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Judgment
S.N. Variaya, J.—The Appeal is against the judgment of the Bombay High Courtdated 23rd August, 1999.
Briefly stated the facts are as follows:
One Narayan Motlwale was the owner of certain places of land. Hehad a son named Dattatraya and a daughter named Tarabai. On thedeath of Narayan Motiwale, Dattatraya became the owner of theproperties. By a registered Settlement Deed dated 12th January,1927, Dattatraya gave Survey Nos. 21/3, 20 and 20/1 to his sisterTarabai as she was poor and unable to maintain herself. The saidDeed of Settlement, inter alia , provided as follows:
"Land bearing No. 21 and the well in the same isgiven to along with trees and things thereon has beengiven to your possession for maintenance until life.Therefore you may cultivate the said land by paying theGovernment assessment for maintenance. After yourlifetime that land shall again come to me or to my heirs."
Pursuant to the Deed of Settlement the name of Tarabai was enteredin the revenue records as Kabjedar.
Tarabai leased out one piece of land to a tenant in 1968.Dattatraya filed Suit No. 362 of 1969 against Tarabai for a declarationthat he was the owner of the land in question and that Tarabai hadonly a limited interest and therefore could not lease out the land. Inthe meantime the tenant to whom the Tarabai had leased out the landapplied for tenancy rights under the provisions of the Bombay Tenancyand Agricultural Lands Act, 1948. (hereinafter called the said Act).
The suit filed by Dattatraya was dismissed. ThereafterDattatraya filed Appeal No. 450 of 1970. In that Appeal a consentdecree was passed on 7th October, 1971. Under the consent DecreeTarabai agreed that she will not lease out any piece of land.
In the tenancy proceedings initiated by the lessee, by orderdated on 13th March, 1971 it was held that the lessee was a deemedtenant u/s 4 of the said Act. The Land Tribunal fixed aprice u/s 32G of the said Act. The price was paid by thelessee and that lessee became the statutory owner of the property.Dattatraya was a party to those proceedings. He never challenged theorder of the Land Tribunal. That order became final in respect of thatlessee.
In 1973 Tarabai filed Suit No. 73 of 1973 against Dattatrayaclaiming that, after coming into force of Hindu Succession Act, 1956the limited rights vested in her had matured into an absolute right.That Suit was dismissed in view of the consent decree passed inAppeal No. 450 of 1970.
On 19th January 1977 Dattatraya expired. On 6th September1980 Tarabai executed a lease deed in favour of the Appellants. On 7thDecember 1980 the Appellants gave notice u/s 32O of thesaid Act Tarabai and the Land Tribunal. By this notice the Appellantindicated her intention to purchase the suit land.
Respondents 1 and 2 then filed Suit No. 472 of 1981 againstTarabai and the Appellants for a declaration that Tarabai had noauthority to lease or create any incumbrance on the suit land. Theyprayed for recovery of possession. Tarabai expired on 5th March,1982. Thereafter the suit had proceeded only against the Appellants.On 19th February, 1986, the Trial Court decreed the Suit holding, onthe basis of the earlier consent decree, that Tarabai had no authorityto lease out the suit land. It was held that the lease in favour of theAppellant was not binding on Respondents 1 and 2. It was held thatthe Appellant was a trespasser.
The Appellant preferred an Appeal. This Appeal was allowed on16th September 1989. Respondents 1 and 2 filed a Second Appeal,which was allowed by the High Court on 27th June 1997.
On 18th August 1981, the Appellants filed a case u/s 32O of the said Act. Respondents 1 and 2 opposed this Application.On 22nd April 1988 the Land Tribunal fixed the purchase price underSection 32G. The Appellants deposited the purchase priceimmediately. Respondents 1 and 2 filed an Appeal against the Orderdated 22nd April 1988. That Appeal was dismissed on 23rd November2000. A Certificate of Ownership has been issued to the Appellants on4th December 2000. We are informed that Respondents 1 and 2 havepreferred a Revision against the order dated 23rd November 2000 andthat that Revision is pending.
In the meantime Respondents 1 and 2 applied for execution ofthe decree passed in their favour. The Appellant filed on application,in the executing court, under Order 21 Rule 97 contending that theyhad already become owners by virtue of the purchase price havingbeen fixed in their favour. The Appellants contended that the decreecould not now be executed against them. Their application wasrejected on 12th February 1999. It was held that the executing courtwas bound to execute the decree obtained by Respondents 1 and 2 intheir Civil Suit.
