Trimbak Gaikwad Vs. Damodhar D. Motiwale & Ors  Insc 165 (22 March 2002)
Shah Mohammed Quadri & S.N. Variava S. N. Variava, J.
This Appeal is against the judgment of the Bombay High Court dated 23rd August, 1999.
Briefly stated the facts are as follows:
Motiwale was the owner of certain pieces of land. He had a son named Dattatraya
and a daughter named Tarabai. On the death of Narayan Motiwale, Dattatraya
became the owner of the properties. By a registered Settlement Deed dated 12th January, 1927, Dattatraya gave Survey Nos. 21/3,
20 and 20/1 to his sister Tarabai as she was poor and unable to maintain
herself. The said Deed of Settlement, inter alia, provided as follows :
bearing No. 21 and the well in the same is given to along with trees and things
thereon has been given to your possession for maintenance until life.
you may cultivate the said land by paying the Government assessment for
maintenance. After your lifetime the land shall again come to me or to my
heirs." Pursuant to the Deed of Settlement the name of Tarabai was entered
in the revenue records as a Kabjedar.
leased out one piece of land to a tenant in 1968.
filed Suit No. 362 of 1969 against Tarabai for a declaration that he was the
owner of the land in question and that Tarabai had only a limited interest and
therefore could not lease out the land. In the meantime the tenant to whom the Tarabai
had leased out the land applied for tenancy rights under the provisions of the
Bombay Tenancy and Agricultural Lands Act, 1948. (hereinafter called the said
suit filed by Dattatraya was dismissed. Thereafter Dattatraya filed Appeal No.
450 of 1970. In that Appeal a consent decree was passed on 7th October, 1971. Under the consent Decree Tarabai
agreed that she will not lease out any piece of land.
the tenancy proceedings initiated by the lessee, by order dated on 13th March,
1971 it was held that the lessee was a deemed tenant under Section 4 of the said
Act. The Land Tribunal fixed a price under Section 32G of the said Act. The
price was paid by the lessee and that lessee became the statutory owner of the
was a party to those proceedings. He never challenged the order of the Land Tribunal.
That order became final in respect of that lessee.
1973 Tarabai filed Suit No. 73 of 1973 against Dattatraya claiming that, after
coming into force of Hindu Succession Act, 1956, the limited rights vested in
her had matured into an absolute right.
Suit was dismissed in view of the consent decree passed in Appeal No. 450 of
7. On 19th January 1977 Dattatraya expired. On 6th September 1980 Tarabai executed a lease deed in favour
of the Appellants. On 7th
December 1980 the
Appellants gave notice under Section 32-O of the said Act to Tarabai and the
Land Tribunal. By this notice the Appellant indicated her intention to purchase
the suit land.
Respondents 1 and 2 then filed Suit No. 472 of 1981 against Tarabai and the
Appellants for a declaration that Tarabai had no authority to lease or create
any incumberance on the suit land. They prayed 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, on the basis of the earlier consent decree, that Tarabai had no
authority to lease out the suit land. It was held that the lease in favour of
the Appellant was not binding on Respondents 1 and 2. It was held that the
Appellant was a trespasser.
Appellant preferred an Appeal. This Appeal was allowed on 16th September 1989. Respondents 1 and 2 filed a Second
Appeal, which was allowed by the High Court on 27th June 1997.
18th August 1981, the Appellants filed a case under Section 32-O of the said
Act. Respondents 1 and 2 opposed this Application.
22nd April 1988 the Land Tribunal fixed the purchase price under Section 32-G.
The Appellants deposited the purchase price immediately. Respondents 1 and 2
filed an Appeal against the Order dated 22nd April 1988. That Appeal was
dismissed on 23rd November 2000. A Certificate of Ownership has been issued to
the Appellants on 4th December 2000. We are informed that Respondents 1 and 2
have preferred a Revision against the order dated 23rd November 2000 and that
that Revision is pending.
the meantime Respondents 1 and 2 applied for execution of the decree passed in
their favour. The Appellant filed an application, in the executing court, under
Order 21 Rule 97 contending that they had already become owners by virtue of
the purchase price having been fixed in their favour. The Appellants contended
that the decree could not now be executed against them. Their application was
rejected on 12th February 1999. It was held that the executing court was bound
to execute the decree obtained by Respondents 1 and 2 in their Civil Suit.
