Gujarat High Court
Desaibhai Shanabhai Patel And Anr. vs Bhulabhai Prabhudas Patel And Ors. on 8 December, 1993
Equivalent citations: (1994)2GLR1647
JUDGMENT A.N. Divecha, J.
1. The order passed by the Mamlatdar and Agricultural Lands Tribunal at Thasara ('the First Authority' for convenience) on 17th April, 1982 in Tenancy Case No. 28 of 1980 as affirmed in appeal by the order passed by the Deputy Collector at Anand ('the Appellate Authority' for convenience) on 30th October, 1982 in Tenancy Appeal No. 108 of 1982 as further affirmed in revision by the decision rendered by the Gujarat Revenue Tribunal at Ahmedabad ('the Tribunal' for convenience) on 4th July, 1985 in Revision Application No. TEN.B.A. 2012 of 1982 is under challenge in this petition under Article 227 of the Constitution of India. By his impugned order the First Authority declared respondent No. 1 herein to be the tenant of one parcel of land bearing Block No. 37 (Survey No. 43) admeasuring 1 acre 29 gunthas situated in village Mithana Muvada, Taluka Thasara, District Kheda ('the disputed land' for convenience) prior to 1st April, 1957.
2. This litigation has a somewhat chequered history. Petitioner No. 1 claims to be the owner of the disputed land. One Rambhai Raghubhai filed one suit, bearing Civil Suit No. 198 of 1953, in the Court of the Civil Judge (J.D.) at Dakor against petitioner No. 1 ('the landlord' for convenience) for recovery of his dues. A decree came to be passed therein. In execution thereof the disputed land came to be attached and put for sale in auction, Respondent No. 3 herein purchased it in its auction for Rs. 2,200/~. He in his turn transferred it to respondent No. 2 herein. The necessary sale certificate was thereupon issued in the name of the father of respondent No. 2 herein. Thereafter, respondent No. 2 in the company of one more person filed one Civil suit, bearing Civil Suit No. 115 of 1957, in the Court of the Civil Judge (J.D.) at Dakor for possession of the disputed land from petitioner No. 1 herein. A decree for possession came to be passed therein. It was affirmed in appeal and in further appeal by this Court. In execution thereof its possession was taken from the petitioners on or around 20th September, 1967. Thereafter, the petitioners herein made one application on 16th December, 1967 to the Collector of Kheda for restoration of possession of the disputed land inter alia contending that the aforesaid decree passed by the Civil Court in Civil Suit No. 115 of 1957 was a nullity because the disputed land was a fragment and its sale in favour of respondent No. 2 herein was in contravention of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 ('the Fragmentation Act' for brief).
3. It appears to have been assigned to the concerned Deputy Collector. It appears to have been registered as Case No. OCN/Vasi/2057. By his order passed on 26th September, 1971 in the aforesaid proceeding, the Deputy Collector accepted the application and held that the sale of the disputed land made in execution of the decree passed by the Civil Court in Civil Suit No. 198 of 1953 in favour of respondent No. 3 and in turn in favour of respondent No. 2 herein was in contravention of Section 14 of the Fragmentation Act and was, therefore, null and void and ordered removal of the father of respondent No. 2 herein from the disputed land and restoration of its possession to petitioner No. 2 herein. That aggrieved respondents Nos. 2 and 3 herein. They carried the matter in appeal before the Special Secretary (Revenue Department) at Ahmedabad by means of their Appeal No. SS.RD.Com. 187 of 1971. That appeal was accepted and the aforesaid order passed by the Deputy Collector was quashed and set aside. That aggrieved the present petitioners. They moved this Court by means of Special Civil Application No. 682 of 1972. By its decision rendered on 22nd June, 1977 in Special Civil Application No. 682 of 1972, this Court upset the aforesaid order passed by the Special Secretary (Revenue Department) at Ahmedabad and restored the aforesaid order passed by the Deputy Collector. That aggrieved respondents Nos. 2 and 3 herein. They questioned the correctness of the order passed by this Court the Apex Court, but by its order passed on 7th August, 1978 the Supreme Court rejected their Special Leave Petition and affirmed the decision rendered by this Court on 22nd June, 1977 in Special Civil Application No. 682 of 1972. Its copy is at Annexure 'F' to this petition. It appears that at that stage respondent No. 1 entered the arena. He appears to have instituted one suit, bearing Civil Suit No. 91 of 1978, in the Court of the Civil Judge at Dakor for permanent injunction restraining the present petitioner? from taking possession of the disputed land on the ground that he was the tenant thereof prior to 1st April, 1957. The present petitioners were impleaded as defendants Nos. 2 and 3 therein. They filed their written statement-cum