Musamia Imam Haider Bax Razvi vs Rabari Govindbhai Ratnabhai

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1968 Supreme(SC) 222

SUPREME COURT OF INDIA
A.N.Grover : J.C.Shah : V.Ramaswami
Musamia Imam Haider Bax Razvi
Versus
Rabari Govindbhai Ratnabhai
Case No. : 312 , 313 of 1966
Date of Decision : 8/21/68
Advocates Appeared: Aggarwal B.R. : Bindra N.S. : Desai S.T. : Gagrat : Hathi K.L. : Nair S.P. : Nayar S.P. : Patel M.I. : Sanghi G.L.

Advocates:
B.R.AGRAWAL, CO., G.L.SANGHI, GAGRAT JANEDRA LAL, K.L.Hathi, M.I.PATEL, N.S.BINDRA, S.P.NAIR, S.T.DESAI

Headnote:
Wards Act, 1905 - Bombay Tenancy and Agricultural Lands Act, 1948 – Section 63 and 64, 85A , 2(18) , 32(1) , 31, 29 , 32-F , 32 , 63 (1) , 85 , 88 (1) 70 (b) , 70 and 85 - Mamlatdars courts Act., 1906- Guardians and Wards Act, 1890 - Bombay Tenancy and Agricultural Lands Rules, 1956 - Rule 36 - Amending Act 13 of 1956 - Properties - Heir - Recovery of Possession of Lands - Whether defendants were or were not tenants from date of suit - Whether a person is an agriculturist - Whether a person is a tenant or a protected tenant - Whether as owner or tenant or partly as owner - Whether High court was right in taking view that plaintiff failed to establish that lease vitiated by fraud - Whether defendants had become statutory owners of suit lands because of provisions of S. 32 - Whether defendants became statutory owners because of provisions contained in first proviso to S. 88 of amended Act - Whether Civil court had Jurisdiction to decide question whether defendants were tenants of suit lands - Whether lease was created in favour of defendants as claimed by them - Whether defendants were tenants - Whether defendants were or were not tenants of suit lands on material date - Whether lease was created which subsisted - Whether a person is a tenant - Whether a person was or was not a tenant in past-whether recent or remote - Whether defendants were tenants on date of suit - Whether they were or were not tenants in past - Whether defendants had acquired title of statutory owners to disputed lands - Whether defendants had become statutory owners of land - Whether defendants had been in past tenants in relation to land – Held, High court has found that defendants were not subsisting tenants which was date on which there was a cessation of management - Reason was that Kabuliyat was for a period of one year and having regard to fact that Act was not applicable to plaintiffs estate, tenancy would expire as provided for in Kabuliyat itself - High court therefore found that on basis that tenancy was created by Kabuliyat, tenancy came to an end, so that there was no subsisting tenancy on date of cessation of management - High court has furtner found that there was no subsisting tenancy when there was a cessation of management of court of Wards - Suit was brought by plaintiff on and argument put forward on behalf of plaintiff is that there was no plea on behalf of defendants that there was any intervening act, event or transaction between under which a fresh tenancy was created - In other words, argument on behalf of plaintiff was that only plea set up on behalf of defendants was plea of tenancy on which wasbasis of plea of statutory ownership - It was said that there was no other plea of tenancy set up by defendants subsequent to when management of court of Wards ceased - In Court opinion, argument is well founded and must be accepted as correct - On a proper interpretation of language of written statement Court is satisfied that there is no independent plea of tenancy set up by defendants as subsisting on date of suit and there was no issue which survived for being referred for decision of Mamlatdar under S. 85-A of Act – Court is accordingly of opinion that High court was in error in referring any such issue to Mamlatdar but instead should have granted a decree to plaintiff for recovery of possession of lands and also as to damages and mesne profits as decreed by trial court - Appeal dismissed.

V.RAMASWAMI, J.

(1) THESE appeals are brought, by special leave, from the judgment of the High Court of Gujarat dated 5/02/1963 in appeal No. 1009 of 1960 arising out of Civil Suit No. 64 of 1958 filed by Mussamiya Imam Haider Bax Razvi, appellant in Civil Appeal No. 312 of 1966 (hereinafter referred to as the plaintiff) against the respondents in Civil Appeal No. 312 of 1966 and the appellants (excepting the Charity Commissioner) in Civil Appeal No. 313 of 1966 (hereinafter referred to as the defendants).

(2) THE lands in dispute are located in the village Isanpur and form part of a Devasthan inam. The Sanads were created in the name of the ancestors of the plaintiff as the Sarjudanashi of the estate of Shah Alam which was an estate consisting of Roza, a mosque, a grave-yard and several other properties. The estate was last held by the father of the plaintiff who expired on or about 9/03/1948 leaving behind him the plaintiff who was then a minor as his only heir. On 26/08/1948 the Collector of Ahmedabad was appointed as the guardian of the properties of the plaintiff by an order of the District court, Ahmedabad. Subsequently, on or about 15/01/1953, the then Bombay government assumed management of the estate under the court of Wards Act, 1905 (Bombay Act No: 1 of 1905) and appointed the Collector of Ahmedabad as the manager of the same. The case of the plaintiff is that the defendants fraudulently entered into a conspiracy with the Collectors subordinate staff for getting possession of the disputed lands. In this connection the first defendant wrote to the District Collector, Ahmedabad on 25/07/1956 representing that certain persons formed or will form a Co-operative Society for carrying on agriculture and therefore required the lands for that purpose. Defendants 1, 2, 3 and 5 also made applications for that purpose alleging that they were Rabari, kept cattle and were residents of Ahmedabad but none of them had any agricultural land. On account of the fraud of the defendants the Collector was prevailed upon to make an order dated 28/07/1956 in breach of the provisions of ss. 63 and 64 of the Bombay Tenancy and Agricultural Lands Act (Bombay Act 67 of 1948), hereinafter referred to as the Act, and the Rules made thereunder granting possession of the lands to the defendants who were neither carrying on agriculture on cooperative basis nor ever formed a Co- operative Society. It was contended on behalf of the plaintiff that the lease granted to the defendants was void and the plaintiff was entitled to a decree for recovery of possession of the lands from the defendants and also for a sum of Rs. 10,000.00 for damages for use and occupation of the land prior to the date of the suit and ,for future mesne profits at the rate of Rs. 500.00 per month. The main written statement was filed by the first defendant and his contention was that the Civil court had no jurisdiction to hear the suit. It was said that valid lease had been created in favour of the defendants and as a result of the coming into force of the Amending Act (Bombay Act No. 13 of 1956) the defendants had become statutory owners of the lands in question. The suit came up for hearing before the 5th Joint Civil Judge, Senior Division at Ahmedabad who by his judgment dated 30/07/1960, held that the Civil court had jurisdiction to hear the suit and the provisions of the Act did not apply to the suit lands and therefore the defendants were trespassers. The learned Judge accordingly granted a decree in favour of the plaintiff for recovery of possession of the lands from defendants 1 to 8. He also granted the plaintiff a decree for a sum of Rs. 10,000.00 as damages for use and occupation of the lands with interest at 6 per cent p.a. from 1/08/1956 till the date of the suit i.e., 11/07/1958. The learned Judge further ordered that the plaintiff was entitled to recover mesne profits to be determined under O.20, r. 12, Civil Procedure Code. Defendants 1

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