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Madhav Kesu Khuspe Vs. Sundrabai Mugutrao Phadatare - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case Number Second Appeal No. 1257 of 1970
Judge
Reported in(1979)81BOMLR217; 1978MhLJ289
AppellantMadhav Kesu Khuspe
RespondentSundrabai Mugutrao Phadatare
DispositionAppeal allowed
Excerpt:
bombay tenancy and agricultural lands act (bom. lxvii of 1948), sections 32g, 31 (3), 32(1), 32f and s3-bombay tenancy and agricultural lands rules, 1956, rule 17- land owned by widow-declaration made in enquiry under section 32g that plaintiff tenant was not willing to purchase suit-land and that the purchase was ineffective, without notice of enquiry being served upon plaintiff-jurisdiction, of civil court to determine whether plaintiff was tenant of suit-land.;the tenant of a widow landlady does not become a deemed, purchaser on the tillers' day. his right to purchase would depend upon the happening of certain events and until then his right is in a fluid state and he continues to be a tenant without receiving the benefit of section 32. the present plaintiff did not become a deem-ed.....aggarwal, j.1. this second appeal is by the plaintiff. the learned assistant judge, satara, by his judgment and decree dated august 18, 1970, allowed the defendants' appeal, set aside the decree passed by the trial court and dismissed the plaintiff's suit with costs.2. at all times material, the plaintiff was the tenant of sundrabai, the original defendant no. 1, in respect of nine pieces of agricultural lands within the limits of village nidhal, taluka khatav, district satara. sundrabai was a widow-landlady. she died after the suit was dismissed and her heirs prosecuted the civil appeal. defendant no. 2, a relative of sundrabai, falsely claimed that he was cultivating the suit-lands on behalf of defendant no. 1. defendant no. 2 also is one of the heirs of defendant no. 1 in the civil.....
Judgment:

Aggarwal, J.

1. This second appeal is by the plaintiff. The learned Assistant Judge, Satara, by his judgment and decree dated August 18, 1970, allowed the defendants' appeal, set aside the decree passed by the trial Court and dismissed the plaintiff's suit with costs.

2. At all times material, the plaintiff was the tenant of Sundrabai, the original defendant No. 1, in respect of nine pieces of agricultural lands within the limits of village Nidhal, Taluka Khatav, District Satara. Sundrabai was a widow-landlady. She died after the suit was dismissed and her heirs prosecuted the civil appeal. Defendant No. 2, a relative of Sundrabai, falsely claimed that he was cultivating the suit-lands on behalf of defendant No. 1. Defendant No. 2 also is one of the heirs of defendant No. 1 in the civil appeal. Defendant No. 3 has no part to play in the present litigation, but he is also one of the heirs of Sundrabai. The plaintiff's, case is that he has been illegally dispossessed of the suit-lands on March 9, 1966 without holding a proper enquiry under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called as 'Bombay Tenancy Act'), and without following the provisions of the said Act governing the case of a widow landlady and her tenant. After he was dispossessed, he came to know that the Agricultural Lands Tribunal (hereinafter described as 'A.L.T.') had held an enquiry under Section 32G. The notice of the enquiry was served upon his brother and after recording his brother's statement, the purchase of the suit-lands was declared ineffective. This was followed by an order dated September 20, 1961 for handing over possession of the suit-lands to Sundrabai, but possession was not taken for nearly four and half years. On March 9, 1966. Kabje Patti, exh. 82, was purported to be executed and it was falsely stated therein that there was no crop and possession was taken from the plaintiff and delivered to Sundrabai without any objection. It was also stated in exh. 82 that on one of the suit-lands, crop of onion/ burijal and garlic was grown and that the plaintiff was absent at the time of the delivery of possession.; The plaintiff contended that possession was taken without intimation to him. He also alleged that Sundrabai and her relative Tukaram-defendant No. 2 in collusion with the Talathi got mutation entry No. 4428 made as of March 9, 1966 on the strength of the Kabje Pom', exh. 82, without notice to him. When the plaintiff became aware of all these facts, he filed Tenancy Appeal No. 219 of 1966 against the order dated September 20, 1961 of the A.L.T. No. II, Khatav, in the Court of the Assistant Collector, Phaltan Division. The appellate Court issued stay order dated August 19, 1966. Tukaram-defendant No. 2 filed Criminal Case No. 313 of 1966 in the Court of Judicial Magistrate, First Class, Vaduj, against the family members of the plaintiff under Sections 447, 590, 323 read with Section 34, Indian Penal Code in respect of the suit-lands and falsely alleged that he was cultivating the suit-lands on behalf of Sundrabai. The plaintiff filed the present suit on January 16, 1967 for permanent injunction. Thereafter, the plaintiff amended the plaint and alleged that the defendants had forcibly dispossessed him after the filing of the present suit and prayed for possession.

