Sukhadeo Meshram vs Smt. Shobhatai Bagde

R.C. Chavan, J.—This petition by son of erstwhile tenant, who had become absolute owner by operation of law, takes exception to rejection of his application u/s 120(c) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act (hereinafter referred to as the Act), by the learned Sub-Divisional Officer as well as the Maharashtra Revenue Tribunal.

Facts, which are material for deciding this petition, are as under:

Field survey No. 36 - 17 acres and 12 gunthas - of Village Hiwara Lahe was owned by one Multanmal. Petitioner''s father Nimba was tenant of the field. Ownership of the land was transferred to Nimba on 18-10-1969 by the Agricultural Lands Tribunal, Murtizapur and purchase certificate was issued to Nimba on 24-3-1975. However, Nimba was in possession of only 9 acres of land, as remaining 8 acres had been sold by landlord''s daughter illegally in 1964 to Keshav Borkar and his wife Kishnabai, who took forcible possession in 1973-74. Respondent Shobhatai Bagde purchased 8 acres of land from Keshav and Kishnabai by registered sale-deed dated 30-12-1985, and since then she is in possession. Nimba died in 1987.

The petitioner filed an application u/s 120(c) of the Act for recovery of possession from the respondent. By order dated 29-1-1993, the Sub-Divisional Officer rejected the petitioner''s application holding that remedy u/s 120(c) of the Act was not available to the petitioner, as he had remedy u/s 36(1) of the Act. The petitioner''s revision to the Maharashtra Revenue Tribunal came to be rejected by the impugned order. Hence, this petition.

I have heard the learned Counsel for the petitioner and the learned Counsel for the respondent.

The learned Counsel for the petitioner submitted that the impugned order was incorrect inasmuch as it holds that the provisions of Section 120(c) of the Tenancy Act are not applicable. He submitted that for a person in the position of the petitioner, remedy u/s 36 of the Tenancy Act was not at all available. Section 36 of the Tenancy Act would have enabled only a tenant or an agricultural labourer or artisan to seek possession by making an application under Sub-section (1) of Section 36 of the Tenancy Act. He submitted that none of the clauses in Section 36 would enable an erstwhile tenant, who has been held to be the deemed purchaser and in whose favour a purchase certificate has been issued to seek possession u/s 36 of the Tenancy Act. Therefore, according to him, since the respondent was a person unauthorizedly occupying land, to the use and occupation of which he was not entitled under the provisions of the Tenancy Act, and the provisions of the Tenancy Act do not provide for eviction of such person, such person could be summarily evicted by the Collector u/s 120(c) of the Tenancy Act. It may be useful to reproduce for ready reference Sections 36 and 120 of the Tenancy Act, which read as under:

Procedure of taking possession.

(1) A tenant or an agricultural labourer or artisan entitled to possession of any land or dwelling house or site used for any allied pursuit under any of the provisions of this Act or as a result of eviction in contravention of Sub-section (2) may apply in writing for such possession to the Tahsildar. The application shall be made in such form as may be prescribed and within a period of three years from the date on which the right to obtain possession of the land, dwelling house or site is deemed to have accrued to the tenant, agricultural labourer or artisan, as the case may be.

(2) Save as otherwise provided in Sub-section (3A), no landlord shall obtain possession of any land, dwelling house or site used for any allied pursuit held by a tenant except under an order of the Tahsildar. For obtaining such order he shall make an application in the prescribed form and within a period of two years from the date on which the right to obtain possession of the land, dwelling house or site, as the case may be, is deemed to have accrued to him.

(3) On receipt of an application under Sub-section (1) or (2), the Tahsildar shall after holding an inquiry, pass such order thereon as he deems fit : Provided that where an application under Sub-section (2) is made by a landlord in pursuance of the right conferred on him u/s 38, the Tahsildar may first decide as preliminary issue, whether the conditions specified in Clauses (c) and (d) of subsection (3) and Clauses (b), (c) and (d) of Sub-section (4) of that section are satisfied. If the Tahsildar finds that any of the said conditions are not satisfied, he shall reject the application forthwith.

