Bombay High Court
Sambhugir Sansthan Trust vs Gopal Tulshiram Vidhate on 7 December, 2011
Author: A.B. Chaudhari
Bench: A.B. Chaudhari
sa538.05.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO.538/2005
APPELLANTS :- 1. Sambhugir Sansthan Trust,
(Ori. Plffs) Dhotardi, Tq. & Dist. Akola,
Through its Trustees.
2. Ramdas Namdeo patil,
Aged Adult,
3. Milind Pundlikrao Patil,
Aged Adult,
4. Prakash Shriram Warankar,
Aged Adult,
5. Lalitkumar Shriram Mahalle,
Aged Adult,
6. Tulshiram Pandhari Ranpise,
Aged Adult,
All Agriculturist, R/o Dhotardi,
Tq. & Dist. Akola.
...VERSUS...
RESPONDENTS :- 1. Gopal Tulshiram Vidhate
(Ori. Defts) Aged Adult, Occ. Agriculturist.
2. Yogesh Gopal Vidhate,
Aged Adult, Occ. Agriculturist.
3. Ganesh Gopal Vidhate,
Minor by natural guardian
mother, Sau. Manubai Gopal Vidhate
Now Major.
4. Wasudeo Ramchand Gaigol,
Aged 59 years, Occ. Agriculturist.
All R/o Dhotardi, Tq. & Dist.
Akola.
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[Shri M.N. Ingley, Adv. for appellants]
[Shri C.R. Najbile, S.V. Sirpurkar, Advs. for respdt. nos.1 to 4]
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CORAM : A.B. CHAUDHARI, J.
Date of reserving the judgment: 22.09.2011
Date of pronouncing the judgment: 7.12.2011
J U D G M E N T
1. Heard. Admit. Taken up for final disposal in view of the fact that the appeal is pending since 2005 only for admission and it relates to the litigation which is old.
2. Being aggrieved by the judgment and decree dated 23.2.2005, passed by the 4th Ad hoc Additional District Judge, Akola in Regular Civil Appeal No.166/2002 by which the appeal preferred by the appellants was dismissed and the judgment and decree dated 29.6.2002, passed by the III Jt. Civil Judge (Jr. Dn.), Akola in Regular Civil Suit No.181/1997 was upheld, the present second appeal has been filed by the original plaintiffs/appellants.
3. Shambhugir Sansthan Trust, Dhotardi a registered Trust through its five trustees filed a suit for declaration and possession vide Regular Civil Suit No.181/1997 against the respondents/original ::: Downloaded on - 09/06/2013 17:59:15 ::: sa538.05.odt 3 defendants in the Court of Civil Judge, Senior Division, Akola on 14.2.1997. The plaint allegations are that plaintiff no.1 Public Trust was registered as Public Trust by order dated 16.5.1958, passed by the Registrar acting under the Madhya Pradesh Public Trusts Act and consequently, was registered on 21.2.1964 after coming into force of the Bombay Public Trusts Act, 1950. The agricultural lands bearing Survey no.60/2, admeasuring 7.21 acres and agricultural land bearing Survey no.35/4, admeasuring 4.33 acres of village Dhotardi is owned by plaintiff no.1 Public Trust and accordingly entry to that is also to be found in Schedule I Public Trust register which entry is final and conclusive. One Tulshiram Sambhaji Vidhate claiming to be the protected tenant of the Trust over the said suit lands in collusion with the Tenancy Tahsildar got both the lands transferred in his name by way of compulsory transfer of ownership to a tenant under Sections 46 and 48 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, hereinafter referred to as the Tenancy Act ) in two revenue proceedings i.e. Revenue Case nos.1087/59(13)/Dhotardi/63-64 and ::: Downloaded on - 09/06/2013 17:59:15 ::: sa538.05.odt 4 1076/59/13/63-64 of village Dhotardi in respect of the said two fields by playing fraud and in collusion with one of the Trustees by name Pundlik Raoji Patil by orders dated 30.9.1966. The defendants are the sons of Tulshiram and subsequent transferees from them. In both above proceedings i.e. Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi, the landlord who was shown to have been given notice of those proceedings was Gajanan Sansthan, Dhotardi and not Shambhugir Sansthan i.e. plaintiff no.1. Both these orders are thus void ab initio and not binding on plaintiff no.1 Public Trust. The said orders were passed without holding any enquiry by Tahsildar and none of the Trustees who were alive at that time and who were recorded in the Public Trust register were given notices except Pundlik Patil, who colluded with Tulshiram. The said order dated 30.9.1966 in both revenue cases i.e. Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi are thus void ab initio and nullity and therefore, the civil Court has jurisdiction to examine the validity thereof. The transfer of lands subsequently to others by the sons ::: Downloaded on - 09/06/2013 17:59:15 ::: sa538.05.odt 5 of Tulshiram in violation of Section 57 of the Tenancy Act was also illegal and the suit lands were liable to be forfeited.
