Skip to content


Suleman Hasham Memon Vs. Kashiram Bhau Patil - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 521 of 1958
Judge
Reported in(1958)60BOMLR1119
AppellantSuleman Hasham Memon
RespondentKashiram Bhau Patil
Excerpt:
.....section 84 stating that opponent in unauthorised occupation of land of which applicant protected tenant--opponent contending that his family in possession of land for last fifty years--collector deciding question of title and ordering eviction--whether collector has jurisdiction to decide such question in proceeding under section 84.; the collector in a summary proceeding held by him under section 84 of the bombay tenancy and agricultural lands act, 1948, cannot decide questions of title in relation to the land in dispute.; shiddappa bhimanna ullagadi v. mallappa mennappa badachi (1956) special civil application no. 278 of 1956, decided by gajendragadkar and gokhale jj., on april 10, 1956 (unrep.), distinguished.; hiralal chimanlal thakore v. keshrising raghavji (1956) special civil..........passed an order directing the summary eviction of the petitioner from this portion of the land and possession of it being given to the opponent. the petitioner applied in revision to the bombay revenue tribunal, but his application was dismissed. thereafter he filed the present special civil application.2. section 84 of the act provides for the summary eviction of any person un-authorisedly occupying or wrongfully in possession of any land. the summary eviction can be ordered by the collector in three kinds of cases referred to in clauses (a), (b) and (c) of the said section. the only clause, under -which the prant officer could have made his order in this case, is clause (c), under which a person may be summarily evicted, if he is unauthorisedly occupying or wrongfully in.....
Judgment:

Chainani, J.

1. Opponent No. 1 (hereinafter referred to as the opponent) made an application to the Collector under Section 84 of the Bombay Tenancy and Agricultural Lands Act. In his application he stated that he was the protected tenant of the land, that the petitioner had no concern with it and that he had un-authorisedly occupied a portion of the land. The petitioner denied that he was in wrongful possession of the disputed portion pf the land. He contended that the land had been in the possession of his family for the last 50 years. The Prant Officer accepted the petitioner's contention that he had been in possession of a portion of the disputed land. Regarding the remaining portion of the land in dispute, the Prant Officer came to the conclusion that the petitioner was not in possession of it prior to six months from the date on which the opponent had made his application. He, therefore, passed an order directing the summary eviction of the petitioner from this portion of the land and possession of it being given to the opponent. The petitioner applied in revision to the Bombay Revenue Tribunal, but his application was dismissed. Thereafter he filed the present Special Civil Application.

2. Section 84 of the Act provides for the summary eviction of any person un-authorisedly occupying or wrongfully in possession of any land. The summary eviction can be ordered by the Collector in three kinds of cases referred to in Clauses (a), (b) and (c) of the said section. The only clause, under -which the Prant Officer could have made his order in this case, is Clause (c), under which a person may be summarily evicted, if he is unauthorisedly occupying or wrongfully in possession of any land 'to the use and occupation of which he is not entitled under the said provisions', i.e., under the provisions of the Tenancy and Agricultural Lands Act. The petitioner in this case claims to be the owner of the land, which is in his possession and from which he has been ordered to be evicted. This land has not been leased by the petitioner and the opponent is not his tenant. The rights, which the opponent has acquired under the terms of his tenancy, are the rights which belonged to his landlord. Consequently by reason of this tenancy, the opponent has not acquired any rights vesting in the petitioner, nor has the petitioner lost any of them. There is also no other provision in the Act under which the petitioner has ceased to be entitled to the possession of this land. It cannot, therefore, be said that the petitioner is not or has ceased to be entitled to the use and occupation of the land, which is in his possession and of which, according to him, he is the proprietor, under any of the provisions of the Act.

3. The dispute in this case is regarding the ownership or title to a portion of the land. Proceedings under Section 84 of the Act are summary, for the section provides for the summary eviction of the persons unauthorisedly occupying or wrongfully in possession of any land. There is no right of appeal against an order passed under this section. It is extremely unlikely that the Legislature could have intended that complicated questions of title should be decided in a summary manner by the Collector under Section 84 of the Act. In Hiralal Chimanlal Thakore v. Keshrising Baghavji (1956) Special Civil Application No. 2178 of 1955 a Division Bench of this Court consisting of Shah and Vyas JJ. has held that in a proceeding under Section 29 of the Act, the Mamlatdar has no power to decide questions as, to title and that these questions can only be decided by a civil Court. In Shankar Raoji v. Mahadu Govind (1954) 57 Bom. L.R. 65 it was observed that where a tenant makes an application against a trespasser, who does not raise an issue with regard to his being a sub-tenant, the Mamlatdar may have no jurisdiction to award possession to the tenant. If, therefore, the Mamlatdar, who is required to hold a regular enquiry of a judicial nature before deciding questions arising under the Act, cannot decide questions, of title, much less can the Collector do so in a summary proceeding held by him under Section 84 of the Act.

4. Mr. Pradhan, who appears on behalf of the opponent, has referred us to the decision of Gajendragadkar and Gokhale JJ. in Shiddappa Bhimanna Ullagadi v. Mallappa Mennappa Badachi (1956) Special Civil Application No. 278 of 1956. The dispute in that ease was between two sets of persons, each of whom claimed to be the tenants of the same landlords. No question of title had to be decided in that case. There are undoubtedly observations in the judgment in that case, which lend support to the argument advanced by Mr. Pradhan that under Section 84 of the Act the Collector can evict even a person, who claims to be the owner of the land. The judgment shows that the attention of the learned Judges was not invited to the words 'under the said provisions' contained in Clause (c) of Section 84 of the Act. On facts, the case is clearly distinguishable from the present one.

5. The view, which we are taking, does not leave the tenant without an adequate and efficacious remedy, if he is wrongfully dispossessed. If the person dispossessing him is his landlord or if he himself claims to be the tenant or a subtenant, the dispossessed tenant can make an application to the Mamlatdar for restoration of the possession to him under Section 29 of the Act. In other cases the tenant can, apart from filing a suit on title, file a suit in the Mamlatdar's Court under the Mamlatdars' Courts Act or in a civil Court under Section 9 of the Specific Relief Act.

6. We are accordingly of the opinion that the Prant Officer had no power to decide whether the petitioner or the opponent's landlord was the owner of the portion of the land in dispute and that, consequently, he could not make an order for the eviction of the petitioner under Section 84 of the Act. The order passed by the Prant Officer directing the summary eviction of the petitioner is, therefore, set aside and the application made by the opponent will be dismissed. There will be no order as to costs of this petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //