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Rama Motibhai Vs. Dalwadi Tupoo Rama and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 1331 of 1955
Judge
Reported inAIR1956Bom264
ActsTenancy Law; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 34; Code of Civil Procedure (CPC), 1908 - Order 1, Rule 10
AppellantRama Motibhai
RespondentDalwadi Tupoo Rama and ors.
Appellant AdvocateM.H. Chhatrapati and ;C.S. Trivedi, Advs.
Respondent AdvocateN.C. Shah and ;S.K. Lavangia, Advs.
Excerpt:
.....the tenant on the ground that the tenant and failed to produce satisfactory evidence to show that rana motibhai sartansang was not the sole owner of this land but that there were other sharers in it. the bombay revenue tribunal came to the conclusion that there was sufficient material which should have satisfied the prant officer that the contention taken up by the tenant was correct viz. in this connection, the revenue tribunal referred to a pahani patrak extract relating to the year 1950-51. it may be noted that this extract, was produced by the landlord, rana motibhat sartansang, himself and it would show that in respect of the suit land there was an entry which suggested that the land was owned not only by rana motibhai sartansang but by other sharers as well. the bombay revenue..........appeal one of the grounds which was taken on behalf of the tenant was that the present applicant, rana motibhai sartansang, was not the sole owner of this land but that there were several other sharers who were also holding proprietary interest in this land and that unless those sharers were joined in the application, the application was not maintainable.the prant officer rejected this contention of the tenant on the ground that the tenant and failed to produce satisfactory evidence to show that rana motibhai sartansang was not the sole owner of this land but that there were other sharers in it. the bombay revenue tribunal came to the conclusion that there was sufficient material which should have satisfied the prant officer that the contention taken up by the tenant was correct viz......
Judgment:

Vyas, J.

1. This application under Articles 226 and 227 of the Constitution of India arises out of, an application made by the applicant landlord under Section 34 of the Bombay Tenancy and Agricultural Lands Act, 1948, to recover possession of seven acres of land from survey Nos. 196 and 185 of Jalia. In the application the landlord stated that he wanted to recover possession of this land from his tenant for bona fide personal cultivation.

The Extra Aval Karkun, Dhandhuka, in whose Court the application was filed, and who heard the application, came to the conclusion that the landlord had only 3 acres and 20 gun thus of land in his possession for personal cultivation and that the lands in suit were required by him bona fide for personal cultivation.

Consistently with that view, he granted the application of the landlord and directed the tenant to deliver possession of the lands to the landlord. The tenant went in appeal to the Prant Officer and the said officer confirmed the order of the Extra Aval Karkun.

2. In appeal one of the grounds which was taken on behalf of the tenant was that the present applicant, Rana Motibhai Sartansang, was not the sole owner of this land but that there were several other sharers who were also holding proprietary interest in this land and that unless those sharers were joined in the application, the application was not maintainable.

The Prant Officer rejected this contention of the tenant on the ground that the tenant and failed to produce satisfactory evidence to show that Rana Motibhai Sartansang was not the sole owner of this land but that there were other sharers in it. The Bombay Revenue Tribunal came to the conclusion that there was sufficient material which should have satisfied the Prant Officer that the contention taken up by the tenant was correct viz. that Rana Motibhai Sartansang was not the sole owner of this land.

In this connection, the Revenue Tribunal referred to a Pahani Patrak extract relating to the year 1950-51. It may be noted that this extract, was produced by the landlord, Rana Motibhat Sartansang, himself and it would show that in respect of the suit land there was an entry which suggested that the land was owned not only by Rana Motibhai Sartansang but by other sharers as well.

It would appear from the order passed by the Revenue Tribunal that Rana Motibhai Sartansang had no reasonable explanation to offer in respect of the above-mentioned entry in the Pahani Patrak extract relating to the year 1950-51. A contention appears to have been advanced before the Revenue Tribunal that the other sharers in this land had mortgaged their shares to Rana Motibhai Sartansang.

The Revenue Tribunal observed that no attempt was made by Rana Motibhai Sartansang to support the contention that the other sharers-had mortgaged their shares to him.

3. In our view, there is no sufficient justification made out by Mr. Chhatrapati on behalf of the landlord to warrant an interference on our part with the order of the Revenue Tribunal. If we turn to the deposition of Rana Motibhai Sartansang himself in his application under Section 34 of the Bombay Tenancy and Agricultural Lands Act, it would appear that his contention was categoric and that was that he was the full owner of this piece of land admeasuring seven acres.

He did not suggest in his deposition that he and certain other persons were all co-sharers in this land and that the other sharers had mortgaged their shares to him. If Rana Motibhai Sar-tansang's case was that he was the owner only of his own share and a mortgagee in respect of the shares of the other co-sharers, he should have stated so.

His statement that he was the sole owner ofthis entire piece of land admeasuring seven acreswould obviously suggest that there were no othersharers in this land.

4. Mr. Chhatrapati for the applicant-landlord says that although his client may not be the sole owner of the land and although there may be other sharers in this land, he can still maintain this application, because he says that one co-owner can file a suit on behalf of all the co-owners. Now, it Is true that as against a trespasser one co-owner on behalf of all the co-owners can maintain an action.

But if an action is to be filed against a ten-ant, then all the co-owners must be joined. In this connection it may be pertinent to refer to the observations of the learned Chief Justice in 'Appeal No. 48 of 1952' from Original Decree which was 'decided' by this Court on '11-11-1952 (Born) (A). The learned Chief Justice stated in the course of his judgment:

'... .as far as the trespasser is concerned the principle seems to be that any co-owner is entitled to defend the title to the property in which he is interested by seeking to eject a person who has no right to the property at all, but when we come to the case of a tenant, all persons interested in the property must join in filing the suit.'

There is, therefore, no force In Mr. Chhatrapati's submission that although the applicant may not be the full owner of the property but may only be one of the co-sharers in the property, he can still maintain this application.

5. Mr. Chhatrapati has invited our attention to the fact that the Revenue Tribunal had called for a finding from the Extra Aval Karkun In respect of the contention of the tenant that there were other sharers in this land besides Rana Motibhai Sartansang himself Mr. Chhatrapati says that the finding of the Aval Karkun and the Prant Officer, in this connection was that Rana Motibhai Sartansang was the sole owner of this land.

Surely, this finding would be Inconsistent with the contention that there were other co-sharers along with Rana Motibhai Sertansang in this land. At any rate, in view of the extract from the Pahani Patrak for the year 1950-51, it is clear that the finding which was returned bv the Extra Aval Karkun and the Prant Officer was erroneous.

The Bombay Revenue Tribunal was apparently satisfied from the record before it that in this particular land Rana Motibhai Sartansang and certain other persons were co-sharers and that Rana Motibhai Sartansang alone was not competent to file the application under Section 34 of the Bombay Tenancy and Agricultural Lands Act. We agree that that was the correct view to take on the material before the Revenue Tribunal.

6. That being so, the application fails andis dismissed with costs.Application dismissed.


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