4. With the above factual background, prayers were made for declaring the orders in Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi as null and void and not binding on the Trust and that the defendants have no right over the suit properties. After the death of Shambhugir Guru Ramgir in the year 1945-46 the State Government took possession of the suit lands and continued to auction the same every year till the year 1966-61 for cultivation and thereafter the lands were handed over to the Trust.
Defendant nos.1 to 3 filed their written statement to the plaint. They stated that on 30.9.1966 the Tenancy Tahsildar had made legal and valid adjudication between plaintiff no.1 Trust and Tulshiram; a tenant. Allegations about collusion and fraud were denied in toto. It was then stated that the suit in question was a second round of litigation just to cause harassment to the defendants inasmuch as earlier Regular Civil Suit No.216/1996 was filed by ::: Downloaded on - 09/06/2013 17:59:15 ::: sa538.05.odt 6 plaintiff no.1 Trust against the defendants for permanent injunction with the same subject matter in the suit, namely the suit fields and the same parties.
In that suit, application (Exh.17) for dismissal of the suit for want of jurisdiction of the civil Court was allowed by the Civil Judge, Junior Division, Akola on 29.10.1996 and the said order in the said civil suit therefore operates as res judicata or bar for fling the instant suit. It was then stated that in the instant suit, names of the Trustees have been added and that is the only difference and no other. The defendants also raised an objection that the orders sought to be declared as null and void dated 30.9.1966 in the said two proceedings i.e. Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi under the provisions of the Tenancy Act could be challenged only under the provisions of the said Act and the said Act being a Special Act, the jurisdiction of civil Court is completely barred under Section 124 of the Tenancy Act. Apart from that for the relief claimed by the plaintiffs, remedy is available under the provisions of the Tenancy Act and accordingly the plaintiffs had challenged the orders ::: Downloaded on - 09/06/2013 17:59:15 ::: sa538.05.odt 7 under the Tenancy Act in the present subject matter up to the High Court and had lost in all proceedings and thus all those orders have become final and conclusive qua the issue of tenancy and the ownership of the deceased Tulshiram, who died in the year 1991.
Therefore, the suit was instituted clearly out of mala fides and is required to be dismissed with costs.
5. Parties filed several documents on record of the trial Court and also tendered evidence. The learned trial Court heard the parties on the question of jurisdiction of the civil Court and dismissed the suit holding that it had no jurisdiction. The lower appellate Court confirmed the said decree. Hence, this second appeal.
6. In support of the appeal, learned Counsel for the appellants made the following submissions.
(i) The Courts below committed an error in holding that the civil Court had no jurisdiction ignoring the fact that the orders passed by the Tenancy Tehaildar if are found to be without jurisdiction, null and void, jurisdiction of the civil Court is not barred. He relied on the decisions in the case of Madhav Kesu Khupse...Versus...Sundrabai ::: Downloaded on - 09/06/2013 17:59:15 ::: sa538.05.odt 8 Mugutrao Phadatare since deceased by heirs Krishna Dagdu Khuspe and others, reported in 1978 Mh.L.J. 289 and Chandbi Amirshah and others...Versus...Narayan Karnoo Lengure, reported in 1987 Mh.L.J. 143.
