Gujarat High Court
Shankerbhai Kanjibhai (Decd.) Through ... vs Dagdubhai Govindbhai And Ors. on 26 June, 1991
Equivalent citations: (1992)1GLR157
JUDGMENT S.D. Shah, J.
1. These two petitions under Article 227 of the Constitution of India raise common questions of law and arc based on almost identical facts. Petitioners in both these petitions are also common and since the questions of law raised are common and facts giving rise to the present proceedings are also, more or less, common, both these petitions are disposed of by this common judgment.
2. In these petitions heirs of one Shankarbhai Kanjibhai are the petitioners. The petitions are directed against the common judgment and order of the Gujarat Revenue Tribunal in Revision Applications Nos. 47 and 48 of 1979 dated 11-4-1980 confirming the judgment and order of the Deputy Collector, Vyara.
3. One Kanji Ganesh cultivated two parcels of lands, one being S. No. 105 admeasuring 13 Acres and 38 Gunthas situated at Velad village, Surat District and another being S. No. 57, admeasuring 13 Acres and 38 Gunthas situated at village Mubarakpura, District Surat Said Kanjibhai Ganesh died on 4th December, 1927 leaving behind him five sons, namely (i) Shankarbhai, (ii) Govindbhai, (iii) Gopalbhai, (iv) Morarabhai, and (v) Bhikhanbhai. The petitioners are the sons of the deceased Shankarbhai Kanjibhai. Respondents in Special Civil Application No. 2992 of 1980 are Bhikhanbhai Kanjibhai and his two sons, Laxmanbhai and Ramanbhai, while the respondents in Special Civil Application No. 2438 of 1980 are sons of Govindbhai Kanjibhai and Morarabhai Kanjibhai.
4. It appears that the lands in question were cultivated by deceased Shankar Kanji as Karta of Hindu Joint Family. On Tillers' day, i.e., 1-4-57 name of Shankar Kanji appeared in the village record as, he was the eldest member of the family. It appears that since deceased Shankar Kanji was the person whose name appeared in the village record, on Tillers' day, i.e., 1-4-1957 the became deemed purchaser of the lands in question under, Section 32 of the Bombay Tenancy & Agricultural Lands Act, 1948. On notice having been issued under Section 32G(1) of the said Act to said Shankar Kanji whose name appeared in the village record, he expressed his willingness to purchase the land. Based on such statement the Agricultural Lands Tribunal appears to have passed the order declaring said Shankar Kanji to be the deemed purchaser of the lands and fixing the purchase price of lands in question. The purchase price so fixed was allegedly paid by said Shankar Kanji, and the Agricultural Lands Tribunal was, therefore, pleased to issue a certificate of purchase in the prescribed form to said Shankar Kanji in respect of said two parcels of lands under Section 32M of the said Act. It may be noted that under Section 32M(1), of the said Act said certificate of purchase is conclusive evidence of purchase. The exact details of the said proceedings under Section 32G of the said Act are not available in these proceedings but it is not disputed fact that the certificate under Section 32M was granted to deceased Shankar Kanji.
5. The present petitioners filed Application Nos. 3 of 1978 and 4 of 1978 before the Dy. Collector. Vyara under Section 84 of the said Act. Section 84 of the Act provides for summary eviction of any person unauthorisedly occupying or wrongfully in the possession of any land. It was the case of the petitioners that the respondents in each of the petitions were persons unauthorisedly occupying the respective parcels of the lands, use and occupation of which they were not entitled to, and hence, they were liable to be summarily evicted by the Collector. It may be noted that the petitioners are claiming to be the only heirs and legal representatives of deceased Shankar Kanji who was declared to be the deemed purchaser of the lands and in whose favour certificate under Section 32M was issued. If deceased Shankar Kanji was the tenant actually in possession and occupation of said lands in question in his own right, it is not understood as to how and when he or his sons lost possession of disputed parcels of land. The fact remains that they were not in possession of the disputed parcels of lands and that is why the present petitioners were required to file application under Section 84 of the said Act for summary eviction of the respondents.