(3A) Where a landlord proceeds for termination of the tenancy under Sub-section (1) of Section 57B, then, notwithstanding any thing contained in this Act, the application for possession of the land shall be made to the Collector, who shall, after holding an inquiry in the prescribed manner, pass such order thereon as he deems fit.

(4) Any person taking possession of any land, dwelling house or site used for any allied pursuit except in accordance with the provisions of Sub-sections (1), (2), or as the case may be, (3A) shall be liable to forfeiture of crops, if any, grown in the land in addition to payment of costs as may be directed by the Tahsildar or by the Collector and also to the penalty prescribed in Section 117.

"120. Any person unauthorizedly occupying or wrongfully in possession of any land.

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

(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 and the said provisions do not provide for the eviction of such person, may be summarily evicted by the Collector after such inquiry as he deems fit.

The learned Counsel for the petitioner relied on a judgment of Division Bench of this Court in Sitaram Deoba Marathe v. Hawadya Piraji and Ors. reported at 1975 Mh.L.J. 521. In that case, a reference had been made to the Division Bench because of conflicting judgments in Madhukar v. Gajanan Special Civil Application No. 14 of 1971, decided on 2-8-1973, and Dattatraya v. Rama - Special Civil Application No. 542 of 1971, decided on 1-19-1974. Respondent Hawadya claimed to be tenant of the land in question bearing survey No. 4/3 of Village Dapori, Tahsil Washim. He claimed to have been in physical possession till December 1963. The original owners of the land made an agreement of sale of the land on 26-6-1962 and the sale-deed was actually executed in favour of petitioner Sitaram on 16-1-1963. Hawadya claimed that in December 1963, he was forcibly dispossessed and, therefore, filed an application u/s 120(c) of the Tenancy Act. The Revenue Authorities held that remedy for the tenant was one u/s 36 and not u/s 120(c) of the Tenancy Act. Therefore, Hawadya applied for possession u/s 36(1) of the Tenancy Act. It was contended, among other things, that Hawadya was at best a person, who was a tenant, who was statutorily declared as full owner of the land on 1-4-1961 or 1-4-1963. Since he was thus statutorily declared as full owner, remedy of claiming possession u/s 36(1) of the Tenancy Act was not available to him. In Madhukar v. Gajanan, a learned Single Judge had taken the view that the word "tenant" u/s 36(1) of the Tenancy Act has extended meaning and would include persons, who were tenants up to 1-4-1963 and who were declared as statutory owners of the property. In Dattatraya v. Rama, a learned Single Judge took the view that the word "tenant" must have a natural meaning as defined in the Act and, therefore, an extenant, who had become owner of the property, is no more a tenant and, therefore, could not resort to remedy u/s 36 of the Tenancy Act. In para 10 of the judgment, the Court observed as under:

A mere look at this definition will show that either there is an existing contractual relationship of landlord and tenant or there is the fiction of law converting certain lawful possessions into relationship of landlord and tenant. However, the existence of this relationship either by contract or by statutory construction appears to be a sine quo non of a person becoming a tenant. Section 36(1) says that a tenant or an agricultural labourer or artisan entitled to possession of certain lands or dwelling houses or sites etc. may apply in writing for such possession to the Tahsildar. The application shall be made in such form as may be prescribed and within a period of 3 years from the date on which the right to obtain possession of the land, dwelling house or site is deemed to have accrued to the tenant, agricultural labourer or artisan, as the case may be. The further sub section deal with the procedure to be adopted by the Tahsildars and order for possession to be made. Sub-section (2) of Section 36 gives a similar right to the landlord to claim possession from his tenant and without the order of the Tahsildar a landlord is prevented from entering upon the property, and obtaining possession of agricultural land.

The Court then considered the provisions regarding vesting. In para 14, the Court held that there was no scope to infer that a former tenant, who become owner, could still be described as a tenant for certain purposes, particularly for making use of Section 36 for regaining possession lost by him after the title was vested in him. Therefore, according to the learned Counsel, the Sub-Divisional Officer and Maharashtra Revenue Tribunal were wrong in holding that the petitioner had remedy u/s 36 of the Act.

