Dhondo Pandharinath Kulkarni vs Sbripati Dagdu Nimbalkar

M.H. Kania, J.—This is a revisional application challenging the order passed by the learned Civil Judge, Junior Division, Osmanabad, in Civil suit No. 44 of 1967 framing a new issue.

The petitioner before me was defendant No. 1 in that suit and respondent No. 2 was defendant No. 2 therein. The main party, who would be interested in supporting the order of the learned Civil Judge viz. the plaintiff in the suit, is respondent No. 1 before me. Although respondent No. 1 has been duly served he has not appeared.

Civil Suit No. 44 of 1967 was filed by the plaintiff against the petitioner and respondents Nos. 2 to 5 being the defendants therein for a perpetual injunction restraining the defendants from executing the orders of the tenancy Court against the plaintiff and from interfering with the possession of the plaintiff. In the plaint it has been alleged by the plaintiff that he is in possession of the suit land since 1953 and has become owner thereof by adverse possession. Alternatively, the plaintiff has contended that he was a tenant in respect of the suit land. In 1959 defendant No. 1 had filed an application against the plaintiff u/s 98 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as the Hyderabad Tenancy Act) to recover possession of the suit land from the plaintiff on the ground that the plaintiff was unauthorisedly occupying the suit land. The plaintiff claimed to be the tenant of the land. The Deputy Collector, Osmanabad, who disposed of the matter, passed an order for summary eviction of the plaintiff on the ground that he was a trespasser, on March 31, 1964. The plaintiff filed an appeal against this order before the Revenue Tribunal at Aurangabad, but the said appeal was dismissed in July 1964. The plaintiff thereafter filed a Civil Revision Application before this Court but the same was summarily dismissed. He thereafter filed this suit. In the suit the contention of the plaintiff is that the orders passed against him u/s 98 of the Hyderabad Tenancy Act are ultra vires and the authorities had no jurisdiction to decide whether the plaintiff was or was not a tenant of the suit land At the hearing several issues were framed by the learned Civil Judge and the relevant issues, being issues Nos. 2, 3 and 5, are as follows:

Can the plaintiff challenge the decisions regarding the Bait land given in litigations between him and defendant No, 1? If yes.

3 Does he (plaintiff) prove that orders dated 31-3-1964 and 17-7-1964 are ultra vires and illegal?

Can alternatively plaintiff contend that his possession is as a tenant in view of previous decisions, if they are held binding on plaintiff?

The learned Civil Judge came to the conclusion that the Deputy Collector had no authority to decide the question of tenancy of the plaintiff and all the decisions by which the eviction of the plaintiff was ordered were ultra vires and not binding on the plaintiff. In view of this conclusion the learned Civil Judge framed a new issue being issue No. 5 (a) viz. whether the plaintiff proves that he is a tenant of the suit land, and referred that issue to the Tenancy Tahsildar for giving his finding thereon. Till the receipt of the finding on the said issue, the hearing of the suit was stayed u/s 99A of the Hyderabad Tenancy Act and it is this finding which is attacked by Mr. Bhadekar, for the petitioner (defendant No. 1) before me.

Section 98 of the Hyderabad Tenancy Act provides as follows :

Any person unauthorisedly occupying or wrongfully in possession of any land-

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

(b) the management of which has been assumed under the said provisions, or

(c) to the use and occupation of which he is not entitled under the said provisions; may, if the said provisions do not provide for the eviction of such person, be summarily evicted by the Collector.

Section 99 (1) of the said Act provides that save as provided in the said Act, no civil Court shall have jurisdiction to settle, decide or deal with any question including a question whether a person is or was at any time in the past a tenant or protected tenant and whether any such tenant or protected tenant is or should be deemed to be the full owner of the lands which is by or under the said Act required to be settled, decided or dealt with by the Tahsildar, Tribunal or Collector or by the Commissioner or Government. Sub section (2) of section 99 provides:

No order of the Tahsildar, Tribunal or Collector or of the Commissioner or Government made under this Act, shall be questioned in any Civil or Criminal Court.

The main contention of Mr. Bhadekar was that it having been decided by the Deputy Collector that the plaintiff was in unauthorised occupation or wrongful occupation of the suit land and as the decision of the Deputy Collector shows that he had come to the conclusion that the plaintiff''s claim to be the tenant of the suit land was not justified, it was not open to the plaintiff to raise that contention at all in the civil suit before the learned Civil Judge. According to him, the order of the Deputy Collector for summary eviction of the plaintiff involved a decision that the plaintiff was not the tenant of the suit land and that this decision was given by the competent authority under the Hyderabad Tenancy Act That being so, it was not open to question in the civil Court.