6. On service of summons of the said application under Section 84 of the said Act, the present respondents who are the members of Hindu Joint Family of deceased Kanji Ganesh appeared and filed their reply before the Dy. Collector, inter alia contending that the lands in question belong to the joint family and since deceased Shankarbhai Kanjibhai was the eldest member of the family all the parcels of lands stood in his name in the revenue records while in fact the lands were held by the members of said joint family and therefore even if the certificate under Section 32M of the said Act was granted in favour of deceased Shankarbhai Kanjibhai the joint family was the tenant of the parcels of land and the certificate though granted in the name of the individual member it should ensure for the purpose of entire family. In the alternative, it was contended that there was partition of properties between the sons of deceased Kanji Ganesh and said, agreement of partition was executed on 2nd May, 1957. As per said agreement of partition S. No. 105 admeasuring 13 Acres and 38 Gunthas of land of village Devda has fallen to the share of Govindbhai and Morarabhai who are the respondents in Special Civil Application No, 2438 of 1980 and parcel of land bearing S. No. 57 of village Mubarakpura has fallen to the share of Bhikanbhai Kanji and his sons who are the respondents in Special Civil Application No. 2992 of 1980. They were, therefore, entitled to remain in possession of said parcels of lands since they were the tenants of said parcels of lands.
7. On the said pleadings before the Dy. Collector in the proceedings under Section 84 of the said Act question arose as to whether the petitioners were the exclusive tenants of lands in dispute or the respondents were the joint tenants of the lands in dispute since deceased Shankarbhai Kanjibhai was representing the joint family and in fact the joint family was the tenant of said lands in question.
8. The Dy. Collector, Vyara. by his judgment and order found that since the question as to whether the petitioners were the exclusive tenants of the lands in question or the joint family of deceased Shankar Kanji was the tenant of the lands in question was triable under Section 70(b) of the said Act by the Mamlatdar & ALT. It was necessary to refer said questions under Section 85 of the said Act to Mamlatdar & ALT for its decision and to stay the proceedings under Section 84 till decision is received from the Mamlatdar & ALT. He therefore, referred the question to Mamlatdar & ALT and directed the parties to get the question decided under Section 70(b) of the said Act by the Mamlatdar & ALT and he was further pleased to stay the proceedings in application Nos. 3 & 4 of 1987 under Section 84 of the said Act till the question was decided.
9. Being aggrieved by the said judgment and order of the Dy. Collector, Vyara, the petitioners filed Revision Applications Nos. 47 & 48 of 1979 before the Gujarat Revenue Tribunal. Both the applications were decided by the Tribunal by its common judgment and order, dated 11-4-1980. The Tribunal dismissed the said two applications by relying on the decision of this Court in the case of Hemantsinh Malubha and Anr. v. Ajitsinh Nathubha and Ors., reported in (1972) XIII GLR 76. The Tribunal was of the view that the question as to whether the petitioners were the tenants of lands in question or the respondents who claimed to be the members of the Joint Hindu Family were also the tenants of the lands in question was one which could be decided by Mamlatdar & ALT under Section 70(b) of the said Act and not by the Deputy Collector under Section 84 of the said Act. This judgment and order of the Gujarat Revenue Tribunal is the subject matter of challenge in these petitions. It may be mentioned that while admitting these petitions, in the year 1980, this Court had not granted any stay of proceedings before the lower authorities with the result that the proceedings under Section 70(b) were initiated before the Mamlatdar & ALT. He, after recording the evidence of the parties, by order dated 20-4-1979 held that the present respondents in these two petitions were the tenants of respective parcels of lands in their possession. Being aggrieved by the said judgment and order of the Mamlatdar & ALT present petitioners have preferred appeal being Appeal Nos. 28 and 29 of 1979 which are pending for final hearing.
10. Mr. S.N. Shelat, learned Advocate for petitioners challenges the judgment and order of the Tribunal by making following submissions:
(i) The certificate of purchase issued under Section 32M in favour of deceased Shankarbhai Kanjibhai being conclusive evidence of purchase ought to have been accepted as evidence of title of the petitioners and the Deputy Collector erred in exercising his power under Section 84 of the said Act firstly by staying said proceedings and secondly by directing the parties to resort to Section 70(b) of the said Act for determination of the question of tenancy.
(ii) No enquiry into the question of tenancy can be made firstly because the petitioners acquired exclusive title on issuance of certificate of purchase under Section 32M of the said Act, and secondly, because doctrine of res judicata operates. The Mamlatdar & ALT cannot, therefore, decide afresh the question of tenancy.