(ii) The Courts below have not looked into the orders passed under the provisions of the Madhya Pradesh Public Trusts Act and the Bombay Public Trusts Act in relation to plaintiff no.1 Public Trust, wherein there is a clear mention about the number of five Trustees at inception so also the suit properties belonging to the Public Trust. Admittedly, only Pundlik Patil was noticed before the Tenancy Tahsildar and other Trustees mentioned in the Schedule of the Trustees were never summoned. Therefore, in the face of the fact that all Trustees are required to be parties to such proceedings, the said order dated 30.9.1966 in Revenue Case nos.
1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi are illegal and not binding on the Trust.
(iii) In both proceedings i.e. Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi, the landlord was ::: Downloaded on - 09/06/2013 17:59:15 ::: sa538.05.odt 9 Gajanan Sansthan, Dhotardi and not Shambhugir Sansthan, Dhotardi and there is a certificate on record from Grampanchayat to show that there is no Gajanan Sansthan at Dhotardi.
(iv) The suit lands were under the control of the State Government till the year 1966 which used to auction the lands for cultivation every year and therefore, there could be no tenancy much less valid tenancy in favour of Tulshiram before 1966.
(v) No enquiry for conferring tenancy on Tulshiram was at all made as required by law.
(vi) The Trust was having Exemption Certificate dated 30.3.1960 under Section 129 (b) of the Tenancy Act and therefore, on 30.9.1966 no orders conferring ownership on the alleged tenant could be passed. Hence, the said order is null and void and not binding on the Trust.
(vii) Subsequent transfer by Tulshiram's sons is in violation of Section 57 of the Tenancy Act.
(viii) Civil Suit No.216/1996 was dismissed for want of jurisdiction of the civil Court and the same was not for declaring the orders dated 30.9.1966 as illegal or void ab initio.
::: Downloaded on - 09/06/2013 17:59:15 ::: sa538.05.odt 10(ix) Under Section 54 of the Tenancy Act, tenancy is not heritable in respect of the land held by the Public Trust as decided by the Supreme Court in the case of Shriram Mandir Sansthan @ Shri Ram Sansthan Pusda...Versus... Vatsalabai and others, reported in 1999 (1) Mh.L.J. 321 and therefore, the orders are illegal and at any rate the present defendants cannot continue to hold the suit lands.
(x) The civil Court has jurisdiction in such matters in view of the peculiar facts stated above.
Learned Counsel for the appellants, therefore, prayed for decreeing the suit by allowing the appeal.
7. Per contra, learned Counsel for the respondents vehemently opposed the appeal and argued that the present litigation is an abuse of process of law. The appellants had filed earlier suit and had lost in the same subject matter and between the same parties again the instant suit was filed. Earlier civil suit having been dismissed, the same is bound to operate as res judacata and thus barred the present suit. The issue being the same, the Courts below were ::: Downloaded on - 09/06/2013 17:59:15 ::: sa538.05.odt 11 right in dismissing the suit. Apart from this fact Section 124 of the Tenancy Act clearly barred jurisdiction of the civil Court as remedies are available under the provisions of the Tenancy Act and as a matter fact, statement was made by the learned Counsel for appellant no.1 before this Court when Writ Petition Nos.295/1992 and 296/1992 were decided by this Court on 17.1.1996, that the appellants would approach the competent Forum under the Tenancy Act for the grievances made in those petitions. The said judgment of the High Court also cannot be ignored and would operate as bar for entertaining the civil suit.
Finally, the learned Counsel for the respondents prayed for dismissal of the appeal with costs.
8. I have perused the entire record and proceedings. I have heard learned Counsel for the rival parties at length. Having heard learned Counsel for the rival parties, following substantial questions of law arise for my determination.
