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Suratsing Chandanmal Vs. Kanakmal Hiralal Munot - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 728 of 1954
Judge
Reported in(1958)60BOMLR1222
AppellantSuratsing Chandanmal
RespondentKanakmal Hiralal Munot
DispositionAppeal allowed
Excerpt:
.....in connection with certificate--whether such certificate can be accepted by civil court as valid decision of mamlatdar regarding status of defendant--plaintiff whether entitled to question validity of certificate in civil court.; in a suit filed by the plaintiff-landlord, in the civil court, against the defendant for a declaration of ownership and possession of certain land alleging that the defendant was a trespasser, the defendant contended that he was a protected tenant and claimed the benefit of the bombay tenancy and agricultural lands act, 1948. the civil judge referred the dispute between the parties as to whether the defendant was a tenant or not to the tenancy court. thereafter the defendant tendered in court a certificate from the mamlatdar to the effect that he was a..........following effect:this is to certify that shri kanakmal hiralal munot of ahmednagar is a protected tenant and a tenant in actual possession in survey no. 158 of the village kedgaon.this certificate was challenged on behalf of the plaintiff on the ground that it did not constitute a decision of the mamlatdar as contemplated under section 70 of the bombay tenancy act. the main ground of the attack was that before issuing the certificate no notice was even issued to the plaintiff and the plaintiff was not given any opportunity to show that the defendant was not a protected tenant. on this point, the plaintiff gave evidence and deposed on oath that no notice was issued by the mamlatdar. on the other hand, though defendant no. 1 was required to submit himself to cross-examination on this.....
Judgment:

Gokhale, J.

1. This is an appeal by the original plaintiff whose suit came to be dismissed by the Court of the Civil Judge, Senior Division, Ahmednagar. The suit was for a declaration of the ownership of the plaintiff of a certain land at Ahmednagar and the plaintiff claimed possession of the land from defendant No. 1, who resisted the suit inter alia on the ground that he was a tenant. There were other defences to the suit with which we are not concerned at this stage. The contention of the plaintiff was that defendant No. 1 was a trespasser and could not claim the benefit of the Bombay Tenancy Act. On the other hand, defendant No. 1 contended that he was not a trespasser but was a tenant and that his name was entered in the Record of Rights as a protected tenant. As there was a dispute between the plaintiff and defendant No. 1 on this point, on January 28, 1954, the learned trial Judge rightly decided to refer the matter to the Tenancy Court, which alone has jurisdiction to decide whether a person is a tenant or not. Accordingly it was ordered that defendant No. 1 should get a finding from the Tenancy Court within a period of two months, viz., April 1, 1954, on that issue.

2. Thereafter, it would appear that defendant No. 1 tendered in Court a certificate from the Mamlatdar of Ahmednagar, dated February 16, 1954, which is exh. 70 in this case and which is to the following effect:

This is to certify that Shri Kanakmal Hiralal Munot of Ahmednagar is a protected tenant and a tenant in actual possession in Survey No. 158 of the village Kedgaon.

This certificate was challenged on behalf of the plaintiff on the ground that it did not constitute a decision of the Mamlatdar as contemplated under Section 70 of the Bombay Tenancy Act. The main ground of the attack was that before issuing the certificate no notice was even issued to the plaintiff and the plaintiff was not given any opportunity to show that the defendant was not a protected tenant. On this point, the plaintiff gave evidence and deposed on oath that no notice was issued by the Mamlatdar. On the other hand, though defendant No. 1 was required to submit himself to cross-examination on this point, by plaintiff's application (exh. 67), he avoided the witness-box. It was common ground in the trial Court that the plaintiff had no notice of the proceedings, if any, before the Mamlatdar in connection with the certificate issued in favour of defendant No. 1, and even in this appeal that fact has not been challenged before us on behalf of defendant No. 1. The learned trial Judge, however, negatived the contention of the plaintiff and accepted the certificate as a valid finding of the Mamlatdar observing as follows:

From the certificate given it is clear that defendant No. 1 has been entered on the land as a protected tenant. There being this finding already in his favour, it was not necessary to inquire into it anew. Nor are there any such provisions in the Act. In the result, this certificate produced by defendant No. 1 must be deemed to operate as a finding by the Mamlatdar in his favour.

On this view of the case that the certificate of the Mamlatdar constituted a valid decision in defendant No. 1's favour, and as the plaintiff's suit was substantially one for possession, the trial Court came to the conclusion that the plaintiff's suit must be dismissed.

3. Now, in this appeal the first question that falls to be considered is whether the certificate issued by the Mamlatdar has to be accepted by a civil Court as a valid decision on the part of the Mamlatdar regarding the status of defendant No. 1. In this connection, it has to be noted that the trial Court, by its order dated January 28, 1954, had required defendant No. 1 to obtain a finding from the Tenancy Court within a certain specified time. This was a correct order in view of the fact that defendant No. 1's status as a tenant was disputed by the plaintiff. It is well settled that under Section 70(6) of the Bombay Tenancy and Agricultural Lands Act, 1948, hereafter called the Tenancy Act, the Mamlatdar is constituted the forum of exclusive jurisdiction for determination of questions mentioned in that section, and where in a suit for possession of agricultural lands, the plaintiff alleges that the defendant is in possession of the lands as a trespasser, while the defendant pleads that he is a tenant or a protected tenant, the civil Court has no jurisdiction to deal with that plea. See Trimbak Sopana v. Gangaram : AIR1953Bom241 and Dhondi Tukaram v. Dadoo Piraji : AIR1954Bom100a . In this case, however, after the trial Court had required defendant No. 1 to get a finding from the Tenancy Court, a certificate from the Mamlatdar was obtained and it would appear from the certificate itself that no proceedings were held by the Mamlatdar as contemplated under the provisions of the Tenancy Act. It is contended on behalf of defendant No. 1, as it was contended in the trial Court, that this certificate would constitute a valid decision of the Mamlatdar in favour of defendant No. 1 under the Tenancy Act.