3. Sundrabai contended that the suit-lands were in her actual Vahivat as owner and that the plaintiff's allegations in respect of his tenancy were entirely false. The suit for permanent injunction was not maintainable as the plaintiff had no Vahivat in the suit-lands. According to her, notice was served according to law, but the plaintiff did not remain present on the date of the said enquiry and in the result, his purchase of the suit-lands was declared ineffective by the A.L.T. The plaintiff was permanently residing in Bombay. He is a member of joint family and his younger brother Narayan looked after the family lands in the village. Narayan was present at the time of the enquiry and he gave his statement and the decision of the enquiry was intimated to the plaintiff. Sundrabai submitted that since the purchase of the suit-lands was declared ineffective, the lands were ordered to be given to her and actual possession was handed over to her, after obtaining the same from the plaintiff, on March 19, 1966 by the Revenue Officer and in this connection Kabje Patti, exh. 82, was executed. She denied that the mutation entry was false or made in collusion with the Talathi. She was not aware of the appeal filed by the plaintiff. The possession of the suit-lands was already delivered to her and, therefore, the stay order was ineffective. She admitted that a criminal case had been filed against the family members of the plaintiff and contended that the present suit was filed in order to lessen the gravity of the criminal case. She further contended that the civil Court had no jurisdiction to decide about the validity of the order of the tenancy Court and the proper course for the plaintiff was to prefer an appeal or revision.

4. Defendant No. 2 adopted the contentions raised by defendant No. 1. Defendant No. 3 did not file his written-statement.

5. On these pleadings, the trial Court raised the necessary issues and held that the plaintiff proved his title to the suit-lands and that the entry deleting his name in the Record of Rights as tenant of the suit-lands was bogus and incorrect. It held against the plaintiff on the issue that he was dispossessed by the defendants after the filing of the suit. It, however, held in favour of the plaintiff that the enquiry under 32G, the Kabje Patti, exh. 82, and the mutation entry No. 4428 dated March 9, 1966 were made without notice to him. The trial Court also held that the enquiry under Section 32G was ultra vires and without jurisdiction. It further held that the plaintiff succeeded in proving that the defendants obstructed his Vahivat in respect of the suit-lands. The plaintiff was thus granted decree for possession and permanent injunction restraining the defendants from obstructing his peaceful possession and Vahivat of the suit-lands.

6. The defendants appealed against the said decree. The lower appellate Court held that the order of the A.L.T. declaring the purchase of the suit-lands by the plaintiff ineffective was not without jurisdiction and therefore not ultra vires and that civil Court had no jurisdiction to determine the correctness of such an order. It also held that the civil Court has no jurisdiction to determine whether the plaintiff was tenant of the suit-lands and that the suit for possession is not maintainable in a civil Court. Accordingly, the appeal was allowed, the decree passed by the trial Court was set aside and the suit was dismissed.

