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Yasoo Vithoba Vs. Babubai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 554 of 1950
Judge
Reported inAIR1956Bom388
ActsCode of Civil Procedure (CPC), 1908 - Order 33, Rules, 7 and 8; Tenancy Law; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 85 and 89(2); Tenancy Act, 1939; Bombay General Clauses Act - Sections 7
AppellantYasoo Vithoba
RespondentBabubai
Appellant AdvocateR.B. Kotwal, Adv.
Respondent AdvocateG.M. Joshi, Adv.
Excerpt:
.....trial judge held that the defendant had hopelessly failed to establish that he was a tenant of the suit lands and also failed to prove that the value of the suit properties was less than rs. that was precisely what was done by the plaintiff in this case. suffice it to say that it is a well-settled position in law that, where an application for leave to sue as a pauper is granted, the date on which the application is filed is deemed to he the date on which the pauper suit is instituted for all purposes of limitation, and not the date on which the application is numbered and registered as a suit. kotwal's contention must fail in view of the explicit provisions of section 89, sub-section (2), bombay tenancy and agricultural lands act. nothing in this act (the tenancy act of 1948) shall..........death of the plaintiff's husband and as advised by the plaintiff's husband, the plaintiff gave the suit lands, to the defendant on lease, and that ever since then the defendant has been in possession of the suit lands as a tenant and not as a trespasser.consistently with this position taken up by the defendant, he contended that he being a tenant, a civil court has no jurisdiction to entertain a suit of the nature filed by the plaintiff and that the proper remedy for the plaintiff is to approach a tenancy court.it is further contended by the defendant that the value of the suit property being less than rs. 5000. the court of the joint civil judge, s.d. had no jurisdiction to try the suit.4. on the abovementioned contentions taken up by the defendant, the learned trial judge held that the.....
Judgment:

Vyas, J.

1. This is defendant's appeal and it arises out of a judgment and decree passed by the learned Joint Civil Judge S.D. at Jalgaon, in Special Regular Civil Suit No. 15 of 1949. By this suit, the plaintiff-respondent sought to recover possession of the suit properties from the defendant together with mesne profits and costs.

The learned trial Judge decreed the suit in favour of the plaintiff and ordered the defendant to deliver possession of four lands described in Clause (a), (b), (c) and (d) of para 4 of the plaint to the plaintiff. The learned trial Judge also directed the defendant to pay to the plaintiff Rs. 1200 and three fourths of the costs of the suit. Against this decision, the defendant has appealed.

2. The defendant-appellant Is the uncle of the plaintiff's husband. It is the case of the plaintiff that her husband and the defendant were separate in status and that the property of the plaintiff's husband was being separately enjoyed by him. The plaintiff's husband died on 13-3-1946. At that time the plaintiff was pregnant. About three months after the death of her husband, the plaintiff gave birth to a daughter.

For the purpose of her confinement, the plaintiff had gone to the house of her brother and she contends that, taking advantage of her absence, the defendant wrongfully took possession of all her properties and has been enjoying the properties since then. It is in these circumstances that she has filed the present suit.

3. While resisting the suit of the plaintiff, the defendant admits that he and the plaintiff's husband were separate in status and that the plaintiff's husband was enjoying his properties separately. It is, not disputed by the defendant that, during the life-time of the plaintiff's husband, the suit properties were in the possession and enjoyment of the plaintiff's husband as his properties.

It is however contended by the defendant that, when the plaintiff's husband fell ill, he asked the plaintiff that she must act as advised by the defendant and further asked her that in case he (plaintiff's husband) died, the plaintiff must take in adoption one of the four grand-Bens of the defendant, so that the suit properties might not go out of the family.

The defendant goes on to contend in his written statement that, alter the death of the plaintiff's husband and as advised by the plaintiff's husband, the plaintiff gave the suit lands, to the defendant on lease, and that ever since then the defendant has been in possession of the suit lands as a tenant and not as a trespasser.

Consistently with this position taken up by the defendant, he contended that he being a tenant, a civil court has no Jurisdiction to entertain a suit of the nature filed by the plaintiff and that the proper remedy for the plaintiff is to approach a tenancy court.

It is further contended by the defendant that the value of the suit property being less than Rs. 5000. the court of the Joint Civil Judge, S.D. had no jurisdiction to try the suit.

4. On the abovementioned contentions taken up by the defendant, the learned trial Judge held that the defendant had hopelessly failed to establish that he was a tenant of the suit lands and also failed to prove that the value of the suit properties was less than Rs. 5000.