4. In order to test this argument, it is necessary to refer to some of the provisions of the Tenancy Act. Under Section 70 of that Act the duties and functions to be performed by the Mamlatdar for the purposes of the Act are enumerated, and under Clause (6) of that section the Mamlatdar has power to decide whether a person is a tenant or a protected tenant or a permanent tenant. Section 71 deals with the commencement of proceedings before the Mamlatdar and states that, save as expressly provided by or under the Act, all inquiries and other proceeding's before the Mamlatdar shall be commenced by an application which shall contain certain particulars mentioned in that section. Section 72, which deals with the procedure which the Mamlatdar has to follow, provides, so far as is material, that in all inquiries and proceedings commenced on the presentation of an application under Section 71, the Mamlatdar shall exercise the same powers as the Mamlatdar's Court under the Mamlatdars' Courts Act, 1906, and shall, save as provided in Section 29, follow the provisions of the said Act, as if the Mamlatdar were a Mamlatdar's Court under the said Act and the application presented was a plaint presented under Section 7 of the said Act. The last part of Section 72 provides as follows:.Every decision of the Mamlatdar or the Tribunal shall be recorded in the form of an order which shall state reasons for such decision.

In the case of an order made by the Mamlatdar under Section 4 of the Act, an appeal is provided for under Section 74(1)(a) of the Act and, under Section 85(2) of the Act, no order of the Mamlatdar made under the Act shall be questioned in any Civil or Criminal Court. It is clear, therefore, from these provisions of the Tenancy Act that though the Mamlatdar is constituted the forum of exclusive jurisdiction to decide whether a person is a tenant or a protected tenant or a permanent tenant, he must, in arriving at a decision on this question, follow the procedure laid down in the Act. It is equally clear from Section 72 that, in an enquiry held for this purpose, notice must be issued to the party who may be affected by that inquiry, and the decision of the Mamlatdar has to be recorded in the form of an order which must contain reasons for that decision. Unless that is done, it will be impossible for the appellate authority under Section 74 of the Act to test the correctness or otherwise of the order passed by the Mamlatdar. Judged in the light of these provisions, it is obvious that the so-called certificate issued by the Mamlatdar is no decision under Section 70(b) of the Act, and such a certificate cannot be accepted and acted upon as a valid decision by the civil Court.

5. It is true that the plaintiff did not go in appeal under Section 74(1) against the so-called certificate issued by the Mamlatdar. But he had no notice of any proceedings before the Mamlatdar. Besides, the certificate is challenged by him on the ground that it is without jurisdiction and, in our opinion, the civil Court's jurisdiction to consider this challenge is not ousted. As I have already pointed out, under Section 85(2) of the Act what the civil Court cannot question is an order of the Mamlatdar made under the Act. But as, on the face of it, the certificate issued by the Mamlatdar does not appear to be an order passed by the Mamlatdar under the provisions of the Act, the party affected by such a certificate is entitled to question its validity in a civil Court. Merely because Section 74(1) provides for an appeal, it was not necessary for the plaintiff to challenge the certificate issued by the Mamlatdar by way of an appeal under the provisions of the Act. The plaintiff could show, as he has done in this case, that the so-called certificate is no decision of the Mamlatdar under the provisions of the Act. See Husein Miya v. Chandubhai : AIR1954Bom239 .

6. In that view of the matter, we have no option but to set aside the decree of the trial Court and send down the case to that Court for getting a proper finding from the Tenancy Court on the question as to whether defendant No. 1 was a tenant of the suit land.

7. Mr. Gupte, appearing on behalf of the plaintiff, has contended that it would not be necessary to call for a finding from the Mamlatdar because the suit lands are within the municipal limits of Ahmednagar and would not be governed by the provisions of the Tenancy Act, That is not a common ground between the parties and it will be for the Mamlatdar to consider whether the contention of the plaintiff on this point is correct and would take the suit land out of the provisions of the Tenancy Act.

8. Surprisingly enough, the learned trial Judge lost sight of the relevant provisions of the Tenancy Act and accepted a mere certificate of the Mamlatdar as a valid decision on the question of defendant No. 1's status. We may also observe that if the object of the Legislature in constituting special Tribunals to decide questions falling within the ambit of the Tenancy Act was to provide the tenant with what the Legislature considered to be a speedier and less expensive remedy, that object is likely to be frustrated if the Tribunals concerned disregard the rules of procedure which it is incumbent on them to follow.

9. The result is that the appeal is allowed and the decree passed by the trial Court dismissing the plaintiff's suit is set aside. The case is remanded to the trial Court with a direction that it should call for a finding from the relevant authority under the Tenancy Act on the question as to whether defendant No. 1 is a tenant of the suit land. The finding should be called for within two months from the receipt of the record by the authority under the Tenancy Act. After the finding is received, the trial Court should dispose of this case as expeditiously as possible according to law. In the circumstances of this case, defendant No, 1 will, have to pay the plaintiff's costs of this appeal as well as the costs in the trial Court so far. Further costs in the trial Court will be costs in the cause.


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