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Bombay High CourtIndian Cases

Krishna @ Kisan Rajaram Karve … vs Dinkar Anaji Kumbhar (Since Deceased … on 22 July 2004

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Bombay High Court
Krishna @ Kisan Rajaram Karve, … vs Dinkar Anaji Kumbhar (Since Deceased, … on 22 July, 2004
Equivalent citations: 2005(1)BOMCR750, 2005 A I H C 935, (2005) 1 ALLMR 764 (BOM), (2005) 1 BOM CR 750, (2005) 1 ALLMR 764
Author: A.M. Khanwilkar
Bench: A.M. Khanwilkar
JUDGMENT

A.M. Khanwilkar, J.

1. All these three writ petitions can be disposed of by common Judgment, as they are between the same parties in relation to the agricultural land bearing Survey Nos. 230/3-B(part) and 230/4-A/2, which has been subsequently farmed into Gut No. 1294, situated at village Pandare, taluka Baramati, district Pune. Petitioner Krishna alias Kisan Rajaram Karve and others are the landlords in respect of the suit land. It is not in dispute that Dinkar Anaji Kumbhar was inducted in the suit land as tenant. It is also not in dispute that the landlords issued notice for possession of the suit land under Section 31 of the Bombay Tenancy and Agricultural Lands Act for personal cultivation on 25th August 1956. Thereafter, the landlords instituted proceedings for possession of the suit lands an that ground, which proceedings culminated with the order of possession of half portion of the suit lands to be handed over to the landlords. That order was passed on 3rd March 1959. Pursuant to the said order, the landlords have been put in possession of the half portion of the suit lands. That land is not subject matter of the present proceedings. However, insofar as the remaining half portion of the suit lands is concerned, the landlords subsequently filed application for issuance of exemption certificate under Section 88C of the Act on 30th November 1959. We are not concerned even with the said proceedings. What is relevant for our purpose is that the tenant himself moved an application before the Tenancy Awal Karkoon, which was numbered as Proceedings No. 1 of 1959 stating therein that he was not interested in cultivating the suit lands any further and that he was in occupation of other lands owned by him, which were sufficient to cater to his requirements. In other words, the application came to be filed by the tenant that he may be permitted to deliver possession of the suit lands to the landlords. That application was considered by the Tenancy Awal Karkoon and after giving sufficient opportunity to the tenant, eventually, the same was allowed and the tenant was permitted to surrender the lands to the landlords by order dated 30th October 1959. The order clearly records that matter was also postponed on 3 occasions and the tenant was made fully aware of the consequences of his stand that he would like to hand over possession of the suit lands to the landlords and inspite of that, the tenant volunteered and stood by his application. Indeed, after the tillers’ day, i.e., 1st April 1957, the question of surrender of lands by the tenant did not arise, because, on that day, by operation of law, the tenant became deemed purchaser and that the relationship of landlord and tenant between the parties came to an end. However, the stand taken by the tenant, such as in the present case, was surely one covered by Section 32G of the Act, which obligates the Tribunal to record as statement of tenant whether he is or is not willing to purchase the land held by him as tenant. Before we refer to the other facts, it will be apposite to advert to the scheme of the Tenancy Act. Section 32 of the Act provides that on the tillers’ day, the tenant is deemed to have purchased. the land under cultivation, but that arrangement is subject to the other provisions of the Act, as is provided for in Sub-section (1) of Section 32. Section 32G thereafter obligates the tenant to exercise the right to purchase the suit land. In cases where the tenant declines the option of purchase, it would necessarily fallow that the statutory purchase has become ineffective and procedure for resumption of land under Section 32P of the Act is required to be initiated in such cases. In other words, it is not as if on 1st April 1937, the tenant becomes full and absolute owner of the land, but his right is subject to complying with other requirements of the Act including Section 32G, expressing willingness to purchase the suit land. Whereas, in the present case, it is seen that the tenant filed application before the Tenancy Awal Karkoon on 29th September 1959 mentioning in clear terms that he was not interested in having the land or continuing to cultivate the same. The order passed by the tenancy authority on 30th October 1959 also records the fact that the tenant was clearly told that his stand would disentitle him from purchasing the suit lands and inspite of that, the tenant stood by his stand that he may be permitted to hand over the suit lands to the landlords. Pursuant to the said order passed by the Tenancy authority on the application filed by the tenant, the revenue record indicates that, the landlords were put in possession of the suit lands on 4th December 1959 and they have continued to remain in possession thereof since then. It is, however, after lapse of more than 23 years, the tenant chose to file appeal questioning the correctness of the order passed by the tenancy authority on his own application for permitting him to hand over the suit lands to the landlords. The appeal is filed on the assertion that the tenant is still in occupation of the suit land and that the earlier arrangement worked out between the parties was due to misrepresentation of the tenant. Besides filing the appeal questioning the decision of the tenancy authority dated 30th October 1959, the tenant also simultaneously filed application under Section 37 read with Section 39 of the Act for restoration of the suit lands to him on the assertion that he has been forcibly dispossessed from the suit