1972 Supreme(Bom) 42

IN THE HIGH COURT OF BOMBAY
Malvankar P.S., J.
Appellants: Shantabai Ramchandra Ghatge and Ors.
Vs.
Respondent: Pandurang Ramchandra Mandlik and Ors.
A.F.A.D. No. 983 of 1966 Decided On: 27.03.1972
Counsels:
For Appellant/Petitioner/Plaintiff: D.M. Parulekar and M.R. Kotwal, Advs.
For Respondents/Defendant: R.G. Samant and N.S. Shrikhande, Advs.

A decision under Section 70 (b) of the Bombay Tenancy and Agricultural Lands Act, 1948 is not necessarily a decision under Section 4 of the Act. Only a decision that a particular person is a deemed tenant, strictly coming under Section 4 of the Act, would be appealable under Section 74 (1) (a) of the Act.

Headnote:

TENANCY - BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - SECTION 2 (18), 4, 29 (2), 70 (B), 74, 85-A - STATUS OF TENANT - JURISDICTION OF COMPETENT AUTHORITY - RES JUDICATA - APPEALABILITY OF DECISION - INTERPRETATION OF STATUTORY PROVISIONS.

Fact of the Case:

Dispute over four lands in Kolhapur. Plaintiffs leased the lands to Bhiva and Gundu Jadhav in 1950 for 10 years. After the lease expired in 1960, plaintiffs applied for possession under Section 29 (2) of the Bombay Tenancy and Agricultural Lands Act, 1948 (the Act), but the application was dismissed. Plaintiffs then filed an application under Section 88-C of the Act, which was also dismissed on the ground that the lands were governed by Section 43-C of the Act and the Act did not apply as the lands were within the limits of the Municipal Borough. A third application under Section 29 (2) read with Section 25 (2) of the Act was also dismissed by the tenancy authorities on the ground that the lands were grass lands and the authority had no jurisdiction to deliver possession under Section 29 (2) of the Act. This decision was ex parte. Plaintiffs served the defendants with a notice terminating the tenancy and claimed possession. Defendants resisted the suit, contending that the lands were agricultural lands and they were tenants under the Act. The trial court and the district court found that the ex parte decision in the tenancy proceedings operated as res judicata and passed a decree for possession in favor of the plaintiffs.

Finding of the Court:

1. The decision in the ex parte proceeding under Section 29 (2) of the Act did not amount to a finding regarding the status of the defendants as tenants under the Act. The competent authority raised the question of whether the lands were governed by the Act suo motu and found that they were grass lands, and therefore the Act did not apply and the authority had no jurisdiction to order delivery of possession under Section 29 (2) of the Act. 2. Even if the decision was treated as a finding that the defendants were not tenants under the Act, it would be a finding without jurisdiction and not binding on the defendants because the Act did not apply and the competent authority had no jurisdiction to record such a finding. 3. The decision in the ex parte proceeding was not appealable under Section 74 of the Act because it was not a decision under Section 4 of the Act. A decision under Section 70 (b) of the Act is not necessarily a decision under Section 4 of the Act. Only a decision that a particular person is a deemed tenant, strictly coming under Section 4 of the Act, would be appealable under Section 74 (1) (a) of the Act. 4. The decision in the ex parte proceeding, therefore, did not operate as res judicata and a reference to the competent authority under Section 85-A of the Act was necessary to decide the issue of whether the defendants were tenants under the Act.

Issues: 1. Whether the decision in the ex parte proceeding under Section 29 (2) of the Act amounted to a finding regarding the status of the defendants as tenants under the Act. 2. Whether the decision in the ex parte proceeding was appealable under Section 74 of the Act. 3. Whether the decision in the ex parte proceeding operated as res judicata.

Ratio Decidendi: 1. A finding recorded by a competent authority regarding the status of a person whether or not he is a tenant under the Act is a finding recorded with jurisdiction, even though the competent authority holds that the Act does not apply and therefore it has no jurisdiction to grant the relief claimed by the applicant-landlord or tenant, only if the competent authority determines any question under the Act in order to find out whether or not it has jurisdiction to grant any relief under the Act. 2. A decision under Section 70 (b) of the Act is not necessarily a decision under Section 4 of the Act. Only a decision that a particular person is a deemed tenant, strictly coming under Section 4 of the Act, would be appealable under Section 74 (1) (a) of the Act.

Final Decision: Appeal allowed. Decree of the trial court and the lower appellate court set aside. Record and proceedings of the suit remitted back to the trial court with a direction to raise necessary issues, make a reference to the competent authority under Section 85-A of the Act, and dispose of the suit according to law after receiving the findings.