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2007 Supreme(Bom) 1715
IN THE HIGH COURT OF BOMBAY
A. P. LAVANDE & R. V. MORE, JJ.
Jairam s/o Krishnas Mali (Sonune) Appellant
versus
Digambar Gopinath Sutar (dead) Respondent
LETTERS PATENT APPEAL NO. 147/1997 IN WRIT PETITION NO. 1834/1990
Decided on:- 14.12.2007
Advocate Appeared
Mr. N. S. Badhe, Advocate for the Appellant.
Mr. S. R. Deshpande, Advocate for the Respondents.
Headnote:Bombay Tenancy and Agricultural Lands (Vidarbha Region)Act, 1958 - Sections 21 and 36 (2)-’Deemed Surrender’-No order passed by Tahsildar under Section 36 (2) for possession-Tenant not ceased to be tenant even in case of ’deemed surrender’-Respondent/landlord not entitled for possession of land unless he applies under Section 36 (2) of Act and succeeds-Second application filed by landlord beyond period of two years after deemed surrender-Barred by limitation.-Considering the purport of the decision of the Full Bench, the Hon’ble Apex Court and the unreported judgment of the Division Bench in LPA No. 38/1984 we are of the opinion that the landlord cannot apply under Section 21 of the Act without taking recourse to Section 36 (2) of the Act. Though respondent filed application under Section 36 (2) read with Section 21, the same was beyond the limitation and, therefore, the same cannot be entertained. The learned Single Judge, erred in relying upon the judgment of the Apex Court in Vallabhai Nathabhai v. Bai Jivi and others (supra). The impugned order, therefore, in our considered opinion, requires interference.
Bombay Tenancy and Agricultural Lands (Vidarbha Region)Act, 1958 - Sections 21, 36 (2) and 125-Civil PC, 1908, Section 11-Applicability of principle of res judicata-Fixation of purchase price and conferral of ownership as well as entitlement of respondent for possession under Section 36 (2) of Act-Issue about not finally decide-Sub-Divisional Officer without entering into merits of matter left issue open-Second application filed by respondent under Section 36 (2) read with Section 21 of the Act not barred by res judicata.-The learned Sub-Divisional Officer did not enter into the merits of the matter and on the contrary, the issue about fixation of purchase price as well as conferral of ownership and respondent’s entitlement for possession of the said land was expressly kept open. This was done, as stated above, in view of the pendency of the tenancy issue before the High Court in Writ Petition No. 3141/1980. The respondent did not assail this order further in the appeal or revision. In these facts and circumstances, the issue about fixation of purchase price and conferral of ownership as well as entitlement of the respondent for possession under Section 36 (2) read with Section 21 of the Act was not finally decided. In view of the observations made by the Sub-Divisional Officer, the order passed by the Agricultural Land Tribunal on 25.09.1980 also stood modified and, therefore, the appellant cannot claim that the second application filed by the respondent under Section 36 (2) read with Section 21 of the Act is barred by the principles of res judicata. The second application of respondent under Section 36 (2) read with Section 21 of the Act is not barred by the principles of res judicata and accordingly, reject the appellant’s contention in this regard.
BOMBAY TENANCY AND AGRICULTURAL LANDS (VIDARBHA REGION) ACT, 1950 - Sections 21 and 36 (2) - ’Deemed Surr ender’ - No order passed by Tahsildar under Section 36 (2) for possession - Tenant not ceased to be tenant even in case of ’deemed surrender’ - Respondent/landlord not entitled for possession of land unless he applies under Section 36 (2) of Act and succeeds - Second application filed by landlord beyond period of two years after deemed surrender - Barred by limitation. - Considering the purport of the decision of the Full Bench, the Hon’ble Apex Court and the unreported judgment of the Division Bench in LPA No. 38/1984 we are of the opinion that the landlord cannot apply under Section 21 of the Act without taking recourse to Section 36 (2) of the Act. Though respondent filed application under Section 36 (2) read with Section 21, the same was beyond the limitation and, therefore, the same cannot be entertained. The learned Single Judge, erred in relying upon the judgment of the Apex Court in Vallabhai Nathabhai v. Bai Jivi and others (supra). The impugned order, therefore, in our considered opinion, requires interference.
