Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO. 407 OF 2003
1. Hausu Dhondba Uike,
aged about 66 yrs., Occp. Agriculturist,
2. Ganba Dhondba Uike
aged about 51 yrs., Occp. Agriculturist,
Both r/o Wai (Bz.), Tah. Katol,
District – Nagpur. :: APPELLANTS
(Original Plaintiffs)
.. Versus ..
1. Sahebrao Chintaman Salam
aged about 36 yrs., Occp. Agriculturist,
2. Ashok Chintaman Salam
aged about 30 yrs., Occp. Agriculturist,
Both r/o Wai (Bz.), Post Kachari Sawanga
Tah. Katol, Distt. Nagpur. :: RESPONDENTS
(Original Defendants)
...................................................................................................................................
Shri V. A. Dhabe, Advocate for the appellants.
Shri A. P. Kalmeghe, Advocate for the respondents.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATE OF RESERVING THE JUDGMENT : OCTOBER 23, 2013
DATE OF PRONOUNCING THE JUDGMENT : JANUARY 15, 2014.
J U D G M E N T J U D G M E N T
1. This appeal is preferred against judgment and decree
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passed on 03/5/2003 in Regular Civil Appeal No.217 of 2002 by
Second Additional District Judge, Nagpur thereby reversing judgment
and decree passed in Regular Civil Suit No.17 of 1999 on 22/4/2002
by Civil Judge, Junior Division, Katol.
2. The appellants are the brothers, so also the respondents are
brothers. Respondent No.1 is cousin of the appellants. The
appellants owned agricultural field bearing Survey No.110 situated at
village Wai, as particularly described in plaint paragraph1. The
financial condition of the appellants being poor and respondent No.1
being cousin of the appellants, the appellants decided to allow
respondent No.1 to cultivate the field in stead of letting it lie fallow.
Therefore, about 7 to 8 years prior to filing of the suit, the suit was
filed in the year 1999, the appellants permitted respondent No.1 to
cultivate the said field (hereinafter referred to as 'the suit field') and
that was how the respondents came to be in possession of the suit
field. During the year 1999, the appellants, upon enquiry, learnt that
the Government had given fertilizers bags to the respondents to
facilitate cultivation of the suit field effectively and, therefore, they
demanded half of the fertilizers bags from the respondents. The
respondents, however, refused to part with the same and even asserted
that they had become the owners of the suit field and that the
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appellants were no longer its owners. Upon further enquiry, it was
learnt by the appellants that the respondents had also mutated their
names in the revenue record as owners of the suit field on the basis of
alleged sale deed executed on 02/01/1991 in their favour by the
appellants. The appellants submitted that they had never executed
any sale deed of the suit field in favour of the respondents nor had
received any consideration from them. Therefore, they demanded
back the possession of the suit field from the respondents and on
being denied the same by the respondents, the appellants filed the
suit for declaration and possession against the respondents.
3. The respondents resisted the suit. They submitted that by
virtue of the sale deed executed on 02/01/1991, they became the
owners of the suit field and thus were in lawful possession of the suit
field. However, they submitted that for some reason, the document
of sale deed dated 02/01/1991 remained to be registered. Further,
they submitted that as a part of the agreement to sell, possession of
the suit field was delivered by the appellants to them. They
alternatively submitted that since they were in lawful possession of
the suit field and cultivating the same and they being not the members
of the owners' family or servants on wages payable in cash or kind or
without being hired labourers, were deemed tenants as per the
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provision of Section 6 of the Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act, 1958 (hereinafter referred to as, 'the Tenancy
Act'). On these grounds they urged for dismissal of the suit.
4. After considering the evidence available on record and
hearing both the sides, the trial Court found that the appellants were
the owners of the suit field, who had permitted respondent No.1 to
cultivate it and that the respondents were not the deemed tenants.
With these findings, the trial Court decreed the suit by its judgment
and decree passed on 22/4/2002. The respondents preferred the
appeal against the said judgment and decree in which, learned
Additional District Judge recorded a finding that the respondents had
proved their ownership, being in lawful possession of the suit field
on the basis of sale deed dated 02/01/1991 and accordingly set aside
the judgment and decree of the trial Court and allowed the appeal by
his judgment and decree passed on 03/5/2003. It is this judgment
and decree, which are under challenge in the present second appeal.