reply to the injunction application and resisted the suit and the injunction application on various grounds. They inter alia contended that respondent No. 1 herein was not the tenant of the disputed land. A copy of their written statement is at Annexure 'D' to this petition. It appears that in the meantime respondent No. 1 herein made an application on 16th August, 1978 to the First Authority under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 ('the Tenancy Act'. for brief) for fixation of the price of the disputed land on the ground that he was cultivating it as its tenant on the Tillers' day, that is, on 1st April, 1957. That application was accepted by the First Authority and the price of the disputed land was fixed at Rs. 2,200/-. It may be mentioned at this stage that the present petitioners were not made parties to the aforesaid proceeding instituted by respondent No. 1 herein under Section 32G of the Tenancy Act against respondents Nos. 2 and 3 herein. It appears that the present petitioners came to know of the order passed by the First Authority in the proceeding under Section 32G of the Tenancy Act. They, therefore, carried the matter in appeal before the Appellate Authority. By his order passed on 29th November, 1979, the Appellate Authority accepted the appeal and set aside the order passed by the First Authority in the proceeding under Section 32G of the Tenancy Act. That aggrieved respondent No. 1 herein. He carried the matter in revision before the Tribunal by means of his Revision Application No. TEN.B.A. 181 of 1979. By its decision rendered in the aforesaid revisional application, the Tribunal remanded the matter to the Appellate Authority for his fresh decision according to law. By his order passed on 29th December, 1979 the Appellate Authority again came to the conclusion that respondent No. 1 herein was not entitled to purchase the disputed land under Section 32G of the Tenancy Act. That by means of Revision Application No. TEN.B.A. 263 of 1980. By its decision rendered the aforesaid revisional application, the Tribunal rejected it by holding that the proceeding under Section 32G of the Tenancy Act was not maintainable and respondent No. 1 herein was advised to make an application under Section 70(b) thereof to establish his tenancy rights with respect to the disputed land. Thereupon respondent No. 1 herein made one application on 21st July, 1980 under Section 70(b) of the Tenancy Act for a declaration that he was the tenant of the disputed land prior to 1st April, 1957. It came to be registered as Tenancy Case No. 28 of 1980. By his order passed on 17th April, 1982 in Tenancy Case No. 28 of 1980, the First Authority held respondent No. 1 herein to be the tenant of the disputed land. Its copy is at Annexure 'C' to this petition. That aggrieved the present petitioners. They thereupon carried the matter in appeal before the Appellate Authority by means of their Tenancy Appeal No. 108 of 1982. By his order passed on 30th October, 1982 in the aforesaid appeal, the Appellate Authority dismissed it. Its copy is at Annexure 'B' to this petition. The aggrieved petitioners thereupon invoked the revisional jurisdiction of the Tribunal by means of Revision Application No. TEN.B.A. 2012 of 1982. By its decision rendered on 4th July, 1985 in the aforesaid revisional application, the Tribunal rejected it. Its copy is at Annexure 'A' to this petition. The aggrieved petitioners have thereupon knocked the doors of this Court by means of this petition under Article 227 of the Constitution of India for questioning the correctness of the impugned order at Annexure 'C to this petition as affirmed in appeal by the Appellate Order at Annexure 'B' to this petition as further affirmed in revision by the impugned decision at Annexure 'A' to this petition.
4. Shri Desai for the petitioners has urged that the application of respondent No. 1 herein under Section 70(b) of the Tenancy Act was clearly time-barred and the First Authority was in error in entertaining that application and declaring him to be the tenant of the disputed land. Shri Desai for the petitioners has further urged that, in view of the overwhelming evidence on record, respondent No. 1 herein could not have been declared the tenant of the disputed land by the First Authority or the Appellate Authority or the Tribunal in revision. As against this, Shri Patel for respondent No. 1 has submitted that the application under Section 70(b) of the Tenancy Act could not be said to be time-barred on several counts. Shri Patel for respondent No. 1 has further urged that all the three authorities below have held respondent No. 1 to be the tenant of the disputed land on appreciation of the evidence on record and, in exercise of its limited jurisdiction under Article 227 of the Constitution, this Court would not be justified in upsetting the concurrent finding of fact recorded by all the three authorities below in that regard.
