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Patel Nagji Madhu and ors. Vs. Bai Rajubai Heirs of Deceased Masuba1 Wd./O. Unad Vajsur and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR875
AppellantPatel Nagji Madhu and ors.
RespondentBai Rajubai Heirs of Deceased Masuba1 Wd./O. Unad Vajsur and anr.
Cases ReferredGovindbhai v. Sureshkumar
Excerpt:
.....not only there must be something like element of need or necessity as on the date of the notice, but this necessity or need must continue to exist till the date of the order. while interpreting section 13(i)(g) of the bombay rents, hotel and lodging house rates control act, 1947 which provides that the landlord shall be entitled to recover possession of any premises if the court is satisfied that the premises are reasonably and bona fide required by the landlord for occupation by himself, etc. according to the tribunal had masubai died during the pendency of the original proceedings the contention raised on behalf of the tenants would have been well founded. if the appeal was merely continuation of the original proceedings it would be equally well founded on the demise of the landlady..........an appeal is undoubtedly a continuation of the original proceedings. therefore, in other words, masubai passed away during the pendency of the original proceedings. the short question then is whether the element of requirement had to be established at the date of the passing of the order and if that element did not exist, on that date could an order directing delivery of possession be passed therefore, looking to the language of the section, the correct view appears to be that not only there must be something like element of need or necessity as on the date of the notice, but this necessity or need must continue to exist till the date of the order. by the order i mean the order by which the landlord may be ultimately put in possession.while interpreting section 13(i)(g) of the bombay.....
Judgment:

A.M. Ahmadi, J.

1. This petition under Article 226 of the Constitution of India is directed against the order passed by the Gujarat Revenue Tribunal in Appeal No. TEN. A.R. 514 of 1976 dated 10th August, 1977. The petitioners are tenants of Survey No. 33/8 admeasuring approximately 126 acres and 34 gunthas of village Mota Samadhiala of Khambha Mahal, Amreli district. This land originally belonged to one Sonbai and on her death her daughter Bai Masubai inherited it. The said Masubai after terminating the tenancy on the ground that she needed the land for her personal cultivation applied for eviction under Section 31 (4)(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter called 'the Act'). The said application No. 7 of 1973 was disposed of by the Mahalkari on 12th August, 1974 holding that the landlady was entitled to possession of half the land. The tenants feeling aggrieved by this order preferred an appeal, being appeal No. 10 of 1974, which was disposed of by the Deputy Collector by his order dated 29th October, 1974 whereby he remanded the matter for fresh enquiry. On remand the petition was numbered 1 of 1975 and the Mahalkari once again reached the same conclusion by his order dated 24th February, 1976. Against the said order the tenants preferred an appeal, but the Deputy Collector dismissed the same. The tenants, therefore, carried the matter to the Gujarat Revenue Tribunal which too rejected the matter by the impugned order dated 10th August, 1977. It is against that order that the present petition has been preferred.

2. One development which took place during the pendency of the present proceedings is the foundation on which the contention is laid that the order passed in appeal was without jurisdiction inasmuch as the original petitioner Masubai having died during the pendency of the appeal the right to evict did not enure to her legal representatives and, therefore, the Deputy Collector was in error in dismissing the appeal. Under Section 31(i) of the Act the landlord (in this case the landlady) could terminate the tenancy if she bona fide required the land for personal cultivation. It is not in dispute that the landlady Masubai had initiated the proceedings on the ground that she bona fide required the land as she desired to cultivate it personally. The Mahalkari, after recording evidence, came to the conclusion that she required half the land for her personal cultivation. Against this order passed by the Mahalkari the tenants preferred an appeal and during the pendency of the appeal the landlady passed away. Since an appeal is a continuation of the original proceedings Mr. Sheth, the learned Advocate for the tenants, contended that ,on the demise of the landlady the right to evict the tenants on 'the ground that the land was bona fide required or personal cultivation came to an end and, therefore, the Deputy Collector ought to have allowed the appeal and dismissed the proceedings. This submission has been countered by Mr. Hathi, the learned Advocate for the first respondent, on the ground that the Tribunal had rejected the contention on the basis of the decision of this Court in Govindbhai Becharbhai v. Sureshkumar Sumantlul and Ors. Special Civil Applications Nos. 48 and 49 of 1965 decided on 27th June, 1969 (VI GLT 118) and hence even if this Court comes to the conclusion that the view taken by the Tribunal is not well founded it should not interfere because a mere wrong decision without anything more is not enough to attract the jurisdiction o the High Court under Article 226 of the Constitution, vide Mohd. Yunus v. Mohd. Mustoquim and Ors. : [1984]1SCR211 . Mr. Hathi next contended that even otherwise having regard to the language of Clause (ii) of Sub-section (3) and Clause (b) of Sub-section (4) of Section 31 the right to seek eviction devolved on the successor-in-the of the widow and, therefore, the Deputy Collector was justified in dismissing the appeal.