The Appellant filed an Appeal. That Appeal came to bedismissed on 28th June 1999. The Appellant preferred a Writ Petitionin the High Court. The High Court has dismissed the Writ Petition bythe impugned judgment dated 23rd August, 1999.
The question for consideration is whether a decree passed by aCivil Court can be executed if a Certificate of Ownership has beengranted under the provisions of the said Act.
We have heard counsel for the parties at length. The relevantprovisions of the said Act may now be seen. A 'tenant', as defined inSection 2(18) of the said Act, includes a person who is "deemed to bea tenant u/s 4". The relevant portion of Section 4 of thesaid Act reads as follows:
"4. Persons to be deemed tenants. : (1) A person lawfullycultivating any land belonging to another persons shall bedeemed to be a tenant if such land is not cultivatedpersonally by the owner and if such person is not -
(a) a member of the owner's family, or
(b) a servant on wages payable in cash or kind but notin crop share or hired labourer cultivating the land underthe personal supervision of the owner of any member ofthe owner's family, or
(c) a mortgage in possession.
Explanation (I) - A person shall not be deemed to betenant under this section if such person has been on anapplication made by the owner of the land as providedunder Section 2A of the Bombay Tenancy Act, 1939,decided by a competent authority not to be a tenant.
Explanation (III) - Where any land is cultivated by a widowor a minor or a person who is subject to physical or mentaldisability or a serving member of the armed forces througha tenant then notwithstanding anything contained inExplanation I to Clause (6) of Section 2, such tenant shallbe deemed to be a tenant within the meaning of thissection."
Thus a person lawfully cultivating any land belonging to anotherperson is deemed to be tenant.
The relevant portion of Section 32O reads as follows:
"32-O. Right of tenant whose tenancy is created afterTillers' day to purchase land. - (1) In respect of anytenancy created after the Tillers' day by a landlord (notbeing a serving member of the armed force)notwithstanding any agreement or usage to the contrary, atenant cultivating personally shall be entitled within oneyear from the commencement of such tenancy to purchasefrom the landlord the land held by him or such part thereofas will raise the holding of the tenant to the ceiling area.
(1A) A tenant desirous of exercising the right conferred onhim under Sub-section (1) shall give an intimation in thatbehalf to the landlord and the Tribunal in the prescribedmanner within the period specified in that sub-section."
To be remembered that on 7th December 1980 the Appellant had givennotice u/s 32O.
Section 32G(4) of the said Act provides that if the tenant iswilling to purchase, the Tribunal after giving an opportunity to thetenant and landlord and all other persons interested in such land holdan inquiry and determine the purchase price of such land inaccordance with the provisions of Section 32H and Section 63A(3).Under Section 32M on deposit of the purchase price the Tribunal is toissue a certificate of purchase to the tenant purchaser in respect ofsuch land. Such a certificate is to be conclusive proof of purchase.
As stated above after considering the objections of Respondents1 and 2 the Tribunal has fixed the purchase price on 22nd April 1998.The Appellant has deposited the purchase price and a certificate hasbeen issued to him on 4th December 2000. Such a certificate isconclusive evidence of purchase unless it is set aside in the Revision,which is filed by the Respondent 1 and 2.
One other provisions which requires to be noted is Section 85. It reads as follows:
"85. Bar of jurisdiction - (1) No Civil Court shall havejurisdiction to settle, decide or deal with any question(including a question whether a person is or was at anytime in the past a tenant and whether any such tenant isor should be deemed to have purchased from his landlordthe land held by him) which is by or under this Actrequired to be settled, decided or dealt with by theMamlatdar or Tribunal, a Manager, the Collector or theMaharashtra Revenue Tribunal in appeal or revision or theState Government in exercise of their powers of control.
(2) No order of the Mamlatdar, the Tribunal, the Collectoror the Maharashtra Revenue Tribunal or the StateGovernment made under this Act shall be questioned inany Civil or Criminal Court.
Explanation - For the purposes of this section a Civil Courtshall include a Mamlatdar's Court constituted under theMamlatdars' Courts Act, 1996."
