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Laxmibai Samba Jadhav and ors. Vs. Bharatlal Premchand Gandhi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 1199 of 1966
Judge
Reported inAIR1976Bom160
ActsBombay Land Revenue Code, 1879 - Sections 135-L; Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 85
AppellantLaxmibai Samba Jadhav and ors.
RespondentBharatlal Premchand Gandhi and ors.
Appellant AdvocateM.S. Nargolkar, Adv.
Respondent AdvocateB.P. Apte, Adv. for K.J. Abhyankar, Adv.
Excerpt:
.....of the civil court was barred. - - 1 failed to prove that he had become a statutory owner of the suit property by virtue of his being in possession of the suit property as a tenant on the tillers' day end that the jurisdiction of the civil court to try the suit was not barred under section 85 (1) of the tenancy act. section 32 (1) of the tenancy act provides that 'on the first day of april 1957 (hereinafter referred to as 'the tillers' day') every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant',if such tenant, whether permanent or otherwise, cultivated the land personally and that..........partition be directed to be entered in the record of rights.3. the facts are shortly these:4. the suit property which consists of pieces of agricultural lands and a house described in detail is in paragraphs 1-a and 1-b of the plaint belonged to daji walchand gujar, the maternal grandfather of the plaintiffs. he gifted this property under a registered deed of gift dated august 22, 1930, to plaintiffs' mother, who in turn gifted the same to the plaintiffs jointly by a registered deed of gift dated may 31, 1946. that is how the plaintiffs became joint owners of the suit properties.5. indisputably the lands in dispute were cultivated by defendants a and 2 as tenants and they were in cultivation on 1-4-1957, which was declared to be the tillers' day under section 32 of the tenancy act.6. it.....
Judgment:

Apte, J.

1. This second appeal has been referred by Nathwani, J., sitting singly to this Division Bench inasmuch as in his opinion the case involved an important question of construction of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act')

2. The suit out of which this appeal arises was instituted by the respondents for a declaration that the partition as evidenced by the partition deed dated 12 the December, 1957, effected between themselves had in fact been effected and that the same was binding on the defendants. They further prayed that the said partition be directed to be entered in the Record of rights.

3. The facts are shortly these:

4. The suit property which consists of pieces of agricultural lands and a house described in detail is in paragraphs 1-A and 1-B of the plaint belonged to Daji Walchand Gujar, the maternal grandfather of the plaintiffs. He gifted this property under a registered deed of gift dated August 22, 1930, to plaintiffs' mother, who in turn gifted the same to the plaintiffs jointly by a registered deed of gift dated May 31, 1946. That is how the plaintiffs became joint owners of the suit properties.

5. Indisputably the lands in dispute were cultivated by defendants a and 2 as tenants and they were in cultivation on 1-4-1957, which was declared to be the tillers' day under Section 32 of the Tenancy Act.

6. It appears that on December 12, 1957, the three plaintiffs between themselves partitioned this property under a registered deed of partition dated December 12, 1957 and as described therein, different portions of the lands and the house were allotted to each of the three plaintiffs. At the time the partition was effected, plaintiff No. 1 was major while two other plaintiffs were minors. On an intimation given by the plaintiffs about this partition, it appears that mutation No. 4013 was effected. However, defendants who were tenants on the land, objected to this entry being made in the village records and on their objection, the Circle Inspector directed the entry to be struck off.

7. Against this order of the Circle Inspector, the plaintiffs preferred R. T. S. Appeal No. 17 of 1958 to the District Deputy Collector, but the same came to be dismissed on July 11, 1959.

8. The present suit was, therefore, instituted on July 31, 1959, by the plaintiffs-respondents for a declaration and for correction of the entries in the Record of Rights as aforesaid.

