2004 Supreme(Bom) 1063

IN THE HIGH COURT OF BOMBAY
Khanwilkar A.M., J.
Ashalata Anand Dabholkar others .... Petitioners.
Versus
Vrindevati Tukaram Bhaire others.... Respondents.
Writ Petition No. 5296 of 1991 with Civil Application No. 2398 of 1993 W.P. No. 1649 of 1996, decided on 30-7-2004.
Advocates appeared :
A.L. Desai, for petitioners.
S.G. Karandikar, K.K. Tated P.A. Sawant, G.B. Karandikar, for respondents.

Headnote:Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 32 and 63-A - Civil Procedure Code, Section 11 - Proceedings under Section 32 of Act. - Issue of defendants being tenants in respect of suit land on tillers day finally answered in favour of tenants cannot be reopened except by challenging decision in appeal. - The proceedings were initiated by the predecessor of the landlord by filing civil suit against the tenant for permanent injunction. Reference was made in the said proceedings to the tenancy authority regarding the issue of tenancy. In the said reference proceedings, the landlord and tenant filed compromise pursis. The landlord admitted the claim of defendant to be tenant in lawful cultivation of the suit land on the tillers’ day. In the said compromise pursis, an arrangement was worked out that the landlord would continue to possess and own the mango trees standing on the suit land. On the basis of such compromise, the Mamlatdar answered the issue in favour of the tenant with regard to the tenancy rights in respect of the suit land and also accepted the claim of the landlord in respect of the standing trees on the suit land. On the basis of the said declaration even the civil suit between the parties stood disposed of by holding the said defendant as the protected tenant. In other words, with the culmination of proceedings before the Mamlatdar as well as the Civil Court, the issue as to whether the said defendant was tenant in respect of the suit land or not stood finally concluded. That issue could not have been reopened in any other manner except by challenging those decisions in appeal by the aggrieved party. That had not been done either by the original landlord or for that matter the successor in interest of the original landlord, the present plaintiff. In that sense, the said decision would bind the parties, much less the tenancy authorities. On the tillers’ day, the tenants would become absolute owners of not only the land, but also of all the standing trees thereon, whether naturally grown or otherwise. With the conclusion of proceedings before the Mamlatdar and the Civil Court between the original landlord and the tenant, the issue of defendants being tenants in respect of the suit land on the tillers’ day has been finally answered and that issue cannot be reopened or re-examined merely because fresh reference has been made by the Civil Court in the subsequent suit. Indeed, whenever any reference is made by the Civil Court, it is the duty of the reference Court, namely, the tenancy authority, to answer the reference, but that does not mean that the tenancy authority can overlook the cardinal principle of res judicata and the binding effect of the decision of the earlier concluded proceedings between the parties. The earlier decision would not only bind the parties themselves, but also the tenancy authority, though it was called upon to answer the reference afresh in the subsequently instituted suit. The authorities committed manifest error in answering the issue in favour of the landlords that they would continue to own and possess standing mango trees on the suit land.

       Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 32-G and 63-A - Civil Procedure Code, 1908, Section 11 - Applicability of res judicata . - Since decision of Civil Court holding tenant as protected tenant attained finality hence issue of tenancy cannot be reopened between parties. - A proceedings were initiated by the predecessor of the landlord by way of civil suit No. 13 of 1958 against the tenant for permanent injunction. Reference was made in the said proceedings to the tenancy authority regarding the issue of tenancy, which case was numbered as Tenancy case No. 8 of 1959. In the said reference proceedings the landlord and tenant filed compromise pursis. The landlord admitted the claim of Pundalik to be tenant in lawful cultivation of the suit land on the tillers day. Indeed in the said compromise pursis an arrangement is worked out that the landlord would continue to possess and own the mango trees standing on the suit land. On the basis of such compromise pursis, the Mamlatdar has answered the issue in favour of the tenant with regard of the tenancy rights in respect of the suit land and also accepted the claim of the landlord in respect of the standing trees on the suit land, bearing survey No. 507, Hissa No. 14. On the basis of the said declaration and opinion recorded by the tenancy authority, even the civil suit between the parties stood disposed of by holding the said Pundalik as the protected tenant. In other words, with the culmination of proceedings before the Mamlatdar as well as the Civil Court, the issue as to whether the said Pundalik was tenant in respect of the suit land or not stood finally concluded . That issue could not have been reopened in any other manner except by challenging those decisions in appeal by the aggrieved party. That has not been done either by the original landlord or for that matter the successor-in-interest of the original landlord the present plaintiff. In that sense, the said decision would bind the parties much less the tenancy authorities.

       With the conclusion of proceedings before the Mamlatdar and the Civil Court between the original landlord and the tenant, the issue of defendants being tenants in respects of the suit land on the tillers day has been finally answered and that issue cannot be reopened or re-examined merely because fresh reference has been made by the Civil Court in the subsequent suit. Indeed, whenever any reference is made by the Civil Court, it is the duty of the reference Court, namely the tenancy authority to answer the reference but that does not mean that the tenancy authority can overlook the cardinal principle of res judicata and the binding effect of the decision of the earlier concluded proceedings between the parties. The earlier decision would not only bind the parties themselves but also the tenancy authority, though it was called upon to answer the reference afresh in the subsequently instituted suit. Viewed in this perspective, in the first place, there was no occasion for fresh reference being made on the issue of tenancy. In any case, the tenancy authority was obliged to answer the same in favour of the tenant on the basis of the earlier concluded proceedings between the parties. As mentioned earlier the only issue to be decided between the parties is regarding the determination of purchase price, which has been pending upon remand by the appellate authority under Section 32-G of the Act. All questions in relation to the matters on the basis of which purchase price will have to be determined will have to be answered therein. Merely because that proceedings is pending the issue of tenancy cannot be reopened between the parties.