The Appellant filed an Appeal. That Appeal came to be dismissed on 28th June
1999. The Appellant preferred a Writ Petition in the High Court. The High Court
has dismissed the Writ Petition by the impugned judgment dated 23rd August,
The question for consideration is whether a decree passed by a Civil Court can
be executed if a Certificate of Ownership has been granted under the provisions
of the said Act.
have heard counsel for the parties at length. The relevant provisions of the
said Act may now be seen. A 'tenant', as defined in Section 2(18) of the said
Act, includes a person who is "deemed to be a tenant under Section
4". The relevant portion of Section 4 of the said Act reads as follows :
Persons to be deemed tenants. :
person lawfully cultivating any land belonging to another persons shall be
deemed to be a tenant if such land is not cultivated personally by the owner
and if such person is not –
member of the owner's family, or
servant on wages payable in cash or kind but not in crop share or hired labourer
cultivating the land under the personal supervision of the owner of any member
of the owner's family, or
mortgage in possession.
(I) - A person shall not be deemed to be tenant under this section if such
person has been on an application made by the owner of the land as provided
under section 2A of the Bombay Tenancy Act, 1939, decided by a competent
authority not to be a tenant.
(II) - Where any land is cultivated by a widow or a minor or a person who is
subject to physical or mental disability or a serving member of the armed
forces through a tenant then notwithstanding anything contained in Explanation
I to clause (6) of section 2, such tenant shall be deemed to be a tenant within
the meaning of this section." Thus a person lawfully cultivating any land
belonging to another person is deemed to be a tenant.
relevant portion of Section 32-O reads as follows :
Right of tenant whose tenancy is created after Tillers' day to purchase land. -
(1) In respect of any tenancy created after the Tillers' day by a landlord (not
being a serving member of the armed force) notwithstanding any agreement or
usage to the contrary, a tenant cultivating personally shall be entitled within
one year from the commencement of such tenancy to purchase from the landlord
the land held by him or such part thereof as will raise the holding of the
tenant to the ceiling area.
tenant desirous of exercising the right conferred on him under sub-section (1)
shall give an intimation in that behalf to the landlord and the Tribunal in the
prescribed manner within the period specified in that sub-section." To be
remembered that on 7th
December 1980 the
Appellant had given notice under Section 32-O.
Section 32(G)(4) of the said Act provides that if the tenant is willing to
purchase, the Tribunal after giving an opportunity to the tenant and landlord
and all other persons interested in such land hold an inquiry and determine the
purchase price of such land in accordance with the provisions of Section 32-H
and Section 63-A(3).
Section 32-M on deposit of the purchase price the Tribunal is to issue a
certificate of purchase to the tenant purchaser in respect of such land. Such a
certificate is to be conclusive proof of purchase.
stated above after considering the objections of Respondents 1 and 2 the
Tribunal has fixed the purchase price on 22nd April 1998.
Appellant has deposited the purchase price and a certificate has been issued to
him on 4th December
2000. Such a
certificate is conclusive evidence of purchase unless it is set aside in the
Revision, which is filed by the Respondents 1 and 2.
One other provision which requires to be noted is Section 85. It reads as follows
Bar of jurisdiction –
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 and whether any such tenant is or should be deemed to have purchased
from his landlord the land held by him) which is by or under this Act required
to be settled, decided or dealt with by the Mamlatdar or Tribunal, a Manager,
the Collector or the Maharashtra Revenue Tribunal in appeal or revision or the
State Government in exercise of their powers of control.
order of the Mamlatdar, the Tribunal, the Collector or the Maharashtra Revenue
Tribunal or the State Government made under this Act shall be questioned in any
Civil or Criminal Court.
- For the purposes
of this section a Civil
Court shall include a
Mamlatdar's Court constituted under the Mamlatdars' Courts Act, 1906."
Thus it is to be seen that a Civil Court
does not have jurisdiction to decide matters which are required to be dealt
with by the Tribunal under the said Act. Thus it is only the Tribunal which can
decide whether a person is deemed to be a tenant and whether he is entitled to
purchase the land held by him. The civil court has no jurisdiction to decide
such a question. Even if such a question was to be raised in a proceeding
before it, the civil court would have to refer the issue to the authority under
the said Act. The Suit would then have to be disposed of in accordance with the
decision of the authority. Thus if the Tribunal fixes a purchase price and
issues a certificate then that certificate would be conclusive proof of
purchase. The civil court would then be bound to give effect to the certificate
and cannot ignore it.