3. The point which arises for consideration is whether the right to evict the tenant conferred upon the widow by Clause (b) of Sub-section (4) of Section 31 of the Act lapsed on the death of the widow during the pendency of the appeal. Now, the present proceedings were initiated by the landlady under Clause (a) of Sub-section (1) of Section 31 of the Act, namely for cultivating personally the demised lands. The Mahalkari came to the conclusion that the landlady bona fide required half the land for her personal cultivation. In order to (succeed it was incumbent on the landlady to prove; (1) that she desired to personally cultivate the land, and (2) that her requirement was bona fide. Since the proceedings were initiated by the landlady Masubai both these requirements had to be established qua her, namely that she required the land 'for personal cultivation and that her requirement was bona fide. No question arose whether her successor-in-title required the land bona fide for personal cultivation. It was on the finding of fact recorded by the Mahalkari that the landlady Masubai required a part of the land for personal cultivation and that her requirement was bona fide only to that extent, that he passed an order directing the tenants to deliver possession of that much part of the land held by them. After the said order was passed the tenants challenged it in appeal and during the pendency of the appeal the landlady Masubai expired. An appeal is undoubtedly a continuation of the original proceedings. Therefore, in other words, Masubai passed away during the pendency of the original proceedings. The short question then is whether the element of requirement had to be established at the date of the passing of the order and if that element did not exist, on that date could an order directing delivery of possession be passed

Therefore, looking to the language of the section, the correct view appears to be that not only there must be something like element of need or necessity as on the date of the notice, but this necessity or need must continue to exist till the date of the order. By the order I mean the order by which the landlord may be ultimately put in possession.

While interpreting Section 13(i)(g) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 which provides that the landlord shall be entitled to recover possession of any premises if the Court is satisfied that the premises are reasonably and bona fide required by the landlord for occupation by himself, etc., the question arose whether the requirement of the landlord had to exist even on the date of the decree, in Vinayak Trimbok Wale v. Tarachund Hirald Shet Marwadi 62 Bom. L.R. 785. It was observed that in order to satisfy the requirement of the said provision the landlord must establish that his requirement for personal occupation continued even during the pendency of the suit. It is, therefore, clear from the language of the statute as interpreted by this Court that the element of requirement for personal cultivation must exist not only at the date of the notice terminating the tenancy, but must continue up to the date of the order for delivery of possession. In the present case, although the element of requirement can be said to exist on the date of the notice since the landlady Masubai had passed away during the pendency of the appeal the Deputy Collector was not justified in passing an order for possession in proceedings initiated on the premise that Masubai required the land bona fide for personal cultivation.

4. The Tribunal has, however, placed reliance on the decision of this Court in Govindbhai Becharbhai v. Sureshkumar Sumantlal and Ors. VI G.L.T. 118 for coming to the conclusion that even after the death of Masubai the Deputy Collector was entitled to order eviction. The line of reasoning adopted by the Tribunal is as under:

It is apparent and Shri Rawal was unable to deny that Bai Masu died. after the order was passed by the Mahalkari in the fresh proceeding carried out by him after the remand of the case. It may be noted that the appeal before the Collector was filed by the present appellants making Rajbai as the legal heir of deceased Bai Masu. The appellants have themselves recognised Rajbai as legal heir of deceased Bai Masu and therefore, they cannot now contend that the order passed by the Mahalkari cannot be enforced by respondent No. 1. The position would have been otherwise had Bai Masu died before the order was passed by the Mahalkari. That way the submission of Shri Raval has to be rejected. This view is supported by the ruling in Govindbhai v. Sureshkumar 6 G.L.T. 180 (sic 118).

