Full Judgment Text
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PETITIONER:
PUNDLIK KRISHNA JI AND ORS.
Vs.
RESPONDENT:
TRIMBAK BHIKAJI PATIL AND ORS.
DATE OF JUDGMENT23/04/1992
BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
FATHIMA BEEVI, M. (J)
CITATION:
1992 AIR 1338 1992 SCR (2) 749
1992 SCC Supl. (2) 290 JT 1992 (3) 110
1992 SCALE (1)908
ACT:
Berar regulation of Agricultural Leases Act, 1951-
section 8(1)(c)(f)-tenancy-termination-Applications by Karta
of family-Legality of.
Bombay Tenancy and agricultural lands (Vidarbha region
)Act,1958-proceedings under-Non-compliance of prior notice-
Effect.
Constitution of India, 1950-Article136-Appeal by spe-
cial leave-appreciation of High Court’s finding-Lease deed
dated 30-04-1951, whether genuine.
HEADNOTE:
Respondent No.1 was the owner of the disputed land. The
land was in cultivating possession of the appellant-tenants
since 1951. They acquired the status of protected lessees
under the Berar Regulation of Agricultural Leases Act,1951
and the Bombay Tenancy and Agricultural Lands (Vidarbha
Region) Act, 1958.
The respondent filing two separate applications against
the appellants. Initiated Proceedings before the Sub Divi-
sional Officer for ejectment of the appellants on the ground
that Predecessor of the appellant No1 created sub-leases in
favour of appellant No.2 and another and as such their
tenancy was liable to be terminated in term of section
8(1)(c)(f)of the Berar Act.
The appellants resisted the applications contending
that all the three persons were independent lessees in their
own rights and as such there was no question of appellant
No.1 having created sub-leases in favour of the other two.
The respondent No.1 produced a lease deed dated April
30,1951to prove that all the three tracts of land were
leased to appellant No.1and no part of the land was ever
leased to appellant No.2 and another; and that the original
lessee, appellant No.1, sub-leased part of the land to the
other two occupants.
750
The Sub- Divisional Officer allowed the applications of the
respondent No.1.
The appellants filed appeals before the Sub-Deputy
Collector against the order of the Sub-Divisonal
Officer,which were dismissed.
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The appellants-tenants went in revision before the
Revenue Tribunal. The Tribunal allowed the revision peti-
tions of the appellants.
The respondent challenged the order of the tribunal
dated 25.03.1970 in the High Court on 4.8.1971. In order to
get over the delay in filing the writ petition the land-
owner filed an affidavit stating that the papers in his
office remained unattended due to oversight and pressure of
work and as such the filing of the petitions was delayed.
The High Court allowed the petitions of the land-owner.
These appeals were filed by the tenants by way of special
leave petitions against the judgment of the High court.
Allowing the appeals of the tenants,this court,
HELD :1There is no infirmity in the finding of the High
court that the respndent No.1 being the Karta of the family
could file the applications for termination of the tenancy
without associating his brother [755H-756A].
2 The High court was also right in rejecting the con-
tention of the tenant that the proceedings under the Bombay
Act were illegal as the requirement of prior notice under
the said Act was not complied with [756-A].
3.0.1. The High Court erred in holding that the lease
deed dated April 30,1951 was a genuine document. No enquiry
was held at any stage regarding the genuine of the lease
deed. the sub-Divisional Officer refused to go into the
question on the ground that there were no pleadings on the
point. The Sub-Divisional Officer was obviously wrong be-
cause the lease deed was filed by the respondent-land -owner
after the pleadings were completed. The Appellate Court was
wholly unjustified in observing that the appellants-tenants
had admitted the execution of the lease deed. The appel-
lants’case throughout had been that the lease deed was a
forged document.(756 B-C)
751
3.02.The High Court should have remanded the case to
Trial Court for determining the genuineness of the lease
deed dated April 30,1951 specially when the case of the
respondent-land-owner was wholly based on the doucment. the
High court had no material before it to come to the conclu-
sion that the lease deed was a genuine document.(756 D-E)
JUDGMENT:
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 349-50
of 1978
From the Judgement and Order dated 10.8.1977 of the
Bombay High Court in Special Civil Application Nos. 230 and
235 of 1972.
Udai U. Lalit and C.K. Ratnaparkhi for the Appellants.
P.K. Goswami, P.H. Parekh and Sunil Dogra for the Re-
spondents.
The Judgement of the Court was delivered by
KULDIP SINGH,J. These appeals are directed against the
judgement of the Nagpur Bench of Bombay High Court directing
the ejectment of the appellants from three tracts of agri-
cultural-land which the appellants are in cultivating pos-
session since 1951.
Respondent Bhikaji is the owner of about 20 acres of
land subject-matter of the dispute. The said land is in
cultivating possession of the appellants since 1951 and
according to them, they have acquired the status of protect-
ed lessees under the Berar Regulation of Agricultural Leases
Act, 1951(hereinafter called ‘the Berar Act’) and the Bombay
Tenancy and agricultural Lands (Vidarbha Region)Act, 1958
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(hereinafter called ‘the Bombay Act’)
The respondent Bhikaji initiated proceedings before the
Sub-Divisional Officer Buldana for ejectment of the appel-
lants on the ground that predecessor of the first appellants
created sub-leases infavour of second appellant and one
Zipra Wanchu and as such their tenancy was liable to be
terminated in terms of Section 8(1)(c)(f) of the Berar Act.