5. This appeal was admitted by this Court on 28/4/2004 on
two substantial questions of law. The substantial questions of law that
arise for my consideration are stated as below.:
(1) Whether the respondents/original defendants
could claim ownership of the suit field on the basis of
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sale deed dated 02/01/1991 which was
unregistered?
(2) Whether the respondents/original defendants
could take alternative plea of deemed tenancy when
they had already set up plea of their becoming owner
on the basis of sale deed?
6. Learned Counsel for the appellants has forcefully argued
that the first appellate Court has committed serious error of law in
applying presumption under Section 110 of the Indian Evidence Act for
the reason that the presumption under this Section would arise only
when the initial ownership of the plaintiff is denied. On the other
hand, learned Counsel for the respondents has submitted that,
ordinarily burden of proving a fact is upon that party which asserts the
fact. In support, he placed his reliance upon the case of Anil Rishi Vs.
Gurubaksh Singh reported in (2006) 5 SCC558 .
7. It is seen from the impugned judgment and decree of the
first appellate Court that it has drawn presumption under Section 110
of the Evidence Act to reach the conclusion that the respondents being
in lawful possession of the suit field and the appellants having proved
their case of permissive possession, the presumption of ownership
under Section 110 of the Evidence Act was raised in favour of the
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respondents and it stood unrebutted. Thus, the first appellate Court
found that the respondents proved their ownership over the suit field
by virtue of sale deed dated 02/01/1991.
8. No doubt, Section 110 of the Indian Evidence Act, 1872 lays
down a rule that when the question is, whether any person is owner of
anything of which he is shown to be in possession, the burden of
proving that he is not the owner is on the person who affirms that
fact. This rule has been elaborated by Manipur High Court in its
decision given in the case of Heisnam Nilakantha Singh & others Vs.
Heisnam Ningol Thokchom Ongbi Thambal Devi & others reported in
AIR 1970 Manipur 50 and which has been relied upon by the first
appellate Court. It is held by Manipur High Court that presumption
under Section 110 of the Evidence Act would arise, if two conditions
are satisfied, namely; (1) that the possession is not prima facie
wrongful, and (2) that the title of the other contesting party to the
property is not proved by direct evidence.
9. There can be no doubt about the above referred two
conditions necessary for drawing of presumption under Section 110
of the Evidence Act. The second condition referred to above is more
relevant in the instant case. Needless to say, the appellants
themselves have submitted that they had delivered possession of the
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suit field to the respondents for cultivation and that was in the nature
of a permissive possession, thereby meaning that the possession over
the suit field of the respondents was not at all wrongful. The question
that has remained to be considered is; 'as to whether the title of the
appellants, the contesting party in the instant case, has been proved
by direct evidence or not?' Therefore, as stated earlier, the second
condition referred to above is most relevant for the purposes of this
appeal. In this case, the ownership of the appellants in respect of the
suit field has never been denied by the respondents. What they have
submitted is that the appellants have transferred the title to the suit
field by virtue of a document which they called as sale deed dated
02/01/1991.
10. It is clear that these pleadings show that the respondents
did not deny the title of the appellants to the suit field and, therefore,
the appellants would have to be held as owners of the suit field and
the burden to prove their title to the suit field by producing on record
necessary evidence would shift to respondents. In the case of Anil
(supra) relied upon by the respondents it has been held by the Hon'ble
Apex Court that ordinarily burden of proving of a fact rests on that
party which substantially asserts the affirmative of the issue. Here,
in this case, the respondents have asserted that the suit field's
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ownership has been transferred to them by the appellants by virtue of
the sale deed and so, as per the law laid down by the Hon'ble Apex
Court in the said case of Anil , the burden to prove it would rest upon
the respondents and as such there would be no question of drawing
the presumption under Section 110 of the Indian Evidence Act. The
first appellate Court has misread the law laid down in the case of
Nilkantha Singh (supra) and wrongly applied presumption under
Section 110 of the Evidence Act.
11. Now, it would have to be seen whether the respondents
proved their ownership to the suit field or not. They have admitted
that the sale deed dated 02/01/1991 was not a registered instrument.
