bom26 . After making a reference to the various provisions of the Code of Civil Procedure ultimately it was observed in the said decision that:
'In case of revenue paying estate the partition is to be carried out by the Collector and nt by a Commissioner. After a decree of partition of revenue paying state is passed the Court has nothing to do with it by way of execution. The execution of the decree is entirely in the hands of the Collector. It is only when Collector transgresses the decretal command or transgresses the law relating to partition that his actions subject to control and correction of Court passing decree. An order directing partition by Collector is not a preliminary decree. It is so far the Court is concerned a final decree and an order transmitting the papers to the Collector is ministerial and not judicial act'.
Similar view is taken by this Court in Sagunabai v. Shripati Moru patil, (S. A. No. 91/67, D/- 21-4069 = 1970 18 TLR 104 (Bom) In this context it was observed by this Court that the decree granted by the Court awarding possession of the lands to the decree-holder must be construed to mean such possession as was capable of being given in the circumstances of the case, viz. symbolical possession of the lands. Same view is also taken by this Court in V. Government. Ghadge v. K. M. Bhosale, (Spl. C. A. 1615 of 1965, D. 21-7-1969 = 1970 18 TLR 245 (Bom). Thus its is quite clear that the delivery of possession by the Civil Court to petitioner Rameshwar was without jurisdiction and ultra vires.
9. It is established principle of law that if the order is passed without jurisdiction or the same is ultra vires, then merely because Statute provides for a further right to a party against whom k the order is made he is not bound to follow the same or to file an appeal against the said order. If the order is a nullity the party is entitled to ignore it and approach the proper Court for a declaration that the order is a nullity. In Husein Miya v. Chandubhai, : AIR1954Bom239 this Court had an occasion to consider this aspect of the matter. In this context it was observed by this Court as under:-
'The other matter that has got to be considered is, what is the effect of Section 74 of the Act which provides for an appeal against the order of the Mamlatdar. It was open to the opponents to prefer an appeal against the decision of the Mamlatdar because Section 74 in terms provides for an appeal to the Collector against an order made by the Mamlatdar under Section 29. Instead of preferring an appeal the opponents have filed this suit in a Civil Court. Now, does the fact that a statute provides for a right to appeal against an order made by an authority set up under that statute make any difference to the position when the order made by the authority is an invalid or ultra vires order? It is clear that if the order itself is ultra vires. it is a nullity and there is no obligation upon a party against whom the order is made to prefer an appeal against that order. The appeals that are provided for under Section 74 are strictly appeals against valid orders made by the Mamlatdar and orders made without jurisdiction. It may be that the Collector could have corrected the Mamlatdar and could have held that the order of the Mamlatdar was ultra vires. But the question is not whether the opponents could have appealed to the Collector and could have got the necessary relief. The question is whether the opponents are bound to appeal and are prevented to precluded from going to a Civil Court. In our opinion, on principle it is erroneous to argue that merely because a statute provides for a right of appeal, the party against whom the order is made is bound to appeal although the order made is a nullity. if the order is a nullity, the party is entitled to ignore it, to treat it as waste peppers, and to got o a Civil Court for a declaration that the order is a nullity and no action should be taken against the party under that order which would prejudice his rights. See for this purpose the decision of a Full Bench of this Court in Abdullamivan Addulrehman v. Govt. of Bombay : AIR1942Bom257 '.
In Abdullamivan v. Govt of Bombay, : AIR1942Bom257 (FB) this question was considered by the Full Bench of this Court with reference to Section 11 of the Bombay Revenue Jurisdiction act and it was held by the Full Bench of this Court that-
'Where an authority which purports to pass an order is acting without jurisdiction the purported order is a mere nullity and it is not necessary for anybody, who objects to that order, to apply to set it aside. He can rely on its invalidity when it is set up against him, although he has not taken steps to set it aside. Such an order does nt give rise to any right whatever not even to a right of appeal'.
If the facts and circumstances of the present case are considered with reference to this established principle of law. in my opinion, it will have to be held that the petitioner Rameshwar has obtained the possession of the suit land under an order which was without jurisdiction, and therefore the tenants were entitled to obtain possession of the land in question under Section 36(1) of the Tenancy Act.
