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Bai Prembai Zaver and ors. Vs. Koli Tapur Ratna - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1960)1GLR5
AppellantBai Prembai Zaver and ors.
RespondentKoli Tapur Ratna
Excerpt:
- .....over possession of the lands and the petitioners filed a suit for eviction in the court of the civil judge at mahuva. various contentions were raised in that suit by opponent no. 1. he contended that he had been in possession of the lands for 21 years. that was not believed by the learned judge in the trial court who on evidence reached the conclusion that opponent no. 1 had been put in possession of the lands by the petitioners themselves. he also contended that he had been in possession of the lands in part performance of a contract for sale. that contention also was rejected by the trial court. the trial court also held that opponent no. 1 tenant had denied the title of the petitioners and had forfeited his right as tenant. it determined the suit in favour of petitioners and.....
Judgment:

S.T. Desai, C.J.

1. This Special Civil Application and the second Appeal which are directed to be heard together arise in circumstances to be immediately stated. The petitioners in Special Civil Application are the appellants in the Second Appeal and they are occupants of agricultural lands admeasuring acres 65 and 10 gunthas situated in the village Kantasar. The lands were leased out by them to opponent No. 1 to the Special Civil Application Koli Tapur Ratna under a lease for a period of eight years. About a month before the due date for the expiry of the lease the petitioners gave a notice to opponent No. 1 calling upon him to land over possession of the lands on the expiry of the lease by efflux of time. The lease expired on 8th December 1953. Opponent No. 1 refused to hand over possession of the lands and the petitioners filed a suit for eviction in the Court of the Civil Judge at Mahuva. Various contentions were raised in that suit by opponent No. 1. He contended that he had been in possession of the lands for 21 years. That was not believed by the learned Judge in the trial Court who on evidence reached the conclusion that opponent No. 1 had been put in possession of the lands by the petitioners themselves. He also contended that he had been in possession of the lands in part performance of a contract for sale. That contention also was rejected by the trial Court. The trial Court also held that opponent No. 1 tenant had denied the title of the petitioners and had forfeited his right as tenant. It determined the suit in favour of petitioners and passed a decree for possession in their favour. The opponent-tenant preferred an appeal against that judgment. At the hearing of the appeal before the learned District Judge Gohilwad District the advocate for the opponent-tenant urged only one contention and that was a new contention. It was urged that the suit for eviction was filed after the coming into force of the Prohibition of Leases Act 1953 The lease was not registered by the petitioners and therefore the contention proceeded no decree could be passed in favour of the petitioners. In his judgment the learned District Judge has stated that although the point was a new one he allowed it to be raised. One of the arguments urged before us by Mr. Hathi who appears for the petitioners is that the learned Judge was in error in allowing the new contention to be raised. The question has all along been treated as one of law and no objection appears to have been raised before the District Judge that any facts were involved. In our opinion the learned District Judge was not in error in allowing the new contention of law being raised for the first time at the hearing of the appeal before him.

2. The contention of law raised before him was rather ingenious, but devoid of any real substance. It was urged that Section 4(1) of the Saurashtra Prohibition of Lease of Agricultural Lands Act made it incumbent upon every occupant of the land who had leased his occupancy prior to the coming into force of the Act to get it registered and if the lease was not registered Section 4(2) would come into operation and the unregistered lease would not be recognised as such and the provisions of Section 6 would apply to such lease is if it were granted in contravention of Section 5. In order to appreciate the contention raised before the learned Judge and which found favour with him it will he convenient to set out certain relevant provisions of the Saurashtra Prohibition of Leases of Agricultural Lands Act 1953.

4. Registration of leases :

(1) Every occupant who has leased his occupancy or part thereof prior to the coming pinto force of this Act shall on or before 1st September 1954 get such lease if subsisting on the date of coming into force of this Act registered with a revenue officer not below the rank of a Mahalkari furnishing such particulars as may be prescribed by Government.