7. Mr. Damle, learned advocate appearing for the appellant-plaintiff, submitted that the so-called enquiry held under Section 32G is in violation of the provisions of that section and, therefore, the enquiry held is no enquiry at all. The declaration made in that enquiry that the plaintiff is not willing to purchase the suit-lands and that the purchase is ineffective, is illegal and of no effect. Mr. Damle stated that Sundrabai was a widow landlady and therefore no enquiry could take place as the plaintiff was not a deemed purchaser under Section 32. He next submitted that no notice of the enquiry was served upon the plaintiff and his statement was not recorded as provided under that section. None of the provisions of Section 32G have been complied with in the present case and, therefore, the enquiry is manifestly without jurisdiction and the declaration made is illegal and of no effect.

8. The Bombay Tenancy Act relates to tenancies of agricultural lands and governs the relations of their landlords and tenants. Under Section 32(1), from April 1, 1957 every tenant is deemed to have purchased from his landlord, free from all encumbrances, the land held by him as tenant, but this is subject to the various W and 'buts' of Section 32(1) itself and its succeeding sections. However, Sections 32F, 32O, 32C read with Sections 88C and 43-1D are a kind of exception to the scheme of Section 32, In our case, it is not in dispute that Sundrabai was a widow landlady and therefore the provisions of Section 32F are applicable. Sub-section (1) of Section 32F inter alia provides that notwithstanding anything contained in the preceding sections, where the landlord is a widow, the tenant shall have the right to purchase such land under Section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31. Section 31 deals with landlord's right to terminate tenancy for personal cultivation and non-agricultural purpose. Sub-section (3) thereof is material for our purpose and it says that where a landlord is a widow, then the notice referred to in Sub-section (3) of Section 31 may be given and an application for possession under Section 29 may be made by the successor-in-title of a widow within one year from the date on which her interest in the land ceases to exist. This means that the tenant of a widow landlady did not become a deemed purchaser on the tillers' day. His right to purchase would depend upon the happening of certain events and until then his right is in a fluid state and he continues to be a tenant without receiving the benefit of Section 32. Thus the plaintiff before me did not become a deemed purchaser under Section 32(1).

9. The next point for consideration is the enquiry under Section 32G. This section provides that after the tillers' day, i.e. April 1, 1957, the tribunal concerned shall publish a public notice in the prescribed form in each village within its jurisdiction calling upon all tenants who under Section 32 are deemed to have purchased the lands, their landlords and all other persons interested therein, to appear before it on the date specified in the notice. The form of notice is prescribed under Rule 17 of the Bombay Tenancy and Agricultural Lands Rules, 1956. Such notice is to be given by beat of drum and by affixing a copy in the Chavadi of the village. The Tribunal is required to issue notice individually to each tenant and his landlord and all other interested persons as far as practicable. The Tribunal is further required to record in the prescribed manner the statement of the tenant whether he is or is not willing to purchase the land held by him as a tenant. Sub-rule (2) of Rule 17 provides that the Tribunal shall record the statement of the tenant on oath and in the language of the District and that such statement shall be read over and explained to the tenant and his signature taken on it. If the tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal is required to declare by an order in writing that such tenant is not willing to purchase the land and hence the deemed purchase is ineffective. I am not referring to the rest of the provisions of Section 32G which deal with cases in which the tenant is willing to purchase. Reading of Section 32G shows that it is meant for adjudicating the cases of tenants who are conferred the rights of a deemed purchaser. The enquiry is grounded on this factor. This gives the cause of action for the enquiry. In our case, the plaintiff was not a deemed purchaser under Section 32(1) and, therefore, the enquiry held under Section 32G was obviously premature and without jurisdiction.