9. The suit was contested only by defendant No. 1 who inter alia contended that the value of the suit property being more than Rs. 15,000/- the suit was not within the pecuniary jurisdiction of the Civil Judge, J. D. at Baramati in whose Court it was filed. The other contention raised by this defendant was that he being in possession of the land as a tenant on the tillers' day i.e., on 1-4-1957, he had become a statutory purchaser of the property and, therefore, the deed of partition which was effected subsequent to that date was not binding on him, and that it would not affect his rights acquired by him as a statutory purchaser. besides, it was also contended by him that the partition was sham and bogus and that it was effected with a view to defeat the rights of the defendants under the Tenancy Act. Lastly, it was contended that the suit for a direction to the revenue officers to correct the Record of Rights and to make an entry in a particular manner was not maintainable in a Civil Court.

10. The trial Court found that the value of the suit property was below Rs. 10,000/- and that, therefore, it had jurisdiction to try the suit. On other issues it found in favour of the plaintiffs with the result that it granted the reliefs asked for by the plaintiffs.

11. In appeal by defendant No. 1 the Appellate Court found that the trial Court had no Pecuniary jurisdiction to decide the suit inasmuch as the value of the suit property exceeded Rs. 10,000/-. On other points, however, the learned appellate Judge agreed with the trial Court and found that defendant No. 1 failed to prove that he had become a statutory owner of the suit property by virtue of his being in possession of the suit property as a tenant on the tillers' day end that the jurisdiction of the Civil Court to try the suit was not barred under Section 85 (1) of the Tenancy Act. In view of the finding that the trial Court had no pecuniary jurisdiction to decide the suit, the Appellate Court allowed the appeal, set aside the decree of the trial Court and directed the plaint to be returned to the plaintiffs Under Order 7, Rule 10 of the Civil Procedure Code for presentation to the proper Court.

12. Against that decree, the plaintiffs came to this Court in Second Appeal No. 126 of 1962 and this Court disagreed with the Lower Appellate Court on the question of jurisdiction and therefore remitted back the case to the lower Appellate Court with a direction to draw up a decree in consonance with the findings recorded by the lower Appellate Court on other issues. Accordingly after the matter went back to the Lower Appellate Court, it dismissed the appeal with costs. Hence this appeal by original defendant No. 1.

13. On this appeal, the questions which are raised for our consideration are, (1) whether the suit as framed was tenable and Is) whether the Civil Court had jurisdiction to entertain the suit.

14. As already stated above, the relief which the plaintiff's asked for in the plaint was that the partition effected by the plaintiffs between themselves was binding on the defendants and that, therefore, the same should be directed to be entered by the Village Officer in the village records. This prayer was made by the plaintiffs because the original entry made on the intimation given by them to the village officer, was directed to be deleted by the Circle Inspector and the appeal preferred by the plaintiffs against that order to the District Deputy Collector was dismissed.

15. The question is whether such a suit for a direction to the revenue officer to make a particular entry in the village records is maintainable. In our view, such a suit would not be maintainable because under Section 135-L of the Bombay Land Revenue Code, 1879, which governs this case as it was filed before the Maharashtra Land Revenue Code came into force in 1966, read with Rules 104 to 113 occurring in Chapter 15 of the Rules, one appeal is provided and Rule 108 (6) confers revisional powers on Commissioner, to call for and examine the record of any enquiry or the proceedings of any subordinate revenue officer held under Rules 106, 107 and sub-rules (1) to (5) of Rule 108 for the purpose of satisfying himself as to the regularity of such proceedings and as to the legality or propriety of any decision or order passed in such proceedings. If, in any case, it shall appear to the Commissioner that any proceedings so called for or any decision or order made in such proceeding should be modified, annulled or reversed, he can pass such order thereon as he deems fit.

16. Thus, the provisions made in the Land Revenue Code and the Rules framed thereunder make ample provision for correction of the entries in the Record of Rights. It is a complete Code in itself and, therefore, a suit for the purpose of correcting the entries in the Record of Rights would not be maintainable.