Thus it is to be seen that a Civil Court does not have jurisdiction todecide matters which are required to be dealt with by the Tribunalunder the said Act. Thus it is only the Tribunal which can decidewhether a person is deemed to be a tenant and whether he is entitledto purchase the land held by him. The civil court has no jurisdiction todecide such a question. Even if such a question was to be raised in aproceeding before it, the civil court would have to refer the issue tothe authority under the said Act. The Suit would then have to bedisposed of in accordance with the decision of the authority. Thus ifthe Tribunal fixes a purchase price and issues a certificate then thatcertificate would be conclusive proof of purchase. The civil court wouldthen be bound to give effect to the certificate and cannot ignore it.
Mr. Lalit submitted that Tarabai had no power or authority tolease the suit land. He submitted that the consent decree dated 7thOctober 1971 provides that Tarabai had no authority to lease out anypiece of land. He submitted that thereafter the suit filed by Tarabaihad been dismissed on 25th June, 1976. He submitted that there werethus two decree of competent court against Tarabai. He submittedthat both these decrees provided that Tarabai had not right to lease outany piece of land. He submitted that the lease created in favour of theAppellants on 6th September, 1980 was illegal and could not beenforced against Respondents 1 and 2. He submitted that in view ofthe decrees of the court it could not be said that the Appellant waslawfully cultivating the suit land. He submitted that as the Appellantwas not lawfully cultivating the suit land she could not be deemed tobe a tenant u/s 4. He submitted that the Appellant wasmerely a trespasser. He submitted that a suit for possession against atrespasser lay a civil court. He submitted that Respondents 1 and 2had filed such a suit and they had succeeded in that suit. Hesubmitted that once the civil court held that the Appellant was atrespasser, the Appellant could not take advantage of the proceedingsadopted by her under the said Act. He submitted that the executingcourt, the Appellant Court and the High Court had rightly rejected theclaim of the Appellant.
Mr. Lalit strongly relied on the case of Rentala Latchaiah and Others Vs. Chimmapudi Subrahmanyam, . In this case the Respondent (therein)had obtained a decree in his favour declaring that he was the owner ofthe land and that the wire of his adoptive father had no title to the suitland. During pendency of the suit the widow was in possession of theland. After the decree was passed she executed a lease in favour ofthe Appellant (therein). The question was whether the Appellant couldbe said to be lawfully cultivating the land. This Court held that afterthe decree the widow was trespasser and thus could not create anyright in the land in favour of anybody. Mr. Lalit submitted that theratio laid down in this case fully applies to the facts of our case. Weare unable to agree. In our case there is no decree holding thatTarabai had no right or title to the suit land. Tarabai admittedly had alimited interest and was recorded as a Kabjedar. The relevant term ofthe Deed of Settlement, set out hereinabove, shows that Tarabai hadduring her lifetime a right to be in possession and to cultivate the suitland. The consent Decree did not take away that right. Tarabai wasnot a trespasser on the suit land.
Mr. Lalit also relied on the case of Gopala Genu Wagale Vs. Nageshwardeo Patas Abhishekh Anusthan Trust, . In this case the questionwas whether a sub-tenant can be deemed to be a tenant underSection 4 of the said Act. This Court held that creation of a sub-tenancy was prohibited by Section 27 of the said Act and that Section 14(1)(a)(iii) provided that the tenancy could be terminated if thetenant had sublet. This Court held that as subletting was not lawful, asub-tenant could not claim to be a deemed tenant. In our view thisauthority is based on the provisions of the said Act which expresslyprovide that sub-letting shall not be valid. In the said Act there is noprovision that a person with a limited interest cannot permit somebodyelse to cultivate the land.
