Papila
Bai Vs. Chavdas T. Bhortakke & Ors [2005] Insc 20 (10 January 2005)
Shivaraj
V. Patil & B.N. Srikrishna Srikrishna, J.
These
five appeals by special leave impugn the judgment of the High Court of
Judicature of Bombay, Aurangabad Bench in a common judgment rendered in Writ
Petition No. 184 of 1992 along with Civil Revision Application No. 329 of 1995
and Civil Application No. 339 of 1998 and Review Application No. 5091 of 1998
along with Review Application No. 5094 of 1998.
Facts:
One Hari
Vithoba was the owner of land bearing Survey No. 42, admeasuring about 8 acres
and 21 gunthas in village Mehun, Taluka Edlabad, Distt. Jalgaon, Maharashtra. Hari Vithoba mortgaged the said
land by a conditional sale deed executed in favour of one Dattatray Kulkarni,
sometime in the year 1941. Although the stipulated period of redemption was
seven years, upon expiry of which the owner of the land was to get back the
possession of the land on repayment of the stipulated amount, the said period
expired sometime in April, 1947. The mortgagee in possession, Dattatray Kulkarni,
had, in the meantime, inducted one Chavdas Totaram Bhortakke as his tenant and
the said Chavdas Totaram get his name entered in the revenue record as the
tenant of the land. The mortgagee in possession, Dattatray Kulkarni, died on
25.2.1957 and his wife Durgabai succeeded him.
In
1977 the present appellant, who is daughter of the original owner, Hari Vithoba,
filed a suit for redemption of the mortgage before the competent court, Bhusawal,
being suit RCS No. 127 of 1977. The appellant and Durgabai entered into a
compromise in terms of which a decree for redemption came to be passed by the
court. On 22.2.1978 the appellant filed an application before the Tehsildar and
prayed that it be declared that the First Respondent herein was not a tenant of
the suit land and, alternatively prayed that, if it was held that the present
respondent was a tenant, then a certificate under Section 88C of the Bombay
Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act')
be issued to her. The Tehsildar held that the First Respondent herein was a
tenant of the land and granted a certificate under Section 88C in favour of the
appellant. This order of the Tehsildar came to be challenged by the heirs of
Late Chavdas Totaram in tenancy Appeal No. 19 of 1980 against the grant of 88C
certificate. The appellant also filed an appeal No. 26 of 1980, being aggrieved
by the declaration of tenancy in favour of the First Respondent. The Sub
Divisional Officer confirmed the order of the Tehsildar and dismissed both the
appeals.
The
heirs of Late Chavdas Totaram filed Writ Petition No. 3045 of 1985 before the
High Court of Judicature of Bombay
challenging the grant of 88C certificate in favour of the appellant. This writ
petition was dismissed by the High Court against which no proceedings were
taken.
Consequently,
the certificate issued under Section 88C became final.
The
appellant herein filed Revision Application No. 166 of 1985 before the Maharashtra
Revenue Tribunal challenging the decision of the Sub Divisional Officer dated
26.2.1985. Simultaneously, the appellant also filed Darkhast Proceedings before
the Executing Court for execution of the compromise
decree passed in the redemption suit. The heirs of Late Chavdas Totaram, the
present respondents, sought stay of the execution proceedings. However, the Executing Court dismissed the said prayer.
Revision
Application No. 166 of 1985 filed by the present appellant came to be allowed
by the Maharashtra Revenue Tribunal. The decision of the Maharashtra Revenue
Tribunal was challenged by the present First Respondent before the High Court
in Writ Petition No. 184 of 1992.
Although
the First Respondent challenged the decision of the Executing Court by an
appeal before the District Court, there being no stay order at one point of
time, a warrant of possession was issued and pursuant thereto the appellant
took the possession of the land. The warrant of possession was also challenged
before the High Court by a civil revision application which was clubbed to be
heard with Writ Petition No. 184 of 1992. The respondents moved the High Court
by Civil Application No. 2475 of 1995 seeking restoration of the possession. A
number of legal proceedings between the parties ensued, which were all clubbed
together by the High Court and disposed of by the common judgment, which is
under appeal.
The
High Court allowed the writ petition and set aside the order of the Maharashtra
Revenue Tribunal and sustained the objections to the execution of the decree by
holding that the decree passed in civil suit RCS No. 127 of 1977 was not
binding against the present respondents (heirs of deceased Chavdas Totaram).
The High Court has arrived at the categorical finding that the document
executed in 1941, though styled in the nature of a sale deed, was really a deed
of mortgage by conditional sale and, in any event, the said issue was not very
material as the heirs of the mortgagee had consented to the decree of
redemption being passed and thus had accepted that the transaction was one of
mortgage and not sale. The High Court emphasized the fact that the present
appellant had sought for and obtained a certificate under Section 88C of the
Act, which had become final and binding on the parties. A certificate issued
under Section 88C necessarily evidences that the land of the landlord has been
leased to another person, that the total annual income of the landlord does not
exceed Rs. 1500, and further that the land is exempted from the provisions of
Sections 32 to 32-R of the Act. It is only after ascertaining these facts, that
the Mamlatdar is required to issue a certificate in the prescribed form. In the
instant case, such a certificate under Section 88C had been issued in favour of
the appellant as landlord as against the First Respondent as a tenant. The High
Court took the view that this certificate, therefore, was evidence of the fact
that deceased Chavdas Totaram was a tenant of the appellant.