10. We have seen that Section 32G prescribes various formalities which are to attend to its taking place. It is the duty of the A.L.T. to fulfil those formalities. It is not optional but imperative for the Tribunal to give public notice and serve notices individually on the tenant, his landlord and other persons interested in the land and to record the statement of the tenant himself whether he is willing or not willing to purchase the land. Compliance with these requirements is essential to the validity of the enquiry. Looking to the scope and purpose of the enquiry, it seems that the provisions of Section 32G are mandatory. The meaning and intention of the Legislature can be ascertained not only from the phraseology of the provisions but also by considering its nature, its design and the consequences which would follow from construing it one way or the other. Non-compliance of the essential requirements of the enquiry would call for its nullification. In the present case, the plaintiff was admittedly a tenant of Sundrabai. The Record of Rights, exh. 63, shows that the name of the plaintiff is shown as a tenant. His name does not appear as a manager or karta of the joint family. The purported service of the notice on Narayan, the brother of the plaintiff, is clearly bad in law. Narayan made the following statement under exh. 86:

Examination-in-chlef:

I have received the notice issued under section 32G of the Bombay Tenancy Act. That I have been given to understand that I have been conferred with a right to purchase the lands mentioned herein at concessional rate in 12 instalments which have been with me under cultivation as tenant since 1952-53. Even so I don't want to take them and I have no objection even if my tenancy rights come to an end, I have other land under my cultivation in the village. Hence this deposition. Dated 21-3-1961. Before me

Sd/-

A. L. T. No. 2, Khatav.

Thumb impression of

Narayan Kesu Khupse.

11. Narayan was not the tenant of Sundrabai and, therefore, his statement could not be taken under Section 32G. There was nothing before the Tribunal to show that Narayan was authorised by the plaintiff to make such a statement. The Tribunal should have taken care to see that before it forfeits the valuable statutory purchase, the statement of refusal to purchase came from the tenant himself or his duly authorised representative specially empowered to make such a statement. These infirmities in the enquiry make the enquiry sham and fruitless. The lower appellate Court was mindful of the fact that the plaintiff was not a deemed purchaser because the plaintiff was to be deemed to have purchased the lands on the postponed date, but according to it, to hold an enquiry in the meantime was an irregularity and that the declaration that the purchase is ineffective could be given prior to the postponed date. This view is erroneous. Why should a tenant be called upon to make a statement when he is not a deemed purchaser? A tenant who is made a statutory deemed purchaser has to elect whether he confirms the purchase or relinquishes it. Why should the peaceful possession and enjoyment and use of the lands held by the plaintiff be prematurely made the subject of enquiry under Section 32G? Regarding service of the notice upon plaintiff's brother Narayan, the lower appellate Court, it seems misread the evidence when it observed that plaintiff's name was shown as a manager of the joint family. Both the learned advocates appearing before me have examined the record and stated that exh, 63 shows the name of the plaintiff in his individual capacity. The lower appellate Court's view that service on the plaintiff's brother was a procedural irregularity does not seem to be correct. In my opinion, the compliance with the provisions of Section 32G is imperative and not optional. The present enquiry was clearly in breach of Sub-sections (1), (2) and (3) of Section 32G and therefore a nullity and the purported declaration made pursuant to the enquiry is invalid and ineffective.

12. Coming to the second contention of Mr. Damle that the impugned order dated September 20, 1961 is illegal and beyond the competence of the A.L.T., it is to be noticed that the Tribunal's power to resume and dispose of land not purchased by a tenant comes into play in various situations. One of them is when the events under Section 32G have been accomplished or where a tenant fails to exercise his right to purchase land held by him within the specified period under Section 32F. In the present case, as indicated above, the right to purchase had not matured in favour of the plaintiff because Sundrabai was a widow landlady. During her life-time, there was no question of the tenant declaring his willingness or unwillingness to purchase. The matter was not ripe under Section 32F and 32G and, therefore, the Tribunal could not take action under Section 32P. Hence the impugned, order is passed in contravention of the provisions of Section 32P. Consequently, the possession taken under the invalid order would be ineffective. The possession taken as per Kabje Patti, exh. 82, dated March 9, 1966 and all acts following it would be useless. In the eye of law the possession continues to be that of the plaintiff who was illegally dispossessed.