On the other hand, Mr. Bhasma has relied on a ConstitutionBench judgment of this Court in the case of Ram Autar Vs. State of U.P., . In this case the question waswhether a tenant of the mortgagee could be evicted by the mortgagorafter the property was redeemed. With reference to Section 4 of thesaid Act it was held as follows:
"That Act 1948, it is undisputed, seeks to encompass withinits beneficent provisions not only tenants who held land forpurpose of cultivation under contracts from the landowners but persons who are deemed to the tenants also.The point in controversy is whether a person claiming thestatus of a deemed tenant must have been cultivating landwith the consent or under the authority of the owner.Counsel for the appellants submits that tenancy postulatesa relation based on contract between the owner of land,and the person in occupation of the land, and there can beno tenancy without the consent or authority of the ownerto the occupation of that land. But the Act has by Section 2(18) devised a special definition of tenant and includedtherein persons who are not contractual tenants. It wouldtherefore be difficult to assume in construing Section 4 that theperson who claims the status of a deemed tenant must becultivating land with the consent or authority of the owner.The relevant conditions imposed by the statute is only thatthe person claiming the status of a deemed tenant must becultivating land "lawfully": it is not the condition that hemust cultivate land with the consent of or under authorityderived directly from the owner. To import such acondition it is to rewrite the section, and destroy itspractical utility. A person who derives his right tocultivate land from the owners would normally be acontractual tenant and he will obviously not be a "deemedtenant". Persons such as licencees from the owner maycertainly be regarded as falling within the class of personslawfully cultivating land belonging to others, but it cannotbe assumed therefrom that are the only persons whoare covered by the section. The Act affords protection toall persons who hold agricultural land as contractualtenants and subject to the exceptions specified all personslawfully cultivating lands belonging to others, and it wouldbe unduly restricting the intention of the Legislature tolimit the benefit of its provisions to persons who derivetheir authority from the owner, either under a contract oftenancy, or otherwise. In our view, all persons other thanthose mentioned in Clauses (2), (b) and (c) of Section 4 who lawfullycultivate land belonging to other persons whether or nottheir authority is derived directly from the owner of theland must be deemed tenants of the land."
Mr. Bhasma has also relied on the case of Smt. Rukhamanbai Vs. Shivram and others, . In this case the facts werealmost identical. The question was whether a lessee of a person witha limited estate acquired the status of deemed tenant u/s 4.A three Judge Bench held that the lessee acquired the status of adeemed tenant and the Tribunal was justified in determining thepurchase price u/s 32G.
Faced with this position Mr. Lalit submitted that in this casethere was a decree, after contest, between the Appellant andRespondents 1 and 2. He submits that that decree is binding on theAppellant and can be executed against the Appellant. We have readthe decrees/orders of the civil court. In passing the decree andholding the Appellant to be a trespasser the civil court has notconsidered the provisions of the said Act. The conclusion that theAppellant is a trespasser is dehors rights of the Appellant under thesaid Act. Mr. Lalit submitted that the Appellant never claimed, beforethe civil court that she was a deemed tenant. He submitted thatAppellants could have contended before the civil court that she was adeemed tenant under the said Act. He submitted that as the Appellanthas not taken this contention before the civil courts she is now debarredfrom raising a claim under the said Act. We see no substance in thissubmission. The Appellant had already made an application underSection 32O before the suit was filed by the Respondents 1 and 2.Respondents 1 and 2 were aware that the Appellant had made such anapplication. The appellant was pursuing her remedy under the said Actbefore the appropriate authority. Respondents 1 and 2 were alsoparties to those proceedings and were contesting those proceedings.These are not questions which could be raised before a civil court.Therefore rightly neither Respondents 1 and 2 nor the Appellant tookup this question before the civil court. Even if the question had beenraised the civil court could not have decided it. The civil court wouldhave had to refer the issue to the appropriate authority and then abideby its decision. A decree passed without the consideration of theprovisions of the said Act must be subject to orders of the appropriateauthority in proceedings under the said Act.
Thus so long as the certificate stands the decree cannot beexecuted against the Appellant. It is only if Respondents 1 and 2succeed in getting the Certificate set aside, in their pending Revision,that they can execute the decree. It would be open for Respondents 1and 2 to pursue the Revision filed by them against the order dated 23rdNovember 2000. We realise that a Revision is on limited grounds. Wehave noticed that the Appellate Authority dismissed the Appeal ofRespondents 1 and 2 merely on the ground that this Court had stayedthe operation of the decree passed by the civil court. If the revisionalauthority so desires it may remit the matter back to the AppellateAuthority for a decision on merits in accordance with law. We,however, clarify that the decision of the Revisional Authority or theAppellate Authority must be based only on the provisions of the saidAct. Findings given by the Civil Court dehors the provisions of thesaid Act, and any observation made by us on that question cannot betaken into consideration in deciding whether Appellant is a deemedtenant.
For the aforesaid reasons this Appeal is allowed. The impugnedJudgment dated 23rd August 1999, as well as the Order passed by theAppellate Authority on 28th June 1999 and the Order passed by theExecuting Court on 12th February 1999 are set aside. We hold that solong as the Certificate stands the decree, obtained by Respondents 1and 2, cannot be executed against the Appellant. We clarify that ifRespondents 1 and 2 succeed in the Revision filed by them, then theywould be at liberty to apply for execution of the decree obtained bythem.
The Appeals stand disposed of accordingly. There will no orderas to costs.