He further submitted that in the context of provisions contained in Sections 29 and 84 of the BT & AL Act applicable to Western Maharahstra, which correspond to Sections 36 and 120 of the Act, in Vithoba Rama Rahane v. Bhalchandra, reported at 1993 Mh.L.J. 419 , this Court had taken a similar view and the judgment was upheld by the Apex Court in Rangnath Vishnu Mulluck and Anr Vs. Vithoba Rama Rahane and Ors, . In that case tenant Vithoba was in possession of 9 pieces of landlord''s land. In the proceedings u/s 32G of the Bombay Act, on 05.08.1962 Vithoba expressed unwillingness to purchase 5 out of 9 pieces and those five pieces were placed in possession of landlord. However, Vithoba was dispossessed from remaining four pieces as well. Landlord had unsuccessfully questioned Vithoba''s status as tenant and then tenant filed application u/s 84 of the Bombay Act for summary eviction of landlords from the four pieces. The Assistant Controller dismissed the application holding that the remedy for the tenant was to file an application u/s 29 of the Bombay Act corresponding to Section 36 of the Act and therefore, remedy u/s 84(1) was not available. This was upheld by the Tribunal. This Court held that Section 29 would apply only if landlord tenant relationship subsisted, and there being no other remedy under the Act, application u/s 84 was tenable, which finding was upheld by the Apex Court in judgment reported at Rangnath Vishnu Mulluck and Anr Vs. Vithoba Rama Rahane and Ors, .

The learned Counsel for the petitioner submitted that since possession was lost by the petitioner after the lands vested in him remedy u/s 36 was not open and as the only remedy available was one u/s 120(c), petitioner''s application should have been allowed. In this case, land vested in Nimba on 18.10.1969. Sale deed in favour of Keshav Borkar was executed by landlord''s daughter in 1964 itself in respect of eight acres of land. According to the petitioner he was forcibly dispossessed in 1973-74 i.e. after vesting and hence according to the learned Counsel the impugned orders have to be set aside.

His learned adversary contested the correctness of these contentions. He submitted that as observed by the learned Sub-Divisional Officer the petitioner never intended to secure possession as he had entered into a compromise in the matter by executing compromise deeds dated 29.9.1981 and 25.05.1984. He further submitted that the learned Sub-Divisional Officer has also observed that the petitioner had in fact filed an application u/s 120 in the year 1978-79 and an order in favour of the petitioner was passed on 17.01.1979, and during the pendency of revision against this order compromise was entered into. Therefore, the Sub-Divisional Officer refused to exercise the discretionary summary jurisdiction vested in him u/s 120 of the Act. Before the Maharashtra Revenue Tribunal it had also been contended that the petitioner failed to take any action till 1992 though he was not in possession from 1964. If this were so it could not be held that the petitioner was dispossessed after the land vested in him on 18.10.1969 and consequently, since dispossession complained of would be as "tenant", remedy u/s 36 would be available.

The learned Counsel for the respondent relied on judgment of this Court in Dhondba v. Krishnabai reported at 1980 Mh.L.J. 466 to support his contention that remedy u/s 120(c) is summary and discretionary and if any complicated questions of fact or law arise, the Collector would be justified in staying his hands, leaving the parties to resort to remedy in a civil Court.

I have carefully considered rival contentions. It cannot be said that the Sub-Divisional Officer or Maharashtra Revenue Tribunal erred in refusing to exercise jurisdiction u/s 120(c) of the Act, first, because it is not an admitted position that the petitioner was dispossessed after the land vested in him - in that case remedy u/s 36 would be available. Secondly, the question whether the respondent is in possession in terms of compromise could not have been summarily decided. Therefore, it would not be permissible to conclude exfacie that respondent''s possession was unauthorised. Hence, refusal by the Sub-Divisional Officer to exercise discretionary powers u/s 120(c) of the Act, left undisturbed by the Maharashtra Revenue Tribunal cannot be faulted.

The petition is, therefore, dismissed with no order as to costs.