In the view of the learned Judge, the value of the suit properties was considerably more than Rs. 5000. The learned Judge was further of the view that the documentary evidence on the record conclusively negatived the plea of the defendant that he was a tenant of the suit lands. Accordingly, he decided the suit in favour of the plaintiff.

5. At the outset, Mr. Kotwal for the defendant-appellant has contended before us that in view of the plea taken by the defendant that he is a tenant of the suit lands, the Civil Court had no Jurisdiction to entertain and hear the suit for the plaintiff. Mr. Kotwal says that it is immaterial whether as a matter of fact it is proved or not proved by the defendant that he is a tenant of the suit lands.

For the jurisdictional purpose it is sufficient for the defendant to contend that he Is a tenant of the suit lands, and, says Mr. Kotwal, once the defendant contends that, he is a tenant of the suit lands, the Jurisdiction of the Civil Court to proceed with the suit of this nature is ousted. Now, in this connection it is relevant to bear in mind that an application was filed by the plaintiff to sue in forma pauperis on 5-7-1948.

On 24-1-1949, the Court heard the pleaders of the parties upon the said application and passed an order that the application should be numbered as a suit. Pursuant to this order, the application was numbered and registered as a suit on 25-1-1949. From these facts, Mr. Joshi for the plaintiff-respondent contends that the suit of the plaintiff should be deemed to have been instituted on 5-7-1948, whereas Mr. Kotwal for the defendant contends that the suit-must be deemed to have been filed on 26-1-1949.

In support of Mr. Kotwal's contention, he has referred us 'to the provisions of Order 33 Rule 8, Civil P. C, & 'Order 33 Rule 8 says that where an application to sue in forma pauperis is granted, it shall be numbered and registered and shall be deemed the plaint in the suit and the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any court-fee in respect of any petition, appointment of a pleader or other proceeding connected with the suit.

Belying upon these provisions of Rule 8 of O, 33, Mr. Kotwal contends that as the application of the plaintiff for permission to sue in forma pauperis was numbered and registered as a suit on 25-1-1949, that should be taken to be the date upon which the suit must be deemed to have been instituted by the plaintiff. We have considered this submission, but are constrained to reject it.

In 'Totaram Ichharam v. Dattu Mangu' : AIR1943Bom143 (A), it was held by a Division Bench of this Court consisting of the learned Chief Justice and Mr. Justice Wassoodew that the filing in Court of an application in the form of a plaint for permission to sue in forma pauperis amounts to the filing of a plaint and commences the suit.

That was precisely what was done by the plaintiff in this case. It was on 5-7-1948 that she presented before the Court an application in the form of a plaint and by that application she requested permission to sue in forma pauperis. That being so according to the abovementioned decision of this Court, the application must amount to the filing of a plaint and must commence the suit notwithstanding the fact that it was as late as on 25-1-1849 that the said application was numbered and registered as a suit.

There are other authorities also on this point to which it is scarcely necessary to refer. Suffice it to say that it is a well-settled position in law that, where an application for leave to sue as a pauper is granted, the date on which the application is filed is deemed to he the date on which the pauper suit is instituted for all purposes of limitation, and not the date on which the application is numbered and registered as a suit.

This principle was recognised, in several cases for instance in : AIR1943Bom143 (A). We must, therefore, uphold Mr. Joshi's contention that the suit of the plaintiff must be deemed to have been filed in this case on 5-7-1948. Now the Tenancy Act was passed on 28-12-1948 i.e. more than five months after the institution of the suit by the plaintiff. That being so, Mr. Joshi contends that the provisions of the Act will not apply to this suit, and having heard Mr. Kotwal at considerable length upon this point, we must uphold Mr. Joshi's contention.

6. Mr. Kotwal invites our attention to the provisions of Section 85, Bombay Tenancy and Agricultural Lands Act, 1948, and says that in view of those provisions, the civil Court would have no jurisdiction to try the plaintiff's suit. Mr. Kotwal says that the enactments relating to procedure must be given retrospective effect and that accordingly, even if the' suit of the plaintiff be deemed to have been filed On 5-7-1948, the provisions of Section 85, Tenancy Act must be given retrospective effect and it must be held that the trial Court had no jurisdiction to try the suit.

Mr. Kotwal's contention must fail in view of the explicit provisions of Section 89, Sub-section (2), Bombay Tenancy and Agricultural Lands Act. Sub-section (2) of' Section 89 lays down:

'Nothing in this Act (The Tenancy Act of 1948) shall affect any right, title, interest, obligation or liability already acquired, accrued or incurred before the commencement of this Act or any legal proceeding or remedy in respect of any such right, title, interest, obligation or liability or anything done or suffered before the commencement of this Act and any such proceedings shall be continued and disposed of, as if this Act was not passed'.