In order to consider the above referred submissions of the learned Counsel for petitioners, it is necessary to examine the scheme of the Act. Section 2 of the Bombay Tenancy & Agricultural Lands Act, 1948 enacts definition clause. Clause 17 of Section 2 defines "tenancy" to mean the relationship of landlord and tenant. Clause 18 of Section 2 defines the word "tenant" as under:
18. 'tenant' means a person who holds land on lease and includes:
(a) a person who is deemed to be a tenant under Section 4;
(b) a person who is a protected tenant; and
(c) a person who is a permanent tenant;
(d) a person who, after the surrender of his tenancy in respect of any land at any time after the appointed day but before the specified date has continued, or is deemed to have continued, to remain in actual possession, with or without the consent of the landlord, of such land till the specified date.
It is clear from the above definition that the tenant is a person who holds land on lease and the word "landlord" is to be accordingly understood. The word "person" is defined by Section 2(11) to include joint family. It is inclusive definition. It is, therefore, clear that a joint family being a person can hold land on lease and it can be a tenant within the meaning of Section 2(18) of the said Act. Section 2(7A) defines "joint family" to mean an undivided Hindu Family. From the definition of above expressions it becomes clear that a controversy whether a particular person is the tenant or not is to be decided with reference to the person who is alleged to be the landlord. Definition of word "tenant" refers to "person who holds land on lease" and it further states that "the word 'landlord' shall be construed accordingly". From the inclusive definition of the word "person" read with definition of "joint family" it further becomes clear that an undivided Hindu Family can be a tenant if it holds the land on lease.
11. Chapter III of the said Act in which Section 32 finds its place captioned as "special rights and privileges of tenant and provisions for distribution of land for personal cultivation". Part II of Chapter III deals with purchase of lands by tenants. Section 32 finds its place in this part. By enacting Section 32 Legislature, inter alia provided that on the first day of April, 1957 known as "Tillers' Day" every tenant shall be deemed to have purchased from his landlord free of all encumbrances subsisting thereon on the said day the land held by him as tenant. In order to make effective the deemed purchase by the tenant on "Tillers' Day" the Legislature enacted Section 32G prescribing the procedure to be followed by Agricultural Lands Tribunal. The Tribunal is required to publish or cause to be published a public notice in the prescribed form in each village within its jurisdiction to all the tenants who under Section 32 are deemed to have purchased the lands, and to all other persons interested therein calling upon such persons to appear before if on the specified date. The Tribunal is required to record their statements in the prescribed manner so as to ascertain whether such tenant is or is not willing to purchase the lands held by him as tenant. If the tenant is willing to purchase the land, the Tribunal is required after giving opportunity to the tenant and the landlord to determine the purchase price of such land in accordance with provisions of Section 32H. Once the purchase price is fixed Section 32K prescribes mode of payment of price by the tenant. If such purchase price which is fixed is not paid by the permanent tenant or sub-tenant it is stipulated that it shall be recoverable as arrears of land revenue. Section 32M thereafter provides that on the deposit of the price either in lumpsum or by deposit of last instalment of such price the Tribunal shall issue a certificate of purchase in the prescribed form to the tenant in respect of land. Such certificate shall be conclusive evidence of purchase.
12. From the scheme of the Act it becomes clear that on or after the "Tillers' Day" notices are required to be issued to the tenant or all persons interested in the land. Generally the notice is sent to the person in whose name land stands in the village record or to the person who is shown to be cultivating land. When a joint family is the tenant of the land name of Karta or elderly person of the family is mentioned as person cultivating the land and he receives the notice under Section 32G of the said Act. On his expressing willingness to purchase the land certificate of purchase under Section 32M is also issued in his name since the land stands in his name in the revenue record. It would not, therefore, mean that such a person was the sole tenant of the land in question and the members of the joint family have no right because certificate of purchase is issued in favour of such person. Since joint family can be a tenant and since one of the members of joint family claims sole and exclusive tenancy excluding other co-partners or joint tenants from their right to claim the share from such parcels of lands it is required to be decided as to whether such certificate of sale issued in favour of one of the members of the family would for all times to come be regarded as conclusive so as to deny the just claim of the members of the family over the parcels of lands.
