Back
2011 Supreme(Bom) 1430
In the High Court of Bombay at Nagpur
A.B. CHAUDHARI
Sambhugir Sansthan Trust & Others
Versus
Gopal Tulshiram Vidhate & Others
SECOND APPEAL NO.538 of 2005
Decided on : 07-12-2011
For the Appellants:M.N. Ingley, Advocate.
For the Respondents:R1 to R4, C.R. Najbile, S.V. Sirpurkar, Advocates.
Headnote:Bombay Tenancy and Agricultural Lands Act, 1948 - Section 54 - Heritability of tenancy - Where provisions of Section 54 of Act made expressly non- applicable therefore tenancy is not inheritable.
Bombay Tenancy and Agricultural Lands Act, 1948 - Section 54 - Tenancy - Since Section 54 is made expressly non-applicable under Tenancy Act, 1958 hence tenancy is not heritable at all. There is specific averment in the plaint that Tulshiram expired in the year 1991. The sons who are defendants succeeded to the suit properties and that is why they started making claims and also effected certain transfers of the said properties. Thus the facts that Tulshiram expired in the year 1991 and that the respondents are his sons claiming to have succeeded to the suit lands by inheritance from Tulshiram are not in dispute at all. Therefore, even if the issue whether sons of Tulshiram could not inherit the tenancy or not was not averred in the plaint, the same was raised of lower appellate judgment but was not decided.
Section 54(1)(a) makes a slight departure from Hindu Law of Succession. Inheritance by survivorship is conferred on all members of the joint family instead of only the coparceners. Therefore, all members of the joint family male and female inherit. The provisions in the Hindu Succession Act in cases where there are female heirs of a male having an interest in the joint family property, are also not applicable. The question is whether by reason of this departure from ordinary law, the Legislature intended that tenancies not covered by Section 54(1)(a) would nevertheless be governed by the ordinary law. In Court’s view Section 54(1)(a) cannot be read differently from Section 54(1)(b) or Section 54(3). The entire section must be read harmoniously. The legislative intention as seen from the scheme of Section 54 is, that heritability of any tenancy falling, within the definition of that term under the Tenancy Act of 1958 is governed exclusively by Section 54. Where Section 54 is made expressly non-applicable under the Tenancy Act of 1958, the tenancy is not heritable at all. An express provision in the Act which excludes the operation of certain provisions, cannot be made nugatory by resorting to general law.
Bombay Tenancy and Agricultural Lands Act, 1948 - Section 124 - Bar of jurisdiction of Civil Court - Where order of Tahsildar found to be null and void therefore suit for declaration of possession, not barred by Section 124 of Act.
Bombay Tenancy and Agricultural Lands Act, 1948 - Section 124 - Bar under - Where orders passed by Tenancy Tahsildar in respect of suit property were null and void therefore suit for declaration and possession of suit property belonging to appellant-Trust not barred by Section 124 of Act.
Civil Procedure Code, 1908 - Section 11 - Bar of res judicata - Since prayers in civil suit relate to validity of orders passed by Tenancy Tahsildar and has nothing to do with averments in writ petitions hence bar of res judicata not attracted.
1. Heard. Admit. Taken up for final disposal in view of the fact that the appeal is pending since 2005 only for admission and it relates to the litigation which is old.
2. Being aggrieved by the judgment and decree dated 23.2.2005, passed by the 4th Ad hoc Additional District Judge, Akola in Regular Civil Appeal No.166/2002 by which the appeal preferred by the appellants was dismissed and the judgment and decree dated 29.6.2002, passed by the III Jt. Civil Judge (Jr. Dn.), Akola in Regular Civil Suit No.181/1997 was upheld, the present second appeal has been filed by the original plaintiffs/appellants.
3. Shambhugir Sansthan Trust, Dhotardi a registered Trust through its five trustees filed a suit for declaration and possession vide Regular Civil Suit No.181/1997 against the respondents/original defendants in the Court of Civil Judge, Senior Division, Akola on 14.2.1997. The plaint allegations are that plaintiff no.1 Public Trust was registered as Public Trust by order dated 16.5.1958, passed by the Registrar acting under the Madhya Pradesh Public Trusts Act and consequently, was registered on 21.2.1964 after coming into force of the Bombay Public Trusts Act, 1950. The agricultural lands bearing Survey no.60/2, admeasuring 7.21 acres and agricultural land bearing Survey no.35/4, admeasuring 4.33 acres of village Dhotardi is owned by plaintiff no.1 Public Trust and accordingly entry to that is also to be found in Schedule I Public Trust register which entry is final and conclusive. One Tulshiram Sambhaji Vidhate claiming to be the protected tenant of the Trust over the said suit lands in collusion with the Tenancy Tahsildar got both the lands transferred in his name by way of compulsory transfer of ownership to a tenant under Sections 46 and 48 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, hereinafter referred to as the Tenancy Act) in two revenue proceedings i.e. Revenue Case nos.1087/59 (13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi in respect of the said two fields by playing fraud and in collusion with one of the Trustees by name Pundlik Raoji Patil by orders dated 30.9.1966. The defendants are the sons of Tulshiram and subsequent transferees from them. In both above proceedings i.e. Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi, the landlord who was shown to have been given notice of those proceedings was Gajanan Sansthan, Dhotardi and not Shambhugir Sansthan i.e. plaintiff no.1. Both these orders are thus void ab initio and not binding on plaintiff no.1 Public Trust. The said orders were passed without holding any enquiry by Tahsildar and none of the Trustees who were alive at that time and who were recorded in the Public Trust register were given notices except Pundlik Patil, who colluded with Tulshiram. The said order dated 30.9.1966 in both revenue cases i.e. Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi are thus void ab initio and nullity and therefore, the civil Court has jurisdiction to examine the validity thereof. The transfer of lands subsequently to others by the sons of Tulshiram in violation of Section 57 of the Tenancy Act was also illegal and the suit lands were liable to be forfeited.
4. With the above factual background, prayers were made for declaring the orders in Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi as null and void and not binding on the Trust and that the defendants have no right over the suit properties. After the death of Shambhugir Guru Ramgir in the year 1945-46 the State Government took possession of the suit lands and continued to auction the same every year till the year 1966-61 for cultivation and thereafter the lands were handed over to the Trust. Defendant nos.1 to 3 filed their written statement to the plaint. They stated that on 30.9.1966 the Tenancy Tahsildar had made legal and valid adjudication betwe