Therefore, the respondents have effectively contended that transfer of
ownership of the suit field is on the basis of an unregistered
instrument. Under Section 54 of the Transfer of Property Act, transfer
of immovable property by sale having value of Rs.100/ and upwards
must be by a registered instrument of sale. Admittedly, document
dated 02/01/1991 being not a registered instrument of sale, it cannot
be said that the suit field was validly transferred by sale to the
respondents. Thus, the respondents failed to discharge the burden of
proving their title to the suit field. In such a situation, the first
appellate Court could not have concluded that failure to prove
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permissive possession of the respondents by the appellants was
enough to presume title of the respondents to the suit field. The title
was required to be proved by respondents, and as said earlier,
presumption under Section 110 was not applicable to their case
because they had admitted title of appellants and had only contended
that it was transferred to them by sale. This contention required proof
as per law, which was in the nature of registered document of sale,
and which was not there. In the absence of registered instrument of
sale, no immovable property of the value of `100 / and upwards can be
transferred and this is the mandate of law under Section 54 of the
Transfer of Property Act. Accordingly, the first substantial question of
law is answered as in the negative.
12. The first appellate Court has not dealt with the question of
deemed tenancy in its judgment and decree passed on 03/5/2003.
However, it has been considered and also answered by the trial Court
in its judgment and decree passed on 22/4/2002. According to the
learned Counsel for the appellants, the trial Court could not have
recorded contradictory findings on the aspect of deemed tenancy. He
points out from the judgment of the trial Court that on one hand the
trial Court found alternate plea of deemed tenancy, it being
inconsistent with the plea of ownership on the basis of sale deed,
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cannot be taken and on the other hand, it dealt with the same issue
recording a finding that defendant No.1 was cultivating the suit field
as per the permission given by the appellants and not as the tenants
of the appellants. According to him, this approach of the trial Court
was absolutely incorrect, especially when no issue of tenancy was
framed by the trial Court.
13. Learned Counsel for the respondents has submitted that the
respondents were not members of the appellants' family nor were hired
labourers nor the servants on wages and were in lawful possession of
the suit field. Therefore, he further submits, they were deemed tenants
under the provision of Section 6 of the Tenancy Act. He has placed
reliance upon the case of Jagan @ Jagannath Umaji Vs. Gokuldas
Hiralal Tewari reported in AIR 1987 SC 2429 in support of his
arguments.
14. No doubt, under Section 6 of the Tenancy Act, a person
who lawfully cultivates land belonging to another person and who is
not a member of the owner's family or who is not a servant on wages
payable in cash or kind, not being paid in crop share or who is not a
hired labourer cultivating the land under the personal supervision of
the owner, is a deemed tenant. This is what has been laid down by the
Hon'ble Apex Court in the said case of Jagan (supra).
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15. In the instant case, there is no dispute about the fact that
the possession of the respondents was lawful as they were permitted
to cultivate the suit field by the appellants. It is also not in dispute that
they were cultivating the suit field for a period of about 7 to 8 years
immediately before filing of the suit. Therefore, now, it would have to
be seen whether the respondents, as submitted by them, fulfilled the
remaining conditions required for giving them status of 'deemed
tenants' under Section 6 of the Tenancy Act. Definitely, there would
be an issue in this regard which would require adjudication in
accordance with law. This issue would be; " Whether the defendants
are deemed tenants as per Section 6 of the Bombay Tenancy and
Agricultural Lands (Vidarbha Region) Act, 1958? " This issue, under
Section 125 of the Tenancy Act, is required to be settled and decided
by the Competent Authority and the Civil Court would have no
jurisdiction to decide the same and till the time it is settled and
decided, the suit would have to be stayed by the Civil Court. But,
before giving any finding as to whether or not this issue ought to be
framed and referred to the Competent Authority by the Civil Court, it
would be necessary for this Court to consider whether the issue,
being in the nature of alternative plea, could be raised at all by the
respondents in the facts and circumstances of this case.