13. Mr. Pathak, learned counsel for the respondents-defendants, submitted in the first place that the jurisdiction of the civil Court is barred under Section 85 of the said Act, Mr. Damle referred to a decision of this Court in Husein Miya v. Chandubhai : AIR1954Bom239 , in which the provisions of Section 85(1) and (2) of the Bombay Tenancy and Agricultural Lands Act, 1948, came for consideration. In that case, the order of the Mamlatdar passed under the said Act was challenged as ultra vires. In that case, an application was made by the landlords for possession against their tenant under Section 29 of the said Act to the Mamlatdar and a consent order was taken on August 24, 1948, by which the tenant agreed to hand over possession to the landlords. According to the tenant in that case, there was a fresh tenancy agreement between him and the landlords and that was in July 1949 and by reason of the fresh tenancy the tenant continued to remain on the lands and the landlords never took possession of them, It was further the case of the tenant that in July 1950 he exchanged with the consent of the landlords the lands demised to him with the same area of the lands which had been demised to another tenant. On February 15, 1952, the landlords applied to the Mamlatdar to execute the order of August 24, 1948. On March 22, 1952, the tenant filed an application before the Mamlatdar stating that he was a tenant of the landlords under a new agreement and that he should not be dispossessed. On March 17, 1952, the Mamlatdar ordered the tenant to hand over possession of the lands, in execution of the order dated August 24, 1948 and on March 20, 1952 the landlords took possession of the lands from the tenant. On March 22, 1952, the tenant applied to the Mamlatdar under Section 29(1) for possession alleging that he was a tenant of the landlords, and on August 9, 1952, the Mamlatdar made an order in favour of the tenant and he directed that possession be given to him on August 16, 1952. On August 15, 1952 the landlords filed a suit in the civil Court contending that the order passed by the Mamlatdar on August 9, 1952 was invalid and ultra vires and asked for an injunction against the tenant preventing him from taking possession of the lands from them. While interpreting Section 85 of the said Act ousting the jurisdiction of the civil Court, the learned Chief Justice Mr. M. C. Chagla observed (p. 948):. It is clear that the jurisdiction of the civil Court has been only ousted in respect of valid orders made by the Mamlatdar. It is only when the Mamlatdar makes an order 'with jurisdiction, or, in other words, makes an order for the purposes of the Act or an order required by the Act, that that order cannot be questioned in a civil Court. If the Mamlatdar while passing a valid order deals with any of the matters under Section 70, then those matters cannot be dealt with by the civil Court. But if the order made by the Mamlatdar is not for the purposes of the Act or not required by the Act and the order is incompetent or ultra vires, then the order is a nullity and it can be challenged in a civil Court.

14. While dealing with the argument in that case that it was open to the landlords to prefer an appeal against the decision of the Mamlatdar and that instead of preferring an appeal they had filed a suit in a civil Court, the learned Judges posed a question whether the fact that a statute provides for a right of appeal against an order made by an authority set up under that statute would make any difference to the position when the order made by the authority is an invalid or ultra vires order. The learned Judges answered that question and the argument as follows (p. 949):. 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 with 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 (landlords) could have appealed to the Collector and could, have got the necessary relief. The question is whether the opponents (landlords) are bound to appeal and, are prevented or 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 paper, and to go to 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.

15. Applying the said principle to the facts of the present case, in my judgment, the impugned order dated September 20, 1961 was a product of an illegal enquiry and, therefore, from its very inception it was a nullity. Secondly, the power of the Tribunal to pass the impugned order under Section 32P had not fructified, inasmuch as the plaintiff was not a deemed purchaser under Section 32 and, therefore, the question of declaring his purchase ineffective under Section 32G could not arise, nor can it be said that the plaintiff has failed to exercise the right to purchase within the specified period under Section 32F. The so-called enquiry under Section 32G was premature and the period specified under Section 32F has not matured. Therefore, in my view, the Tribunal had no power to pass the impugned order and hence it was a colourable exercise of the power under Section 32P on the basis of an illegal enquiry under Section 32G. In respect of such an impugned order, the civil Court's jurisdiction is not taken away by the bar placed by Section 85 of the said Act.