13. The question posed for my consideration came to be indirectly considered by the learned single Judge of this Court in the case of Nanba, Widow of deceased Hemantsingh Malubha and Ors. v. Ajitsingh, reported in (1976) XVII GLR 975. The learned Judge of this Court after referring to the Full Bench decision of the Bombay High Court held that the question whether a person is tenant or not is not limited to the narrower issue whether a person is a tenant of a particular land. Irrespective of the question whether the issue is raised by the landlord or by a tenant or a co-tenant or any other person it will still be a question whether a person is a tenant. Therefore, the question contemplated by Section 70(b) of the Bombay Tenancy Act is not limited to an issue between the landlord and the tenant. It is the function of the Mamlatdar to decide whether a person is a tenant and when the legislature has used that expression there is no reason for curtailing its amplitude by saying that the issue which the Mamlatdar has to decide is only an issue whether a person is a tenant of particular landlord. In the case of Rajaram Totdram Patel v. Mahipal Mahadu Patel and Ors., the Full Bench of the Bombay High Court was called upon to decide the identical question. Before the Bombay High Court the plaintiff claimed declaration that the defendant-his brother was not entitled to be declared purchaser tenant and that the decision taken behind his back without hearing him was null and void He further claimed that actually he was in possession of the land and that the defendant should be restrained from interfering with his possession. The defendant, on the other hand, claimed that he was the sole tenant of the land and that he was rightly declared to be the tenant of the land. It was in this situation that the question arose as to whether the Civil Court has jurisdiction to try the suit in view of the provisions of Sections 70 and 85 of the said Act, and further as to whether question of this nature would fall within Section 70 read with Section 85 of the said Act. Full Bench of Bombay High Court after considering various decisions of the Bombay High Court and decision of the Supreme Court in the case of Bhimji v. Dundappa, held that the question whether a person is a tenant is not limited to narrower issue whether a person is a tenant of a particular landlord irrespective of the question whether the question is raised by the landlord or a tenant or a co-tenant or anyother person. It will still be a question whether a person is a tenant. Therefore, even if dispute exists between a tenant and co-tenant the question would fall within the ambit of Section 70(b) and the same can be tried by Mamlatdar. It is thus clear that when two persons claim to be the owners of certain tenancy rights as in the case before me, it is a question which falls within the jurisdiction of Mamlatdar under Section 70(b) to decide whether a person is a tenant. Such controversy would arise in case where a joint family is the tenant and certificate of purchase is issued in favour of Karta or elderly member of the family. If he denies benefit of such certificate to the other members of the family they would come forward and claim the tenancy rights. It is undoubtedly true that the certificate of purchase is issued in favour of Karta or elderly member of the family. Still, however, question will be whether such certificate of purchase was issued to an individual or whether it was issued to him for and on behalf of joint family so as to ensure for the benefit of the members of the family. I am therefore of the opinion that issuance of certificate of purchase is conclusive as against the landlord only it cannot be said to be conclusive, vis-a-vis, coparceners or joint tenants who were not parties in previous proceedings under Section 32G of the said Act. Such certificate of purchase would put an end to any controversy between the landlord and the tenant. However, when it transpires that the person to whom the certificate of purchase was issued was the Karta of the joint family or elderly person of the joint family and that the tenants was of the joint family, other members of the family or co-tenants can claim the benefit of very certificate. Such certificate cannot be said to be conclusive vis-a-vis joint tenants so as to deny their just right to be deemed purchaser of the lands in question. In fact, when just claim of such joint tenants is sought to be denied by the holder of certificate of purchase, question contemplated by Section 70(b) would immediately arise, namely, whether the members of joint family are joint tenants along with the holder of certificate of purchase. Such a question necessarily falls within the ambit of Section 70(b) and as held by the learned Judge of this Court in the case of Nanba Widow of deceased Hemantsingh Maluhha and Ors. v. Ajitsingh, (supra) and the Full Bench of the Bombay High Court in the case of Rajaram Totaram Patel v. Mahipal Mahadu Patel and Ors., (supra) it shall have to be tried by Mamlatdar under Section 70(b) of the said Act.
