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2005 Supreme(SC) 43
2005(1) Supreme 486
Supreme Court of India
(From Bombay High Court)
Shivaraj V. Patil & B.N. Srikrishna, JJ.
Papila Bai —Appellant
versus
Chavdas T. Bhortakke (Dead) by Lrs. and Ors. —Respondents
Civil Appeal Nos. 800-804 of 2000
Decided on 10-1-2005
Counsel for the Parties :
For the Appellant : V.A. Mohta, Sr. Advocate, Makarand D. Adkar, S.D. Singh, Vijay Kumar, Anurag Kishore, Nilakanta Nayak, Advocate for Vishwajit Singh, Advocates.
For the Respondents : S.V. Deshpande, Advocate.
Important pointTenant inducted by mortgagee in possession of agricultural land on redemption of land shall be holding status of “deemed tenant” and would not be liable to eviction in execution of decree obtained in mortgage redemption suit by mortgagor.
Headnote:Bombay Tenancy and Agricultural Lands Act, 1948—Section 4—Tenant inducted by mortgagee in possession—Status of tenant on redemption of mortgage—Such a tenant “lawfully” in possession of land was a deemed tenant—Right of 1st respondent which was originally derived from mortgagee in possession, fructified into a full-fledged statutory right under the Act because of fulfilling the description of “deemed tenant”.
Held : Placing reliance on the decision of this Court in Dahya Lal and Ors. v. Rasul Mohammed Abdul Rahim, 1963(3) SCR 1, 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. (Para 6)
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. (Para 10)
Judgment
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 :
2. 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.
3. 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.
4. 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
