& LRS. of Deceased Somabhai Kanjibhai Baria Vs. Patel Parshottamdas Jamdas
(D) & Anr  INSC 164 (3 March 1995)
& B.L. Hansarla, Jj.
Respondent Patel Parshottamda Jamnadas has died. The appellants ha filed an
application to bring the legal representatives on record. Ghanshamdasbhai Parshottamdas
Patel, son of the deceased Patel Parshottamdas Jamnadas, has also made an
application independently on the basis of will said to have been executed by
his father. Without going into the inter se rights of the legal representatives
of Patel Parshottamdas Jamnadas, we bring Ghanshamdasbhai Parshottamdas Patel
on record to represent his estate for the purpose of the disposal of these
appeals. The inter se rights, if any, would be decided in an appropriate
three appeals are being disposed of by a common order. The appellants initially
were tenants of respondent.
lands are watan lands. Though the appellants remained in possession from the
year 1939, since the lands being watan lands, they are not directly governed by
the Bombay Tenancy and Agricultural Lands, Act 1 of 1948 (for short, 'the
Tenancy Act') as extended to the State of Gujarat. The Gujarat Watans Abolition 'Act, 1961, abolished the watans with
effect from 1.4.63. Subsequently, re-grant was made in favour of the respondent
on March 23, 1966. In the meanwhile, the respondent
terminated the tenancy of the appellants with effect from 31.3.61 and filed
present civil suit for possession on August 14, 1962.
appellants contended that civil court has no jurisdiction to decide the
question whether the appellants are tenants under the respondent and that they
are not liable to ejectment on the basis of termination of tenancy.
civil court relying upon s.88 of the Tenancy Act, held, as preliminary issue,
that the appellants are tenants and that, therefore, until the question of
termination of tenancy has been duly determined by the mamlatdar, the civil
court has no jurisdiction. Accordingly, the civil court dismissed the suit. On
revision, the learned single Judge of the-High Court by judgment dated 15.4.77,
held that for application of s.88 of the Tenancy Act, read with s.9 of Watan
Act, 1961, two conditions must be satisfied, namely, the lease should have been
lawfully made and such a lease must be subsisting on the appointed date,
namely, April 1, 1963. Though there was a lease, since it was determined as
effective from 31.3.61, there was no subsisting lease.
the civil court was wrong in its conclusion that the tenancy court has
jurisdiction to determine the rights of the tenancy between the parties and
accordingly reversed the decree and remitted the matter for trial according to
law. Thus these appeals by special leave.
Ganpule, learned senior counsel for the appellants, contended that by operation
of sub-s.(6) of s.32(G) of the Tenancy Act, despite the abolition of the watan
and re-grant in favour of the respondent, the right of tenancy created in favour
of the tenants still subsists.
the termination of the tenancy has been legally done should be decided only by
the mamlatdar and not by the civil court. We find no force in the contention.
Sub-s.(6) of s.32(G) envisages:
"If any land which, by or under the provisions of any of the Land Tenures
Abolition Acts referred to in Schedule 111 of this Act, is re-granted to the
holder thereof on condition that it was not transferable, such condition shall
not be deemed to affect the right of any person holding such land on lease
created before the re-grant and such person shall as a tenant be deemed to have
purchased the land under this section, as if the condition that it was not
transferable was not the condition of re-grant. "
application of sub-s.(6) of s.32(G) two essential conditions are required to be
satisfied. The kind of land tenures, referred to in sub-s.(6), should find
place in the IIIrd Schedule. We have verified Schedule 111 and the Watan
Abolition Act 1961 is not part of Schedule Ill. Secondly, though the re-grant
is made in favour of the holder of the watan with a condition that it is not
transferable, the lease created before the re-grant must be subsisting. In that
event, the tenant would be entitled to purchase the land under s.32(G). It is
already seen and a clear finding of fact was recorded by the High Court and it
is not disputed before us that the tenancy was terminated with effect from
31.3.1961 and the suit for possession was filed on 14.8.1962.
question then is what is the nature of possession the appellants held. This
Court in Maneksha Ardeshir Irani v. Manekji Edulji Mistry, 1975 (2) SCR 34 1,
held that on cessation of original tenancy, the right of protected tenant would
continue until it would duly come to an end. It was found that on August 1, 1956 it came to a terminus and the
original contract of tenancy thereby had ceased. The appellant therein was in
occupation of the land only on sufferance since the land-lord had not given any
consent for the continuance of possession of the tenant. When the landlord did
not give his consent, express or necessary implication, after the termination
of lease, his possession is only by sufferance and he cannot be said to be in
possession as a tenant holding over or a tenant at will.
same ratio applies to the facts in this case.
the determination of the tenancy and after the respondent filed the suit, there
was no consent given by the landlord either in writing or by acquiescence or by
that view of the matter, the civil court was clearly in error in holding that
there exists a jural relationship of landlord and tenant between the respondent
and the appellants and that, therefore, the mamlatdar is the competent
authority to decide the dispute of the tenancy rights. The High Court was right
in holding that the condition precedent prescribed under s.88(IXc) of the
Tenancy Act read with s.9 of Watan Act has not been complied with and that,
therefore, the civil court alone has jurisdiction to decide the question.
appeals are accordingly dismissed. No costs.
view of the above findings, the suits stand decreed, as nothing more remains
for trial as agreed by both the counsel.