Bombay High Court
Bhima Aba Rade (Since Deceased Through ... vs Smt. Thakubai Maruti Rade And Ors. on 24 September, 2007
Equivalent citations: 2007(109)BOM.L.R.2431, 2008(1)MHLJ192
Author: V.R. Kingaonkar
Bench: V.R. Kingaonkar
JUDGMENT V.R. Kingaonkar, J.
Page 2434
1. This is Second Appeal of original defendant No. 1 against judgment of First Appellate Court whereby partition decree is granted against him.
Page 2435
2. The subject matter of dispute is agricultural land which originally bore survey No. 721/1. It is now consolidated and re-numbered as Gat No. 1613, admeasuring 8 Hectare 35 R, situated at Shrigonda, Dist. Ahmednagar.
3. There is no dispute about the fact that the suit land was owned by one Dinkar Govind Deshpande. There is also no dispute about the fact that father of deceased appellant, namely, Abu @ Aba Rama Rade was a protected tenant in possession of the suit land in 1947-48. He died somewhere in 1950. There is no dispute about the fact that certificate under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948, was issued in the appellants name and he was recognized as statutory owner of the suit land.
4. The following pedigree table would depict relations between the parties.
Abu @ Aba Rama Rade - Reubai (died - 1950) (wife - def. 2)
------------------------------------
Bhima Maruti Eknath (died) Madhav
(def.1) (son - died (wife) (def.6)
| in Kausalya (def.3)
| or about 1975)
|
| Thakubai
| (wife - plntf.1)
|
| ----------------
Alka Raju
|(daughter-def.4) (son-def.5)
------------------------------
Mangal Janabai Sindhu Indubai
(daughter (daughter (daughter (daughter
plntf.2) plntf.3) plntf.4) plntf.5)
5. The original plaintiffs are representatives of the branch of deceased Maruti. He was one of the son amongst four sons of deceased Abu @ Aba Rama Rade. They alleged that the suit land was being cultivated by deceased Abu as Karta (Manager) of the joint Hindu family. They further averred that after his death in 1950, the members of the joint Hindu family continued to cultivate the suit land as joint tenants. They alleged that after demise of Maruti, somewhere in 1955, original defendant No. 1 - Bhima ousted them and refused to give any share in the agricultural income of the suit land. They sought separate 1/5th share in the suit land.
6. The suit was resisted only by deceased defendant No. 1 (appellant). He denied that the suit land was being cultivated by himself and other brothers as joint tenants. He asserted that the suit land was being exclusively cultivated by him and he alone was the tenant thereof. He further asserted that he is declared as statutory owner of the suit land. He contended that the Civil Court has no jurisdiction to entertain suit wherein partition of tenanted land is sought. He further pleaded that the properties of the joint Hindu family were partitioned before about 25 years of the suit and husband of plaintiff, namely, Maruti was allotted separate land which was alienated by the latter in favour of one Bajirao Baban Ohol in or about 1964. In short, he alleged that the branch of the plaintiffs had separated way back and cannot claim any right, what-so-ever, in respect of the suit land which is exclusively acquired by him as per Page 2436 provisions of Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 ("BT & AL Act" for short).
7. The parties went to trial over certain issues framed by the Trial Court at Exh. 21. The Trial Court came to the conclusion that the plaintiffs failed to establish existence of any right to claim partition. The Trial Court held that the suit land was not jointly owned by deceased Maruti and other brothers including defendant No. 1 - Bhima and could not be regarded as property of the joint Hindu family. The Trial Court accepted defence of defendant No.1-Bhima. The Trial Court dismissed the suit. On appeal preferred by the original plaintiffs, the First Appellate Court reversed findings of the Trial Court and decreed the suit for partition and separate possession.
8. The following substantial questions of law were formulated while admitting the appeal. (i) Whether in the facts and circumstances of the present case, the first appellate Court was right in holding that deceased defendant No. 1-Bhima had not became exclusive statutory owner in respect of the suit land though he alone paid the price fixed by the Mamlatdar and the tenancy certificate was issued only in his name? (ii) Whether the surrender of tenancy by deceased Abu Rama Rade is duly proved by the defendants and as such, subsequent individual tenancy rights of deceased defendant No.1-Bhima could be recognised by the First Appellate Court? (iii) Whether by No. 1 Bhimahis had conduct deceased defendant blended the suit land in the other properties of the joint Hindu family and, therefore, it became the joint family property and as such, the plaintiffs were entitled to decree for partition and separate possession? These substantial questions are answered thus : (i) No (ii) Yes (iii) No. The reasons are discussed hereinafter.
9. Before I proceed to scrutinize the evidence, let it be noted that deceased defendant No. 1 - Maruti was found in actual possession of the suit land as on the tillers day i.e. 01.04.1957. The certificate of statutory ownership was issued in his name. The certificate issued under Section 32M is placed on record. The endorsement at bottom of the certificate will show that the suit land could not be transferred by sale, gift, exchange, mortgage, lease or assignment or partition without previous sanction of the Collector as provided by Section 43 of BT & AL Act. It need not be reiterated that Abu @ Aba died in or about 1950. He could not have claimed statutory ownership because he was no more in possession of the suit land as on the tillers day.