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16. The said issue, one must say, is in the nature of an
alternative plea, pure and simple, not really destructive of the first plea
taken by the respondents that they have become the owners of the suit
field by virtue of document of sale deed dated 02/01/1991. It is well
settled law that even mutually inconsistent pleas could be raised in
defence by the defendants (See Arundhati Mishra (Smt.) vs. Sri Ram
Charitra Pandey (1994) 2 SCC 29) . The only prohibition, as held in
the case of Vimal Chand Ghevarchand Jain vs. Ramakant Eknath Jadoo
(2009) 5 SCC 713 , is that alternative pleas should not be destructive of
each other. They should be capable to coexist with each other and
should not be so inconsistent as to make it impossible to prove one
plea unless the other is given up. Such a situation, as for example,
could be found when plea of adverse possession is taken and
simultaneously plea of transfer of title by virtue of sale or exchange is
taken. The plea of adverse possession is based upon the assertion of
one's possession with an intention to occupy it adversely to the true
owner and whereas, the plea of ownership based upon sale or
exchange essentially admits title of another. In such a scenario, period
of prescription required for perfecting the title by adverse possession
would not begin till the time the plea of transfer of title, by sale or
exchange is given up. The plea of deemed tenancy based upon claim
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to remain in possession and enjoy the rights of a tenant, is obviously
not destructive of plea of ownership as it is not of such a nature that it
cannot be proved unless the latter is given up. Therefore, it could have
been very well set up as an alternate defence by the respondents. With
this, the second substantial question of law would have to be
answered as in the affirmative and accordingly, I do so.
17. After having answered the second substantial question of
law in the affirmative, I find that there is a need for framing of an
additional issue and it's being referred by the trial Court to the
Competent Authority under the provisions of the Tenancy Act for its
adjudication. Therefore, I find that this is a fit case for remanding the
matter to the trial Court for deciding the whole case afresh, in
accordance with law.
18. In the result, the appeal deserves to be allowed.
i. The appeal is allowed with costs and the impugned
judgments and decrees of both the Courts below
are hereby quashed and set aside.
ii. The matter is remanded to the trial Court for
decision afresh, in accordance with law.
iii. It is directed that the trial Court shall frame an
issue on the lines suggested in the judgment and
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refer the same to the Competent Authority in
accordance with the provisions of Section 125 of
the Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act, 1958 and after receipt of
the decision of the Competent Authority, the trial
Court shall dispose of the suit after considering the
evidence available on record and hearing both the
sides, in accordance with law.
iv. The trial Court is directed to expedite the final
disposal and the Competent Authority is also
directed to render its decision upon reference to it,
as far as possible, within three months from the
date of receipt of reference.
v. Parties to appear before the trial Court on
17/02/2014 .
JUDGE
wwl
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
SECOND APPEAL NO. 407 OF 2003
1. Hausu Dhondba Uike,
aged about 66 yrs., Occp. Agriculturist,
2. Ganba Dhondba Uike
aged about 51 yrs., Occp. Agriculturist,
Both r/o Wai (Bz.), Tah. Katol,
District – Nagpur. :: APPELLANTS
(Original Plaintiffs)
.. Versus ..
1. Sahebrao Chintaman Salam
aged about 36 yrs., Occp. Agriculturist,
2. Ashok Chintaman Salam
aged about 30 yrs., Occp. Agriculturist,
Both r/o Wai (Bz.), Post Kachari Sawanga
Tah. Katol, Distt. Nagpur. :: RESPONDENTS
(Original Defendants)
...................................................................................................................................
Shri V. A. Dhabe, Advocate for the appellants.
Shri A. P. Kalmeghe, Advocate for the respondents.
...................................................................................................................................
CORAM : S. B. SHUKRE, J.
DATE OF RESERVING THE JUDGMENT : OCTOBER 23, 2013
DATE OF PRONOUNCING THE JUDGMENT : JANUARY 15, 2014.
J U D G M E N T J U D G M E N T
1. This appeal is preferred against judgment and decree
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passed on 03/5/2003 in Regular Civil Appeal No.217 of 2002 by
Second Additional District Judge, Nagpur thereby reversing judgment
and decree passed in Regular Civil Suit No.17 of 1999 on 22/4/2002
by Civil Judge, Junior Division, Katol.
2. The appellants are the brothers, so also the respondents are
brothers. Respondent No.1 is cousin of the appellants. The
appellants owned agricultural field bearing Survey No.110 situated at
village Wai, as particularly described in plaint paragraph1. The
financial condition of the appellants being poor and respondent No.1
being cousin of the appellants, the appellants decided to allow
respondent No.1 to cultivate the field in stead of letting it lie fallow.
