Important Point
Suo motu power under Section 49B of the Bombay Tenancy Agricultural Lands Act, 1958 by Tahsildar could be exercised only where a tenant referred to in Section 46 or 49A was in possession of the land on the appointed day but was dispossessed before the relevant date. Thus before a power could be exercised under it there has to be a tenant of the suit land, who is dispossessed on the relevant date.

Headnote:(i) Bombay Tenancy and Agriculture Lands (Vidarbha Region) Act, 1958 - Sections 8(1)(3) and 49B-Transfer of possession and ownership of lands to dispossessed tenants-Suo motu proceedings by Tahsildar-Condition precedent to -Before power under Section 49B could be exercised there has to be a tenant of suit land who is disposed on the relevant date-Proceedings under Section 8 initiated by land owner for deletion of respondent name from records of right on ground respondent was not tenant-Compromise whereby respondent admitted that he was not tenant - Tahsildar ordering deletion of name of respondent in terms of compromise-No appeal filed and or became final-After 11 years Tahsildar initiated proceedings under Section 49B-Proceedings dropped in view of earlier order u/s 8-Deputy Collector (Land Reforms) holding that compromise was brought upon under pressure allowed appeal in favour of respondent-Revenue Tribunal and High Court affirming Deputy Collectors decision-Whether correct? -No-Exercise of power by Tahsildar suo motu itself is without jurisdiction and unsustainable in law-Lower authorities not justified in deciding case in favour of respondent, alleged tenant.
       Held : Tahsildar while exercising his suo motu power under Section 49B has to initiate on the basis of materials before him not arbitrarily. Every exercise of suo motu power explicitly or implicitly reveals to correct an error crept in under a statute, what ought to have been done was not done or which escaped the attention of any statutory authority, or error or deliberate omission or commission by the subject concerned requires correction, of course, within the limitation of any under such statute. This has to be based on some relevant material on record, it is not an omnipower to be exercised on the likes and dislikes of such an authority. Though such a power is a wide power but has to be exercised with circumspection within the limitations of such statute. Wider the power the greater circumspection has to be exercised. (Para 9)
       The question, whether respondent No. 1 was a tenant of appellants of the suit land came up for consideration under this very Act and the Tahsildar in a proceeding initiated under Section 8(3) passed an order deleting the name of respondent as tenant. The question, whether respondent No. 1 was tenant of appellants or not was directly in issue in this proceeding which was finally adjudicated by the competent authority, holding against the respondent. Section 49B refers to transfer of possession and ownership of lands to certain dispossessed tenant. This section is applicable only where a tenant referred to in Section 46 and 49A was in possession of the land on the appointed day but was dispossessed before the relevant date. Thus before a power could be exercised under it there has to be a tenant of the suit land, who is dispossessed on the relevant date. But this fact was no more res integra between the appellants and respondent No. 1 on the date suo notice was issued by the Tahsildar. As aforesaid, dispute if any regarding tenancy between respondent No. 1 and appellants of the suit land stood concluded in the proceedings under Section 8. The said order passed under Section 8 is appealable but no appeal was preferred. Thus so far the appellants and respondent are concerned, inter se between them, as they were parties therein, this issue became final. In other words, on the date when Tahsildar exercised his suo motu power of initiating proceeding under Section 49B there was no material on the record of the Tahsildar to proceed under it, the only record of an entry of 1958-59 stood erased when name of respondent No. 1 was deleted by the competent authority under this very Act. What was on the records of the Tahsildar when he initiated proceeding under Section 49B. Admittedly the only documentary evidence on records was the sole entry of 1958-59 which stood deleted by an order of the competent authority, viz., Tahsildar himself in accordance with law under this very same statute. Question is, has the Tahsildar any power under Section 49B to set aside an order passed under Section 8? Section 49B does not contain words, “Notwithstanding any thing in this statute” orders passed by Tahsildar both under Section 8 and Section 49B are subject to appeal or revision, but Section 8 order is not subject to Section 49B. This apart, what is primarily required for exercise of such power is that there has to be a tenant and he is dispossessed on the relevant date. So there has to be a tenant first, a tenant referred under Section 46 and 49A. (Paras 8 & 10)