In support of his contention, Mr. Bhadekar has strongly relied upon the decision of a Full Bench of this Court in Kashiram v. Maharashtra Rev. Trib. 17970 Mh. L J 462 (F B)=(1969) 72 Bom L R 838, That decision was u/s 120 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as "the Vidarbha Tenancy Act"). The observations and the discussion in that decision show that the provisions of section 120 of the Vidarbha Tenancy Act have been held to be in pari materia with the provisions of section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Bombay Tenancy Act). It has been held by the Full Bench in that case that in an application u/s 120 of the Vidarbha Tenancy Act the Collector has to see whether, in substance, the application before him is an application complaining of unauthorised occupation or wrongful possession of any person in the first place and if he comes to the conclusion that such person is unauthorisedly occupying or Wrongly in possession he would have jurisdiction u/s 120 even if that person raises the plea that he is a tenant. The mere raising of the plea would not, as in the case of a civil Court, oust his jurisdiction. The Collector will have to look to the substance of the matter and decide whether it is a dispute regarding unauthorised occupation or wrongful dispossession or is in substance a dispute regarding tenancy. If the latter, he must refer the matter to the Tahsildar. If the former, he will have jurisdiction to decide it. It will not be sufficient to oust the jurisdiction of the Collector for a person to say that he is a tenant if, on the face of the material before the Collector, it appears to him that the plea of tenancy is one which cannot reasonably be raised or is not bona fide or the Collector comes to the express conclusion that it is raised malafide. Now, in the present case, the Deputy Collector in his order dated March 31, 1964, a copy of which, I am told, has been tendered as exh. 43, considered the contention of the plaintiff that he was a tenant of the land in question and has rejected that contention. It is true that he has not in express terms stated that the said contention regarding the tenancy was raised malafide or that it was a contention which could not be reasonably raised. But the judgment and order of the Deputy Collector shows that he came to the conclusion that it was not a contention, which was bona fide and reasonably raised by the plaintiff. In view of this Mr. Bhadekar is probably right in contending that the decision of the learned civil Judge to the effect that the order of the Deputy Collector directing eviction of the plaintiff was ultra vires or void is not correct. That, however, does not help Mr. Bhadekar much in the present revisional application.

What I have really to consider is, whether, in view of the decision given by the Deputy Collector, the plaintiff in the suit was precluded from taking up the contention that he was the tenant of the suit land. It is in this connection that I propose to consider the provisions of the Hyderabad Tenancy Act and the decision of the Full Bench cited by Mr. Bhadekar. In the first place, it must be observed that the provisions of section 84 of the Bombay Tenancy Act, which have been treated by the decision in Kashiram''s case as in pari materia with the provisions of section 120 of the Vidarbha Tenancy Act, are in pari materia with the provisions of section 98 of the Hyderabad Tenancy Act. The Full Bench in that case has observed that section 120 of the Vidarbha Tenancy Act creates a summary remedy, summary in the sense that the Collector has not to make a judicial inquiry but only "such inquiry as he deems fit". This does not mean that he need not make any inquiry whatever but that he must inform himself as best he can from the records available in his department or material placed before him by parties. It is true that the words "such inquiry as he deems fit", which find place in section 120 of the Vidarbha Tenancy Act, do not find place in section 84 of the Bombay Tenancy Act and section 98 of the Hyderabad Tenancy Act. That, however does not make much difference. Moreover, as I have already pointed out, the provisions of section 84 of the Bombay Tenancy Act have been treated as in pari materia with the provisions of section 120 of the Vidarbha Tenancy Act. It is significant that neither section 84 of the Bombay Tenancy Act nor section 98 of the Hyderabad Tenancy Act nor any other provision in those Acts provides as to what is the procedure to be followed by the Collector in making the inquiry under the aforesaid sections. As regards the inquiry by the tenancy authorities under the other provisions, section 72 of the Bombay Tenancy Act provides that the procedure to be followed shall be the one provided by the Mamlatdars'' Courts Act, 1906, and there is a similar provision u/s 89 of the Hyderabad Tenancy Act, As far as appeals are concerned, Section 90 (4) of the Hyderabad Tenancy Act provides that in deciding appeals under sub-section (2) thereof the Bombay Revenue Tribunal shall exercise all the powers which a Court has and follow the same procedure which a Court follows in deciding appeals from the decree or order of an original Court under the Code of Civil Procedure, 1908. The fact that no similar provision has been made u/s 84 of the Bombay Tenancy Act or section 98 of the Hyderabad Tenancy Act clearly shows that in inquiries under the said sections the Collector has to make such inquiry as he thinks fit, and no particular procedure is provided. In the Full Bench decision in Kashiraim''s case it has, in fact, been observed that the regular remedies for disturbance of possession are reserved for disturbance of possession of tenants and landlords, such as, for instance those prescribed in sections 36 and 52 of the Vidarbha Tenancy Act and the summary remedy is reserved for trespassers. In fact, the observation in that decision to the effect that in the event of the Collector coming to the conclusion that a dispute in substance regarding tenancy is raised, he must transfer the matter to the Tahsildar for decision of that dispute clearly shows that his decision is not final as between ''the parties on the question of tenancy. In fact, it was pointed out by the Full Bench in that decision that it is only incidentally that the Collector, acting in an inquiry u/s 84 of the Bombay Tenancy Act and section 102 of the Vidarbha Tenancy Act, decides the question as to whether the person alleged to be a trespasser is a tenant. In discussing the decision in Anjalibai alias Akubai Ramchandra Yavalekar v. Shankar Bala Patil (1959) Spl.C. Appln. No. 3207 of 1958, decided by Mudbolkar and Patel JJ. On February 10, 1959 (Unrep.). the Full Bench has observed that what was held by the Court in that case was that where the conditions laid down by section 81 of the Bombay Tenancy Act are fulfilled the Collector would have the power to decide whether a person was in unauthorised occupation or wrongful possession even though it involved holding incidentally that he was not a tenant. This clearly shows that the decision on the question whether a person sought to be evicted was a tenant, is an incidental decision. u/s 99 (1) of the Hyderabad Tenancy Act the bar against the jurisdiction of the civil Courts is only regarding the questions which by or under that Act are required to be settled, decided or dealt with by the Tahsildar, Tribunal or Collector or by the Commissioner or Government. The only question which the Collector was required to decide u/s 98 of the Hyderabad Tenancy Act was whether the plaintiff was in unauthorised occupation or wrongful possession of the suit land. He was not required under that Act to decide the question as to whether the plaintiff was a tenant under that Act. The bar of jurisdiction would, it appears, not apply in the case before me and the plaintiff should not be precluded from raising a contention in the suit that he is a tenant in respect of the suit land, as he has in fact done.