(1) Whether the decision of this Court dated 17.1.1996 in Writ Petition Nos.295/1992 and 296/1992 would bar Regular Civil Suit No.181/1997 ?
...No. ::: Downloaded on - 09/06/2013 17:59:15 ::: sa538.05.odt 12 (2) Whether Regular Civil Suit No.181/1997 filed by the appellants for declaration and possession in respect of the suit lands was barred as Regular Civil Suit No.216/1996 was dismissed by order below Exh.17 on the ground that the civil Court had no jurisdiction in relation to issue of tenancy ?
...No. (3) Whether the orders dated 30.9.1966 in Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi, passed by the Tenancy Tahsildar, conferring statutory ownership on Tulshiram are void ab initio, nullity and not binding on appellant no.1 Public Trust and whether the civil Court can declare them so ?
...Yes.
(4) Whether the orders dated 30.9.1966 in Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi are null and void ab initio in view of the order of exemption dated 30.3.1966, below Exh.40, passed by the competent authority, namely Sub Divisional Officer, Akola in ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 13 Revenue Case No.90/101/58-59, Dhotardi in respect of suit survey nos.60/2 and 35/4 of Mouza Dhotardi ?
...Yes.
(5) Whether the jurisdiction of the civil Court to entertain Regular Civil Suit No.181/1997 for declaration and possession was barred by Section 124 of the Bombay Tenancy and Agricultural lands (Vidarbha Region) Act, 1958 ?
...No. (6) (i) Whether after the death of Tulshiram, the alleged original tenant, tenancy was heritable by his sons in the light of Section 54 of the Tenancy Act ?
...No.
(ii) Whether therefore at least after the death of Tulshiram the suit lands were required to be restored to plaintiff no.1 Public Trust ?
...Yes.
9. As to question no.1 : - It is necessary to have a look at various facts and evidences on record ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 14 before proceeding to deal with the questions aboveframed.
10. It appears that Shambhugir Guru Ramgir died somewhere in the year 1945-46, who had held the suit lands and after his death since there was none to look after, the Revenue Department of the Government took over the suit lands and started auctioning the same every year for cultivation. This is evident from the communication ig dated 29.5.1957 from the Revenue Inspector in which it is stated that the suit lands along with other lands were being auctioned every year by the Government since 10 years after the death of Shambhugir on cash Theka basis. It then appears that (1) Pundlik Raoji Patil (2) Shrawan Narhari Gawande and (3) Shankar Kashiram Guhe of Dhotardi had made an application on 4.2.1956 with Schedule A of the property showing the suit properties also with other properties for registration of the Public Trust and in para (iii) there is a statement that the Government is in possession of the suit lands. The said application was registered as Revenue Case No.1/15/55-56 of Dhotardi and was decided on 30.10.1957 by the Deputy Commissioner, Akola. By the said order, the suit ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 15 property was treated as Trust property and accordingly application for registration was processed since the legal Department of the Government by letter No.20077/E dated 5.8.1957 opined that the property was not of the Government but was of the Shamgir Trust.
Accordingly, the Registrar of the Public Trust made an order on 16.5.1958 registering the Public Trust with finding in para 3 (ii) (b) Immovable Property mentioning the two suit properties i.e. Survey nos.35/4 and 60/2 of Dhotardi as Trust property. There is further finding at para (iv) mentioning in all first five trustees i.e. (1) Pundlik Raoji Sarpanch (2) Tukaram Januji (3) Shankar Kashiram (4) Baliram Gondaji and (5) Tulshiram Wayadwar. It is, thus, clear that the suit properties are the Trust properties of plaintiff no.1 - Shambhugir Sansthan and not of Gajanan Sansthan Dhotardi.