land some time in the year 1982. In the said application, the tenant also prayed for relief of compensation for the loss suffered due to such forcible dispossession. The appeal filed by the tenant was numbered as Appeal No. 30 of 1982 filed before the Sub-Divisional Officer, Baramati Division, Baramati, whereas the application under Section 37 read with Section 39 of the Act was numbered as Tenancy Case No. 3 of 1982 before the Tahsildar, Baramati. The application filed by the tenant being Tenancy Case No. 3 of 1982 was decided by the Tahsildar, Baramati, by a judgment and order dated March 3, 1983. The Tahsildar found that the application preferred by the landlords for issuance of exemption certificate under Section 88C of the Act was misconceived, because the same was filed after the tillers’ day. It is noted that in the present case, the tillers’ day would be 3rd March 1959, on which date the application of the landlords under Section 31 of the Act for possession of the suit lands on the ground of personal cultivation came to be disposed of, whereas the application under Section 88C of the Act was filed in October 1859. The Tahsildar further found that since the landlords had invoked the provisions of Section 31 of the Act for obtaining possession of the suit lands on the ground of personal requirement, there was no question of tenant surrendering the suit lands after the tillers day. On this reasoning, the Tahsildar allowed the application preferred by the tenant for restoration of the suit lands and also directed the landlords to pay compensation quantified at Rs 3,000/- to the tenant. It is not in dispute that the Tahsildar has not addressed himself to the factum of the date of dispossession of the tenant from the suit lands. Against the decision passed by the Tahsildar directing restoration of suit lands to the tenant, the landlords preferred appeal before the Sub-Divisional Officer being Tenancy Appeal No. 32 of 1983. That appeal was allowed by the appellate authority on July 3, 1983. The appellate authority found that the application filed by the tenant for restoration of suit lands under Section 37 read with Section 39 of the Act was misconceived and was not tenable in law. Accordingly, the appeal came to be allowed by setting aside the order of restoration of suit lands passed by the Tahsildar. Against this decisions the tenant carried the matter in revision before the Maharashtra Revenue Tribunal being Revision No. MRT.P.VII-12/83 (TNC-B-198/83) Pune. While this revision application was pending, the Sub-Divisional Officer decided the appeal preferred by the tenant questioning the correctness of decision of the Tenancy Awal Karkoon dated 30th October 1959 by judgment and order dated 28th July 1983. The appeal preferred by the tenant came to be dismissed on the reasoning that the tenant was fully aware about the decision passed on 30th October 1959 and there was no sufficient cause for entertaining the appeal after the lapse of 23 years. The appellate authority also recorded a finding on merits that there is no infirmity in the decision passed by the Tenancy Awal Karkoon dated 30th October 1959, because that order was passed after giving sufficient opportunity to the tenant and the same came to be passed only after the tenant volunteered to hand over the suit lands to the landlords. Against the decision passed by the appellate authority in Tenancy Appeal No. 30 of 1982, the tenant preferred revision application before the M.R.T. being Revision No. MRT.P.IX.7/1983(TNC-B-253/1983). It is relevant to note that after the decision of the Tahsildar dated 15th March, 1983, directing restoration of the lands to the tenant, the tenant had filed appeal before the Sub-Divisional Officer being Appeal No. 38 of 1983 for enhancing the compensation awarded by the Tahsildar quantified at Rs. 3,000/-. That appeal came to be dismissed by the Sub-Divisional Officer on 28th July 1983 on the reasoning that the appeal preferred by the landlords has been allowed. Naturally, the tenant carried this decision in revision before the M.R.T. by way of Revision No. MRT.P.IX.8/1983 (TNC.B-254/1983). Since all the three revision applications were pending before the M.R.T., the Tribunal proceeded to decide the same by common judgment and order dated February 16, 1985. It has affirmed the view taken by the appellate authority that the application as filed by the tenant under Section 37 read with Section 39 of the Act was not maintainable. It has also affirmed the finding recorded by the lower authority that the surrender of the suit lands by the tenant was voluntary. The Tribunal also affirmed the finding of fact recorded by the authorities below that no documentary evidence was adduced by the tenant, except his oral evidence to support his stand that he was giving half crop share to the landlords till the alleged dispossession on 23rd April 1982, whereas the 7 x 12 extracts and other contemporaneous record would indicate that from 1959-60 onwards, the possession of the suit lands is recorded of landlords as ‘Khud’. In other words, the Tribunal has answered all the material issues in favour of the landlords, but then proceeded to hold that the surrender was illegal and void on the ground that the landlords had already obtained possession of half portion of the suit lands under Section 31 of the Act by order dated 3rd March 1959. The Tribunal has, however, not even adverted to the grievance made on behalf of the landlords that the appeal filed by the tenant questioning the decision of the Tenancy Awal Karkoon dated 30th October 1959 after lapse of 23 years was barred by limitation. Be that as it may, as mentioned earlier, although the Tribunal has answered the material issues in favour of the landlords, proceeded to grant relief to the tenant by holding that the order of surrender passed by the Tenancy Awal Karkoon, Baramati, dated 30th October 1959 was illegal and void and the same will have no effect. On that reasoning, it proceeded to pass the following order:

The Revision ApplicationNo.MRT-P-VII-122/1983 is dismissed. The order of Sub Divisional Officer Baramati in Tenancy Appeal No. 32 of 1983 is confirmed and the order of Tahsildar, Baramati in Tenancy Case No. 3 of 1982 is set aside. Similar order as above will have to be passed in Revision Application No. MRT-P-IX-8/19S3. The revision application is dismissed. The order passed in Tenancy Appeal No. 38 of 1983 by the Sub Divisional Officer, Baramati on 28-7-1983 is upheld. The order passed by the Tahsildar, Baramati in, Tenancy Case No. 3 of 1982 on 15-3-1983 in respect of compensation is set aside.
The third revision application No. MRT.P.IX.7/1983 is allowed. Surrender of the suit lands allowed by order in Tenancy Case No. 1 of 1939 by Tenancy A.K. on 30-10-1959 is also set aside. No order as to costs.”
2. Aggrieved by the aforesaid decision, the landlords have filed Writ Petition No. 3056 of 1985, whereas the tenant has filed two writ petitions, being Writ Petition No. 207 of 1986 and Writ Petition No. 208 of 1986 respectively. The landlords are questioning the decision of the Tribunal holding that the order of the Tenancy Awal Karkoon dated 30th October 1959 is illegal and void and will have no effect, whereas the tenant has questioned the decision of the Tribunal on the argument that although it is held that the order of surrender is void, but has not given any relief to the tenant on the reasoning that the appropriate remedy for the tenant at best would be under Section 84 of the Act.