Mr. Bhadekar then relied on the decision in Vithoba Rama Randive Vs. Dhairyasinharao Bhayasaheb Ghatge and Another, . where it was held that section 85A of the Bombay Tenancy Act does not contemplate a reference to the tenancy authorities in a case where the issues have already been decided by competent authorities under the said Act in earlier proceedings between the same parties in respect of the same land. This decision, in my view, does not help Mr. Bhadekar at all in view of my conclusion that the Collector was not the competent authority to decide the question about the plaintiff''s alleged tenancy, although he incidentally decided that question.

Mr. Bhadekar next relied on the judgment on my learned brother Kantawala J. in Madhukar Ganpati Potdar Sonar v. Ram Sambha Gadve (1969) Civil Revn. Appln No. 1656 of 1965 decided by Kantawala J., on January 9, 1969 (Unrep.). In that case, a Civil Revision Application was preferred against an order rejecting the application of the petitioner for reframing an issue as regards the tenancy between the parties. In the written statement, the petitioner had adopted very unusual and inconsistent pleas. Kantawala J. observed that initially when the issues were framed by the trial Court, an issue regarding the tenancy of the petitioner was framed for determination by the tenancy authorities u/s 99A of the Hyderabad Tenancy Act. After hearing the parties the trial Court deleted the said issue and no proceedings were adopted by the petitioner against this order in this Court or any other Court. However, a few months later, the petitioner made an application in the trial Court that an issue regarding his tenancy should be reframed and that application was opposed and rejected. As pointed out by my learned brother Kantawala J. in that case, the contention of Mr. Bhasme (as he then was), who appeared for the petitioner, that it was obligatory upon the trial Court to frame an issue as regards the petitioner''s right as a tenant in respect of the suit land, might perhaps have been accepted. But, on the facts of that case it was said that it would not be possible to accept the contention that the Court was bound to refer the issue. That decision entirely turned on its own facts and was based to a large extent on the conduct of the petitioner before the Court. This decision docs not help Mr. Bhadekar in his argument.

It was then submitted by Mr. Bhadekar that the result of referring this issue to the tenancy authorities would be that for quite some time and till the issue was determined the plaintiff would continue to remain in occupation of the suit land, although the Deputy Collector had held that he was in unlawful possession of the same. As I have already observed, there is much force in the contention of Mr. Bhadekar that this order of the Deputy Collector was not void or ultra vires. However, these are considerations relevant only regarding interim orders.

In the result, the application fails and the rule is discharged. There will be no order as to costs.