(2) No lease other than a lease which has been registered under Sub-section (1) shall be recognised as such and the provisions of Section 6 shall apply to such lease as if it were granted in contravention of Section 5.

5. Prohibition of lease; occupant to cultivate personally :-(1) On and after the date on which this Act comes into force an occupant shall not save as otherwise expressly provided by or under this Act lease to any person or renew any lease registered under Sub-section (1) of Section 4 in respect of his occupancy but shall cultivate it personally, (i) Lease in contravention of Sub-section (1) void: Any lease granted or renewed whether by an instrument or an oral agreement in contravention of the provisions of Sub-section (1) shall be void.

6. Penalty for contravention of Sub-section (1) of Section 5.

(1) Any occupant who contravenes the provisions of Sub-section (1) of Section 5 shall on conviction be punishable with fine which may extend to;

(i) in the case of contravention for the first time an amount equal to six imes the assessment;

(ii) in the case of contravention for the second time an amount equal to twenty times the assessment

(iii) in the case of contravention for more than two times an amount equal to twenty times the assessment

EXPLANATION: For the purposes of this section assessment shall mean the assessment leviable at full and not reduced rate on the occupancy in respect of which the provisions of Sub-section (1) of Section 5 are contravened.

xxx xxx xxx xxx xxx xxx xxx8. Summary eviction: Any person unauthorisedly occupying or being wrongfully in possession of any occupancy:

(a) the transfer of which either by the act of the parties or by the operation of law is invalid under the provisions of this Act or

(b) to the use and occupation of which he is not entitled under the said provisions; may be summarily evicted by the Collector or by any officer not below the rank of a Deputy Collector authorized by the Collector in this behalf.

The argument was founded on Sections 4, 5 and 6. The argument was that the trial Court was in error recognising the lease when it passed a decree in favour of the occupants (the petitioners before us.) It was urged that the lease had become void and no effect could be given to it for any purpose. The learned District Judge also appears to have taken the view that Civil Court had no jurisdiction to entertain the suit.

3. In the penultimate part of his judgment the leaned District Judge observed that it was unfortunate that two illiterate women should be prevented from being restored to the lands which they had got from their mother and that the tenant did not deserve the resultant benefit of continuing in possession. He pointed out that it would be competent to the petitioners to apply to the Mamlatdar under Section 8 of the Act for summary eviction. It is clear from that judgment that the appeal succeeded on the short point that the lease had not been-registered as required by Section 4 of the Act.

4. The petitioners thereupon adopted proceedings for summary eviction under the Act. That application was resisted by the tenant on the ground that he was not occupying the lands unauthorisedly and could not be said to be wrongfully in possession of the lands. The Deputy Collector Mahuva who heard the application dismissed it on the ground that the tenant could not be regarded as a person who was in unlawful possession of lands or one who was unauthorisedly occupying the same. In taking that view he followed a decision of Mr. Justice Vyas and Mr. Justice Tarkunde in Special Civil Application No. 231 of 1956 decided in the High Court of Bombay. The unenviable position of the petitioners was that the Civil Court while dismissing their suit directed them to apply for summary eviction under the Act and the Deputy Collector took the view that the tenant was not liable to be summarily evicted. The petitioners have now come to this Court on a petition under Article 227 and also as appellants in the second appeal. 27.

5. It has been argued before us by Mr. V. G. Hathi learned advocate for the appellants in the second appeal that the learned District Judge was in error allowing the appeal and virtually driving his clients to an application for summary eviction under the Prohibition of Leases Act. It is urged that the effect of Section is not that the lease should not be recognised for any purpose in any proceeding. The effect of Sub-section (2) it is said is not to render the lease void but only to render the contravention of the section liable to penalty provided in Section 6. Now at first blush it may seem that the words 'No lease...shall be recognised as such and the provisions of Section 6 shall apply to such lease as if it were granted in contravention of Section 5 may mean that any such unregistered lease was for all purposes to be treated as void and the occupant would also be liable to penalty provided for in Section 6. Reading Sections 4, 5 and 6 together it seems to us that no such meaning can be given to subsection (2) of Section 4. It is only a lease granted or renewed in contravention of the provisions of Sub-section (I) of Section 5 that becomes void by operation of Section 5. The mere fact that a lease was not registered as required by Section 4 does not result in the consequence of its being rendered void though of course in such a case the penalty imposed by Section 6 would be invited by reason of the latter part of Sub-section (2) of Section 4. In upholding the contention of the tenant at the hearing of the appeal before him the learned District Judge seems to have taken the view that Sub-section (2) had the effect of rendering any such lease void. He has observed in his judgment:

As as the time of suit and judgment the Act was in force this lease being not registered could not be recognised as such and the consequence of contravention of Section 5 namely avoidance of the lease and penalty would ensue. It is thus clear that the Court cannot pass a decree for eviction in this case because that would amount to giving recognition to an unregistered lease against the plain provision of the Act.

In our judgment the learned Judge below was in error in taking the view that the consequence of not-registration of the lease was avoidance of the lease. He was also in error in taking the view that the lease could not be taken into consideration by any Court for any purpose. If we are right in this view the second Appeal must succeed and it becomes unnecessary to consider the argument advanced before us Mr. Hathi in support of the Special Civil Application.

6. It has been argued on the other hand by Mr. B.D. Shukla learned advocate for opponent No. 1 to the petition and respondent to the second appeal that the Civil Court had no jurisdiction to entertain the suit and the learned District judge was right in upholding the contention that the lease could not be recognised in the suit. Reliance has been placed on Section 17 of the Act which is as under:

17. Bar of jurisdiction:

(1) 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 a Mamlatdar a Collector or the Tribunal in appeal or revision or the Government in exercise of their powers of control.

(2) No order of the Mamlatdar the Collector the Tribunal or the Government made under this Act shall be questioned by any Civil Court or Criminal Court.

EXPLANATION: For the purpose of this section a Civil Court shall include a Mamlatdars Court constituted under the Saurashtra Mamlatdars Courts Ordinance 1948.

Now it is clear that the bar of jurisdiction enacted in this section can apply to any question which is by or under the Act required to be settled decided or dealt with by a Mamlatdar Collector or the Tribunal in appeal or revision or the Government in exercise of their powers of control. When we asked Mr. Shukla as to what was the question which was required to be settled or decided or dealt with by any of those authorities the answer was that the only remedy of the occupant was to ask for summary eviction under the Act and that was a question which could be determined by those authorities. We are unable to see the force of this argument. Section 8, to which reference was made in this behalf does no more than grant a summary remedy to the occupant as against any person who is wrongfully in possession of the same. It does not follow from that section that the occupant has been deprived of his right to seek eviction by resorting to the ordinary procedure of law. There is no provision and certainly our attention has not been drawn by Mr. Shukla to any which requires an occupant who wants to evict his tenant on the ground of efflux of time to resort to this summary remedy. The present contention must therefore be negatived. The next argument of Mr. Shukla is that if we are right and if Mr. Hathis contention as to the effect of Sections 4, 5, 6 and 8 is to be accepted then Section 8 will become redundant. There is in our opinion no substance in this contention. Section 1 empowers an occupant to ask for summary eviction against any person who is in unauthorised occupation or is illegally in possession of his land. That remedy would be necessary in a variety of case to mention only one instance where an occupant finds that a trespasser has occupied his land he wants him to be evicted in a summary manner.

7. A rather feeble attempt was made on behalf of the tenant win it was urged that the tenant had acquired some vested rights in the lands by the operation of the Gharkhed Ordinance of 1949 and the Act of 1951 which followed upon that Ordinance. We do not think there is anything in that Ordinance or that enactment which lands any support to the case of the tenant.

8. In the view we take of the matter it is unnecessary to pass any order in the Special Civil Application. The second appeal must however succeed and it will be allowed with costs throughout. There will be no order for costs in the Special Civil Application.


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