Therefore, about 7 to 8 years prior to filing of the suit, the suit was
filed in the year 1999, the appellants permitted respondent No.1 to
cultivate the said field (hereinafter referred to as 'the suit field') and
that was how the respondents came to be in possession of the suit
field. During the year 1999, the appellants, upon enquiry, learnt that
the Government had given fertilizers bags to the respondents to
facilitate cultivation of the suit field effectively and, therefore, they
demanded half of the fertilizers bags from the respondents. The
respondents, however, refused to part with the same and even asserted
that they had become the owners of the suit field and that the
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appellants were no longer its owners. Upon further enquiry, it was
learnt by the appellants that the respondents had also mutated their
names in the revenue record as owners of the suit field on the basis of
alleged sale deed executed on 02/01/1991 in their favour by the
appellants. The appellants submitted that they had never executed
any sale deed of the suit field in favour of the respondents nor had
received any consideration from them. Therefore, they demanded
back the possession of the suit field from the respondents and on
being denied the same by the respondents, the appellants filed the
suit for declaration and possession against the respondents.
3. The respondents resisted the suit. They submitted that by
virtue of the sale deed executed on 02/01/1991, they became the
owners of the suit field and thus were in lawful possession of the suit
field. However, they submitted that for some reason, the document
of sale deed dated 02/01/1991 remained to be registered. Further,
they submitted that as a part of the agreement to sell, possession of
the suit field was delivered by the appellants to them. They
alternatively submitted that since they were in lawful possession of
the suit field and cultivating the same and they being not the members
of the owners' family or servants on wages payable in cash or kind or
without being hired labourers, were deemed tenants as per the
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provision of Section 6 of the Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act, 1958 (hereinafter referred to as, 'the Tenancy
Act'). On these grounds they urged for dismissal of the suit.
4. After considering the evidence available on record and
hearing both the sides, the trial Court found that the appellants were
the owners of the suit field, who had permitted respondent No.1 to
cultivate it and that the respondents were not the deemed tenants.
With these findings, the trial Court decreed the suit by its judgment
and decree passed on 22/4/2002. The respondents preferred the
appeal against the said judgment and decree in which, learned
Additional District Judge recorded a finding that the respondents had
proved their ownership, being in lawful possession of the suit field
on the basis of sale deed dated 02/01/1991 and accordingly set aside
the judgment and decree of the trial Court and allowed the appeal by
his judgment and decree passed on 03/5/2003. It is this judgment
and decree, which are under challenge in the present second appeal.
5. This appeal was admitted by this Court on 28/4/2004 on
two substantial questions of law. The substantial questions of law that
arise for my consideration are stated as below.:
(1) Whether the respondents/original defendants
could claim ownership of the suit field on the basis of
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sale deed dated 02/01/1991 which was
unregistered?
(2) Whether the respondents/original defendants
could take alternative plea of deemed tenancy when
they had already set up plea of their becoming owner
on the basis of sale deed?
6. Learned Counsel for the appellants has forcefully argued
that the first appellate Court has committed serious error of law in
applying presumption under Section 110 of the Indian Evidence Act for
the reason that the presumption under this Section would arise only
when the initial ownership of the plaintiff is denied. On the other
hand, learned Counsel for the respondents has submitted that,
ordinarily burden of proving a fact is upon that party which asserts the
fact. In support, he placed his reliance upon the case of Anil Rishi Vs.
Gurubaksh Singh reported in (2006) 5 SCC558 .
7. It is seen from the impugned judgment and decree of the
first appellate Court that it has drawn presumption under Section 110
of the Evidence Act to reach the conclusion that the respondents being
in lawful possession of the suit field and the appellants having proved
their case of permissive possession, the presumption of ownership
under Section 110 of the Evidence Act was raised in favour of the
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respondents and it stood unrebutted. Thus, the first appellate Court
found that the respondents proved their ownership over the suit field
by virtue of sale deed dated 02/01/1991.
8. No doubt, Section 110 of the Indian Evidence Act, 1872 lays
down a rule that when the question is, whether any person is owner of
anything of which he is shown to be in possession, the burden of
proving that he is not the owner is on the person who affirms that
fact. This rule has been elaborated by Manipur High Court in its
decision given in the case of Heisnam Nilakantha Singh & others Vs.
Heisnam Ningol Thokchom Ongbi Thambal Devi & others reported in
AIR 1970 Manipur 50 and which has been relied upon by the first
appellate Court. It is held by Manipur High Court that presumption
under Section 110 of the Evidence Act would arise, if two conditions
are satisfied, namely; (1) that the possession is not prima facie
wrongful, and (2) that the title of the other contesting party to the
property is not proved by direct evidence.