Bhikaji filed two seperate applications against the appel-
lants. The applications were resisted by the appellants
inter alia on the ground that all the three persons, namely,
Pundlik Krishna, Kashao Krishna and Zipra Wanchhu were inde-
pendent lessees in their own rights and as such there was no
question of Pundlik Krishnaji having created sub-leases
infavour
752
of the other two. Before the Sub-Divisional Officer, the
respondent Bhikaji produced a lease deed dated April 30,
1951 to prove that all the three tracts of land were leased
to late Pundlik Krishnaji and no part of the land was ever
leased to Keshao Krishnaji and Zipra Wanchhu. It was sought
to be shown from the lease deed that the original lessee
Pundlik Krishnaji sub-leased part of the land to the other
two occupants. The Sub-Divisional Officer accepted the
contention of the respondent and ordered the ejectment of
the appellants. The Sub-Divisional Officer proceeded on the
following reasoning:-
‘‘The contention of the defendant Nos.1 and 2
that the lease of the remaining half share of
the suit land was created by the plaintiff’s
brother Keshav Bhikaji with the defendant
Nos.2 and 3 has no force......
The defendant Nos.1 and 2 contend that the
original lease deed dated 30.4.51 is a forged
one, but they have failed to mention this fact
in all their written statements or to show any
reason when questioned by the plaintiff’s
counsel.....
Pundlik Krishnaji and Keshao Krishnaji went in appeal
before the Sub-Deputy Collector against the order of the
Sub-Divisional Officer. The Collector dismissed the appeals.
Regarding the lease deed relied upon by the respondent
Bhikaji, the Collector observed as under:-
‘‘The very fact that the appellant Pundlik
executed a lease deed of all these fields in
favour of respondent Trimbak goes to prove
that he was the Karta of the family and his
brother Keshao had no hand in the management
on leasing out the property......
The execution of lease deed dated 30.4.51 by
appellant Pundlik in favour of the respondent
Trimbak has been admitted by the
appellants......
On the other hand there is document ‘‘Lease
Deed’’ dated 30.4.51 which clearly shows that
appellant Pundlik was the sole lessee of the
fields in question. I, therefore, agree with
the finding of the lower court that appellant
Pundlik was a tenant of the fields in ques-
tion.’’
The tenants further went in revision before the Revenue
Tribunal.
753
The Tribunal set aside the orders of the Sub-Divisional
Officer and of the Sub-Collector and dismissed the ejectment
applications of the respondent-landlord. The Tribunal no-
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ticed the arguments of the appellants-tenants in the follow-
ing words:-
‘‘Feeling aggrieved by this order, applicants filed
two separate appeals. In their appeals, they urged
that neither Keshao nor Zipra Wanchhu was the sub-
tenant of the fields in question. Pundlik had not
sublet the fields to them. The alleged lease deed
dated 30.4.51 was a forged document and adverse
inference against them should not have been drawn
for their failure to plead that the document dated
30.4.51 was a forged one as the same was produced
after written statements by the applicants were
already filed. Zipra Wanchhu was colluding with
landholder Trimbak Bhikaji and the story put up, by
him should have been discarded....
The Tribunal finally held as under:-
‘‘It has been contended by the applicants that
the lease deed of 30.4.51 was a forgery. This
contention of the applicants had not been inquired
into upon the short ground that it was not made in
the written statements of the applicants. The
applicants say that the lease deed dated 30.4.51
was filed after their written statements. It is
true that they could have amended their written
statements so as to allege forgery of the lease
deed dated 30.4.51 when the same was filed. None-
the-less, it appears to me that the contention of
forgery should have been inquired into when the
same was made by the applicants. It has been the
case of applicants that Pundlik was the lessee of
half of the share in the fields survey numbers,
whereas applicant No.2 keshao Krishnaji and Zipra
Wanchhu cultivated as the lessee of the other half
of the fields. They never said that they were the
lessees under any lease-deed. It was, therefore,
necessary to find out as to whether the lease deed
dated 30.4.51 was genuine or forged document.
In the result, applications made by Trimbak Bhikaji
alone without joining keshao Bhikaji, who was a
necessary party to the applications, are
rejected.’’
754
The tenant challenged the order of the Tribunal by way
of two petitions under Article 227 of the Constitution of
India before the Nagpur Bench of the Bombay High Court. The
order of the Tribunal dated March 25,1970 was challenged in
the High Court on August 4, 1971. In order to get over the
delay in filing the writ petition counsel for the land-owner
filed an affidavit stating that the papers in his office
remained unattended due to oversight and pressure of work
and as such the filing of the petitions was delayed.The High
Court allowed the petitions on the following grounds:-
(1) The reasons for not filing the writ petitions dili-
gently having been explained by the petitioner’s advocate by
filing an affidavit the petition could not be dismissed on
the ground of delay and latches.