Mr. Lalit submitted that Tarabai had no power or authority to lease the suit
land. He submitted that the consent decree dated 7th October 1971 provides that Tarabai had no authority to lease out any
piece of land. He submitted that thereafter the suit filed by Tarabai had been
dismissed on 25th June,
1976. He submitted
that there were thus two decrees of competent court against Tarabai. He
submitted that both these decrees provided that Tarabai had no right to lease
out any piece of land. He submitted that the lease created in favour of the
Appellants on 6th September, 1980 was illegal and could not be enforced against
Respondents 1 and 2. He submitted that in view of the decrees of the court it
could not be said that the Appellant was lawfully cultivating the suit land. He
submitted that as the Appellant was not lawfully cultivating the suit land she
could not be deemed to be a tenant under Section 4. He submitted that the
Appellant was merely a trespasser. He submitted that a suit for possession
against a trespasser lay in a civil court. He submitted that Respondents 1 and
2 had filed such a suit and they had succeeded in that suit. He submitted that
once the civil court held that the Appellant was a trespasser, the Appellant
could not take advantage of the proceedings adopted by her under the said Act.
He submitted that the executing court, the Appellant Court and the High Court had rightly rejected the claim of the
Mr. Lalit strongly relied on the case of Latchaiah v. Subramaniam reported in
(1967) 3 SCR 712. In this case the Respondent (therein) had obtained a decree
in his favour declaring that he was the owner of the land and that the wife of
his adoptive father had no title to the suit land. During pendency of the suit
the widow was in possession of the land. After the decree was passed she
executed a lease in favour of the Appellant (therein). The question was whether
the Appellant could be said to be lawfully cultivating the land. This Court
held that after the decree the widow was trespasser and thus could not create
any right in the land in favour of anybody. Mr. Lalit submitted that the ratio
laid down in this case fully applies to the facts of our case. We are unable to
agree. In our case there is no decree holding that Tarabai had no right or
title to the suit land. Tarabai admittedly had a limited interest and was
recorded as a Kabjedar. The relevant term of the Deed of Settlement, set out
hereinabove, shows that Tarabai had during her lifetime a right to be in
possession and to cultivate the suit land. The consent Decree did not take away
that right. Tarabai was not a trespasser on the suit land.
Mr. Lalit also relied on the case of Gopala Genu Wagale v. Nageshwardeo reported
in (1978) 2 SCC 47. In this case the question was whether a sub-tenant can be
deemed to be a tenant under Section 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 the
tenant had sublet. This Court held that as subletting was not lawful, a
sub-tenant could not claim to be a deemed tenant. In our view this authority is
based on the provisions of the said Act which expressly provide that
sub-letting shall not be valid. In the said Act there is no provision that a
person with a limited interest cannot permit somebody else to cultivate the
the other hand, Mr. Bhasme has relied on a Constitution Bench judgment of this
Court in the case of Ram Autar v. State of U.P. reported in (1963) 3 SCR 1. In
this case the question was whether a tenant of the mortgagee could be evicted
by the mortgagor after the property was redeemed. With reference to Section 4
of the said Act it was held as follows:
Act 1948, it is undisputed, seeks to encompass within its beneficent provisions
not only tenants who held land for purpose of cultivation under contracts from
the land owners but persons who are deemed to the tenants also.
point in controversy is whether a person claiming the status of a deemed tenant
must have been cultivating land with the consent or under the authority of the
for the appellants submits that tenancy postulates a relation based on contract
between the owner of land, and the person in occupation of the land, and there
can be no tenancy without the consent or authority of the owner to the
occupation of that land. But the Act has by s.
devised a special definition of tenant and included therein persons who are not
contractual tenants. It would therefore be difficult to assume in construing s.