       Section 49B stipulates enquiry where a tenant under Section 46 or Section 49A was in possession on the appointed date but was disposed on the relevant date to transfer back such land to such tenant and confer ownership on him. So far initiating proceeding there has to be something on record to show that once is a tenant of the suit land. It is significant both Section 46 and Section 49A opens; with the words “Notwithstanding anything in this chapter......”. Thus notwithstanding confines to the Sections of the chapter in which these Sections 46 and 49A are placed viz., Chapter III. We find Section 8 is in Chapter II. So orders passed under Section 8 would have its full effect. Section 46 and Section 49A confer right of ownership of the land on a tenant from the specified date. Thus Sections 49B, 49A and 46 refer to a tenant. According to Section 2(32) a person holding land on lease and further he is deemed to be a tenant under Sections 6, 7 and 8. A person lawfully cultivating any land of other person who is not cultivating such land personally or through other member of his family or servant then such a person would be deemed to be a tenant under Section 6. This question was up for consideration in a proceeding; under Section 8. Then Section 7 also refers to a person holding alienated land, trust etc. on a condition specified therein to be a deemed tenant. However, we are not concerned under it. Finally adjudication is made under Section 8, as to who is tenant, in case any objection is raised either by tenant, landlord or any other person. When objection is raised under Sub-section (2) of Section 8 disputing correctness of any entry, which is raised in this case, regarding 1958-59 entry, the Tahsildar decides the dispute in accordance with sub-section (2) of Section 100 of this Act, which is final, subject to appeal or revision. For deciding this Tahsildar is empowered to enquire to determine the real nature of the transaction between the parties, by taking such evidence as he deems fit by virtue of sub-section (4) of Section 8. (Paras 11 & 12)
       The Tahsildar reopened the very question which finally stood concluded viz., whether respondent No. 1 was or was not the tenant of suit land? He further erroneously entered into a new premise of re-opening the question of validity of the compromise which could have been in issue if at all in appeal or revision by holding that compromise was arrived at under pressure and allurement. How this question be up for determination when this became final under this very same statute. This is also not a case that respondent No. 1 made any application even under Section 46(1A)(a) for getting back the possession from the appellants or any application under Section 49B. So on the relevant date there did not exist any record for the Tahsildar to initiate proceedings suo motu except the record of 1958-59 entry which stood deleted. This apart, finding of pressure and allurement recorded was not even pleaded. No pleading has been placed before us which shows such a pleading though it was brought in by oral evidence. On the other hand, we find the compromise was acted upon as respondent No. 1 purchased part of the same suit land of an area of 10 acres 38 gunthas for the consideration of Rs. 7,000. In other words, the compromise was acted upon under which respondent gained part of the same property. On the facts of this case and further when respondent did not raise any such issue for 11 years, we find exercise of power by Tahsildar suo motu under Section 49B to be without jurisdiction and unsustainable in law. (Para 13)
       Further, it would be impermissible to permit any party to raise an issue inter se where such an issue under the very Act has been decided in an early proceeding. Even if res judicata in its strict sense may not apply but its principle would be applicable. Parties who are disputing now, if they were parties in an early proceeding under this very Act raising the same issue would be stopped from raising such an issue both on the principle of estoppel and constructive res judicata. The finding recorded even by the High Court that possession by the landlord could only be by an order under Section 36(2) is also not sustainable as that only conceived of the case where tenant is dispossessed and landlord is seeking to get back possession of the suit land from such tenant. In the present case there was no such question. For this respondent No. 1 has to be at least a tenant and whether he is a tenant stood concluded, as aforesaid earlier, hence initiation of proceeding under Section 49B cannot be sustained in law. (Para 14)
       Held consequently, the decision by the Appellate and the Revisional Authority in the proceedings under Section 49B and the High Court in the writ petition and finally under letters patent appeal contrary to what we have recorded above cannot be sustained. The authorities and the Court misdirected itself to conclude in favour of respondent by not properly construing the provisions of the Act and the power of Tahsildar to exercise under Section 49B of the Act. The said decision to the contrary is hereby set aside. (Para 16)
       (ii) Code of Civil Procedure-Section 11-Res judicata-Constructive res judicata - Respondent declared to be not a tenant, in proceedings initiated by land owner, on basis of compromise-Statutory appeal not preferred - After 11 years in suo motu proceedings of Tahsildar respondent claiming compromise was obtained under pressure and allurement-Cannot be accepted - Respondent estopped from revising issue on principles of estoppel and constructive res judicata.

