Bombay High Court
Nausabai Balu Patil vs Smt. Kamal Chaugunda Patil And Ors. on 9 January, 2002
Equivalent citations: 2002(5)BOMCR768, (2002)1BOMLR787, 2002(2)MHLJ440
Author: D.Y. Chandrachud
Bench: D.Y. Chandrachud
JUDGMENT D.Y. Chandrachud, J.
1. Rule, returnable forthwith. Respondents waive service. By consent taken up for hearing and final disposal.
2. On 18th November, 1987, the husband of the First Respondent mortgaged the suit land with Respondent No. 4 for a consideration of Rs. 15,000/-. Thereafter, the case of the Petitioner is that on 5th September, 1992, Respondent No. 4 created a tenancy in favour of the Petitioner of the suit land on the yearly rental payment of Rs. 700/-. On 5th September, 1997, Respondent Nos. 1 to 3 issued a notice to the Fourth Respondent claiming redemption of the mortgage and delivery of possession of the land which is the subject matter thereof. Thereafter, a suit for redemption, out of which the present proceedings arise, came to be filed in the Court of the learned Civil Judge, Junior Division, Miraj. On 2nd March, 2001, the Petitioner claiming to be a tenant in respect of the land made an application for adding her as party defendant to the suit. That application was allowed on 27th March, 2001. Thereafter, issues came to be recast by framing Issues Nos. 3 and 4 and which were as follows :
"(3) Does defendant No. 5 prove that she is in possession of the suit property of the capacity of yearly tenant of defendant No. 1 ?
(4) Does defendant No. 5 further prove that she is entitled to protect her possession as such tenant?"
3. On 27th June, 2001 an application was made by the Petitioner before the learned Trial Judge to refer Issue No. 3 to the Tenancy Court in accordance with the provisions of Section 85-A of the Bombay Tenancy and Agricultural Lands Act, 1948. The application by the petitioner came to be rejected by the impugned order dated 4th July, 2001.
4. The learned Judge while rejecting the application made by the petitioner was of the view that the petitioner was a tenant inducted by the mortgagor, the original First Defendant. Consequently, the view which was taken was that at best the petitioner, being the original Fifth Defendant could have only the same rights as of the mortgagee. Reliance was sought to be placed on the judgment of the Supreme Court in Jadhavji Purshottam v. Dhami Navnitbhai Amaratlal, in which it was held that a tenancy created by a mortgagee in possession may be binding even after termination of the title of the mortgagee in possession if the mortgagors had concurred in the grant of the lease. The matter before the Supreme Court arose under the Transfer of Property Act, 1882 and the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
5. The learned Counsel appearing on behalf of the Petitioner submitted that the view which has been taken by the learned trial Judge is ex facie contrary to the law which was laid down as far back as in 1964 by the Constitution Bench of the Supreme Court in Dahya Lala v. Rasul Mahomed Abdul Rahim, .
6. In the aforesaid judgment, the Supreme Court referred to Section 4 of the Bombay Tenancy and Agricultural Lands Act, 1948 which provides thus :
"A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not -- (a) a member of the owner's family, or (b) a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the -land under the personal supervision of the owner or any member of the owner's family, or (c) a mortgagee in possession".
The Supreme Court noted that under Section 2(18) of the Act, the expression 'tenant' means a person who holds land on lease and includes a person who is deemed to be a tenant under the provisions of Section 4. In the light of the aforesaid definition, the Supreme Court held that Section 2(18) of the Act has devised a special definition of tenant and included therein persons who are not contractual tenants. The only condition under the statute is that the person claiming the status of a deemed tenant must be cultivating land lawfully and it is not a condition that he must cultivate land with the consent of or under authority derived directly from the owner. In these circumstances, the judgment of the Supreme Court holds that all persons other than those mentioned in clauses (a), (b) and (c) of Section 4 who lawfully cultivate land belonging to other persons whether or not their authority is derived directly from the owner of the land must be deemed to be tenants of the lands. Under the Transfer of Property Act, 1882 the right of a tenant who has been inducted by a mortgagee in possession ordinarily comes to an end with the extinction of the mortgage by redemption. The Supreme Court held that the aforesaid rule could have no application to the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 which has been enacted with the object of granting protection to persons lawfully cultivating agricultural lands. A mortgagee in possession is excluded from the class of deemed tenants. However, a tenant of the mortgagee in possession is inducted on the land in the ordinary course of management under authority derived from the mortgagor. In these circumstances, in para 7 of its judgment, the Supreme Court held that by restricting the exclusion to mortgagees in possession from the class of deemed tenants the legislature intended that a tenant lawfully inducted by the mortgagee shall on redemption of the mortgage be deemed to be the tenant of the mortgagor.