5. So far as the second submission of Shri Desai for the petitioners is concerned, it has to be held that whether or not respondent No. 1 was the tenant of the disputed land prior to 1st April, 1957 was a question of fact and all the three authorities have concurrently held that he was the tenant of the disputed land. It would not be open to this Court in exercise of its limited powers under Article 227 of the Constitution of India to upset this concurrent finding of fact recorded by the three authorities below. Shri Desai for the petitioners has not been able to show how the aforesaid concurrent finding of fact recorded by the three authorities below is perverse in any manner. Simply because the son issuing receipts acknowledging receipt of the crop-share was not a major at the relevant time is of no consequence at this stage. The reason therefor is quite simple. The law does not prohibit a minor person to issue a receipt. Besides at the stage of trial, no such contention was raised to the effect that the person issuing such receipt was a minor and he could not have issued any receipt as to bind his father with respect to the tenancy rights claimed by respondent No. 1 qua the disputed land. Whether or not the person issuing such receipts was a minor at the relevant time would be a question of fact. It is possible that he might have stated his approximate age at the time of recording of his deposition and on that basis on the relevant date of the receipts in question he could be a minor. However, it is not uncommon that witnesses give the age at the time of their deposition on the basis of their impressions and that would not be their correct age. What was the correct age of the person issuing the receipts in question would have to be established by adducing cogent and convincing evidence in that regard. As pointed out hereinabove, that question was never raised before the First Authority much less before the Appellate Authority or before the Tribunal in revision. It would not be open to the petitioners to raise such question for the first time before this Court in their petition under Article 227 of the Constitution of India.
6. So far as the question of limitation is concerned, the admitted position on record is that the application under Section 70(b) of the Tenancy Act was made on 21st July, 1980. That was certainly pursuant to the decision rendered by the Tribunal on 30th June, 1980 in Revision Application No. TEN.B.A. 263 of 1980. The proceedings before the Tribunal arose from the application made by respondent No. 1 herein on 16th August, 1978 under Section 32G of the Tenancy Act.
7. According to Shri Desai for the petitioners, by virtue of Section 72 of the Tenancy Act the application made by respondent No. 1 herein under Section 70(b) of the Act would be governed by the provisions contained in the Mamlatdar's Court's Act, 1906 ('the M- C. Act' for brief). By virtue of Section 5 thereof, runs the submission of Shri Desai for the petitioners, respondent No. 1 herein was required to file his application under Section 70(b) of the Tenancy Act within six months from accrual of the cause of action. Shri Desai for the petitioners has invited my attention to the written statement at Annexure 'D' to this petition filed by them on 28th December, 1978 in Civil Suit No. 91 of 1978 instituted by respondent No. 1 herein inter alia against them for the purpose of showing that the claim of respondent No. 1 herein as the tenant of the disputed land was specifically denied by and on behalf of the petitioners at that stage itself. In that view of the matter, according to Shri Desai for the petitioners, the application under Section 70(b) of the Tenancy Act ought to have been made in any case within six months from that date. As against this, Shri Patel for respondent No. 1 has submitted that Section 5 of the M.C. Act will not be applicable to an application under Section 70(b) read with Section 71 of the Tenancy Act for the simple reason that Section 72 excludes its applicability by necessary implications. Besides, according to Shri Patel for respondent No. 1, the petitioner was pursuing his remedy right from 16th August, 1978 by means of the wrong proceeding and he would be entitled to the benefit under Section 14 of the Limitation Act, 1963 by virtue of Section 29(2) thereof. In that view of the matter, runs the submission of Shri Patel for respondent No. 1, the application made by respondent No. 1 under Section 70(b) of the Tenancy Act could not be said to be time-barred. In order to appreciate the rival submissions urged before me it would be quite proper to look at Sections 71 and 72 of the Tenancy Act. They read:
71. Save as expressly provided by or under this Act, all inquiries and other proceedings before the Mamlatdar or Tribunal shall be commenced by an application which shall contain the following particulars:
(a) the name, age, profession and place of residence of the applicant and the opponents:
(b) a short description and situation of the property of which possession is sought, or the amount of the claim, as the case may be;
(c) the circumstances out of which the cause of action arose;
(d) a list of the applicant's documents, if any, and of his witnesses, and whether such witnesses are to be summoned to attend or whether the applicant will produce them on the day of the hearing;
(e) such other particulars as any be prescribed.
72. In all inquicies and proceedings connenced on the presentation of applications under Section 71 the Mamlatdar or the Tribunal shall exercise the same powers as the Mamlatdar's Court under the Mamlatdar's Courts Act, 1906 and shall save as provided in Section 29 follow the provisions of the said Act, as if the Mamlatdar or the Tribunal were a Mamlatdar's Court under the said Act and the application presented was a plaint presented under Section 7 of the said Act. In regard to matters which are not provided for in the said Act, the Mamlatdar or the Tribunal shall follow the procedure as may be prescribed by the State Government. Every decision of the Mamlatdar or the Tribunal shall be recorded in the form of an order which shall state reasons for such decision.