16. Mr. Damle also referred to the decision of the Supreme Court in K. C. Dora v. G. Annamanaidu : [1974]2SCR655 . In that case, their Lordships were considering the provisions of Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. Section 9(1) of that Act makes the jurisdiction of the Settlement Officer and the Tribunal an exclusive one. This exclusion of the jurisdiction of the civil Court was interpreted to be subject to two limitations. First, the civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. The principle laid down by this decision supports the view that merely because a statute bars the jurisdiction of a civil Court, it does not mean that for all purposes the jurisdiction of the civil Court is taken away. The power of the civil Court to examine cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, remains unaffected. In the present case, the express provisions of Section 32G have not been complied with, inasmuch as no notice was served upon the plaintiff and no statement of the plaintiff was recorded. The enquiry was patently in breach of Section 32G. The principles of natural justice were also not observed as the enquiry was held without notice to the plaintiff, and any decision without notice to the person likely to be affected and without giving him an opportunity of being heard would be not in conformity with the fundamental principles of judicial procedure.

17. Mr. Pathak next submitted that the plaintiff had filed an appeal against the impugned order and the tenancy appellate Court by its order dated December 29, 1967 had dismissed the appeal. That order is a final order and it operates as a finality of the tenancy jurisdiction. No further proceedings in the nature of revision before the Maharashtra Revenue Tribunal or the writ jurisdiction were adopted by the plaintiff. These were the proper forums before whom the plaintiff could have agitated about the legality of the order and not before a civil Court. I do not find any substance in this argument in view of my conclusion that the jurisdiction of the civil Court is not taken away by Section 85 in cases where a party challenges the order as one passed without jurisdiction or in breach of the provisions of the Act or outside the provisions of the Act or not in conformity with the fundamental principles of judicial procedure.

18. Mr. Pathak next urged that under Section 29(1) of the Bombay Tenancy Act, a period of two years is prescribed for an application for possession and, therefore, having regard to the provisions of Section 27 of the Limitation Act, 1963, the plaintiff's right for possession stands extinguished because the special period of two years prescribed under Section 29(1) has long expired. In support of this submission, Mr. Pathak relied upon a decision of the Supreme Court reported in Dindayal v. Rajaram : [1971]1SCR298 , head-note (B), which deals with Section 27 of the Limitation Act, 1963 and also a decision of the Nagpur High Court reported in Punjaram Jagoba v. Ramu Chintoo , which refers to Section 28 of old Limitation Act, 1908. Section 29(1) of the Bombay Tenancy Act lays down the procedure of taking possession in cases where a tenant or an agricultural labourer or artisan entitled to possession under the said Act may apply in writing for such possession to the Mamlatdar. Such application is required to be made within a period of two years from the date on which the right to obtain possession is deemed to have accrued to the tenant, agricultural labourer or artisan. The question, therefore, is as to when the right to obtain possession of the land could be said to have accrued to the plaintiff in the present case. It is only from that time that the period of limitation prescribed by this sub-section would commence. In the present case, the plaintiff has been purportedly dispossessed on the basis of an illegal and invalid order obtained behind his back and without notice to him. Though the order was dated September 20, 1961, yet the landlady sought to take possession on March 9, 1966 and that too without notice to the plaintiff. In these circumstances, it was necessary for him to have the impugned order declared as a nullity by the civil Court. In my opinion, neither the provisions of Section 29 of the Bombay Tenancy Act nor of Section 27 of the Limitation Act, 1963, are applicable to the facts of the present case.

19. Another submission of Mr. Pathak was that the nature of the present suit was one for injunction and after the filing of the suit, the plaint was amended for possession, but no prayer for a declaration that the impugned order was illegal, without jurisdiction or beyond the competence of the Tribunal or a nullity, was asked for. Mr. Pathak read out the plaint and very fairly stated that the plaintiff had made all the necessary averments for the said relief. It is true that in the plaint there is no prayer for declaration as pointed out by Mr. Pathak. In the trial Court, as many as eleven issues were raised. No issue on this point was raised. Having regard to the fact that all relevant and material statements and allegations have been made in the plaint and both the lower Courts have proceeded to determine the points at which the parties were at issue, I do not think that this technical question can defeat the plaintiff's suit. If such technical plea had been taken at the earliest stage of the suit, the plaintiff could have amended the plaint and sought the necessary prayer.