10. The First Appellate Court completely ignored statutory conditions enumerated at bottom of the certificate would show that the suit land was impartiable estate in the hands of original defendant No. 1. He could not have subjected the suit land to partition without prior permission of the Collector. The decree for partition could not be rendered as it would cause breach of Section 43 of the BT & AL Act. The Civil Court has no jurisdiction Page 2437 to examine the questions which are required to be dealt with and settled under provisions of the BT & AL Act. There is bar of jurisdiction under provisions of Section 85 of the BT & AL Act to deal with any question, including a question whether a person is or was at any time in the past a tenant and whether any such tenant is or should be deemed to have purchased from his landlord, the land held by him. Obviously, the Civil Court could not have gone into the question as to whether deceased defendant No.1 alone was entitled to purchase the suit land or that it was purchased by him for and on behalf of joint Hindu family for himself and his brothers. The Civil Court could not have examined whether it was a joint tenancy of the four brothers or that it was exclusive tenancy created in favour of deceased defendant No. 1 - Bhima.
11. Coming to the evidence on record, let it be noted that there is solitary version of PW Thakubai in support of the suit claim. She deposed that the suit land was purchased by all the members of the family and the purchase price was paid by all of them. She produced a notice (Exh. 41) purportedly issued to deceased Maruti by deceased defendant No. 1 - Bhima. The First Appellate Court gave much importance to the said notice (Exh. 41). As a matter of fact, the said notice is not duly proved. There is no evidence to show that it was issued by deceased defendant No. 1 (Bhima). He denied to have issued such notice. He denied that deceased Maruti had contributed Rs. 350/- as purchase money. He denied categorically that he had issued so called notice (Exh. 41). There is no postal acknowledgment produced in respect of said notice. There is no evidence to show who scribed the notice (Exh.41) and how it was served on deceased Maruti. The thumb impression at bottom of the said hand-written notice is also not proved to be that of deceased defendant No. 1 (Bhima). The First Appellate Court committed patent error while giving undue importance to the said notice which is a private document and is not duly proved in accordance with law. That is the only document by referring to which the First Appellate Court held that demand of contribution was made by deceased Maruti for purchasing the suit land. The date shown on said notice is 25th March, 1965. The price of the land was fixed as per the order No. 473 dated 31st January, 1960. This fact is conspicuous from entries in the record of rights (Exh. 51). It appears that the certificate of ownership was issued in favour of deceased defendant No.1-Bhima, after he had deposited entire amount of purchase price on 13.02.1979. Obviously, there was no payment made in 1965 nor it was urgently required to be made after seeking contribution of the brothers. The so called notice (Exh. 41) appears to be a got up document.
12. Deceased defendant No.1 entered the witness box. He narrated the details of earlier partition regarding another land which was purchased by the members of the family. Copy of the record of rights (Exh. 37) purports to show that on 20th January, 1964, defendant No. 1 Bhima @ Bhimaji submitted an application to record partition of the common land bearing Survey No. 848. It appears that the land Survey No. 848 was divided into four parts bearing Survey No. 848/1, 848/2, 848/3 & 848/4 as per the partition which was effected between the four brothers, including deceased husband of plaintiff No. 1 Thakubai. Thus, when deceased defendant No. 1 Page 2438 Bhimaji had submitted such written application about the partition, which was effected somewhere in 1963, it was improbable that he would serve notice in 1965 on deceased Maruti seeking contribution of purchase price to be deposited in respect of the suit land. The oral evidence of DW Bhima @ Bhimaji reveals that he alone paid the purchase price. He deposed that his father had surrendered tenancy rights prior to about 5-6 years of his death. His version purports to show that he later-on had taken the suit land on lease from the owner. He deposed that when he had taken the suit land on lease then the plaintiffs were residing at village Kurkumbh, whereas defendant Nos. 2 to 6 were residing at Daund. He deposed that he alone became statutory owner of the suit land, because he was cultivating the same in his individual capacity as a tenant on the tillers day.
13. The First Appellate Court observed that though rights of deceased Abu @ Aba were extinguished in 1947-48 as per order of the Collector, yet, because there was no evidence available regarding delivery of possession by him to the land-lord, the possession of the suit land remained with the members of the family i.e. original defendant No. 1 and his brothers. The First Appellate Court observed:
It means the possession of the suit property was with the family of the plaintiff and defendants and since prior to 01.04.1957 i.e. tillers day the defendant No.1 was in possession of the suit property.
It is difficult to comprehend what the First Appellate Court wanted to convey. There is no basis to draw inference that as on the tillers day i.e. 01.04.1957, original defendant No. 1 and his brothers were found in joint possession of the suit land or that he was in possession in his capacity as a representative of the joint family. One cannot be oblivious of the fact that Abu @ Aba died in 1950 and is said to have surrendered his tenancy rights in or about 1947-48. The First Appellate Court further observed that defendant No. 1 - Bhima was elder amongst family members and, therefore, it had to be held that the suit property was sold to the joint family being joint tenants. This inference of the First Appellate Court is based on conjuncture. There is no material on record to say that the revenue authorities decided to grant certificate of ownership in favour of deceased defendant No.1-Bhima for and on behalf of his joint family. There is no presumption available regarding acquisition of property by joint Hindu family. The purchase price was not so much so which defendant No. 1 Bhima could not have afforded to pay without financial contribution of his brothers.