7. The Trial Court in the facts and circumstances of the case has taken the view that the petitioner in whose favour a tenancy was created by the mortgagee could have no higher right than the mortgagee himself. This view is contrary to what has been laid down by the Constitution Bench of the Supreme Court in . The Judgment of the Supreme Court in upon which the Trial Court sought to place reliance would really not carry the matter any further insofar as the Respondents are concerned because that case related to a matter under the Transfer of Property Act, 1882 and the Rent Act. There can be no doubt about the proposition, under the general law of the Transfer of Property Act, 1882, that a tenancy which has been created by the mortgagee in possession can bind the mortgagor even after the redemption of the mortgage only if the mortgagor has concurred to the grant of the lease. However, as held by the Constitution Bench of the Supreme Court in Dahya Lala's case this position under the Transfer of Property Act, 1882 does not govern the case of an agricultural tenancy under the Bombay Tenancy and Agricultural Lands Act, 1948. The reason, therefore, which was furnished by the Trial Court for refusing to refer the issue of tenancy to the Competent Authority was ex facie contrary to the law laid down by the Supreme Court.
8. Under Section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948, if any suit instituted in a Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decide or deal with such issues under the Act, the Civil Court shall stay the suit and refer such issues to such Competent Authority for determination. These provisions have been construed by a Division Bench of this Court consisting of M. N. Chandurkar, J. (as the Learned Chief Justice then was) and B. C. Gadgil, J. Nilesh Construction Company v. Gangubai w/o Bablya Choudhary, 1982 Mh.LJ 664. The Division Bench held that this Court has consistently taken the view that before a reference to the Mamlatdar for deciding the issue of tenancy under the Tenancy Act is made, the alleged tenant must disclose in his pleadings details about the tenancy and the exact nature of the right which is claimed by him and that an issue of tenancy cannot be raised on a vague, plea. Similarly, in Pulmati Shyamlal Mishra v. Ramkrishna Gangaprasad Bajpai, 1981 Mh.LJ. 321, a Division Bench of this Court held that the remittance of any issue of tenancy to the Mamlatdar often involves a long winding and time consuming process. Order 14 of the Code of Civil Procedure contemplates the framing of issues not only on the pleadings, but also upon documents produced. These provisions enable the Courts to seek a clarification of bald pleadings, the production of documents in doubtful cases and to seek an explanation in respect of adverse factors. The Division Bench held that there is nothing in Section 85 or 85A or in any other provisions of the Tenancy Act, to deprive the Courts of these powers so indispensable for effective adjudication and, relieving it of its duty imposed thereunder. These sections provide for the remittance of issues only if and when the same are framed on being found to arise. In the present case, issues were framed. In the recent decision of the Supreme Court in Thomas Anthony vs. Varkey Varkey, which matter arose under the Kerala Land Reforms Act, 1963, Mr. Justice D.P. Mohapatra speaking for the Bench of two Learned Judges held thus :
"16. From the aforementioned provisions the statutory scheme is clear that when a question regarding status of a person as a tenant or as a kudikidappukaran arises in any suit or proceeding before a Civil Court that court shall refer the matter to the Land Tribunal for a decision on that question only. On receipt of the decision of the Tribunal on the question the trial Court shall decide the suit or proceeding accepting the decision of the Tribunal on the question referred to it. While making a reference to the Tribunal mandatory the legislature cannot be said to have intended that even a patently frivolous, mala fide and illegal plea of tenancy taken by a party merely to delay the proceeding and to remain in possession of the property is also to be referred to the Tribunal. The statutory provisions, in our considered view, envisage a case where a bona fide and legally sustainable plea of tenancy is taken by the party, that question shall be referred to the Tribunal."
Having regard to the aforesaid position, it is abundantly clear that it is only a bona fide and legally sustainable claim of tenancy that can be referred to the Competent Authority in exercise of the provisions of Section 85A of the Bombay Tenancy and Agricultural Lands Act, 1948. The view which has been taken by the Trial Court in the present case is erroneous and as already noted earlier is contrary to the decision of the Constitution Bench . The trial Court in the light of the view which it took did not consider at all as to whether a genuine plea of tenancy has been raised in the present case. In the circumstances, the impugned order of the trial Court dated 4th July, 2001 is quashed and set aside. The trial Court is directed to reconsider the plea made in Exh. 56 in Regular Civil Suit No. 143 of 1998 afresh in the light of the judgments referred to hereinbefore. The trial Court shall dispose of the application, Exh. 56, within a period of 8 weeks from today.
9. The Civil Revision Application is allowed in the above terms. No order as to costs.
10. Certified copy expedited.