3. In the backdrop of the above facts, Mr. Dani, for the landlords, contends that the appeal presented by the tenant questioning the decision of the Tenancy Awal Karkoon dated 30th October 1959 was untenable and the appeal court had no authority to entertain the same because the same was filed much beyond limitation and that no formal application for condonation of delay was accompanied along with the appeal nor any formal order has been passed by the appellate court to condone the delay in filing the appeal nor any sufficient cause has been made out for condonation of delay of almost 23 years. He therefore, submits that in such a case, the appeal Court cannot assume jurisdiction to enter upon the merits of the controversy unless the delay in filing an appeal was to be condoned in the first place. In support of this submission, reliance is placed on two decisions of the Supreme Court reported in 1995 Supp (3) S.C.C. 231 in the case of Secretary to Govt. of India and others v. Shivram Mahadu Gaikwad; and in the case of Ramesh Chand Sharma v. Udham Singh Kamal; and decision of our High Court reported in 2003(3) Mh.L.J. 238 in the case of Ballumal A. Jaisingh v. J.J. Builders and Ors.. Mr. Dani then submits that assuming that the order passed by the Tenancy Awal Karkoon dated 30th October 1959 is illegal or untenable for any reason, even so it was obligatory on the part of the tenant to question the correctness of the said decision immediately after the said order was passed within the limitation period prescribed by the Act. He submits that unless the validity of the order is put in issue, it was not open for the tenant to ignore that order till it is set aside as the same will bind the parties inter se. To buttress this submission, reliance is placed on two decisions of the Apex Court in the case of State of Punjab v. Gurdev Singh, Ashok Kumar and 1999(1) Mh.L.J. 782 in the case of V.S. Charati v. Hussain Nhanu Jamadar by L.Rs. He further submits that as no sufficient cause for condoning delay of 23 years has been made out, the appeal as presented by the tenant was incompetent and the same could not have been examined on merits at all and all the reasons recorded by the appellate authority or for that matter by the revisional authority on merits of the contentions will have to be ignored and effaced from the record. He submits that if the landlords are right in this submission, then it would necessarily follow that the subsequent actions taken by the tenant for restoration of land or compensation was unavailable to the tenant and the same ought to be rejected on that count alone. He submits that in any case the finding of fact recorded by the authorities below which has been affirmed till the stage of revision application by the Tribunal is that the tenant has failed to produce any documentary evidence to support his stand that he was in possession of the suit land from 1959-60 onwards and since the tenant would be bound by the order of surrender passed in 1959, consequent to which possession has been made over to the landlords, as has been recorded in the revenue records in the shape, of Kabje Pavti, the grievance of the tenant at this distance of time, after lapse of 23 years of forcible dispossession cannot be sustained, being an afterthought. He further submits that it has been found as of fact that the order of surrender was voluntary and there was no substance in the allegation of the tenant that it was obtained by misrepresentation and that finding of fact will bind this Court. On the above arguments, Mr. Dani submits that writ petition preferred by the landlords will have to be allowed in toto by setting aside the decisions passed by the authorities below on the appeal preferred by the tenant as well as on the application preferred by the tenant; for restoration of the suit lands.