With respect, this line of reasoning is unsustainable. In the first place the Tribunal overlooked the fact that an appeal is a continuation of the original proceedings. According to the Tribunal had Masubai died during the pendency of the original proceedings the contention raised on behalf of the tenants would have been well founded. If the appeal was merely continuation of the original proceedings it would be equally well founded on the demise of the landlady during the pendency of the appeal. Secondly, the Tribunal failed to appreciate the fact that in the case on which reliance was placed the contention was raised at the execution stage after the order had become final. This becomes clear from the following observation made by J. B. Mehta, J. who disposed of that petition:

In the present case it must be kept in mind that the landlord Bai Ratan was alive even at the date of the final order of the Revenue Tribunal on October 25, 1961, and the question is whether the legal representatives could execute the order of possession obtained by the deceased landlord. Unless there is something compelling in the context of the scheme of these relevant provisions such a contention could not be accepted on such misconceived analogy drawn from Section 40 dealing with statutory tenancy.

5. Therefore, the decision on which the Tribunal relied had no application to the facts of the present case for the simple reason that in that case the order obtained by the lancllady had become final and the executing court could not go behind it. In the instant case before the order became final the landlady Masubai died during the pendency of the appeal. On her death the requirement which was purely personal came to an end and the entire proceeding ought to have been dropped on that ground alone. The Deputy Mamlatdar was, therefore, not right in confirming the decree for possession, which was passed during the lifetime of Masubai, after her death on the ground that the land was required bona fide for personal cultivation by her. That being so, I am of the opinion that the order is palpably wrong and cannot be sustained. The Tribunal was also wrong in upholding the order on an erroneous reading of the decision of J. B. Mehta, J. in Govindbhai's case (Supra). As stated earlier that decision had no application because the short question which arose for consideration in that decision was, whether the executing court could refuse to execute the order on the ground that the landlady had expired after it has become final

6. Mr. Hathi next contended that in view of the language of Clause (ii) of Sub-section (3) of Section 31 the successor-in-title of a widow was entitled to seek possession within one year from the date on which the interest of Masubai ceased to exist on her demise. In this connection he also invited my attention to Clause (b) of Sub-section (4) of Section 31 which states that the right conferred under the said Sub-section (3) on a landlord who was a widow on the first day of April, 1957 shall, after the specified date, be exercisable in case where the interest of the widow in the land has ceased to exist by reason of her death or otherwise before the specified date, but the period of one year within which her successor-in-title is entitled to exercise her right has not expired, by the successor-in-title of the widow within a period of one year from the date on which her interest in the land ceased or within a period of three months from the Specified date. whichever expires earlier. These two sub-sections merely extend the period (luring which the successor-in-title of a widow who has since expired can claim possession of the demised land. That, however, does not mean that possession can be ordered even if the successor-in-title does not state that he requires the land bona fide for personal cultivation. In other words, the finding of fact recorded so far as the requirement of the land by the deceased landlady is concerned cannot enure to the benefit of the 'successor-in-title. If the successor-in-title desires to evict the tenant on the same ground he or she must prove both the elements, namely the requirement of the land for personal cultivation and the requirement being bona fide. I, therefore, do not see any substance in this contention raised by Mr. Hathi.

7. It was lastly argued by Mr. Hathi, relying on the decision of the Supreme Court in the case of Mohd. Yunus (Supra), that a mere wrong order without anything more is not enough to attract the supervisory jurisdiction of the High Court conferred by Article 227 of the Constitution (assuming that this is a petition under Article 227 of the Constitution). This as not a case where the legality or the validity of the order is sought to be challenged on a reassessment of the evidence. The challenge is founded on the premise that on the demise of Masubai the proceeding came to an end because it was initiated on the ground that she bona fide required the land for personal cultivation. The ground being personal, on her demise it ceased to, exist, and, therefore, the Deputy Collector was not competent to pass an order of eviction. In such a case where the order passed is on a ground which is non-est, interference, under Article 227 of the Constitution may not be unjustified. I am, therefore, of the opinion that the decision on which Mr. Hathi relies cannot be invoked in the peculiar facts and circumstances of this case.

8. In the result this petition succeeds. The order passed by the Deputy Collector and confirmed by the G.R.T. is unsustainable and is set aside. The order passed by the Mahalkari will also fall since it got merged in the order passed by the appellate authority. The rule is made absolute. There will, however, be no order as to costs.


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