Krishna Ji & Ors Vs. Trimbak Bhikaji Patil & Ors  INSC 117 (23 April 1992)
Singh (J) Kuldip Singh (J) Fathima Beevi, M. (J)
1992 AIR 1338 1992 SCR (2) 749 1992 SCC Supl. (2) 290 JT 1992 (3) 110 1992
Berar regulation of Agricultural Leases
Act, 1951- section 8(1)(c)(f)-tenancy-termination-Applications by Karta of
Tenancy and agricultural lands (Vidarbha region )Act,1958-proceedings
under-Non-compliance of prior notice- Effect.
of India, 1950-Article136-Appeal by spe- cial
leave-appreciation of High Court's finding-Lease deed dated 30-04-1951, whether genuine.
No.1 was the owner of the disputed land. The land was in cultivating possession
of the appellant-tenants since 1951. They acquired the status of protected
lessees under the Berar Regulation of Agricultural Leases Act,1951 and the
Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958.
respondent filing two separate applications against the appellants. Initiated
Proceedings before the Sub Divi- sional Officer for ejectment of the appellants
on the ground that Predecessor of the appellant No1 created sub-leases in favour
of appellant No.2 and another and as such their tenancy was liable to be
terminated in term of section 8(1)(c)(f)of the Berar Act.
appellants resisted the applications contending that all the three persons were
independent lessees in their own rights and as such there was no question of
appellant No.1 having created sub-leases in favour of the other two.
respondent No.1 produced a lease deed dated April 30,1951to prove that all the
three tracts of land were leased to appellant No.1and no part of the land was
ever leased to appellant No.2 and another; and that the original lessee,
appellant No.1, sub-leased part of the land to the other two occupants.
The Sub- Divisional Officer allowed the applications of the respondent No.1.
appellants filed appeals before the Sub-Deputy Collector against the order of
the Sub-Divisonal Officer,which were dismissed.
appellants-tenants went in revision before the Revenue Tribunal. The Tribunal
allowed the revision peti- tions of the appellants.
respondent challenged the order of the tribunal dated 25.03.1970 in the High
Court on 4.8.1971. In order to get over the delay in filing the writ petition
the land- owner filed an affidavit stating that the papers in his office
remained unattended due to oversight and pressure of work and as such the
filing of the petitions was delayed.
High Court allowed the petitions of the land-owner.
appeals were filed by the tenants by way of special leave petitions against the
judgment of the High court.
the appeals of the tenants,this court,
is no infirmity in the finding of the High court that the respndent No.1 being
the Karta of the family could file the applications for termination of the
tenancy without associating his brother [755H-756A].
High court was also right in rejecting the con- tention of the tenant that the
proceedings under the Bombay Act were illegal as the requirement of prior
notice under the said Act was not complied with [756-A].
The High Court erred in holding that the lease deed dated April 30,1951 was a genuine document. No enquiry
was held at any stage regarding the genuine of the lease deed. the
sub-Divisional Officer refused to go into the question on the ground that there
were no pleadings on the point. The Sub-Divisional Officer was obviously wrong
be- cause the lease deed was filed by the respondent-land -owner after the
pleadings were completed. The Appellate Court was wholly unjustified in
observing that the appellants-tenants had admitted the execution of the lease
deed. The appel- lants'case throughout had been that the lease deed was a
forged document.(756 B-C) 751 3.02.The High Court should have remanded the case
to Trial Court for determining the genuineness of the lease deed dated April
30,1951 specially when the case of the respondent-land-owner was wholly based
on the doucment. the High court had no material before it to come to the conclu-
sion that the lease deed was a genuine document.(756 D-E)
APPELLATE JURISDICTION :Civil Appeal No. 349-50 of 1978 From the Judgement and
Order dated 10.8.1977 of the Bombay High Court in Special Civil Application
Nos. 230 and 235 of 1972.
Udai U. Lalit and C.K. Ratnaparkhi for the Appellants.
P.H. Parekh and Sunil Dogra for the Re- spondents.
of the Court was delivered by KULDIP SINGH,J. These appeals are directed
against the judgement of the Nagpur Bench of Bombay High Court directing the ejectment
of the appellants from three tracts of agri- cultural-land which the appellants
are in cultivating pos- session since 1951.
Bhikaji is the owner of about 20 acres of land subject-matter of the dispute.