17. Mr. Apte for the respondents relied on Rai Kiran Chandra v. Tarak Nath, : AIR1936Cal456 , in support of his contention that the suit for correction of revenue records is maintainable. But that case is distinguishable on facts. In the first place, that was a case arising under the provisions of the Bengal Tenancy Act (Act No. VIII of 1885) and it appears that in the settlement record itself, defendants Nos. 1 and 2 were entered as occupancy raiyats under the Narail Babus and the plaintiffs as Korja raiyats under defendants 1 and 2. The suit was filed, it appears, for correction of the entries in the record of rights. It was held that a wrong entry in a record-of-rights prepared under Chapter X of the Bengal Tenancy Act itself furnishes to the person in respect of whose rights the wrong entry is made a cause of action his right, irrespective of whether a present injury to his right was threatened or not. We do not know what were the exact provisions of Chapter X of the Bengal Tenancy Act and the relevant provisions have also nowhere been reproduced in the report. It is not known whether unlike in the Bombay Land Revenue Code any provision of appeal or revision was contained in the Bengal Tenancy Act against an entry made in the Record of Rights by the subordinate revenue officer. If our view, therefore, this ruling will have no application to the facts of this case.

18. Reliance was also placed on behalf of the respondents on Harnarayan Singh v. Darshan Deo : AIR1924Pat560 . That case also appears to have no bearing on the facts of the present case. All that it lays down is that relief not claimable on the date of the suit need not be claimed by the plaintiff. the suit in that case was filed by the plaintiff for a mere declaration that the land in dispute did not constitute the permanent thika right of the defendants and that defendants possessed it as temporary thika to be resumed year after year and after service of due notice. No relief of possession was prayed for. It was held that Section 42 of the old Specific Relief Act of 1963 was not a bar as it was not open to the plaintiff when he filed the plaint to ask for possession.

19. Turning to the second point whether the suit was barred under Section 85 of the Tenancy Act, we find that there is great substance in it. That section provides that no Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with by the Mamlatdar or Tribunal a Manager, the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the State Government in exercise of their powers of control. Sub-section (2) further provides that no order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue Tribunal or the State Government made under this Act shall be questioned in any Civil or Criminal Court. The Explanation clarifies that the Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdar's Courts Act, 1906. then Section 85-A in substance provides that if any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under this Act (hereinafter referred to as the 'competent authority') the Civil Court shall stay the suit and refer such issues to such competent authority for determination. Sub-section (2) of Section 85-A then provides: 'On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.'

20. Now, it may be recalled that the defence of the 1st defendant in this case has been that as he was in possession of the lands in dispute on the tillers' day, by virtue of the provisions of Section 32 of the Tenancy Act he became a statutory purchaser of these lands. Section 32 (1) of the Tenancy Act provides that 'On the first day of April 1957 (hereinafter referred to as 'the tillers' day') every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant', if such tenant, whether permanent or otherwise, cultivated the land personally and that the landlord has not given but the landlord has failed to apply to the Mamlatdar on or before the 31st day of March, 1957, under Section 29 for obtaining possession of the lands.

21. Then Section 68 of the Tenancy Act which deals with duties of the Tribunal provides inter alia that it shall be the duty of the Tribunal to decide any dispute under Sections 32 to 32-R (both inclusive). Section 32-G confers on the Tribunal power to determine price of the land to be paid by tenants who have become statutory purchasers under Section 32. Then follow the provisions as to the manner in which the price should be fixed and the mode of payment of that price. Section 32-M gives power to the Tribunal to issue a certificate of purchase in the prescribed from in favour of the tenant-purchaser in respect of the land on payment of the price either in lump sum or in payment of the last installment as the case may be. It also confers powers in certain cases such as failure to pay price or refusal to purchase the land by the tenant to declare the sale to be ineffective.

22. Now, if there if any dispute as to whether a tenant in possession has become a statutory purchaser or not, under the aforesaid provisions that dispute is required to be decided by the Tribunal under the provisions of Section 68 (c) of the Tenancy Act which have already been referred to. Consequently in view of the provisions of Section 84, Civil Court's jurisdiction to determine that question is ousted and, therefore, the Civil Court in the present case would have no jurisdiction to decide the question raised by the 1st defendant by his written statement that by virtue of his being in possession of the lands in dispute as a tenant on the tillers' day, he had become a statutory purchaser thereof and this question was necessarily required to be decided by the Tribunal under Section 68 of the Tenancy Act.