11. It appears that the suit property was transferred/sought to be transferred in contravention of Section 57 of the Tenancy Act, 1958 and therefore, some Trustees of appellant no.1 Trust had approached Sub Divisional Officer, Akola under Sections 57 and 122 of the Tenancy Act against the respondents for ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 16 declaration that the said transfers were illegal and void. The Sub Divisional Officer, Akola passed an order on 10.8.1989 and held that the applications were not tenable before him but Tahsildar was having jurisdiction. The said order dated 10.8.1989 passed by the Sub Divisional Officer was challenged before the Maharashtra Revenue Tribunal, Nagpur which dismissed the revisions by order dated 20.9.1991. Feeling aggrieved thereby, writ petitions, namely Writ Petition Nos.295/92 and 296/1992 were filed by the appellants before this Court. It appears that in the meanwhile the Trustees had approached the Tahsildar, who made an order on 29.9.1995 and rejected their application filed by the Trust under Section 122 of the Tenancy Act turning down the application for declaring the transfer made by the alleged tenants as invalid. That order of Tahsildar dated 29.9.1995 was challenged before the Sub Divisional Officer who dismissed the appeal by order dated 10.1.1996 and maintained the order of Tahsildar dated 29.9.1995. It appears that the learned Counsel for the appellants/ petitioners in those writ petitions made a statement that the said order of Sub Divisional Officer in ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 17 appeal dated 10.1.1996 was revisable by the Maharashtra Revenue Tribunal and therefore, this Court observed, that it was open to the Trust to challenge the said order of Sub Divisional Officer dated 10.1.1996, while delivering the judgment in the said Writ Petition on 17.1.1996. These facts have been obtained by me upon perusal of the copy of writ petition and the judgment dated 17.1.1996 made by this Court. It is, thus, clear that the said decision of this Court dated 17.1.1996 pertains to the challenge of the appellant/Trust, in relation to the transfer of suit property by the tenants in violation of Section 57 and for possession under Section 122 of the Tenancy Act, as illegal and nothing more. I have perused the averments in the plaint in Regular Civil Suit No.181/1997 and find that the prayers are in consonance with the pleadings, which I reproduce below.
It is therefore prayed that the Hon'ble court be pleased to declare that the order passed by Tenancy Tahsildar in Rev. case no.1076/59/13/63-64 of village Dhotardi dtd. 30.6.66 and in Rev. case ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 18 no.1087/59(13)/63-64 of village Dhotardi th dt. 30 Sept. 1966 is nullity and was obtained by fraud and is not binding on the plff's trust.
B) it be declared that the deft.
No.1 to 4 have no right or interest in the property.
C) the plffs be put in actual physical possession of the property.
D) enquiry into future mesne profit from the date of filing of the suit till the actual delivery of the possession of the property may kindly be directed to be made.
E) Costs of the suit alongwith any other relief may kindly be granted to the plffs.
The prayers thus relate to the validity of orders dated 30.9.1966 passed by Tenancy Tahsildar, and have nothing to do with the averments in W.P. Nos.295/1992 and 296/1992 nor the judgment dated 17.1.1996 of this Court shows any issue arising in the plaint being raised or adjudicated. Hence, I answer question no.1 in the negative.
12. As to question no.2 : - Perusal of the plaint in Regular Civil Suit No.216/1996 shows the ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 19 grievance made by the plaintiff/Trust in the said suit. It is stated therein that Writ Petition No. 295/1992 was decided by the High Court on 17.1.1996, in which the High Court kept it open to the plaintiff/Trust to take action before Tahsildar against the defendants. In paragraph no.5 of the plaint it is stated that defendants have no right to transfer or sell the suit property to others belonging to the Trust and the purchaser Wasudeo was likely to claim the suit property on the basis of sale-deed executed by the sons of Tulshiram so also by Bapurao Mahalle and all these leases and sales were contrary to law and illegal. The defendants in the suit were trying to dispose of the suit property of the Trust in violation of the provisions of the Tenancy Act and therefore, they were required to be injuncted by permanent injunction from transferring or selling the suit properties. In other words, the said suit was simplicitor suit for permanent injunction from effecting the sales of the suit properties any further by the children of the alleged tenant Tulshiram and nothing more. This suit was dismissed by the trial Court by order dated 29.10.1996, holding on ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 20 preliminary issue Exh.17 application that the civil Court had no jurisdiction in view of the bar provided by Section 124 of the Tenancy Act. To sum up, the issue about the validity of orders dated 30.9.1966 passed by Tenancy Tahsildar was never the subject matter of the said Regular Civil Suit No.216/1996 as in Regular Civil Suit No.181/1987 in question. The issue whether Tulshiram was a tenant or orders dated 30.9.1966 declaring him tenant and conferring ownership on him were legal or not was not at all involved in the Regular Civil Suit No.216/1996. It appears that Regular Civil Suit No.216/1996 was filed under legal advice instead of approaching Maharashtra Revenue Tribunal after this Court on 17.1.1996 in W.P. Nos.295/1992 and 296/1992 recorded the following observations in its judgment in para 7.