4 that the person who claims the status of a deemed tenant must be cultivating
land with the consent or authority of the owner.
relevant conditions imposed by the statute is only that the person claiming the
status of a deemed tenant must be cultivating land "lawfully": it is
not the condition that he must cultivate land with the consent of or under
authority derived directly from the owner. To import such a condition it is to
rewrite the section, and destory its practical utility. A person who derives
his right to cultivate land from the owners would normally be a contractual
tenant and he will obviously not be a "deemed tenant". Persons such
as licencees from the owner may certainly be regarded as falling within the
class of persons lawfully cultivating land belonging to others, but it cannot
be assumed therefrom that they are the only persons who are covered by the
section. The Act affords protection to all persons who hold agricultural land
as contractual tenants and subject to the exceptions specified all persons
lawfully cultivating lands belonging to others, and it would be unduly
restricting the intention of the Legislature to limit the benefit of its
provisions to persons who derive their authority from the owner, either under a
contract of tenancy, or otherwise. In our view, all persons other than those
mentioned in cls. (2), (b) and (c) of s. 4 who lawfully cultivate land
belonging to other persons whether or not their authority is derived directly
from the owner of the land must be deemed tenants of the land." 22. Mr. Bhasme
has also relied on the case of Rukhamanbai v. Shivram reported in (1981) 4 SCC
262. In this case the facts were almost identical. The question was whether a
lessee of a person with a limited estate acquired the status of deemed tenant
under Section 4.
three Judge Bench held that the lessee acquired the status of a deemed tenant
and the Tribunal was justified in determining the purchase price under Section
Faced with this position Mr. Lalit submitted that in this case there was a
decree, after contest, between the Appellant and Respondents 1 and 2. He
submits that that decree is binding on the Appellant and can be executed
against the Appellant. We have read the decrees/orders of the civil court. In
passing the decree and holding the Appellant to be a trespasser the civil court
has not considered the provisions of the said Act. The conclusion that the Appellant
is a trespasser is dehors rights of the Appellant under the said Act. Mr. Lalit
submitted that the Appellant never claimed, before the civil court that she was
a deemed tenant. He submitted that Appellants could have contended before the
civil court that she was a deemed tenant under the said Act. He submitted that
as the Appellant has not taken this contention before the civil court she is
now debarred from raising a claim under the said Act. We see no substance in
this submission. The Appellant had already made an application under Section
32-O before the suit was filed by the Respondents 1 and 2.
1 and 2 were aware that the Appellant had made such an application. The
Appellant was pursuing her remedy under the said Act before the appropriate
authority. Respondents 1 and 2 were also parties to those proceedings and were
contesting those proceedings.
are not questions which could be raised before a civil court.
rightly neither Respondents 1 and 2 nor the Appellant took up this question
before the civil court. Even if the question had been raised the civil court
could not have decided it. The civil court would have had to refer the issue to
the appropriate authority and then abide by its decision. A decree passed
without the consideration of the provisions of the said Act must be subject to
orders of the appropriate authority in proceedings under the said Act.
Thus so long as the certificate stands the decree cannot be executed against
the Appellant. It is only if Respondents 1 and 2 succeed in getting the
Certificate set aside, in their pending Revision, that they can execute the
decree. It would be open for Respondents 1 and 2 to pursue the Revision filed
by them against the order dated 23rd November 2000. We realise that a Revision
is on limited grounds. We have noticed that the Appellate Authority dismissed
the Appeal of Respondents 1 and 2 merely on the ground that this Court had
stayed the operation of the decree passed by the civil court. If the revisional
authority so desires it may remit the matter back to the Appellate Authority
for a decision on merits in accordance with law. We, however, clarify that the
decision of the Revisional Authority or the Appellate Authority must be based
only on the provisions of the said Act. Findings given by the Civil Court, dehors
the provisions of the said Act, and any observation made by us on that question
cannot be taken into consideration in deciding whether Appellant is a deemed
the aforesaid reasons this Appeal is allowed. The impugned Judgment dated 23rd
August 1999, as well as the Order passed by the Appellate Authority on 28th
June 1999 and the Order passed by the Executing Court on 12th February 1999 are
set aside. We hold that so long as the Certificate stands the decree, obtained
by Respondents 1 and 2, cannot be executed against the Appellant. We clarify
that if Respondents 1 and 2 succeed in the Revision filed by them, then they
would be at liberty to apply for execution of the decree obtained by them.
Appeals stand disposed of accordingly. There will no order as to costs.
Shah Mohammed Quadri) ......J.
Variava) March 22, 2002.