10. Section 36(1) and (2) of the Bombay Tenancy Act read as under:
'36 (1) A tenant or an agricultural laborer or artisan entitled to possession of any land or dwelling house or site used for any allied pursuit under any of the provisions of this Act or as a result of eviction in contravention of sub-section (2) may apply in writing for such possession to the Tahsildar. The application shall be made in such form as may be prescribed and within period of three versa from the date on which the right to obtain possession of the land, dwelling house or site is deemed to have accrued to the tenant, agricultural laborer or artisan as the case may be.
(2) Save as otherwise provided in sub-section (3-A) no landlord shall obtain possession of any land, dwelling house or site used for any allied pursuit held by a tenant except under an order of the Tehsildar. For obtaining such order he shall make an application in the prescribed form the date on which the right to obtain possession of the land dwelling house or site as the case may be, is deemed to have accrued to him'.
From the bare reading of sub-section (2) of Section 36 of the Tenancy Act it is quite clear that it is not open to any landlord to obtain possession of any land held by a tenant except under n order of the Tahsildar and for obtaining such an order he is obliged to file an application in the prescribed form with in the period provided by the Act before the Revenue authority. Any possession obtained by the landlord contrary to the provisions of sub-section (2) of Section 36 is bound to result in eviction of the tenet in contravention sub-section (2) of Section 36 of the Act. Therefore, the tenant is entitled to file an application under sub-section (1) of Section 36 of the Tenancy Act.
11. This aspect of the matter has been considered by the Full Bench of this Court in Madhao v. Maharashtra Revenue Tribunal, : AIR1971Bom106 . While construing the provisions of Section 36(2) of the Tenancy Act the Full Bench has observed as under:
'Reading Section 36 it is clear from the language of sub-section (1) that it is subject to sub-section (2) . The scheme of the section shows that really it is subsection (2) which lays down the general rule which governs the provisions of sub-section (1). Sub-section (1) gives the right to a tenant entitled to the possession of any land 'as a result of eviction in contravention of sub-section (2) to apply in writing for such possession to the tahildar, and sub-section (2) categorically lays down the general rule that no landlord shall obtain possession of any land held by a tenant except under an order of the Rahsildar. In the light of what we have said above we may note that in the entire context of possession the word 'tenancy' is not used in Section 36 but throughout the reference is only to 'tenant'. The concept of possession has relevance only to the definition of 'Tenant' because it includes 'deemed tenants'. Thus raiding sub-sections (1) and (2) together it is clear that no landlord can ever obtain possession of a tenant's land without an order granting him possession passed by the Tahsildar and the tenant is given the right where is possession is thus taken away to apply in writing for such possession to the Tahsildar'.
In the present case petitioner Rameshwar landlord has taken possession through the bailiff of the Civil Court and not by taking recourse to the provisions of S. 36 (2) of the Act. In this view of the matter, in my opinion the tenant who is disposed without an order of the Tahsildar under Section 36(2) of the Act. but through the bailiff of the Civil Court in execution of an order which is without jurisdiction and is a nullity can seek relief under Section 36 (1) of the Act.