BOMBAY TENANCY AND AGRICULTURAL LANDS (VIDARBHA REGION) ACT, 1950 - Sections 21, 36 (2) and 125 - Civil PC, 1908, Section 11 - Applicability of principle of res judicata - Fixation of purchase price and conferral of ownership as well as entitlement of respondent for possession under Section 36 (2) of Act - Issue about not finally decide - Sub-Divisional Officer without entering into merits of matter left issue open - Second application filed by respondent under Section 36 (2) read with Section 21 of the Act not barred by res judicata. - The learned Sub-Divisional Officer did not enter into the merits of the matter and on the contrary, the issue about fixation of purchase price as well as conferral of ownership and respondent’s entitlement for possession of the said land was expressly kept open. This was done, as stated above, in view of the pendency of the tenancy issue before the High Court in Writ Petition No. 3141/1980. The respondent did not assail this order further in the appeal or revision. In these facts and circums tances, the issue about fixation of purchase price and conferral of ownership as well as entitlement of the respondent for possession under Section 36 (2) read with Section 21 of the Act was not finally decided. In view of the observations made by the Sub-Divisional Officer, the order passed by the Agricultural Land Tribunal on 25.09.1980 also stood modified and, therefore, the appellant cannot claim that the second application filed by the respondent under Section 36 (2) read with Section 21 of the Act is barred by the principles of res judicata. The second application of respondent under Section 36 (2) read with Section 21 of the Act is not barred by the principles of res judicata and accordingly, reject the appellant’s contention in this regard.
1. The present Letters Patent Appeal takes exception to the judgment and order dated 18.06.1997, passed by the learned Single Judge of this Court in Writ Petition No. 1834/1990, whereby the Writ Petition came to be allowed; quashing and setting aside the order of Tahsildar, Buldhana dated 16.09.1986 as confirmed by Sub Divisional Officer, Buldhana and Maharashtra Revenue Tribunal, Nagpur, and the matter was remanded back to the Tahsildar, Buldhana to decide the same afresh. The brief facts relevant for the disposal of the present Letters Patent Appeal are as under.
2. The dispute relates to the land bearing Survey No. 12/1 admeasuring about 5 Acres 37 G at village Chikhli, Mouza: Bhadola, Tq. Chikhali, dist. Buldhana (hereinafter referred to as 'said land' for the sake of brevity). The appellant started cultivating the said land as its tenant with effect from 07.05.1967. The respondent, the owner of the land, claimed that the appellant cultivated the said land on 'batai' terms, on partnership basis and, therefore, in the year 1973 instituted Regular Civil Suit No. 34/1973 for possession before the Civil Judge Senior Division, Buldhana. This suit was subsequently transferred to Chikhali Court and it was renumbered as Regular Civil Suit No. 14/1983.
3. Since the appellant, claimed to be a tenant of the said land, reference under Section 125 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, (hereinafter referred to as 'the Act' for the sake of brevity) was made to the revenue authorities. By order dated 22.07.1974, the Agricultural Land Tribunal, Chikhali held the appellant as tenant of the said land. The respondent preferred an appeal before the Sub Divisional Officer, Buldhana. However, the the said appeal came to be dismissed by order dated 25.07.1975. The respondent's revision preferred before the Maharashtra Revenue Tribunal also came to be dismissed by order dated 03.03.1979. The respondent, thereafter, challenged the order of the Maharashtra Revenue Tribunal by filing Writ Petition No. 3141/1980, which was also dismissed by the learned Single Judge by order dated 08.12.1983.
4. The respondent, thereafter on 05.11.1985, filed pursis in Regular Civil Suit No. 14/1983 for non prosecution and, therefore, the suit was dismissed.
5. In the meantime, the appellant made an application under Section 41-46 and 49 of the Act for fixation of price and for conferral of the ownership of the said land. This proceeding was filed on 01.03.1980. The respondent also filed application for possession of the said land under Section 43 read with Section 20 and 21 of the Act on 13.05.1980.
6. The learned Agricultural Land Tribunal disposed of both these applications filed by the appellant and respondent by common order dated 25.09.1980. By this order, he dismissed the application of the respondent and allowed the application of the appellant and fixed the purchase price. This order, at the instance of respondent, came to be challenged before the Sub Divisional Officer, Buldhana by filing appeal, however, the same was dismissed by order dated 19.04.1982. After dismissal of the respondent's appeal by the Sub Divisional Officer, the Agricultural Land Tribunal issued certificate of purchase under Section 43 of the Act in favour of the appellant.
7. The respondent made another application on 06.12.1985 under Section 36 (2) read with Section 21 of the Act for possession of said land on the point of deemed surrender of tenancy. The Agricultural Land Tribunal, Chikhali rejected the respondent's application by order dated 16.09.1986, which order came to be confirmed by the learned Sub Divisional Officer, Buldhana and Maharashtra Revenue Tribunal, Nagpur by order dated 31.03.1987 and 29.12.1989 respectively. The respondent, thereafter, filed Writ Petition No.1834/1990, challenging the above said order of the Maharashtra Revenue Tribunal and the learned Single Judge allowed the Writ Petition by orde