4. On the other hand, Mr. Gole for the tenant contends that the order of surrender is void ab initio and nullity. According to him, there was no occasion for the tenant to surrender after the tillers’ day and in the. present case, the tillers’ day has been noted to be 3rd March 1959, whereas the application for surrender is filed in September 1959. He submits that after the tillers’ day, there was no relationship of landlord and tenant, for which reason the tenant could be permitted to surrender the land and, as such, the order of surrender passed by the Tenancy Awal Karkoon being without authority of law will be of no avail. He further submits that since the order of surrender was illegal and void, it was not necessary for the tenant to challenge, the same, but, even then, in the present case, the tenant has filed appeal challenging the said decision and that appeal will have to be decided in favour of the tenant, irrespective of the fact that it has been filed after lapse of 23 years. According to him, the tenant has became deemed purchaser of the suit land and which right cannot be defeated, unless specifically provided by the law. Reliance is placed on the decision reported in (1959) LXII Bom.L.R. 261 of the Division Bench of our High Court in the case of Trambaklal Harinarayan Jani v. Shankarbhai Bhaijibhai Vagri, which has taken the view that surrender must be lawful one, made in accordance with the provisions of the Tenancy Act and the effect of which must be the total cessation of the tenancy rights of the tenant either under a contract of tenancy or under a statutory tenancy. It has been held in the said decision that so long as the surrender is not verified and recognised under Section 15 of the Act and so long as a tenant still retains the right to restoration of possession under Section 29(1) of the Act, there would be no cessation of tenancy rights and, therefore, no acquisition or transfer of land by the landlord. Reliance is then placed on the decision of the Gujarat High Court reported in 1982 VOL. XXIII (1) G.L.R. 333 in the case of Patel Prabhudas Madhavdas v. Bai Shivkore wd/o Bhudar Ranchhod. It is held in this decision that in surrender proceedings, private arrangement of handing over possession of the land has no legal efficacy. Any such private arrangement without recourse to Section 15 does not terminate tenancy and, if the surrender is faulted on that count, then the tenant will have to be declared as deemed purchaser. Reliance is lastly placed on an unreported decision of Single Judge of our High Court decided on April 26, 1971, in Special Civil Application No. 1816 of 1965, wherein it is held that after the tillers’ day, the landlord could not accept any surrender from the tenant. The tenant could not surrender his tenancy as there was no tenancy. The landlord could not accept the surrender as he was no longer the landlord. Relying on the aforesaid decisions, Mr. Gole contends that even if the order of surrender has been passed by the Tenancy Awal Karkoon, the same will have to be ignored and, in any case, set aside the same being illegal and nullity. He contends that there was ample evidence on record to suggest that inspite of the order of surrender and the Kabje Pavti executed in the year 1959, the tenant continued to remain in possession of the suit land till April 1982, when he was forcibly dispossessed. It is on that basis, it is submitted that the tenant was entitled for relief of restoration of possession of the suit land, as well as the compensation for the forcible dispossession and the loss suffered by the tenant.

5. Having, considered the rival submissions, the first question that needs to be addressed in this proceedings is whether the appeal preferred by the tenant questioning the order of surrender passed by the Tenancy Awal Karkoon dated 30th October 1959 can be said to be properly presented. I have no hesitation in accepting the submission canvassed on behalf of the landlords that since the appeal was presented after the lapse of 23 years by the tenant, it was obligatory for the tenant to file application for condonation of delay to be accompanied along with the said appeal. In absence of such application accompanied along with the appeal, the appeal could not have been entertained by the appellate court at all. It is well-settled that it is only upon condonation of delay in filing the appeal, that the appeal court would assume jurisdiction to enter upon the merits of the controversy. In the present case, admittedly, no application for condonation of delay was filed by the tenant along with the appeal as presented. In any case, neither the appellate authority nor the Tribunal has even thought it necessary to condone the delay in filing such appeal. In fact, the appellate authority has rejected the appeal on the ground that no sufficient cause has been made out. In that sense, the appellate authority declined to condone the delay in presenting the appeal. The Tribunal has not even adverted to this aspect, though it goes to the root of the matter. To get over this position, Mr. Gole contends that the Tribunal having addressed to the merits of the controversy, it would presuppose that the Tribunal has condoned the delay in filing the appeal as was presented by the tenant. This submission only deserves to be stated to be rejected. It is well-settled that when the appeal is presented and if it is beyond time, it has to be accompanied by a formal application for condonation of delay or, at least, a prayer should be made in the appeal in that behalf. None of these requirements have been complied with. The appellate authority has found that no sufficient cause has been made out for condoning the delay. That finding, to my mind, requires to be upheld. If it is so, the appeal as was presented by the tenant ought to be dismissed at the threshold on the ground of delay and being barred by limitation.

