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1987 Supreme(Bom) 370
IN THE HIGH COURT OF BOMBAY
Guttal G.H., J.
N.D. Muthuswamy Rao others....Plaintiffs.
Versus
Mewalal Rajaram Dube others....Defendants.
Suit No. 454 of 1970, decided on 30-10/2-11-1987.
Advocates appeared :
P.L. Nain i/b. M.V. Jaykar and Co., for plaintiffs.
A.Y. Bookwala with J.R. Shah i/b. Bhatt and Co., for defendants Nos. 1 to 5.
G.J. Desai with R. Gupta Hema Chaurikar i/b. Gordhandas Fozdar, for defendants Nos. 11 to 16, 21, 22, 23, 25, 28, 30 33.
M.M. Bhatt, for defendants Nos. 7 18.
Important Points
Subject
Property Law - LANDLORD AND TENANT
Act Referred
CIVIL PROCEDURE CODE : O.22, R.4, O.22 R.4
Headnote
BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - SECTION 63 - SALE OF AGRICULTURAL LAND - VALIDITY - NOTIFICATION UNDER SECTION 88(1)(B) - RETROSPECTIVE EFFECT - CO-OWNERSHIP OF PROPERTY - SUIT FOR RECOVERY OF POSSESSION - ABATEMENT OF SUIT - REPRESENTATION OF ESTATE OF DECEASED CO-OWNER.
Fact of the Case:
Plaintiffs, as co-owners, filed a suit for declaration of title and possession of land against defendants, alleging trespass. The land was purchased by the plaintiffs in 1949. The defendants claimed adverse possession and that the sale was void under Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Tenancy Act).
Finding of the Court:
1. The notification issued under Section 88(1)(b) of the Tenancy Act on 29th March, 1957, excluding the suit land from the application of Sections 1 to 87-A of the Tenancy Act, operates retrospectively. Therefore, the prohibition imposed by Section 63 of the Tenancy Act does not apply, and the sale in favor of the plaintiffs cannot be held void. 2. In a suit for recovery of possession by co-owners, all co-owners must be joined as plaintiffs. One co-owner cannot sue on behalf of all the co-owners. 3. The suit abates in its entirety due to the failure to bring the legal representatives of the deceased co-owner on record.
Issues: 1. Whether the land in question was an agricultural land within the meaning of the Tenancy Act on the date of purchase by the plaintiffs? 2. Whether the sale deed in favor of the plaintiffs was void due to the provisions of Section 63 of the Tenancy Act? 3. Whether the plaintiffs have a cause of action to file the suit based on the sale deed? 4. Whether the defendants have perfected their title to the suit land by adverse possession? 5. Whether the defendants can claim title by adverse possession in view of their earlier claim of being tenants? 6. The effect of the death of one plaintiff on the continuation of the suit and whether the suit has abated.
Ratio Decidendi: 1. The notification under Section 88(1)(b) of the Tenancy Act, excluding the suit land from the application of Sections 1 to 87-A of the Tenancy Act, operates retrospectively. This is based on the judgment of a Division Bench of the Bombay High Court in Messrs Nilesh Construction Co. v. Gangubai, which interpreted the Supreme Court's judgment in S.N. Kamble v. Solapur Municipality as laying down a rule that the notification under Section 88(1)(b) operates retrospectively. 2. In a suit for recovery of possession by co-owners, all co-owners must be joined as plaintiffs. One co-owner cannot sue on behalf of all the co-owners. This is based on the general rule laid down in Balkrishna Moreshwar Kunte v. The Municipality of Mahad and Navheri and others v. Shek Jamal. 3. The suit abates in its entirety due to the failure to bring the legal representatives of the deceased co-owner on record. This is because the estate of the deceased co-owner is not represented, and a decree in favor of the surviving co-owner alone would derogate from the rights of the deceased co-owner.
Final Decision: The suit is dismissed in its entirety with costs. The interim order appointing a Receiver shall continue for a period of 12 weeks from the date of the judgment.
Guttal G.H., J.:—In this suit the plaintiffs seek a declaration that they are the owners of the land admeasuring 17,730 Square Yards out of Survey No. 18, Plot No. 1, situated in the Village of Vadhwan, Taluka South Salsette, in the registration Sub-District of Bandra, District Bombay Suburban, in Greater Bombay, and a decree for possession against the defendants.
In a nutshell the plaintiffs' case is as set out in paragraphs 2 and 3 below:
2. The defendants 1 to 5 are the sons of Rajaram Dube who once claimed to be a tenant of the property. The remaining defendants are in occupation of structures alleged to have been erected illegally by Rajaram Dube.
3. The plaintiffs Nos. 1 and 2 purchased the suit land from Ramkumar Fulchand and others, whose title is not in serious dispute. This was done by a Deed of Conveyance dated 30th September, 1949. The plaintiffs' names were duly entered in the record of rights. However, the land was taken over temporarily by the Government of India, Defence Department, for the Central Ordnance Depot, Kandivali, sometime in 1946. Meanwhile, Rajaram Dube trespassed upon the land, which was in the occupation of the Defence Department in their “Security Zone”. On or about 5th March, 1951 the Military Police ejected the said Dube from the said security zone. Meanwhile Dube's name was entered in the record of rights as a tenant. On coming to know of this, the plaintiffs, by Suit No. 19 of 1952/1953 before the Mamlatdar, Borivali, sought an order deleting the name of Dube. After recording evidence of 12 witnesses examined by the Plaintiffs and the said Dube, the Mamlatdar, Borivali, ordered that the name of Rajaram Dube be deleted from the record of rights. After securing this order, the plaintiffs made an application under Section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948, for eviction of Rajaram Dube. This application made on 28th December, 1955 was granted by Mamlatdar on 18th August, 1956. Having failed in the Revenue Courts Rajaram Dube filed a civil suit, being Suit No. 514 of 1956, before the Civil Judge, Borivali, and sought a declaration that the order of the Mamlatdar, ordering deletion of his name was illegal. He also sought a declaration that the sale of the suit land in favour of the plaintiffs was void. An injunction restraining the plaintiffs from executing the order of eviction dated 18th August, 1956 was also sought. In 1956 or thereabout the village Wadhwan which was part of Borivali Taluka merged into the limits of Greater Bombay. Consequently, the suit was transferred to the Court of Civil Judge, Junior Division, Bassein, who dismissed it on 17th March, 1958. As already stated, it is the plaintiffs' case that Rajaram Dube illegally constructed the structures and inducted into them the defendants Nos. 6 to 35. According to the plaintiffs, since Rajaram Dube was a trespasser, his heirs who are defendants Nos. 1 to 5 are also trespassers. Since the defendants Nos. 6 to 35 were inducted by the defendants Nos. 1 to 5 they are also trespassers.
4. The substance of the defendants' case, in so far as is relevant at this stage, is two-fold. Firstly, they urge that the land purchased by the plaintiffs is an agricultural land to which the Bombay Tenancy and Agricultural Lands Act, 1948 applies. Under section 63 of the Bombay Tenancy Act, no sale of any agricultural land shall be valid in favour of a person who is not an agriculturist unless the sale has been entered with the permission of the Collector as required under that section. Since the plaintiffs are not agriculturists and in the absence of permission from the Collector the sale on the basis of which the suit is filed is void. Secondly, they urge that the plaintiffs Nos. 1 and 2 are co-owners of the entire land as they have purchased it jointly in their names. This suit was instituted on 2nd March, 1976. The Plaintiff No. 2 died on 26-9-1983. The legal representatives of the plaintiff No. 2 have not been broug
