Full Judgment Text
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PETITIONER:
HEIRS & LRS. OF DECEASED SOMABHAI KANJIBHAI BARIA
Vs.
RESPONDENT:
PATEL PARSHOTTAMDAS JAMDAS (D) & ANR.
DATE OF JUDGMENT03/03/1995
BENCH:
K RAMASWAMY & B.L. HANSARLA, JJ.
ACT:
HEADNOTE:
JUDGMENT:
ORDER
1. Respondent Patel Parshottamda Jamnadas has died. The
appellants ha filed an application to bring the legal
representatives on record. Ghanshamdasbhai Parshottamdas
Patel, son of the deceased Patel Parshottamdas Jamnadas, has
also made an application independently on the basis of will
said to have been executed by his father. Without going
into the inter se rights of the legal representatives of
Patel Parshottamdas Jamnadas, we bring Ghanshamdasbhai
Parshottamdas Patel on record to represent his estate for
the purpose of the disposal of these appeals. The inter se
rights, if any, would be decided in an appropriate
proceedings.
2. The three appeals are being disposed of by a common
order. The appellants initially were tenants of respondent.
The lands are watan lands. Though the appellants remained
in possession from the year 1939, since the lands being
watan lands, they are not directly governed by the Bombay
Tenancy and Agricultural Lands, Act 1 of 1948 (for short,
’the Tenancy Act’) as extended to the State of Gujarat. The
Gujarat Watans Abolition ’Act, 1961, abolished the watans
with effect from 1.4.63. Subsequently, re-grant was made in
favour of the respondent on March 23, 1966. In the
meanwhile, the respondent terminated the tenancy of the
appellants with effect from 31.3.61 and filed present civil
suit for possession on August 14, 1962.
3. The appellants contended that civil court has no
jurisdiction to decide the question whether the appellants
are tenants under the respondent and that they are not
liable to ejectment on the basis of termination of tenancy.
The civil court relying upon s.88 of the Tenancy Act, held,
as preliminary issue, that the appellants are tenants and
that, therefore, until the question of termination of
tenancy has been duly determined by the mamlatdar, the civil
court has no jurisdiction. Accordingly, the civil court
dismissed the suit. On revision, the learned single Judge
of the-High Court by judgment dated 15.4.77, held that for
application of s.88 of the Tenancy Act, read with s.9 of
Watan Act, 1961, two conditions must be satisfied, namely,
the lease should have been lawfully made and such a lease
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must be subsisting on the appointed date, namely, April 1,
1963. Though there was a lease, since it was determined as
effective from 31.3.61, there was no subsisting lease.
Therefore, the civil court was wrong in its conclusion that
the tenancy court has jurisdiction to determine the rights
of the tenancy between the parties and accordingly reversed
the decree and remitted the matter for trial according to
law. Thus these appeals by special leave.
4. Shri Ganpule, learned senior counsel for the
appellants, contended that by operation of sub-s.(6) of
s.32(G) of the Tenancy Act, despite the abolition of the
watan and re-grant in favour of the respondent, the right of
tenancy created in favour of the tenants still subsists.
Therefore,-whether the termination of the tenancy has been
legally done should be decided only by the mamlatdar and not
by the civil court. We find no force in the contention.
5. Sub-s.(6) of s.32(G) envisages:
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"If any land which, by or under the provisions
of any of the Land Tenures Abolition Acts
referred to in Schedule 111 of this Act, is
re-granted to the holder thereof on condition
that it was not transferable, such condition
shall not be deemed to affect the right of any
person holding such land on lease created
before the re-grant and such person shall as a
tenant be deemed to have purchased the land
under this section, as if the condition that
it was not transferable was not the condition
of re-grant. "
6. For application of sub-s.(6) of s.32(G) two essential
conditions are required to be satisfied. The kind of land
tenures, referred to in sub-s.(6), should find place in the
IIIrd Schedule. We have verified Schedule 111 and the Watan
Abolition Act 1961 is not part of Schedule Ill. Secondly,
though the re-grant is made in favour of the holder of the
watan with a condition that it is not transferable, the
lease created before the re-grant must be subsisting. In
that event, the tenant would be entitled to purchase the
land under s.32(G). It is already seen and a clear finding
of fact was recorded by the High Court and it is not
disputed before us that the tenancy was terminated with
effect from 31.3.1961 and the suit for possession was filed
on 14.8.1962.
7. The question then is what is the nature of possession
the appellants held. This Court in Maneksha Ardeshir Irani
v. Manekji Edulji Mistry, 1975 (2) SCR 34 1, held that on
cessation of original tenancy, the right of protected tenant
would continue until it would duly come to an end. It was
found that on August 1, 1956 it came to a terminus and the
original contract of tenancy thereby had ceased. The
appellant therein was in occupation of the land only on
sufferance since the land-lord had not given any consent for
the continuance of possession of the tenant. When the
landlord did not give his consent, express or necessary
implication, after the termination of lease, his possession
is only by sufferance and he cannot be said to be in
possession as a tenant holding over or a tenant at will.
8. The same ratio applies to the facts in this case.
After the determination of the tenancy and after the
respondent filed the suit, there was no consent given by the
landlord either in writing or by acquiescence or by conduct.
In that view of the matter, the civil court was clearly in
error in holding that there exists a jural relationship of
landlord and tenant between the respondent and the
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appellants and that, therefore, the mamlatdar is the
competent authority to decide the dispute of the tenancy
rights. The High Court was right in holding that the
condition precedent prescribed under s.88(IXc) of the
Tenancy Act read with s.9 of Watan Act has not been complied
with and that, therefore, the civil court alone has
jurisdiction to decide the question.
9. The appeals are accordingly dismissed. No costs.
10.In view of the above findings, the suits stand decreed,
as nothing more remains for trial as agreed by both the
counsel.
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