7. Mr Bhavsar, the learned counsel for applicant Trust submitted that while rejecting the application filed by the applicant Trust as not maintainable, the Sub-Divisional Officer had two courses open : (i) either to send the applications filed by the applicant Trust before the Sub-Divisional Officer to the concerned ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 21 Tahsildar for proper enquiry, or (ii) to direct the applicant Trust to make fresh application before the Tahsildar and in any case, now the applicant Trust may be permitted to make application before the Tahsildar under Section 122 of the Tenancy Act. The said contentions made by the learned counsel for applicant Trust cannot be entertained for the simple reason that the Tahsildar, Akola had taken suo-motu action Trust igon under the request Section 122 of of the the applicant Tenancy Act, 1958 and by the order dated 29.9.1995, has rejected the contention that such sale or transfers made by the tenants were invalid. The Tahsildar, however, observed that the matter was pending before the High Court and the judgment of the High Court would be binding. The order passed by the Tahsildar on 29.9.1995 was carried in appeal by the applicant Trust before the Sub-Divisional Officer and the Appellate Authority by the order dated 10.1.1996 has rejected the appeal and maintained the order passed by the Tahsildar on 29.9.1995. Mr Bhavsar, the learned counsel for applicant Trust candidly conceded that the order passed by the Sub-Divisional Officer, Akola on 10.1.1996 is revisable by the Maharashtra ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 22 Revenue Tribunal. That being the position, it would be open to the applicant Trust to challenge the order passed by the Tahsildar on 29.9.1995 and confirmed in appeal by the Sub-Divisional Officer on 10.1.1996 before the Maharashtra Revenue Tribunal and on such challenge being made, the Tribunal would decide the matter in accordance with law.
For the above reason therefore question no.2 will have to be answered in the negative.
13. As to question no.3 :- Perusal of the orders below Exhs.31 and 32 i.e. orders dated 30.9.1966 in Revenue Case no.1087/59 (13)/Dhotardi/63-64 relating to Survey no.60/2 and in Revenue Case no.1076/59/13/63-64 of village Dhotardi relating to Survey no. (not mentioned) (but according to the respondents it is Survey no.35/4) show that landlord is Gajanan Sansthan, Dhotardi through Wahiwatdar Pundlikraoji Patil and not plaintiff no.1 - Shambhugir Sansthan and paragraph no.2 of both these orders shows that individual notices were sent to the said landlord i.e. Gajanan Sansthan. That means Shambhugir Sansthan which is the owner of these two suit survey numbers ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 23 was never a party to both the said tenancy proceedings of conferral of ownership on Tulshiram. There is no other order produced by the respondents anywhere on the record of the civil Court alike Exhs.31 and 32 to show that plaintiff no.1 Shambhugir Sansthan Trust, Dhotardi was shown as a landlord and accordingly notices were issued to the said Shambhugir Sansthan plaintiff no.1. Thus, it is clear that both these orders Exhs.31 and 32 which were challenged in the suit in the very first prayer clause relate to landlord Gajanan Sansthan and not the Shambhugir Sansthan/Public Trust but then the suit lands belonging to Shambhugir Sansthan were being treated as the lands of which ownership was conferred on the alleged tenant Tulshiram. It is, thus, clear that the orders below Exhs.31 and 32 dated 30.9.1966 on the basis of which tenancy/ownership was allegedly conferred on Tulshiram did not at all relate to Shambhugir Sansthan and therefore, the said orders in relation to Shambhugir Sansthan which were sought to be declared as null and void and not binding on the Trust, were liable to be so declared and needless to say that they were nullity as against plaintiff no.1 ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 24 Shambhugir Sansthan. Question no.3 will have to be therefore answered in the affirmative.