The said land is in cultivating possession of the appellants since 1951 and
according to them, they have acquired the status of protect- ed lessees under
the Berar Regulation of Agricultural Leases Act, 1951(hereinafter called `the Berar
Act') and the Bombay Tenancy and agricultural Lands (Vidarbha Region)Act, 1958
(hereinafter called `the Bombay Act') The respondent Bhikaji initiated
proceedings before the Sub-Divisional Officer Buldana for ejectment of the appel-
lants on the ground that predecessor of the first appellants created sub-leases
infavour of second appellant and one Zipra Wanchu and as such their tenancy was
liable to be terminated in terms of Section 8(1)(c)(f) of the Berar Act.
filed two seperate applications against the appel- lants. The applications were
resisted by the appellants inter alia on the ground that all the three persons,
namely, Pundlik Krishna, Kashao Krishna and Zipra Wanchhu were inde- pendent
lessees in their own rights and as such there was no question of Pundlik Krishnaji
having created sub-leases infavour 752 of the other two. Before the
Sub-Divisional Officer, the respondent Bhikaji produced a lease deed dated April 30, 1951 to prove that all the three tracts
of land were leased to late Pundlik Krishnaji and no part of the land was ever
leased to Keshao Krishnaji and Zipra Wanchhu. It was sought to be shown from
the lease deed that the original lessee Pundlik Krishnaji sub-leased part of
the land to the other two occupants. The Sub-Divisional Officer accepted the
contention of the respondent and ordered the ejectment of the appellants. The
Sub-Divisional Officer proceeded on the following reasoning:- ``The contention
of the defendant Nos.1 and 2 that the lease of the remaining half share of the
suit land was created by the plaintiff's brother Keshav Bhikaji with the
defendant Nos.2 and 3 has no force......
defendant Nos.1 and 2 contend that the original lease deed dated 30.4.51 is a
forged one, but they have failed to mention this fact in all their written
statements or to show any reason when questioned by the plaintiff's
Krishnaji and Keshao Krishnaji went in appeal before the Sub-Deputy Collector
against the order of the Sub-Divisional Officer. The Collector dismissed the
the lease deed relied upon by the respondent Bhikaji, the Collector observed as
under:- ``The very fact that the appellant Pundlik executed a lease deed of all
these fields in favour of respondent Trimbak goes to prove that he was the Karta
of the family and his brother Keshao had no hand in the management on leasing
out the property......
execution of lease deed dated 30.4.51 by appellant Pundlik in favour of the
respondent Trimbak has been admitted by the appellants......
other hand there is document ``Lease Deed'' dated 30.4.51 which clearly shows
that appellant Pundlik was the sole lessee of the fields in question. I,
therefore, agree with the finding of the lower court that appellant Pundlik was
a tenant of the fields in ques- tion.'' The tenants further went in revision
before the Revenue Tribunal.
The Tribunal set aside the orders of the Sub-Divisional Officer and of the
Sub-Collector and dismissed the ejectment applications of the
respondent-landlord. The Tribunal no- ticed the arguments of the
appellants-tenants in the follow- ing words:- ``Feeling aggrieved by this
order, applicants filed two separate appeals. In their appeals, they urged that
neither Keshao nor Zipra Wanchhu was the sub- tenant of the fields in question.
Pundlik had not sublet the fields to them. The alleged lease deed dated 30.4.51
was a forged document and adverse inference against them should not have been
drawn for their failure to plead that the document dated 30.4.51 was a forged
one as the same was produced after written statements by the applicants were
already filed. Zipra Wanchhu was colluding with landholder Trimbak Bhikaji and
the story put up, by him should have been discarded....
Tribunal finally held as under:- ``It has been contended by the applicants that
the lease deed of 30.4.51 was a forgery. This contention of the applicants had
not been inquired into upon the short ground that it was not made in the
written statements of the applicants. The applicants say that the lease deed
dated 30.4.51 was filed after their written statements. It is true that they
could have amended their written statements so as to allege forgery of the
lease deed dated 30.4.51 when the same was filed. None- the-less, it appears to
me that the contention of forgery should have been inquired into when the same
was made by the applicants. It has been the case of applicants that Pundlik was
the lessee of half of the share in the fields survey numbers, whereas applicant
No.2 keshao Krishnaji and Zipra Wanchhu cultivated as the lessee of the other
half of the fields. They never said that they were the lessees under any
lease-deed. It was, therefore, necessary to find out as to whether the lease
deed dated 30.4.51 was genuine or forged document.
result, applications made by Trimbak Bhikaji alone without joining keshao Bhikaji,
who was a necessary party to the applications, are rejected.'' 754 The tenant
challenged the order of the Tribunal by way of two petitions under Article 227
of the Constitution of India before the Nagpur Bench of the Bombay High Court.
The order of the Tribunal dated March 25,1970 was challenged in the High Court on August 4, 1971. In order to get over the delay in
filing the writ petition counsel for the land-owner filed an affidavit stating
that the papers in his office remained unattended due to oversight and pressure
of work and as such the filing of the petitions was delayed.The High Court
allowed the petitions on the following grounds:- (1) The reasons for not filing
the writ petitions dili- gently having been explained by the petitioner's
advocate by filing an affidavit the petition could not be dismissed on the
ground of delay and latches.