(2) The Tribunal rejected the claim of the tenant-
petitioner on the only ground that the original applications
were bad as petitioner’s brother was not joined as a party.
The High Court held that ‘‘Trimbak Bhikaji Patil being the
Karta of the family could file the applications for eject-
ment in that capacity.’’
(3) Regarding the lease deed April 30, 1951 the High
Court held as under:-
‘‘There is one more circumstance. The lease
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deed that was executed in respect of the suit lands
was in favour of the petitioner. It is dated
30.4.51. The lessee is respondent No.1. Thus, the
relationship of the landlord and tenant came into
existence between the petitioner and respondent
No.1. It will not be normally open for respondent
No.1 to urge that the petitioner alone is not his
landlord. To get over this difficulty, it was
suggested at the time of the arguments that this
lease deed is forged one. The M.R.T. has considered
this question in a slip-shod-manner. The point as
to the alleged forgery of lease deed was not taken
in the written statement by any of the respondents.
In spite of that the M.R.T. has stated that the
contention of forgery should have been enquired
into. I am not able to accept this reasoning par-
ticularly when the Niab Tahsildar and the S.D.O.
have accepted the lease deed as genuine one.’’
755
(4) Under the Berar Act, before initiating ejectment
proceedings, no notice was required to be sent to the tenant
but under the Bombay Act there is requirement of the notice.
It was argued on behalf of the tenant that since in the year
1958. The Bombay Act had come into force repealing the Berar
Act and the proceedings, though initiated under the Berar
Act, were deemed to be under the Bombay Act, and because no
prior notice as required by the Bombay Act was given, the
proceedings were bad in law. The High Court rejected the
argument on the ground that the proceedings having already
been initiated under the Berar Act no notice was necessary
and the proceedings were rightly taken to be under the
Bombay Act.
The High Court allowed the petition and set aside the
order of the Tribunal. It is these circumstances that these
in appeals by the tenants by way of special leave petitions
are before us.
We have heard learned counsel for the parties at
length. We are of the view of that the High Court was not
justified in reaching the conclusion that the lease deed
dated April 30, 1951 was a genuine document.
The Tribunal allowed the tenant’s revision on the fol-
lowing grounds:-
(1) The land in question belonged to the two brothers
jointly. The applications for ejectment were filed only by
Trimbak Bhikaji. The other brother had not made the applica-
tions for terminating the tenancy either separately or by
joining his brother. The Tribunal came to the conclusion
that the applications by Trimbak Bhikaji alone were not
competent and on this ground the Tribunal rejected the
applications.
(2) The Tribunal after examining the pleadings and the
evidence on the record came to the conclusion that the
Courts below should have enquired into the genuineness of
the lease deed. The Tribunal reached the finding ‘‘it was,
therefore, necessary to find out as to whether the lease
deed dated 30.4.51 was genuine or forged document.’’
A bare reading of the Tribunal’s order shows that the
Tribunal granted relief to the appellant-tenant on the above
two grounds. We are of the view that the High Court was
justified in setting aside the Tribunbal’s finding on the
first point mentioned above. The High Court found that
Trimbak Bhikaji being the Karta of the family could file the
applications for termination of the tenancy without associ-
ating his brother. We see no
756
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infirmity in the said finding of the High Court. The High
Court was also right in rejecting the contention of the
tenant that the proceedings under the Bombay Act were ille-
gal as the requirement of prior notice under the said Act
was not complied with. We are, however, of the view that the
High Court erred in holding that the lease deed dated April
30, 1951 was a genuine document. No enquiry was held at any
stage regarding the genuineness of the lease deed. The Sub-
Divisional Officer refused to go into the question on the
ground that there were no pleadings on the point. The Sub-
Divisional Officer was obviously wrong because the lease
deed was filed by the respondent-land-owner after the plead-
ings were completed. The Appellate Court was wholly unjusti-
fied in observing that the appellants-tenants had admitted
the execution of the lease deed. The appellant’s case
throughout had been that the lease deed was a forged docu-
ment.
The Tribunal could not remand the case for enquiry into
the genuineness of the lease deed because it had allowed the
revisions on two grounds. The High Court, having reversed
the finding of the Tribunal on the first point, should have
remanded the case to the Trial Court for determining the
genuineness of the lease deed dated April 30, 1951 specially
when the case of the respondent-land-owner was wholly based
on the said document. The High Court had no material before
it to come to the conclusion that the lease deed was a
genuine document.
We, therefore, set aside the High Court judgement and
also of the Courts below and remand the case to the con-
cerned trial court for deciding the ejectment applications
filed by the respondent-land-owner afresh after affording
opportunity to the parties in accordance with law. The trial
court shall afford full opportunity to the parties to pro-
duce evidence on the issue of the genuineness or otherwise
of the lease deed dated April 30, 1951.
The appeals are allowed in the above terms with no order
as to costs.
V.P.R. Appeals allowed.
757