14. As to Question no.4 :- Perusal of the record of the lower Court shows that there is order of exemption dated 13.3.1960 below Exh.40 in Revenue Case No.90/101/58-59, Dhotordi by the Sub Divisional Officer, Akola. Section 129 (b) of the Bombay Tenancy And Agricultural Lands (Vidarbha Region) Act, 1958 reads thus :
Section 129. Nothing in the foregoing provisions except section 2, the provision of Chapter II (excluding sections 21, 22, 23, 24 and 37) and section 91 and the provisions of Chapters X and XII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in sections mentioned above shall apply-
(a) .........
(b) to lands which are the property of a trust for an educational purpose, hospital, Panjarpole, Gaushala, or an institution for public religious worship, ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 25 provided the entire income of such lands is appropriated for the purposes of such trust.
15. It is clear from the above that the said provision is a provision providing exemption from the application of provisions of Tenancy Act. The said exemption order below Exh.40, passed by the Sub Divisional Officer on 30.3.1960 is not in dispute and therefore, it is abundantly clear that in the wake of exemption obtained by plaintiff no.1 - Shambhugir Sansthan, the question of conferring ownership on Tulshiram after exemption order was passed i.e. on 30.9.1966 did not arise. In other words, the Tenancy Tahsildar did not at all bother to find out whether there was any exemption obtained by the Trust before he made orders dated 30.9.1966. In so far as the Trustees of plaintiff no.1 Trust are concerned, the following evidence of P.W.1 Ramdas has gone totally unchallenged in the cross-examination.
Deosthan received a certificate under Section 129 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act in ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 26 its name. But this fact came to my notice for the first time on 27.1.1997 when I inspected the Trust records with the office of Charity Commissioner. I had paid inspection fees vide Exh.33.
Tenancy Tahsildar therefore had no authority in law to make any order conferring tenancy or ownership on any tenant. Therefore, the orders dated 30.9.1966 in both proceedings, namely Revenue Case Nos.1087/59 (13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi were passed without jurisdiction and without any authority vested in the Tenancy Tahsildar as the suit lands were clearly exempted from the provisions of Tenancy Act. It is not in dispute that the plaintiffs pleaded 'fraud' in the plaint and P.W. 1 - Ramdas has also given enough evidence about it. The decision of Apex Court in the case of A.V. Papayya Sastry and others...Versus...Govt. of A.P. and others, reported in 2007 (4) Supreme Court Cases 221, and in particular the paras 22, 26, 38, 39 and 40 would be apt to quote :
::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 2722. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order by the first court or by the final court has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision,ig proceedings.
writ or even in collateral
26. Fraud may be defined as an
act of deliberate deception with the
design of securing some unfair or
undeserved benefit by taking undue
advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of finality of litigation cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.
38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent court of ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 28 law after hearing the parties and an order is passed in favour of the plaintiff applicant which is upheld by all the courts including the final court. Let us also think of a case where this Court does not dismiss special leave petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.
39. The above principle, however, is subject to exception of fraud.
Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 29 by fraud has to be treated as a nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every court, superior or inferior.
40. Hence, the argument of Mr Venugopal cannot be upheld. Even if he is right in submitting that after dismissal of SLPs, the respondent herein could not have approached the High Court for recalling its earlier order passed in April 2000 and the High Court could not have entertained such applications, nor the recalling could have been done, in the facts and circumstances of the case and in the light of the finding by the High Court that fraud was committed by the landowners in collusion with the officers of the Port Trust Authorities and the Government, in our considered view, no fault can be found against the approach adopted by the High Court and the decision taken. The High Court, in our opinion, rightly recalled the order, dated 27-4-2000 and remanded the case to the authorities to decide the same afresh in accordance with law.