9. There can be no doubt about the above referred two
conditions necessary for drawing of presumption under Section 110
of the Evidence Act. The second condition referred to above is more
relevant in the instant case. Needless to say, the appellants
themselves have submitted that they had delivered possession of the
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suit field to the respondents for cultivation and that was in the nature
of a permissive possession, thereby meaning that the possession over
the suit field of the respondents was not at all wrongful. The question
that has remained to be considered is; 'as to whether the title of the
appellants, the contesting party in the instant case, has been proved
by direct evidence or not?' Therefore, as stated earlier, the second
condition referred to above is most relevant for the purposes of this
appeal. In this case, the ownership of the appellants in respect of the
suit field has never been denied by the respondents. What they have
submitted is that the appellants have transferred the title to the suit
field by virtue of a document which they called as sale deed dated
02/01/1991.
10. It is clear that these pleadings show that the respondents
did not deny the title of the appellants to the suit field and, therefore,
the appellants would have to be held as owners of the suit field and
the burden to prove their title to the suit field by producing on record
necessary evidence would shift to respondents. In the case of Anil
(supra) relied upon by the respondents it has been held by the Hon'ble
Apex Court that ordinarily burden of proving of a fact rests on that
party which substantially asserts the affirmative of the issue. Here,
in this case, the respondents have asserted that the suit field's
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ownership has been transferred to them by the appellants by virtue of
the sale deed and so, as per the law laid down by the Hon'ble Apex
Court in the said case of Anil , the burden to prove it would rest upon
the respondents and as such there would be no question of drawing
the presumption under Section 110 of the Indian Evidence Act. The
first appellate Court has misread the law laid down in the case of
Nilkantha Singh (supra) and wrongly applied presumption under
Section 110 of the Evidence Act.
11. Now, it would have to be seen whether the respondents
proved their ownership to the suit field or not. They have admitted
that the sale deed dated 02/01/1991 was not a registered instrument.
Therefore, the respondents have effectively contended that transfer of
ownership of the suit field is on the basis of an unregistered
instrument. Under Section 54 of the Transfer of Property Act, transfer
of immovable property by sale having value of Rs.100/ and upwards
must be by a registered instrument of sale. Admittedly, document
dated 02/01/1991 being not a registered instrument of sale, it cannot
be said that the suit field was validly transferred by sale to the
respondents. Thus, the respondents failed to discharge the burden of
proving their title to the suit field. In such a situation, the first
appellate Court could not have concluded that failure to prove
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permissive possession of the respondents by the appellants was
enough to presume title of the respondents to the suit field. The title
was required to be proved by respondents, and as said earlier,
presumption under Section 110 was not applicable to their case
because they had admitted title of appellants and had only contended
that it was transferred to them by sale. This contention required proof
as per law, which was in the nature of registered document of sale,
and which was not there. In the absence of registered instrument of
sale, no immovable property of the value of `100 / and upwards can be
transferred and this is the mandate of law under Section 54 of the
Transfer of Property Act. Accordingly, the first substantial question of
law is answered as in the negative.
12. The first appellate Court has not dealt with the question of
deemed tenancy in its judgment and decree passed on 03/5/2003.
However, it has been considered and also answered by the trial Court
in its judgment and decree passed on 22/4/2002. According to the
learned Counsel for the appellants, the trial Court could not have
recorded contradictory findings on the aspect of deemed tenancy. He
points out from the judgment of the trial Court that on one hand the
trial Court found alternate plea of deemed tenancy, it being
inconsistent with the plea of ownership on the basis of sale deed,
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cannot be taken and on the other hand, it dealt with the same issue
recording a finding that defendant No.1 was cultivating the suit field
as per the permission given by the appellants and not as the tenants
of the appellants. According to him, this approach of the trial Court
was absolutely incorrect, especially when no issue of tenancy was
framed by the trial Court.
13. Learned Counsel for the respondents has submitted that the
respondents were not members of the appellants' family nor were hired
labourers nor the servants on wages and were in lawful possession of
the suit field. Therefore, he further submits, they were deemed tenants
under the provision of Section 6 of the Tenancy Act. He has placed
reliance upon the case of Jagan @ Jagannath Umaji Vs. Gokuldas
Hiralal Tewari reported in AIR 1987 SC 2429 in support of his
arguments.