14. In the case of Mohmadkhan Jamiyalkhan v. Dadamiya Mohamadmiya, , the learned single Judge of this Court held that under Section 70(b) read with Section 85A of the said Act whether a person is a tenant or not is a question that falls within the jurisdiction of Mamlatdar. Even a plea raised by the defendant that he is a tenant in a proceeding for possession of land from him excludes the jurisdiction even if competent Civil Court which is otherwise competent to decide the suit. The Court, therefore, held that even a competent Civil Court must refer the issued under Section 70 of the Tenancy Act to Mamlatdar. That was the case where the question arose in a proceeding under Section 84 of the said Act instituted by the landlord for summary eviction of the tenant. The brother of the tenant surrendered the parcels of land and such surrender was verified by the order of Mamlatdar under Section 15(2) of the said Act. Petitioner however was found to be in possession of the land. The landlord, therefore, filed application under Section 84 for getting possession of the land from the petitioner on the ground that lie was a trespasser. Petitioner raised question that in fact he was the tenant of the said land and the question arose as to whether this question could have been raised before the Prant Officer under Section 84 or whether he was required to refer the question to Mamlatdar and ALT. The learned single Judge of this Court relying upon the decision of the Division Bench of Bombay High Court held that in an application under Section 84 if the question was raised whether a person concerned was a tenant or not of the land in question it is only the Mamlatdar under Section 70(b) who can decide the question whether a person is a tenant or not and the Prant Officer dealing with application under Section 84 must direct the party concerned to apply to the Mamlatdar and obtain decision from him whether a person concerned was tenant or not. Prant Officer under Section 84 has no jurisdiction to decide whether a person concerned was tenant of land in dispute. In fact, when such a question is raised the Prant Officer is required to stay his hands so far as the proceedings under Section 84 was concerned and he should ask the party concerned to approach Mamlatdar under Section 70(b) for an appropriate decision on the question of tenancy. I am, therefore, of the opinion that where in proceedings under Section 84 of the Act a question is raised by the person in possession of the land that he is also the tenant of the land or that he is the joint tenant of the land and when such a statement is doubled by the applicant who claims to be the sole tenant of the land, the dispute is between joint tenants and such dispute can only be decided by the Mamlatdar & ALT under Section 70(b). The certificate of purchase issued in favour of a person whose name appeared in the revenue record would not be conclusive vis-a-vis joint tenants whose tenancy rights he seeks to negate on the strength of certificate of purchase. It is conclusive vis-a-vis the landlord only. The members of the joint family cannot be denied their just right simply because the certificate of purchase was issued in favour of Karta of joint family or the elderly person of joint family. The very fact that the application for eviction of such joint tenants was required to be filed under Section 84 of the Act justifies the inference that such persons were in possession and continued to remain in possession as joint tenants. Therefore when in proceeding under Section 84 such persons claim to be the joint tenants, being the members of the joint family the question raised by them is as to whether they are joint tenants of the parcels of lands along with the persons in whose favour certificate of purchase under Section 32M is issued and such a question is one which can be tried by Mamlatdar under Section 70(b) of the said Act read with Section 85A of the said Act. I am, therefore, of the opinion that the Dy. Collector, Vyara was fully justified in staying the proceedings before him and in directing the present respondents to move the Mamlatdar under Section 70(b) of the said Act. In fact, proceedings under Section 70(b) have already been concluded in favour of present respondents. I, therefore, do not find any substance in the first submission of Mr. Shelat and it must therefore fail.
15. As regards second submission of Mr. Shelat I do not think that the doctrine of res judicata would apply. The earlier proceedings were not between the same parties. Present respondents were not parties to the said proceedings. It is also not possible for me to assume that notices must have been issued to the present respondents. In fact, the name of the deceased Shankar Kanji appeared in the village record, and therefore, it is possible that notice was issued to him alone and he showed his willingness to purchase the land which ultimately resulted into issuance of purchase certificate in his favour.
16. However, I shall have to keep in mind that deceased Ganesh Kanji was the original tenant and deceased Shankar Kanji was his one of five sons. He being the elder member the lands stood in his name. I am of the opinion that certificate issued under Section 32M of the said Act in favour of deceased Shankar Kanji cannot operate as res judicata against the present respondents who were not parties to the earlier proceedings and whose right of joint tenancy is sought to be denied for the first time by deceased Shankar Kanji only when he filed application under Section 84 of the said Act. Second submission of Mr. Shelat should therefore fail.
17. In the result, these petitions fail and are dismissed. Rule is discharged in both the petitions with no order as to costs. Two appeals being Appeal Nos. 28 & 29 of 1979 pending before the Dy. Collector against the judgment and order of Mamlatdar in Section 70(b) proceedings shall now proceed further in accordance with law.