14. It bears out from the record that names of the tenants who had surrendered tenancy rights were deleted from the tenancy record as per order of the competent authority in respect of several lands of Shrigonda. The names of such tenants were deleted on 03.02.1954 and due verification thereof was made on 28.03.1955. The revenue record shows that name of deceased Abu @ Aba Rama Rade was shown at Sr.No.349 in respect of the suit land, in the list of the tenants, who had surrendered the tenancy rights. Obviously, much prior to his death said Abu @ Aba Rama Rade had surrendered the tenancy rights.
Page 2439
15. Mr. Gatne, learned Advocate for the appellants would rely on "Sau. Saraswatibai Trimbak Gaikwad v. Damodhar D. Motiwale and Ors. . The Apex Court held that the Civil Court has no jurisdiction to decide matters which are required to be dealt with by tenancy Tribunal under provisions of the BT & AL Act. The Apex Court, further, held that it is only the Tribunal which can decide whether a person is deemed to be a tenant and whether he is entitled to purchase the land held by him. The Certificate issued under Section 32 granted to the tenant-purchaser is conclusive proof of such purchase. The Apex Court held that so long as certificate of purchase is not set aside, decree for possession in respect of suit property, cannot be executed against tenant-purchaser. The plaintiffs did not apply before the Tribunal for declaration of their joint tenancy rights. The deceased brothers i.e. Maruti and others never questioned the ownership certificate issued in favour of defendant No.1-Bhima @ Bhimaji. It is only after the death of Maruti that the plaintiffs claimed status as joint tenants and purchasers.
16. Mr. Gatne also seeks to rely on Udhav Jayram Katarnavare deceased through LRs v. Bhima Jungal Katarnavare and Ors. . Therein, a Single Bench held that the presumption under Section 114 of the Evidence Act is attracted in respect of official acts duly performed as indicated in Roznama regarding surrender of tenancy rights. Learned advocate would submit that the revenue record regarding surrender of tenancy right by deceased Abu @ Aba Rama Rade has presumptive value. He also seeks to rely on Babu Parasu Kaikadi (dead) by LRs v. Babu (dead) by LRs A.I.R. 2004 S.C. 754. The Apex Court in the given case held that surrender of tenancy is required to be in accordance with Section 15 & 29 of BT & AL Act. It is further held that the Tenancy Act is beneficial statute and should be construed in favour of tenant and against land lord. With due respect, this authority has no relevance to the fact situation obtained in the present case and reliance thereon is misplaced.
17. Mr. Bhapkar, learned Advocate for the respondents, would submit that the First Appellate Court was right in holding that surrender of tenancy by deceased Abu @ Aba Rama Rade could not be recognized. He would submit that there was non-compliance of Section 29(2) of BT & AL Act. He relied on Abdul Ajij Shaikh Jumma and Anr. v. Dashrath Indas Nhavi and Ors. . The Apex Court, in the given case, held that plea in opposition that tenant had lawfully surrendered land before appointed date was unsustainable and the rights of tenant were unaffected when the surrender was not in lawful manner. He also seeks to rely on Laxmanrao Anantrao Stardekar v. Bapu Satyappa Pawar (since deceased) by heirs 1988 Mah. L.R. 890. This Court held that the surrender of tenancy would take effect only after it is verified by Mamlatdar. The surrender of tenancy rights must Page 2440 be in accordance with Section 15 of BT & AL Act as provided under Rule 9 of the relevant rules. That is not the question involved in the present appeal.
18. The record clearly reveals that prior to his death in 1950, somewhere in 1947-48, deceased Abu @ Aba Rama Rade surrendered tenancy rights in respect of the suit land. The surrender of his rights was duly verified and his name was deleted from the revenue record. The surrender of tenancy rights could be effected as provided under Section 15 of the BT & AL Act. The name of deceased defendant No.1 Bhima was later-on recorded in the revenue record as ordinary tenant. He was cultivating the suit land as tenant of the owner-Dinkar Deshpande from 1950 onwards. He alone was found in possession of the suit land on the tillers day. There is legal presumption available as regards correctness of due procedure followed by the Mamlatdar while accepting surrender of rights of deceased Abu @ Aba Rama Rade. It has to be presumed that the concerned authority had acted in accordance with the provisions of law. The question of appropriateness of the surrender of rights by deceased Abu @ Aba Rama Rade cannot be reagitated in the Civil proceedings. Needless to say, deceased defendant No.1 Bhima became exclusive owner of the suit land as a statutory purchaser thereof. The suit land was no more available for partition. Therefore, partition decree could not have been rendered by the First Appellate Court against provisions of Section 43 of the BT & AL Act. The impugned judgment is, therefore, unsustainable and liable to be set aside.
19. In the result, the appeal succeeds and is accordingly allowed. The impugned judgment is set aside. The suit stands dismissed. The parties to bear their own costs throughout.