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Bhaurao S/O Vithal and ors. Vs. Godawaribai W/O Madhukarrao Giri and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 981 of 1980
Judge
Reported in1984(1)BomCR103
ActsHyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 98
AppellantBhaurao S/O Vithal and ors.
RespondentGodawaribai W/O Madhukarrao Giri and anr.
Appellant AdvocateP.G. Godhamgaonkar and ;A.G. Godhamgaonkar, Advs.
Respondent AdvocateS.G. Deshmukh, Adv. for respondent No.1
DispositionPetition allowed
Excerpt:
- - 3. parties gave in writing that they did not want to lead any oral evidence and they would like to argue the matter only. 4. after hearing learned counsel for both sides i am satisfied that looking at the matter from any point of view the impugned order cannot be sustained. 6. i am satisfied that the orders of both the courts below are clearly contrary to law and are without jurisdiction and they deserve to be quashed......1960 and the agreement is of 1963. assuming for a moment that the agreement is not enforceable the tenancy rights are not lost. mr.p.g. godhamgaonkar, appearing for the petitioners, placed reliance upon a decision of this court in barbi natha patil v. gopal d. patil (special civil application no. 1809/65 decided on 16-11-1967 at bombay (1969) tenancy law reporter 22. therein it is observed that mere agreement creates no higher rights than that of a tenant in favour of the tenant-purchaser and this court has held that there is no merger of tenancy rights in the rights of the proposed purchaser. thus, even if it is assumed for a moment that the agreement is unenforceable the tenancy rights would remain intact and it cannot be said that vithal or his heirs and legal representatives are in.....
Judgment:

D.B. Deshpande, J.

1. Godawaribai, present respondent No. 1 before me filed a petition under section 98 of the Hyderabad Tenancy and Agricultural Lands Act (hereinafter it is referred to as 'Tenancy Act'), for obtaining possession of the disputed lands from the present petitioners who were respondents before the Deputy Collector. She admitted in para 4 of her petition that Vithal, father of the present petitioners 1 and 2 and the husband of present petitioner No. 3, was given these lands on Batai basis in the year 1960. It is never mentioned by her in this petition that Vithal was her partner in cultivation in respect of these lands. She further alleged that later on an agreement of sale was entered into between her and Vithal. She alleged that permission for such sale was not obtained. She further alleged that Vithal had not paid the full consideration also and had not taken a registered sale-deed also from her. She, therefore, prayed that possession should be handed over to her under section 98 of the Tenancy Act.

2. Petitioners resisted this petition. They challenged the jurisdiction of the Deputy Collector to give relief to Godawaribai under section 98 of the Tenancy Act. They contended that they were in possession of the lands in pursuance of the agreement for sale. According to them, the full amount of consideration is paid to one of the executants by name Laxmibai. They denied that the contract for sale was void and they denied that any permission was required for this transaction. They asserted that they were in possession of the lands in part performance of the contract for sale executed on 5-8-1963 and they claimed protection under section 53-A of the Transfer of Property Act.

3. Parties gave in writing that they did not want to lead any oral evidence and they would like to argue the matter only. Accordingly, the arguments were advanced and the learned Deputy Collector granted the application of present respondent No. 1 and passed an order for possession. The petitioners went in appeal to the Maharashtra Revenue Tribunal and the learned Member of the Maharashtra Revenue Tribunal wrote a very lengthy judgment of about 16 pages and ultimately dismissed this appeal. This order is challenged in this petition.

4. After hearing learned Counsel for both sides I am satisfied that looking at the matter from any point of view the impugned order cannot be sustained. It is true that at the time of the agreement there was old section 47 of the Act which required permission for sale. In the instant case there is no sale at all. There is an agreement for sale. The word 'sale' does not include the words 'agreement for sale' and mere agreement for sale would not be covered by the then existing section 47 of the Act. It is a settled law that the agreement by itself does not confer title upon the proposed purchaser and hence, section 47 of the Act could not be applied to this transaction under any circumstances.

5. The next question is about the admission of the respondent No. 1 that Vithal was her tenant. I have already pointed out that it was never her case that Vithal was her partner in cultivation. The learned Member of the Maharashtra Revenue Tribunal has entered into futile exercise without taking the pleadings into consideration in this respect and in the absence of any case made out by respondent No. 1 that Vithal was her partner in cultivation he has chosen to observe that Vithal might be partner in cultivation and might not be a tenant. I will read the petition as it is and give plain meaning to the words used in the petition. The meaning of word 'Batal' is that Vithal was her tenant. The tenancy commenced in 1960 and the agreement is of 1963. Assuming for a moment that the agreement is not enforceable the tenancy rights are not lost. Mr.P.G. Godhamgaonkar, appearing for the petitioners, placed reliance upon a decision of this Court in Barbi Natha Patil v. Gopal D. Patil (Special Civil Application No. 1809/65 decided on 16-11-1967 at Bombay (1969) Tenancy Law Reporter 22. Therein it is observed that mere agreement creates no higher rights than that of a tenant in favour of the tenant-purchaser and this Court has held that there is no merger of tenancy rights in the rights of the proposed purchaser. Thus, even if it is assumed for a moment that the agreement is unenforceable the tenancy rights would remain intact and it cannot be said that Vithal or his heirs and legal representatives are in unauthorised possession of the disputed lands. This is a very simple matter and it is not known why the learned member of the Maharashtra Revenue Tribunal had written such a lengthy judgment of the same.

6. I am satisfied that the orders of both the courts below are clearly contrary to law and are without jurisdiction and they deserve to be quashed.

7. In the result the writ petition is allowed. The orders of both the courts below awarding possession to the respondent No.1 Godawaribai and dismissing the appeal are hereby quashed and the original petition filed by the respondent No. 1 Godawaribai is dismissed. Rule made absolute but there will be no order as to costs.


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