The Tribunal rejected the claim of the tenant- petitioner on the only ground
that the original applications were bad as petitioner's brother was not joined
as a party.
High Court held that ``Trimbak Bhikaji Patil being the Karta of the family
could file the applications for eject- ment in that capacity.'' (3) Regarding
the lease deed April
30, 1951 the High
Court held as under:- ``There is one more circumstance. The lease deed that was
executed in respect of the suit lands was in favour of the petitioner. It is
dated 30.4.51. The lessee is respondent No.1. Thus, the relationship of the
landlord and tenant came into existence between the petitioner and respondent
No.1. It will not be normally open for respondent No.1 to urge that the
petitioner alone is not his landlord. To get over this difficulty, it was
suggested at the time of the arguments that this lease deed is forged one. The
M.R.T. has considered this question in a slip-shod-manner. The point as to the
alleged forgery of lease deed was not taken in the written statement by any of
spite of that the M.R.T. has stated that the contention of forgery should have
been enquired into. I am not able to accept this reasoning par- ticularly when
the Niab Tahsildar and the S.D.O.
accepted the lease deed as genuine one.'' 755 (4) Under the Berar Act, before
initiating ejectment proceedings, no notice was required to be sent to the
tenant but under the Bombay Act there is requirement of the notice.
argued on behalf of the tenant that since in the year 1958. The Bombay Act had
come into force repealing the Berar Act and the proceedings, though initiated
under the Berar Act, were deemed to be under the Bombay Act, and because no
prior notice as required by the Bombay Act was given, the proceedings were bad
in law. The High Court rejected the argument on the ground that the proceedings
having already been initiated under the Berar Act no notice was necessary and
the proceedings were rightly taken to be under the Bombay Act.
High Court allowed the petition and set aside the order of the Tribunal. It is
these circumstances that these in appeals by the tenants by way of special
leave petitions are before us.
have heard learned counsel for the parties at length. We are of the view of
that the High Court was not justified in reaching the conclusion that the lease
deed dated April 30,
1951 was a genuine
Tribunal allowed the tenant's revision on the fol- lowing grounds:- (1) The
land in question belonged to the two brothers jointly. The applications for ejectment
were filed only by Trimbak Bhikaji. The other brother had not made the applica-
tions for terminating the tenancy either separately or by joining his brother.
The Tribunal came to the conclusion that the applications by Trimbak Bhikaji
alone were not competent and on this ground the Tribunal rejected the
The Tribunal after examining the pleadings and the evidence on the record came
to the conclusion that the Courts below should have enquired into the
genuineness of the lease deed. The Tribunal reached the finding ``it was,
therefore, necessary to find out as to whether the lease deed dated 30.4.51 was
genuine or forged document.'' A bare reading of the Tribunal's order shows that
the Tribunal granted relief to the appellant-tenant on the above two grounds.
We are of the view that the High Court was justified in setting aside the Tribunbal's
finding on the first point mentioned above. The High Court found that Trimbak Bhikaji
being the Karta of the family could file the applications for termination of
the tenancy without associ- ating his brother. We see no 756 infirmity in the
said finding of the High Court. The High Court was also right in rejecting the
contention of the tenant that the proceedings under the Bombay Act were ille-
gal as the requirement of prior notice under the said Act was not complied
with. We are, however, of the view that the High Court erred in holding that
the lease deed dated April
30, 1951 was a genuine
document. No enquiry was held at any stage regarding the genuineness of the
lease deed. The Sub- Divisional Officer refused to go into the question on the
ground that there were no pleadings on the point. The Sub- Divisional Officer
was obviously wrong because the lease deed was filed by the
respondent-land-owner after the plead- ings were completed. The Appellate Court
was wholly unjusti- fied in observing that the appellants-tenants had admitted
the execution of the lease deed. The appellant's case throughout had been that
the lease deed was a forged docu- ment.
Tribunal could not remand the case for enquiry into the genuineness of the
lease deed because it had allowed the revisions on two grounds. The High Court,
having reversed the finding of the Tribunal on the first point, should have
remanded the case to the Trial Court for determining the genuineness of the
lease deed dated April 30, 1951 specially when the case of the
respondent-land-owner was wholly based on the said document. The High Court had
no material before it to come to the conclusion that the lease deed was a
therefore, set aside the High Court judgement and also of the Courts below and
remand the case to the con- cerned trial court for deciding the ejectment
applications filed by the respondent-land-owner afresh after affording
opportunity to the parties in accordance with law. The trial court shall afford
full opportunity to the parties to pro- duce evidence on the issue of the
genuineness or otherwise of the lease deed dated April 30, 1951.
appeals are allowed in the above terms with no order as to costs.