It is undisputed in this case that the legal proceeding in respect of the plaintiff's right to recover possession of the suit properties was commenced before the passing of the Tenancy Act of 1948 and clearly, therefore, under the provisions of Section 89, Sub-section (2) of the Act, the said proceeding shall be continued and disposed of as if the Act of 1948 was not passed. Mr. Kotwal has referred us to a decision of this Court in --'Vajechand Ramji v. Nandram Daluram' 31 Bom. 545 (B).

In that case, a suit for the recovery of possession of 'a house was instituted in the Court of a Mamlatdar while the Mamlatdar's Courts Act (Bombay Act 3 of 1876) was in force; but before the suit was finally decided, that Act was repealed and the Mamlatdars' Courts Act (Bombay Act 2 of 1906) had come into operation. According to the provisions of the Mamlatdars' Courts Act of 1906, the Mamlatdar had no jurisdiction to decide a suit of the nature of the suit filed by the plaintiff.

It was held by the Court in that case that the provisions of the new Act would apply and the Mamlatdar had no jurisdiction to decide the plaintiff's suit. Relying upon this authority, Mr. Kotwal has contended that, although the plaintiff's suit in this case was filed when the repealed Tenancy Act of 1939 was in force, the provisions of the Act of 1948 would apply in view of the fact that the suit was decided after the new Act was passed and that accordingly the provisions of Section 85 of the new Act would apply and the Civil Court would have no jurisdiction to decide the suit.

Mr. Kotwal's submission is that in the abovementioned Bombay case, the pending proceeding was held to have been governed by the provisions of the new Act, notwithstanding the fact that the provisions of Section 7, Bombay General Clauses Act, which came up for construction in that case, are analogous to the provisions of Section 89, Tenancy Act of 1948. Accordingly, says Mr. Kotwal, the pending proceedings in this case would also be governed by the provisions of the Act of 1943 and according to those provisions the Civil Court would have no jurisdiction to decide the plaintiff's suit.

7. We have considered this submission of Mr. Kotwal carefully. It is to be noted however that there are two reported decisions of this court, which are much later in date than the decision in 31 Bom 545 (B) and it has been held in these decisions that the pending proceedings would be saved by the operation of Section 89, Tenancy Act of 1948.

In 'Dhondi Tukaram v. Dadoo Piraji' AIR 1954 Bom 100 (C), which was a case decided by a Division Bench of this Court, it was held that pending proceedings in respect of vested rights I would be saved from the operation of the Tenancy Act of 1948. There is no dispute that the plaintiff's right to recover possession of the properties which undoubtedly belong to her and which belonged to her husband during his lifetime is a vested right. Therefore, according to the decision of this court in AIR 1954 Bom 100 (C) the plaintiff's suit; would be saved from the operation of the Tenancy Act of 1948.

8. In 'Prithviraj Chunilal v. Hari Ganesh 56 Bom. LR 1076 (D), a decision to which my learned brother was a party, the plaintiff-landlord had filed a suit against his tenant-defendant on 16-10-1946, alleging that the defendant was in possession of the land for some years before the institution of the suit and that his tenancy had been duly terminated on 15-4-1942 or 1943.

The plaintiff claimed possession of the land and mesne profits for three years before the date of the suit and future mesne profits. The Bombay Tenancy Act, 1939, was extended to the area where the land was situated on 8-11-1946. On 31-7-1947, the trial Court decreed the plaintiffs suit. The defendant's appeal, which was filed before the Bombay Tenancy and Agricultural Lands Act, 1948, came into operation, was dismissed on 19-7-1950.

On 2-8-1950, the defendant applied to the Mamlatdar for a declaration that he was a protected tenant and that declaration was given on 1-11-1950. On 23-11-1950, the plaintiff filed a darkhast claiming to recover possession of the land from the defendant. The defendant contended that the civil Court had no jurisdiction to execute the decree, and that even if the civil Court was competent to execute the decree, it could not do so, in view of the declaration given by the Mamlatdar that the defendant was a protected tenant.

It was held by the Court in that case that the right of the plaintiff and the legal proceedings in which that right was enforced were saved under Section 89 (2), Bombay Tenancy and Agricultural Lands Act, 1948, and that the plaintiff was entitled to execute the decree notwithstanding the provisions of Section 85 of the Act.