23. Now, it appears from the record that plaintiff No. 1, who was major at the time, had already before the filing of this suit obtained a certificate of exemption under Section 88-C from the aforesaid provisions which conferred rights of ownership on a tenant in certain cases. On obtaining such a certificate, the Act makes ample provision for obtaining actual possession of the land by the landlord who obtained such exemption certificate. We do not know whether plaintiff No. 1 followed up the exemption certificate by making necessary application to the proper authority under the Tenancy Act to obtain possession of his share of the lands in dispute.

24. Plaintiffs Nos. 2 and 3 were no doubt admittedly minors at the time the suit was filed. Section 32-F of the Tenancy Act postpones the right of a tenant to statutorily purchase the land under Section 32 in the case of a minor, a widow or a person subject to any mental or physical disability till the minor attains majority or till widow's death or till the person under disability ceases to be any longer under the disability. So far as shares of plaintiffs 2 and 3 were concerned, therefore, it is true that defendant No. 1 might not have immediately enquired the status of a statutory purchaser on the tillers' day. It is not clear from the record as to whether plaintiffs 2 and 3 were given a right to terminate the tenancy of the tenant within one year after attaining majority and to take proper proceedings for obtaining possession. The proper remedy for the plaintiffs Nos. 1, 2 and 2 was, therefore, to take up proper steps under the provisions of the Tenancy Act in order to obtain possession of the property. Merely because it was their request to make an entry of the deed of partition in the Record of rights was rejected by the revenue authorities, their rights under the partition deed were not at all in any way prejudicially affected and, therefore, they had really speaking no cause of action to institute such a suit.

25. It is true that in the written statement, the lst defendant has contended that the partition was sham and bogus. However, as has been held in Arvindlal Bhukandas v. Jhandu : (1961)63BOMLR929 by a Division Bench consisting of Chainani, C. J. and Mr. Justice Chandrachud, as the then was, in an application made by a landlord under Section 39 read with Section 31 of the Tenancy Act, in which the landlord relies on a partition and the tenant disputes the factum of partition, it would be necessary for the Tenancy Court to inquire into the matter and determine whether the partition was genuine and whether the members of the landlord's family had really separated or whether it was only a sham transaction which had not been acted upon and whether the members of the family still continued to be joint. So there was no reason for the plaintiffs to be apprehensive that the contention raised by the 1st defendant about the character of the partition could not have been gone into by the Mamlatdar if they had taken proper proceedings before the Mamlatdar under the Bombay Tenancy Act.

26. Mr. Apte submitted that the suit filed by his clients was one for a declaration of their title under the deed of partition and that such a suit without seeking any consequential relief was maintainable under of the old Specific Relief Act of 1877 which corresponds to Section 32 of the new Act of 1963. there can be no quarrel about this proposition in view of the explicit language used in Section 42 of the old Act and Section 34 of the new Act. But the question is, whether in the present suit, plaintiffs sued to obtain a declaration that the partition effected by them among themselves is binding on the defendants and that, therefore, an entry of this partition should be directed to be made in the Record of Rights. From a reading of the written statement it is clear that defendant No. 1 has not in any way denied plaintiffs' original title to the suit property nor has he challenged it under the deed of partition. what he claims is that although plaintiffs were original owners of the property, by virtue of Section 32 of the Tenancy Act he has acquired title of the Tenancy Act he has acquired title to the property statutorily as he was in possession of the property as a tenant of the plaintiffs. Thus, he sets up rival title based on the provisions of Section 32 of the Tenancy Act. Hence the contention raised on behalf of the plaintiffs is without any substance. The result, therefore, is that the decree passed by the Courts below cannot be sustained.

27. The appeal is, therefore, allowed, the decree passed by the lower Court is set aside and the plaintiffs' suit is dismissed with costs throughout.

28. Appeal allowed.


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