It would also be quite appropriate to look at Section 7 of the M.C. Act for the purpose. It reads:
7. All suits under this Act shall be commenced by a plaint, which shall be presented to the Mamlatdar in open Court by the plaintiff, and which shall contain the following particulars:
(a) the name, age, religion, caste, profession and place of abode of the plaintiff;
(b) the name, age, religion, caste, profession and place of abode of the defendant; (bb) the nature and situation of the impediment erected and the situation of the lands which are adjacent to each other, and the nature of the relief sought;
(c) the nature and situation of the property of which possession for use if sought, or the nature of the injunction to be granted, as the case may be;
(d) the date on which the cause of action arose;
(e) the circumstances out of which the cause of action arose; and
(f) a list of the plaintiff's documents, if any, and of his witnesses, if any, showing what evidence is required from each witness, and whether such witnesses are to be summoned to attend, or whether the plaintiff will produce them on the day and at the place to be fixed under Section 14.
8. A bare perusal of Section 72 of the Tenancy Act would go to show that an application under Section 71 of the Tenancy Act is treated as a plaint presented under Section 7 of the M.C. Act. In that view of the matter, the First Authority will have to start the process of that application from the stage of Section 7 of the M.C. Act. The period of limitation is prescribed in the M.C. Act in Section 5(3) thereof. It obviously precedes Section 7 thereof. In that view of the matter, Section 5 thereof will not be applicable to an application under Section 71 of the Tenancy Act by virtue of Section 72 thereof.
9. The same result is bound to ensue from examination of the question from a different angle. The particulars of an application under Section 70 of the Tenancy Act are set out in Section 71 thereof. The particulars of a plaint under the M.C. Act are set out in Section 7 thereof. Clause (d) thereof is material. It requires the litigant inter alia to state the date on which the cause of action arose. This would definitely be relevant in view of the provisions contained in Section 5(3) thereof. It has been provided therein that no suit shall be entertained by a Mamlatdar's Court unless it is brought within six months from the date on which the cause of action arose. In that context, the litigant is required to mention in his plaint under Section 7 of the M.C. Act that date on which the cause of action arose for instituting the suit. No such provision is found to have been made in Section 71 of the Tenancy Act. It is obvious that no period of limitation is prescribed for making an application under Section 70 of the Act, and that is why the litigant making an application under Section 70 thereof is not required to mention the date on which the cause of action arose in his application as provided in Section 71 thereof. It is true that Clause (c) of Section 71 thereof requires the litigant to state the circumstances out of which the cause of action arose. It cannot be gainsaid that the circumstances out of which the cause of action arose would be different from the date on which the cause of action arose. What is contemplated by the expression "circumstances out of which the cause of action arose" would be, to say succinctly, what occasioned the institution of the proceeding or why the proceeding in question was required to be instituted. The expression 'the date on which the cause of action arose' would constitute the time when the occasion to institute the proceeding arose and not the why or what of it. The aforesaid two expressions obviously connote two different concepts. They cannot be construed as connoting the same thing as canvassed by Shri Desai for the petitioners. Even the Legislature has recognised two different concepts connoted by the aforesaid two expressions. Clause (c) of Section 71 of the Tenancy Act is found engrafted in Clause (e) of Section 7 of the M.C. Act. If the circumstances out of which the cause of action arose connoted the time of its accrual or arising, the Legislature would not have included in Clause (d) thereof 'the date on which the cause of action arose'. Two separate provisions made in Clauses (d) and (e) in Section 7 of the M.C. Act would buttress support to the aforesaid view taken by me to the effect that Section 5(3) of the M.C. Act is outside the purview of Section 72 of the Tenancy Act.