It may be stated that the decision of this Court in the abovementioned two' cases has since been followed in several unreported cases; therefore, although the decision in 31 Bom. 545 (B), was to a different effect, we do not consider it necessary to refer this case to a larger Bench. In view of the abovementioned decisions of the Division Bench of this Court in -- 'Dhondi Tukaram v. Dadoo Piraji (C)', and in -- 'Prithviraj Chunilal v. Hari Ganesh', (D) we hold that the court of the learned civil Judge, who heard and decided the, suit, had jurisdiction to do so.

9. On merits, the learned Judge has rightly held that the value of the suit lands must be much more than Rs. 5000. It may be noted that the first out of the four lands is 1 acre and 35 gunthas in area and bears a very high assessment. It is assessed at Rs. 7/-. It has also got a well in it. In the year 1947-48 sugarcane was grown on this land, which fact is admitted by the defendant himself.

That being so, in our view, the learned Judge was Quite right in holding that the value of this land must at least be Rs. 2000/-. The next land, S. No. 79/1 is 7 acres and 10 gunthas in area and it is assessed at Rs. 10-8-0. Upon this land also there is a well. In our view, the learned Judge rightly assessed the value of this land at Rs. 3000. The third land is a cotton-growing land. It is survey No. 114.

It is 8 acres and 20 gunthas in area. It is assessed at Rs. 13-5-0. Besides cotton, other crops are reared on this land, for instance til, groundnuts, jowari etc. In view of these circumstances, we are of the opinion that the learned Judge rightly assessed the value of this land at Rs. 2000.

The last parcel of land has been assessed by the learned Judge at Rs. 1000/- and for the reasons stated by him, we are of the view that that value is correct. It is therefore clear that the value of the suit lands is much more than Rs. 5000. Accordingly, the Court of the learned Civil Judge, S.D., was competent to entertain and decide the suit of the plaintiff.

10. The defendant has raised a contention in the suit that he is a tenant of the suit lands. The learned Judge upon the evidence before him has negatived that contention and, in our view, quite rightly. According to the defendant's case, the plaintiff's husband died on 13-3-1946. A week or ten days thereafter the plaintiff went over to her brother's house for confinement.

The defendant says that it was at the time of the plaintiff's departure from her husband's house to her- brother's house that she gave away the suit lands to him (defendant) on lease and that he has been in possession of these lands as a tenant since then. This would mean that, according to the defendant's case, he became a tenant of the suit lands from about 23-3-1946.

Bearing this in mind, we must now turn to the defendant's application which was given by him an 5-4-1946. In that application, the defendant alleged that his sons and nephews were the heirs of the plaintiff's husband and that, therefore, their names should be entered in respect of the suit lands as the heirs of the plaintiff's husband.

Now, this position which was taken up by the defendant on 5-1-1946 must clearly negative the defendant's plea taken by him in the suit that on or about 23-3-1946 he had become a tenant of the plaintiff in respect of the suit lands. Surely if he was the plaintiff's tenant of these lands, he would not have applied saying that he, his sons and nephews were heirs of the plaintiff's husband and that, therefore, their names as heirs should be entered in the records in respect of the suit lands.

If we turn' to the record of rights at Ex. 43, it would show that all along -the defendant's name has been entered therein as Kabjedar of the suit lands and not as a tenant. This must also negative the defendant's plea that since March 1946 he has been a tenant of the suit lands. It is to be noted that in March 1946 there were three deaths in the plaintiff's family. Her husband died of plague on 13-3-1946. Two days thereafter, her mother-in-law died and two days thereafter her sister-in-law died. They all died of plague. The learned Judge has rightly remarked that in view of those circumstances and also in view of the circumstance that in March 1946 the plaintiff was in an advanced state of pregnancy, she would not have thought of giving her lands on lease to the defendant before going to the house of her brother for confinement.

It is fairly clear that the relations between the plaintiff's husband and the defendant were quite cordial and that being so, in the ordinary course of nature, the plaintiff would have expected that in her absence from the village while she was at her brother's house, the defendant would look after her lands.

There was no need for her to be in a hurry to give away the lands to the defendant on lease. Upon an examination of the above mentioned evidence and circumstances, the learned Judge came to the conclusion that the defendant's plea that he was a tenant of the suit lands was a false plea and we are, of the view that that conclusion is correct.

11. The result is that in our view thejudgment and decree passed by the learned Judgeare correct. The appeal must fail and be dismissed. The appellant will bear his own costs and will also bear the respondent's costs of theappeal.

12. Appeal dismissed.


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