2005 Supreme(Bom) 1752
IN THE HIGH COURT OF BOMBAY
Dhondi Rama Bhalekar
VERSUS
Ramchandra Dhondiba Bhalekar
Decided no: December 16, 2005
Headnote:Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 85, 32-M and 4 Suit filed by landowner for restoration of the suit land as well as mesne profit on the ground that defendant occupant had illegally started cultivation of suit land The landowner’s case that the defendant occupant had illegally cultivated the land could be put forth in the proceedings initiated under the Act for seeking benefits therein i.e. a deemed tenant or purchase certificate under Section 32-M In the absence of agreement being on record and containing such term as would specifically state that breach of the same would result in dispossession, suit was liable to be dismissed. The landowner approached the Civil Court in Regular Civil Suit and prayed for restoration of the suit land as well as the mesne profit on the ground that the occupant i.e. defendant had illegally started cultivation of the suit land. It was necessary for the plaintiff to demonstrate his right for a decree of eviction of the tenant on the basis of the agreement/contract or any statutory provision. Both the Courts below committed a manifest error in failing to consider this very foundation of the suit filed by the plaintiff and they seem to have been overwhelmed by the allegations that there was illegal cultivation. Illegal cultivation, even though accepted, by itself would not entitle the landowner for a decree of eviction unless the terms of the contract indicated so. Thus the concurrent view taken by both the Courts below is unsustainable and the plaintiff has utterly failed to make out a case for the decree of restoration of the suit land. The landowner’s case that the occupant had illegally cultivated the land could be put forth in the proceedings initiated under the Act for seeking the benefits therein i.e. a deemed tenant or purchase certificate under Section 32-M of the Act. In the absence of the agreement/contract being on record and containing such terms as would specifically state that breach of the same would result in dispossession of the occupant, the suit could not have been entertained by the Courts below and there is absolutely no evidence placed on record by the plaintiff in support of the claim so made. Thus the decrees passed by the Courts below are, in the absence of any evidence, leave alone any reliable evidence, patently erroneous and have resulted into miscarriage of justice. AIR 1964 SC 1320 Relied on.
( 1 ) WHILE admitting this second appeal on 16/4/1991, the following substantial questions of law have been framed for consideration:-" (a) It was an error of law to hold that the jurisdiction of the Civil Court was barred by virtue of the provisions of Section 85 of the bombay Tenancy and Agricultural Lands Act, 1948, even when it was apparent from the judgments of the tenancy authorities against the appellants that the same were given contrary to the provisions of the law. (b) The Lower Appellate Court erred in holding that it could not consider the question of legality or nullity of the judgments of the tenancy authorities against the appellants, even when the same were given by disregarding the procedure laid down by the said Act and in gross violation of those provisions. (c) The judgments in tenancy cases by the tenancy authorities were patently illegal, without jurisdiction and wrong in law and resulted into failure of justice to the appellants, the Civil Court erred in holding that it had no jurisdiction to consider the validity and legality of the said judgments. (d) The Lower Appellate Court ought to have seen and held that defendant no. 2 was a lessee in the suit land and hence the suit filed without a notice to the second defendant under section 106 of the Transfer of Property Act was not maintainable and in any event decree could not be passed for eviction of the appellants in such a suit. "1a. It is also pertinent to note that the appellants, in the memo of appeal, had also framed, inter alia, the following two issues for being considered as substantial questions of law:- (a) The impugned decrees are erroneous, illegal and contrary to law. (b) The impugned decree of the Lower Appellate court is against the weight of evidence on record. The additional issues are required to be considered, in view of the proviso below Section 100 of C. P. C. and the appeal succeeds on these issues, for the reasons discussed hereinbelow.
( 2 ) THE land admeasuring 3 Hectares and 76 Ares located in R. S. No. 32 of village Shipur in Taluka gadhinglaj of Kolhapur District originally belonged to balkrishna Desai and it was inherited by Smt. Shantabai wife of Sadashiv Mutalik Desai. It appears that the said land was put in possession of Dhondi Rama bhalekar sometimes prior to the year 1954-55. However, after the tillers day i. e. 1/4/1957 the half portion on the eastern side of the said land was sold by the landlady to Shri Lingu Kabji Patil and this transaction appears to have taken place sometime in year 1959-60. Consequently, the remaining half portion on the western side remained in possession of dhondi Rama Bhalekar. In the year 1961-62 the land owner filed proceedings under Section 70 (b) of the bombay Tenancy and Agricultural Lands Act, 1948 ("the act" for short) for a negative declaration that Dhondi rama Bhalekar was not a tenant of the suit land. These proceedings came to be registered as Tenancy case No. 94 of 1961-62 and the Avval Karkun, gadhinglaj, acting as the Mamlatdar Court, allowed the application on 30/7/1962. Against the said order, a belated appeal came to be filed which was registered as Appeal No. 70 of 1973 and it was allowed by the Sub divisional Officer, Gadhinglaj Division, Gadhinglaj on 28/2/1974, by remanding the case to the Mamlatdar for fresh inquiry. This order passed by the SDO came to be challenged by the land owner before the Maharashtra revenue Tribunal, Kolhapur and the revision came to be registered as MRT. KP. 120/75 and the same was allowed by the Judgment and Order dated 17/12/1975 holding that the appeal filed by the occupant before the SDO was not maintainable under Section 74 of the Act. "2a. In the meanwhile, on the remand made by the sdo, the Tahsildar proceeded to fix the purchase price of the suit land under Section 32-G of the Act vide his order dated 21/3/1973. This order came to be challenged by the land owner in Tenancy Appeal No. 30 of 1975 and it was allowed. Thus, the order passed b
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