Judgment

Misra, J.-The short question raised in this appeal is: whether on the facts and circumstances of this case when in a proceeding under Section 8 of the Bombay Tenancy and Agriculture Lands (Vidarbha Region) Act, 1958, the respondent No. 1 in terms of the compromise declared himself not to be the tenant of the disputed land and in pursuance thereof his name being deleted by the order of the Tahsildar under Section 8(3) could the Tahsildar in exercise of his suo motu under Section 49B after lapse of about 11 years declare respondent No. 1 to be tenant under the said Act?

2. In the present appeal respondent No. 1 claims to be tenant of the suit land of which appellants and respondent No. 2 claim to be the landlord/owner. To appreciate the controversy it is necessary to give certain facts. On 20th March 1959 appellants’ predecessors filed an application before the Tenancy Tahsildar for deleting the name of respondent No. 1 from the list of tenants to correct the records prepared under Section 8(1) of the 1958 Act. According to the said application the suit land is owned and possessed by the applicants and they have been cultivating it personally by engaging Saldars and labourers. The non-applicant’s father (Respondent No. 1) was engaged as a Saldar and worked as a Saldar in the field of the applicants for nearly 20 years. The respondent No. 1 was also engaged as such along with his father. The applicants also entrusted their bullocks and implement to the custody of their Saldars since the beginning. It was specifically averred in the said application that the Patwari of the village Dongarkhadala and Kherdi in collusion with the non-applicant had entered the name of the respondent No. 1 in the list of tenants prepared and published under Section 8. Hence a prayer was made for deleting the said name which was wrongly recorded therein. During the pendency of the said proceeding it is not in dispute a compromise was arrived at between the appellants and respondent No. 1 on 21st December 1960. In paragraph (g) of the said compromise respondent No. 1 admitted that he was never tenant of the appellants over the disputed land. The said compromise also spelt out other conditions. It seems that respondent No. 1 even prior to this compromise on 3rd December 1960 made an application in the said proceeding that his name be deleted from the list of tenants. This was done as earlier the parties seem to have arrived at a compromise which ultimately was only signed later. In pursuance to this on 30th December 1960 the Tahsildar ordered the deletion of name of respondent No. 1 in exercise of his power under Section 8(3) read with Section 100(2) of the said Act. This fact was also recorded by the Tahsildar in his order. It is significant to record here that none of the parties filed appeal against this order and this became final.

3. In fact, after this order in pursuance of the compromise as aforesaid, 10 acres 38 gunathas of land situated at Mouza Kherdi was purchased by respondent No. 1 from the appellants for a consideration of Rs. 7,000. Hence not only the name of respondent No. 1 was deleted but the compromise was acted upon by respondent No. 1 by taking the aforesaid land from appellants under the said compromise. After lapse of about 11 years in 1971 the Tahsildar initiated proceeding suo motu under Section 49B of the said Act. In pursuance to this notice the appellants (landlord) filed the written statement and stated that the land in suit belongs to his family since 1940 and it was cultivated personally by the family by engaging Saldars. It was never leased out to anybody at any time. It was further stated that respondent No. 1 was also one of the Saldars (servant) who had been cultivating land as such. Respondent No. 1 filed reply by stating that he and his father cultivated the suit land as tenant. respondent No. 1, however, admitted to have purchased the suit land of an area of 10 acres 38 gunthas from the appellants on 11th

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