14. No doubt, under Section 6 of the Tenancy Act, a person
who lawfully cultivates land belonging to another person and who is
not a member of the owner's family or who is not a servant on wages
payable in cash or kind, not being paid in crop share or who is not a
hired labourer cultivating the land under the personal supervision of
the owner, is a deemed tenant. This is what has been laid down by the
Hon'ble Apex Court in the said case of Jagan (supra).
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15. In the instant case, there is no dispute about the fact that
the possession of the respondents was lawful as they were permitted
to cultivate the suit field by the appellants. It is also not in dispute that
they were cultivating the suit field for a period of about 7 to 8 years
immediately before filing of the suit. Therefore, now, it would have to
be seen whether the respondents, as submitted by them, fulfilled the
remaining conditions required for giving them status of 'deemed
tenants' under Section 6 of the Tenancy Act. Definitely, there would
be an issue in this regard which would require adjudication in
accordance with law. This issue would be; " Whether the defendants
are deemed tenants as per Section 6 of the Bombay Tenancy and
Agricultural Lands (Vidarbha Region) Act, 1958? " This issue, under
Section 125 of the Tenancy Act, is required to be settled and decided
by the Competent Authority and the Civil Court would have no
jurisdiction to decide the same and till the time it is settled and
decided, the suit would have to be stayed by the Civil Court. But,
before giving any finding as to whether or not this issue ought to be
framed and referred to the Competent Authority by the Civil Court, it
would be necessary for this Court to consider whether the issue,
being in the nature of alternative plea, could be raised at all by the
respondents in the facts and circumstances of this case.
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16. The said issue, one must say, is in the nature of an
alternative plea, pure and simple, not really destructive of the first plea
taken by the respondents that they have become the owners of the suit
field by virtue of document of sale deed dated 02/01/1991. It is well
settled law that even mutually inconsistent pleas could be raised in
defence by the defendants (See Arundhati Mishra (Smt.) vs. Sri Ram
Charitra Pandey (1994) 2 SCC 29) . The only prohibition, as held in
the case of Vimal Chand Ghevarchand Jain vs. Ramakant Eknath Jadoo
(2009) 5 SCC 713 , is that alternative pleas should not be destructive of
each other. They should be capable to coexist with each other and
should not be so inconsistent as to make it impossible to prove one
plea unless the other is given up. Such a situation, as for example,
could be found when plea of adverse possession is taken and
simultaneously plea of transfer of title by virtue of sale or exchange is
taken. The plea of adverse possession is based upon the assertion of
one's possession with an intention to occupy it adversely to the true
owner and whereas, the plea of ownership based upon sale or
exchange essentially admits title of another. In such a scenario, period
of prescription required for perfecting the title by adverse possession
would not begin till the time the plea of transfer of title, by sale or
exchange is given up. The plea of deemed tenancy based upon claim
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to remain in possession and enjoy the rights of a tenant, is obviously
not destructive of plea of ownership as it is not of such a nature that it
cannot be proved unless the latter is given up. Therefore, it could have
been very well set up as an alternate defence by the respondents. With
this, the second substantial question of law would have to be
answered as in the affirmative and accordingly, I do so.
17. After having answered the second substantial question of
law in the affirmative, I find that there is a need for framing of an
additional issue and it's being referred by the trial Court to the
Competent Authority under the provisions of the Tenancy Act for its
adjudication. Therefore, I find that this is a fit case for remanding the
matter to the trial Court for deciding the whole case afresh, in
accordance with law.
18. In the result, the appeal deserves to be allowed.
i. The appeal is allowed with costs and the impugned
judgments and decrees of both the Courts below
are hereby quashed and set aside.
ii. The matter is remanded to the trial Court for
decision afresh, in accordance with law.
iii. It is directed that the trial Court shall frame an
issue on the lines suggested in the judgment and
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refer the same to the Competent Authority in
accordance with the provisions of Section 125 of
the Bombay Tenancy and Agricultural Lands
(Vidarbha Region) Act, 1958 and after receipt of
the decision of the Competent Authority, the trial
Court shall dispose of the suit after considering the
evidence available on record and hearing both the
sides, in accordance with law.
iv. The trial Court is directed to expedite the final
disposal and the Competent Authority is also
directed to render its decision upon reference to it,
as far as possible, within three months from the
date of receipt of reference.
v. Parties to appear before the trial Court on
17/02/2014 .
JUDGE
wwl
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