A tenant in possession can challenge the execution of an order for possession obtained by the landlord, and the authorities are obligated to decide the question of tenancy when raised in an execution proceeding.

Headnote:
TENANCY - BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1958 - SECTION 36(2), 44, 100 - POSSESSION OF LAND - TENANT'S RIGHT TO CHALLENGE EXECUTION OF ORDER FOR POSSESSION OBTAINED BY LANDLORD - DUTY OF AUTHORITIES TO DECIDE QUESTION OF TENANCY - STATUTORY OWNERSHIP CONFERRED ON TENANT - EFFECT ON EXECUTION OF ORDER FOR POSSESSION.
Fact of the Case:

The petitioner, Shewa, claimed to be the tenant of a piece of land and was in physical possession of it. The respondent, Bhawarilal, claiming to be the purchaser of the land, obtained an order for possession in his favor as landlord under Section 36(2) of the Bombay Tenancy and Agricultural Lands Act, 1958. The petitioner applied to the Naib Tahsildar, Darwha, objecting to the execution of the order, but his application was rejected. The petitioner was also served with a notice for suo motu conferment of statutory ownership right under the same Act relating to the same piece of property. The Agricultural Lands Tribunal, Darwha, conferred statutory ownership on the petitioner.
Finding of the Court:

The court held that the revenue authorities had declined to exercise their jurisdiction by not deciding the application filed by the petitioner. The court also held that the petitioner was entitled to possession of the land as he had been conferred with statutory ownership under the provisions of the Act.
Issues: 1. Whether the petitioner, as a tenant in possession, could challenge the execution of an order for possession obtained by the landlord. 2. Whether the authorities were obligated to decide the question of tenancy when raised in an execution proceeding. 3. Whether the statutory ownership conferred on the petitioner affected the execution of the order for possession.
Ratio Decidendi: 1. Section 44 of the Evidence Act permits a person to lead evidence to show that an order is not binding in any proceeding. 2. Section 100 of the Bombay Tenancy and Agricultural Lands Act, 1958, confers an obligation coupled with duty upon the authority to do justice between the parties with respect to their valuable rights. 3. The statutory ownership conferred on the petitioner under the provisions of the Act could not be disturbed by an order made in favor of the landlord.
Final Decision: The court allowed the petition, set aside the orders passed by the Maharashtra Revenue Tribunal and the lower authorities, and remitted the matter to the Naib Tahsildar, Darwha, for deciding the application of the petitioner keeping in view the observations made by the court. The petitioner was also awarded costs from the respondent.

JUDGMENT - 1. The present petition has peculiar facts of its own. The respondent No.1 Bhawarilal claiming to be the purchaser as per sale-deed dated December 20, 1952, which is produced in this case, appears to have applied under Section 36 (2) of the Bombay tenancy and Agricultural Lands Act, 1958, for possession of the land styling Gawarishankar (respondent No. 2) as the tenant and Mangayya (respondent No.3) as the sub-tenant. Those proceedings were registered separately and came to be determined in favour of Bhawarilal in which an order for possession in his favour as landlord was made. In the execution of that order, the present petitioner, who claimed to be in physical possession of the property and as tenant of the land, came to know about this order. Therefore, he applied to the Naib Tahsildar, Darwha, that he was a tenant of the land and was physical possession of the land and that he is being dispossessed in an execution proceeding upon the basis of the order obtained by Bhawarilal. Though the objection was of vital importance and reached the very basis of such an execution, a cryptic order was made rejecting the application on February 29, 1968. It must be observed that even in execution if it is shown that the order was made upon mistake or fraud which affects the very validity of the order under execution rendering it ineffective, it can properly be questioned by an one. Section 44 of the Evidence Act in terms applies to such matters and permits a person to lead evidence to show that the order is not binding in any such proceeding. Completely oblivious of the salutary principle in this regard, all the authorities under the Act have consistently rejected the application, appeal and revision application filed by the present tenant. That is how the tenant is driven to this Court.

2. Simultaneously, it appears, this petitioner Shewa s/o Laccha Banjar was served with notice for suo motu conferment of statutory ownership right under the very same Act relating to the very same piece of property. The record of that case which has been called in this petition has been perused by me. There the tenancy authorities have treated one Parasmal Kundanlal Marwadi as the eland-holder of the very same land and it appears that the petitioners name has been properly shown as the tenant of the land. On the basis of the revenue record an enquiry was made by the Agricultural Lands Tribunal, Darwha, and by an order dated December 28, 1967, this very property is statutorily conveyed to the present petitioner. An appeal was taken against that order, so also the revision, and the matter is concluded by an order made by the Maharastra Revenue Tribunal in Tenancy Revision Application No-Ten-A-1242/1968. There the question relating to Gawarishankar and Bhawarilal also appears to have been considered and the Tribunal has observed that Parasmal Kundanlal is fighting out the litigation in which he has no interest and the person who is interested is doing nothing. Thus, on the one hand the petitioner has been conferred with the statutory ownership under the provisions of the Act being the tenant in possession and on the other, an order is being executed against the very same land on the process being taken out by one Bhawarilal, the respondent No.1, against the respondents Nos. 2 and 3.

3. It has to be pointed out that the provisions of the Bombay Tenancy and Agricultural Lands Act, 1958, confer an obligation coupled with duty upon the authority to do justice between the parties with respect to their valuable rights. Section 100 speaks of duty to decide whenever the question is raised whether a particular person is a tenant of the land or not. That power can be invoked either by an application in the original proceeding or in the manner done, as in the case, even in an execution proceeding if such a finding would render the execution a nullity under the Act. If for instance the allegations made in the application by Shewa were correct, then his posse

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1972 Supreme(Bom) 143

IN THE HIGH COURT OF BOMBAYMasodkar B.A., J.Appellants: Shewa Lachha BanjarVs.Respondent: Bhawarilal Ganeshmal Marwadi and Ors.Special Civil Appln. No. 191 of 1969 Decided On: 02.12.1972Counsels: For Appellant/Petitioner/Plaintiff: J.N. Chandurkar, Adv.For Respondents/Defendant: F.B. Gandhe, Adv.

A tenant in possession can challenge the execution of an order for possession obtained by the landlord, and the authorities are obligated to decide the question of tenancy when raised in an execution proceeding.