Eknath s/o Raghoba and others vs Somla s/o Lalu Lamani through his legal heirs & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1991 Supreme(Bom) 284

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
N.P. Chapalgaonker, J.
Eknath s/o Raghoba and others.... Petitioners.
Versus
Somla s/o Lalu Lamani through his legal heirs others.... Respondents.
Writ Petition No. 334 of 1987, decided on 27-6-1991.
Advocates appeared :
Mrs. M.A. Kulkarni, for petitioners.
K.V. Kulkarni, for respondent Nos. 1(i) to 1(iii), 2, 3 and 4(i) to 4(iv).

Headnote:Section 98-Limitation Act (36 of 1963)-Article 137-Application under Section 98- Whether limitation prescribed under Article 137 applicable Held-No.
       Held-Collector has been left out of the purview of Section 89 and the Collector exercising powers under the Hyderabad Tenancy Act cannot be said to have been covered by Section 89 and the procedure prescribed by the Mamlatdars Courts Act including the limitation prescribed therein, is not applicable so for as the enquiries before the Collector (which include Deputy or Assistant Collector) are concerned. Section 98 gives the power of summary eviction to the Collector which are now exercised by the Deputy Collector. Collector is not required to follow the procedure of the Mamlatdars Courts Act and the limitation as prescribed in sub-section (3) of Section 5 of the Mamlatdars Courts Act, 1906 is, therefore, not applicable to applications under Section 98 before the Collector.
       Sections 98, 89-Mamlatdars Courts Act (2 of 1906) Section 5 (3)Application under Section 98 for possession-Filed before Collector-question of applicability of limitation prescribed in Section 5 (3) of Mamlatdars Courts Act.
       Held-Collector has been left out of the purview of Section 89 and the Collector exercising powers under the Hyderabad Tenancy Act cannot be said to have been covered by Section 89 and the procedure prescribed by Mamlatdars Courts Act including the limitation prescribed therein, is not applicable so far as the enquiries before the Collector (which include Deputy or Assistant Collector are concerned. Section 98 gives the power of summary eviction to the Collector which are now exercised by the Deputy Collectors. Collector is not required to follow the procedure of the Mamlatdars Courts Act and the limitation as prescribed in subsection (3) of Section 5 of the Mamlatdars Courts Act, 1960 is, therefore, not applicable to applications under Section 98 before the Collector.
       Sections 98 (a), (b), (c) & 38, E (1)-Explanation-Petitioners purchasing land on 16-7-57 from owners Section 38-A came into operation before date of purchase-Statutory ownership of land stood transferred to tenant on appointed day i. e. from 1-2-1957 In view of Section 38-E-Tenant in possession of land on appointed day-Subsequently tenant dispossessed-Application by tenant for possession under Section 98 -No title with transferor for sale due to statutory transfer already effected In favour of tenant under Act. Case covered both under clauses (a) & (c) of Section 98-Tenant being In possession, alternative remedy under Section 38-E (1) Explanation not available-Application under Section 98 (c) maintainable.
       Article 137.
       See Hyderabad Tenancy and Agricultural Lands Act, 1950, Section 98.
       MAMLATDARS COURTS ACT, 1906
       Section 5 (3).
       See Hyderabad Tenancy and Agricultural Lands Act, 1950, Sections 98 and 89.

JUDGMENT - N.P. CHAPALGAONKER, J.:---This is a petition by purchaser - landlords challenging an order of the Deputy Collector (Land Reforms), Beed, passed under section 98-A of the Hyderabad Tenancy Agricultural Lands Act, 1950 directing restoration of possession to the tenants being purchasers. It appears that Devidas and Vaijnath and their brothers were the original owners of lands Survey Nos. 10-A, 10-E, 14-A and 14-E situated at village Morambi in Ambajogai taluka of Beed District. These lands came to be purchased by present petitioners by a registered sale-deed which was executed by owners on 16th July, 1957. It is the case of petitioners that a proper permission as was required then under section 47 of the Hyderabad Tenancy and Agricultural Lands Act was obtained for the execution of the sale-deed and though the respondents had originally objected for the issue of such permission, had subsequently withdrawn that objection and consented to the grant of permission in favour of the purchasers.

2. Before the sale-deed in favour of the present petitioners was executed, section 38-A of the Hyderabad Tenancy Agricultural Lands Act, 1950 (hereinafter called 'Hyderabad Tenancy Act' for the purpose of brevity) came into operation in the district of Beed by way of a Notification No. TNC-5756/169065-(b) which was published in the Government Gazette on 14th February, 1957 and the ownership of the disputed lands stood transferred in the name of respondent-tenant with effect from 1st day of February, 1957. Though predecessor-in-title of the present petitioners-original landlord and even the present petitioners did contest the question of the validity of this declaration, but the said declaration was confirmed and finally in Special Civil Application No. 1477/1978 decided by this Court on 10th of November, 1983, declaration in favour of the tenants was confirmed. Since it was found by the Tahsildar, Ambajogai, that though the petitioners were in possession on the appointed day, they have lost the possession subsequently and, therefore, he intimated to the declared owners that the declared owners should approach the Deputy Collector under section 98 of the Hyderabad Tenancy Act by a notice dated 24th of November, 1971. It appears that thereafter on 15th May, 1973 tenants filed an application under section 98 of the Hyderabad Tenancy Act for possession before the Deputy Collector, Ambajogai. Learned Deputy Collector, Ambajogai, was pleased to allow this application by his order dated 3rd July, 1974 against which an appeal was filed before the Maharashtra Revenue Tribunal at Aurangabad and on 10th October, 1974, learned Member of the Maharashtra Revenue Tribunal was pleased to remand this matter to the learned Deputy collector (Land Reforms), Beed, and on remand leraned Deputy Collector (Land Reforms), Beed, was pleased to allow this application finally on 18th December, 1985 in Case No. 81/TNC/46 directing restoration of the possession to the declared tenants. An appeal bearing No. 9-A-86 Beed filed by the present petitioners came to be dismissed by learned Member of the Maharashtra Revenue Tribunal vide his order dated 31st July, 1986. Both these orders are subject matter of challenge in this writ petition.

3. Mrs. M.A. Kulkarni, learned Counsel appearing for petitioners, has raised following contentions objecting the above referred impugned orders:

(1) That the application under section 98 filed by the respondents was beyond the period of limitation and, therefore, it should have been dismissed.

(2) That the remedy under section 98 is not available to the present respondents-applicants since an alternate remedy in the form of an application under section 38-E(1) Explanation is available to them.

(3) Since in this matter complicated questions of law including those relating to the title are involved, Collector should not have exercised his jurisdiction under section 98.

Smt. Kulkarni contends firstly that an enquiry under section 98-B bein

Click Here to Read the rest of this document

Judicial Analysis

SupremeToday