Placing
reliance on the decision of this Court in Dahya Lal and Ors. v. Rasul Mohammed
Abdul Rahim , the High Court was of the view that the First Respondent was
"lawfully" in possession of the land and "lawfully"
cultivating the land and, therefore, was a deemed tenant within the meaning of
Section 4 of the Act. Consequently, the First Respondent continued to have the
right as a tenant even after the redemption of the mortgage and extinguishment
of the interest of the mortgagee in possession. The right of the First
Respondent, which was originally derived from the mortgagee in possession,
fructified into a full-fledged statutory right by reason of the provisions of
the Act, because of his fulfilling the description of 'deemed tenant' within
the meaning of Section 4 of the Act. On this reasoning, the High Court held
that the First Respondent could not have been evicted from the land.
Contentions:
Learned
counsel for the appellant strenuously contended that the view taken by the High
Court was legally unsustainable. He strongly relied on the judgment of this Court
in Hanmanta Daulappa Nimbal v. Babasaheb Dajisaheb Londhe and urged that unless
there was an express provision in the mortgage deed empowering the mortgagee in
possession to induct a tenant, any person inducted on the land would be a
trespasser and, therefore, not in "lawful" cultivation of the land.
Consequently, such a person did not fulfil the requirements of Section 4 and
did not become a deemed tenant of the land. The observations in Hanmanta case
(supra) appear to support the contention. However, the attention of their
Lordships does not appear to have been drawn to the earlier judgment of this
Court in Dahya Lal (supra) rendered by a Bench of five learned Judges. Under
somewhat similar circumstances, a mortgagee in possession had inducted the
respondent as the tenant of the land. The question arose as to whether the
respondent could be deemed to be a tenant within the meaning of Section 4 as
"a person lawfully cultivating the land belonging to another person"
and not falling within the excepted categories. This court rejected a similar
argument by the following observation:
"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. The relevant condition 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 destroy 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 is 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. (a), (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 lands." (emphasis ours) The Court also rejected the argument by
saying that the principle applicable under the Transfer of Property Act, 1882,
namely, that the right of a tenant inducted by a mortgagee in possession
ordinarily came to an end with the extinction of the mortgage by redemption,
had no application in the interpretation of a statute which has been enacted
with the object of granting protection to persons lawfully cultivating
agricultural lands. It also emphasized that "a tenant of a mortgagee in
possession is inducted on the land in the ordinary course of management under
authority derived from the mortgagor and so long as the mortgage subsists even
under the ordinary law he is not liable to be evicted by the mortgagor."
Then the Court added "it appears that the Legislature by restricting the
exclusion to mortgagees in possession from the class of deemed tenants intended
that the tenant lawfully inducted by the mortgagee shall on redemption of the
mortgage be deemed to be tenant of the mortgagor." This judgment, in our
view, really clinches the issue, but does not seem to have been noticed in the
decision of the Bench of two learned Judges in Hanmanta case (supra). To the
extent it suggests a view contrary to the judgment of the Constitutional Bench
of this Court in Dahya Lal (supra), it is not good law.
Learned
counsel also referred to Mahabir Gope and Ors. v. Harbans Narain Singh and Ors.
and Harihar Prasad Singh & Anr. v. Must. of Munshi Nath Prasad & Ors. .
Both these judgments have been considered by a later judgment in Prabhu v. Ramdev
& Ors. rendered by a Bench of five learned Judges. Prabhu distinguishes and
explains Mahabir Gope (supra) and Harihar Prasad (supra). We may also noticed
that Prabhu was a case arising squarely under the Transfer of Property Act,
1882, and considered the impact of Section 15 of the Rajasthan Tenancy Act,
1955, but was not concerned with the application of the Bombay Tenancy and
Agricultural Lands Act, 1948 or any other equivalent Legislation. Even in Prabhu
(supra), the view taken by the Revenue Board that the respondents, who had been
inducted by the mortgagee in possession, were not trespassers, was upheld by
this Court, by reason of the application of provisions of Section 15 of the
Rajasthan Tenancy Act, 1955. Explaining away of the observations in Mahabir Gope
(supra), the Court said:
"It
must be remembered that these observations were made by reference to the normal
relationship between the mortgagor and the mortgagee and their respective
rights and obligations as determined by relevant provisions of the Transfer of
Property Act.
Having
made these observations, however, this Court has taken the precaution to point
out that even in regard to tenants inducted into the land by a mortgagee cases
may arise where the said tenants may acquire rights of special character by
virtue of statutory provisions which may, in the meanwhile, come into
operation. A permissible settlement by a mortgagee in possession with a tenant
in the course of prudent management and the springing up of rights in the
tenant conferred or created by statute based on the nature of the land and
possession for the requisite period, it was observed, was a different matter
altogether. Such a case is clearly an exception to the general rule prescribed
by the Transfer of Property Act." The judgments in Jadavji Purshottam v. Dhami
Navnitbhai Amaratlal and Ors. , The All India Film Corporation Ltd. and Ors. v. Sri Raja Gyan Nath and Ors. , and Carona
Shoe Co. Ltd. and Anr. v. K.C. Bhaskaran Nair , and reliance on the judgment of
learned Single Judge in Naravansa Dharamchandsa v. Laxman Motiram and Anr. are
of no avail, in our judgment. The proposition of law laid down in Dahya Lal
(supra) and reiterated by the other Constitutional Bench judgment in Prabhu
(supra) still hold the field, notwithstanding the cited judgment of the Bench
of two learned Judges which appears to make slight distinction on the basis of
factual parameters.
Conclusion:
In the
circumstances, considering the law laid down by the two judgments of the
Constitutional Benches, we are of the view that the impugned judgment of the
High Court can hardly be faulted.
In the
result, we see no merit in the appeals and hereby dismiss the appeals. However,
there shall be no order as to costs.
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