10. It is true that under Section 12 of the M.C. Act the First Authority is required inter alia to reject the plaint if it appears on the face of the plaint that the cause of action arose more than six months before the plaint was presented. That provision certainly occurs after Section 7 thereof. That by itself would not make Section 5 thereof applicable to a proceeding under Section 70 read with Section 71 of the Tenancy Act by virtue of Section 72 thereof. The reason therefor is quite simple. As pointed hereinabove, Clause (d) of Section 7 requires the litigant to state in his plaint the date on which the cause of action arose. As pointed out hereinabove, that requirement is in the light of the provisions contained in Section 5(3) thereof. Section 12(c)(ii) is in the context of the averment made in the plaint in the light of Section 7(d) read with Section 5(3) thereof. As pointed out hereinabove, the litigant is not required to state in his application under Section 70 read with Section 71 of the Tenancy Act to state the date on which the cause of action arose for making the application or for instituting the proceeding in question. In that view of the matter, the First Authority would not be required to reject the applicant on under Section 70 read with Section 71 of the Tenancy Act for not stating the date on which the cause of action arose. If the application under Section 70 read with Section 71 of the Tenancy Act could not be rejected for want of such statement, no question would at all arise to reject the application on the ground that the cause of action arose more than six months before the plaint was presented. To permit the First Authority to reject an application under Section 70 read with Section 71 of the Tenancy Act on the ground that it was made six months after the accrual of the cause of action arose would tantamount to reading into the Tenancy Act a provision prescribing the period of Limitation of six months for making such application under Section 70 thereof. No provision prescribing any period of limitation for an application under Section 70 of the Tenancy Act is found made therein. In that view of the matter. Section 12 of the M.C. Act cannot be read so as to prescribe any period of limitation for an application under Section 70 of the Tenancy Act.
11. The question can be examined from yet another angle and the outcome would again be the same. The proceeding under the M.C. Act is basically in the nature of injunction. This becomes clear from the examination of the Scheme of Section 5 thereof. A suit for injunction can also be instituted under the Specific Reliefs Act, 1963 ('the S.R. Act' for brief). For a suit thereunder the period of limitation is ordinarily three years from the date of accrual of the cause of action. The M.C. Act has provided practically a summary remedy for a suit for injunction in certain specified cases. That appears to be the reason why a shorter period of limitation has been prescribed under Section 5(3) thereof. If a litigant wants to file a summary remedy thereunder, he has to approach the authority thereunder within the prescribed period of limitation as provided in Section 5(3) thereof; else he will have to take recourse to his remedy available under the ordinary civil law including that under the S.R. Act. In that context the relevant particulars to be stated in the plaint are set out in Section 7 of the M.C. Act and in that context the power to reject the plaint conferred on the Mamlatdar under Section 12 of the Act inter alia on the ground that the plaint was presented six months after accrual of the cause of action has to be understood. In that view of the matter, the period of limitation prescribed under Section 5(3) of the M.C. Act cannot be made applicable to an application under Section 70 of the Tenancy Act despite applicability of the procedure to such application by virtue of Section 72 thereof.
12. Exception with respect to the proceeding under Section 29 of the Tenancy Act carved out in Section 72 thereof would not suggest that the period of limitation provided in Section 5(3) of the M.C. Act would be applicable to the proceeding under Section 70 read with Section 71 of the Tenancy Act. The reason therefor is quite simple. The proceeding under Section 29 of the Tenancy Act will not be governed by Section 71 thereof for the simple reason that a separate procedure is prescribed thereunder. Section 71 thereof carves out an exception in favour of an express provision made for a separate proceeding. Besides the application under Section 29 thereof has to be made in a prescribed form and the particulars in the prescribed form need not necessarily be the same as set out in Section 71 thereof. In that view of the matter, the exception made in favour of Section 29 thereof in Section 71 thereof is not with a view to emphasising the separate period of limitation but it is with a view to emphasising the different nature of the proceeding itself.
13. In view of my aforesaid discussion, I am of the opinion that the application made by respondent No. I herein under Section 70(b) of the Tenancy Act could not be styled as time-barred. Even otherwise respondent No. 1 was pursuing his remedy under Section 32G of the Tenancy Act. As found by the Tribunal in its decision rendered on 30th June, 1980 in Revision Application No. TEN B.A. 263 of 1980, that proceeding was incompetent. It would mean that respondent No. 1 herein was proceeding bona fide before the authority without jurisdiction. The time lost in that proceeding will have to be excluded by virtues of Section 29(2) of the Limitation Act, 1963 by applying Section 14 thereof. Its applicability is not excluded either specifically or by necessary implication by or under the Tenancy Act.
14. In either view of the matter, the application made by respondent No. 1 herein under Section 70(b) of the Tenancy Act could not have been rejected as time-barred.
15. These were the only contentions raised before me in support of this petition. I have found no merit or substance in any of them. No interference whatsoever is called for by this Court with the impugned order at Annexure 'C to this petition as affirmed in appeal by the Appellate Order at Annexure 'B' to this petition as further affirmed in revision by the impugned decision at Annexure 'A' to this petition.
16. In the result, this petition fails. It is hereby rejected. Rule is accordingly discharged. The interim relief granted stands vacated.
17. At the oral request of Shri Desai for the petitioners, the interim relief is ordered to continue for a period of three months from today with a view to enabling the petitioners to carry this matter before the higher forum if so advised.