6. Mr. Gole for the tenant, however, contends that whether the tenant had filed the appeal or not would make no difference to the facts on hand. According to him, the order of surrender itself was nullity and such order could be and ought to be ignored. I find no substance even in this submission. In the first place, the argument that the order of surrender is nullity is misconceived. At best, it is possible to contend that the order of surrender is illegal, but is not a case of nullity as such. Assuming that it was a case of nullity, as is rightly submitted on behalf of the Landlords, relying upon the decisions of the Apex Court in the case of Stats of Punjab v. Gurdev Singh, Ashok Kumar, ; and in the case of V.S. Charati v. Hussain Nhanu Jamadar by L.Rs., 1999(1) Mh.L.J. 782, even in that case, it was imperative for the tenant to put the said order in issue before the appellate authority which remedy was provided for by the statute. Having failed to avail of the said remedy within the prescribed period and having suffered the order for almost 23 years, the tenant cannot be heard to say that the said order be ignored. The Apex Court in the aforesaid two decisions has held that such order would bind the parties and the party aggrieved by the invalidity of the order has to approach the appropriate forum for relief of declaration that the order against him is inoperative and not binding on him. Applying the said principle to the present case, I have no hesitation in taking the view that the order of surrender as passed on 30th October 1959 will hold the field and cannot be ignored, as being suggested on behalf of the tenant.

7. As has been mentioned earlier, the appellate authority has clearly found that no sufficient cause has been made out for condoning the delay in filing the appeal, which was presented by the tenant. In such a case, it was unnecessary for the appellate Court to dwell upon the merits of the controversy, nor it was open to the Tribunal in exercise of revisional jurisdiction to examine the matter any further. The Tribunal in that sense has over-stepped and exceeded jurisdiction in making observations on merits. In any case, from the reading of the decision of the Tribunal, it is amply clear that the Tribunal has affirmed the view taken by the lower authority that the application as was filed by the tenant under Section 37 read with Section 39 of the Act was not maintainable on the ground that the order of surrender was not in relation to the land, which is already made over to the landlords pursuant to order passed in action under Section 31 of the Act. To my mind, no fault can be found with the said view taken by the authority below as has been confirmed by the Tribunal in the revision application.

8. I have also no hesitation in affirming the finding arrived at by the authorities below that the tenant has failed to adduce any documentary evidence to support his stand that he has been forcibly dispossessed on 23rd April 1982, whereas documentary evidence on record would indicate to the contrary; in that, the tenant has made over possession of the suit lands in the year 1959 and entry has been effected in favour of the landlords from 1959-60 onwards indicating that the land was being cultivated as ‘Khud’, i.e., personally.

9. From the above, it necessarily fallows that the order of surrender as passed on 30th October 1959 will stare at the face of the tenant and it will have to be held that the tenant was not in possession of the suit land after the execution of Kabje Pavti. Viewed in this perspective, the tenant will not be Entitled for any relief, much less in the application filed under Section 37 read with Section 39 of the Act, which has been held to be not maintainable.

10. Accordingly, Writ Petition preferred by the landlords succeeds and, instead, the appeal preferred by the tenant being Tenancy Appeal No. 30 of 1982 is dismissed; as well as the application preferred by the tenant for restoration of suit land under Section 37 read with Section 39 of the Act being Tenancy Case No. 3 of 1982 is also dismissed. In view of this order, both the writ petitions filed by the tenant are dismissed. In the peculiar facts and circumstances of this case, no order as to costs.

11. Parties to act on the authenticated copy of this Judgment.