20. Mr. Pathak next contended that the suit is not properly valued for the relief of possession and no Court-fee is paid in respect d: that relief. This point has no substance. The point was sought to be raised by the defendant in their memo of appeal before the lower appellate Court, but no point was urged or raised before it, and, therefore, this contention must be rejected,

21. Mr. Pathak also contended that if an order for possession is made, it would lead to setting up a parallel forum one under the Bombay Tenancy Act and the other before the civil Court. This would also be in breach of Section 85 and the spirit to bestow exclusive jurisdiction to the forum under the Bombay Tenancy Act, urged Mr. Pathak. It is one thing to make an order for possession, but it is another thing for a civil Court to set aside an invalid order and to restore the parties to their original position as if the illegal or invalid order had not been passed. The jurisdiction of the Tenancy Courts contemplated under the Bombay Tenancy Act is effective and exclusive when the Tenancy Courts are acting on their valid orders passed in accordance with the provisions of the said Act. There is, therefore, no force in this submission.

22. The last argument of Mr. Pathak was that respondent No. 1 Sundrabai had died during the pendency of the civil appeal on December 19, 1968, and, therefore, it was incumbent upon the plaintiff to give notice within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31 as provided in Section 32F(1)() of the said Act. Mr. Pathak, therefore, contended that in the absence of any notice being given, the plaintiff has no right to purchase the land under Section 32. In order to appreciate this argument, it is necessary to bear in mind the combined effect of Section 31 and Section 32F(1)(a) and Section 32F(14). The first part of Section 32F(1)(a) lays down that where the landlord is a minor, or a widow, or a person subject to any mental or physical disability, the tenant shall have the right to purchase such land under Section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31. The second part provides that for enabling the tenant to exercise the right of purchase, the landlord shall send an intimation to the tenant of the fact that he has attained majority, before the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31. Section 32F(1A) says that a tenant desirous of exercising the right conferred on him under Sub-section (1) shall give an intimation in that behalf to the landlord and the Tribunal in the prescribed manner within the period specified in that subsection. The sub-section here is Sub-section (1). The period provided thereunder is within one year from the expiry of the period during which the landlord is entitled to terminate the tenancy under Section 31. Therefore, the period of one year is to be calculated after the expiry of the period during which the landlord is entitled to terminate the tenancy under Section 31. Section 31(5) says that where a landlord is a widow, then the notice contemplated under Section 31 may be given by the successor-in-title of a widow within one year from the date on which her interest in the land ceases to exist. So unless a widow-landlady dies and the successor-in-title chooses to terminate the tenancy, the period of limitation under Section 32F would not begin to run. In the present case, there is no evidence to show that the defendant No. 1 Sundrabai's successor-in-title has given notice terminating the tenancy as required under Section 31. In my opinion, therefore, the stage of the plaintiff to give intimation required under Sub-section (1A) of Section 32F is, not reached. Mr. Damle for the plaintiff submitted that this point was not raised before the lower appellate Court and it could not be said whether such a notice is in fact given or not. There is considerable force in this argument. Mr. Damle also contended that the present pending proceeding is a sufficient notice contemplated within Section 32F (1A), Rule 20 of the Bombay Tenancy and Agricultural Lands Rules, 1956, provides the manner of giving intimation, i.e., by hand delivery or by post. A form is also prescribed for the purpose of giving such intimation. Therefore, having regard to R, 20, the mere fact that the present proceedings are pending cannot be said to be a sufficient compliance. This argument is, therefore, without force.

23. In the result, the appeal is allowed with costs throughout. The decree dated August 18, 1970 passed by the lower appellate Court is set aside, and the decree dated September 13, 1968 passed by the trial Court is restored.


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