12. However, it was contended by Shri Munshi that as the tenants have not raised the question of tenancy in suit itself, it is not open for them to raise the said question in these proceedings for the first item in view of the provisions of Section 11. Explanation IV of the Code of Civil procedure. It is not possible for me to accept this contention. I have already made a reference to the plea raised by Ramkrishna in the suit to which Vithal and Laxman were joined as parties. Only because they were in possession of the land in question it was nt necessary for them to have raised the question of tenancy because they were not interested in the controversy involved in the partition suit. It is obvious form the decisions refereed to herein before that if the tenants were on the land, the plaintiff was only entitled to symbolical possession of the land. In the said suit at any stage it was not disputed by the parties that Laxman or Vithal were the lawful tenants of the suit land. As a matter of fact no allegation was ever made in that behalf in the pleadings by plaintiff Ramkrishna or by Rameshwar, who was the defendant in the suit. Their statute as tenants was never disputed. In this view of the matter it was obvious that the plaintiff could have got only a symbolical possession of the suit land in the said partition suit. Not only this but after the judgment an d the preliminary decree were passed by the Civil Court and the papers were sent for executing the decree under Section 54 of the Code of Civil Procedure to the Revenue Authorities, it is clear from the record that such a plea was raised and the Revenue Court was aware of the fact that Laxman and Vithal were the tenants of the land in question. Therefore vide his letter dated 22-4-1964 the Sub-Divisional Officer while returning the papers to the Civil Court had clearly stated that physical possession of the fields could not be given to the parties as the fields were subject to tenancy. To such a case, in my opinion. Explanation IV to Section 11 of the Code of Civil Procedure will nt apply. The question of tenancy was not in issue in the previous partition suit. In the said suit it was not necessary for Vithal or Laxman to have raised the question of tenancy as a ground of defence or attack, because in the said partition suit they were not concerned with the ownership or the title to the property. The question of tenancy was neither directly or substantially in issue in the said suit. The question arose for the first time in the execution proceedings when the papers were sent to the Revenue authorities under Section 54 of the Code of Civil procedure. There this question was considered by the Revenue Authorities, and therefore, they had declined to place the party in physical possession of the fields because they were subject to tenancy. Even otherwise, in view of the provisions of Section 124 of the Tenancy Act, the Civil Court had no jurisdiction to decide the said question even if it would have been raised. Further it is clear form the record that for the first time Rameshwar became entitled to get even the symbolical possession of the suit land nor about 22-4-1974 after the land in question was allotted to the share of Ramkrishan. The decree in the partition suit deciding the rights of the parties was pass din the year 1957 and thereafter the present Act, namely the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 came into force. The said Act conferred an altogether new and distinct right upon the tenants. It was not possible for the tenants to have raised in the year 1955 such a plea based on their rights conferred upon them by the new Tenancy Act, 1958. After the institution of the partition suit and passing of the preliminary decree the law came to be altered and the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 came on the statute book. It was not possible for laxman or Vithal to have raised any contention based upon this Act of 1958 in the suit instituted in the year 1955. In this view of the matter, in my opinion, it cannot be said that it was not open for them to have raised the question of tenancy subsequently in these proceedings.
13. All the authorities below have come to the conclusion that Vithal and Laxman were the tenants of the suit filed. A concurrent finding of fact has been recorded by the authorities below that they were the protected lessees. In this view of the matter, it was not open for petitioner Rameshwar to have obtained possession of the land inquisition without taking recourse to the provisions of Section 36(2) of the Act. Petitioner Rameshwar has obtained the possession of the land in question without obtaining an order for delivery of possession from the Tahsildar. Under Section 100(18) of the Act it is the duty of the Tahsildar to take measures for putting the tenant into the possession of the land. The duty cast upon the Tahsildar is not only ministerial one. As to what is the true nature of the proceedings under Section 36 of the Act has been considered by this Court in Shivaji v. Peeka, : AIR1952Bom174 . It is not doubt true that in the said decision this Court was concerned with the provisions of Bombay Tenancy and Agricultural lands Act, 1948 . However, the provisions of Section 29 of the said Act and the provisions of Section 36 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act. 1958. However, the provisions of Section 29 of the said Act and the provisions of Section 36 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 are pari material and identical. While construing the provisions of Section 29 of the 1948 Act this Court held that an application for possession filed under Section 29 of the Act is an application in the nature of suit and it is the duty of the Mamlatdar to decide the question involved in the proceedings and pass necessary orders.
14. In the present case the respondents were entitled to possession of the land in question under Section 36(1) of the Act as they were evicted from the said land in contravention of sub-section (2) of Section 36 of the Act. Their eviction from the land was illegal and therefore, in my opinion the authorities below were right in allowing the application filed by the tenants under Section 36(1) of the Act and directing delivery of possession of the land in question to the tenants.
15. In the result, the writ petition fails and is dismissed. However, in the circumstances of the case there will be no order as to costs.
16. Petition dismissed.