The plea of the respondents that the litigation had earlier attained finality and the ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 30 Courts cannot reopen the 'lis' is thus not acceptable to me.
The prayers made to declare those orders dated 30.9.1966 as null and void and not binding on the Trust and being without jurisdiction, were thus perfectly maintainable in the civil suit in the light of the above discussion. Hence, question no.4 will have to be answered in the affirmative.
16. As to question no.5 :- As to the bar of entertaining civil suit by Civil Court, the law is well settled and it would be appropriate to cite the Statement Of Law made by the Hon'ble Chief Justice Mr. M.C. Chagla in the case of Husein Miya Dosumiya...Versus...Chandubhai, reported in 1955 Bom. L.R. 946.
In Husein Miya Dosumiya...
versus.... Chandubhai, the order of the
Mamlatdar passed under the said Act was challenged as ultra vires. In that case, an application was made by the landlords for possession against their tenant under section 29 of the said Act to the Mamlatdar and a consent order was taken on ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 31 24th August, 1948, by which the tenant agreed to hand over possession to the landlords. According to the tenant in that case, there was fresh tenancy agreement between him and the landlords and that was in July 1949 and by reason of the fresh tenancy the tenant continued to remain on the lands and the landlords never took possession of them. It was further the case of the tenant that in July 1950 he exchanged with the landlords the lands demised to him with consent of the the same area of the lands which had been demised to another tenant. On 15th February 1952, the landlords applied to the Mamlatdar to execute the order of 24th August 1948. On 22nd March 1952, the tenant filed an application before the Mamlatdar stating that he was a tenant of the landlords under a new agreement and that he should not be dispossessed. On 17th March 1952, the Mamlatdar ordered the tenant to hand over possession of the lands, in execution of the order dated 24th August 1948 and on 20 March 1952 the landlords took possession of the lands from the tenant. On 22nd March 1952, the tenant applied to the Mamlatdar under section 29 (1) for possession alleging that he was a tenant of the landlords, and ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 32 on 9th August 1952, the Mamlatdar made an order in favour of the tenant and he directed that possession be given to him on 16th August 1952. On 15th August 1952 the landlords filed a suit in the Civil Court contending that the order passed by the Mamlatdar on 9th August 1952 was invalid and ultra vires and asked for an injunction against the tenant preventing him from taking possession of the lands from 85 them.
of the
While
said
interpreting
Act ousting
section
the
jurisdiction of the Civil Court, the
learned Chief Justice Mr. M.C. Chagla
observed:-
It is clear that the
jurisdiction of the Civil Court has been only ousted in respect of valid orders made by the Mamlatdar.
It is only when the Mamlatdar makes an order with jurisdiction, or, in other words, makes an order for the purposes of the Act or an order required by the Act, that that order cannot be questioned in a Civil Court. If the Mamlatdar while passing a valid order deals with any of the matters under section 70, then those matters ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 33 cannot be dealt with by the Civil Court. But if the order made by the Mamlatdar is not for the purposes of the Act or not required by the Act and the order is incompetent or ultra vires, then the order is a nullity and it can be challenged in a Civil Court.
While dealing with the argument
in
that case that it
landlords to prefer an appeal against the was open to the decision of the Mamlatdar and that instead of preferring an appeal they had filed a suit in a Civil Court, the learned Judges posed a question whether the fact that a statute provides for a right of appeal against an order made by an authority set up under that statute would make any difference to the position when the order made by the authority is an invalid or ultra vires order. The learned Judges answered that question and the arguments as follows:-
It is clear that if the order itself is ultra vires it is a nullity and there is no obligation upon a party against whom the order is made to prefer an appeal against that order. The appeals that are ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 34 provided for under section 74 are strictly appeals against valid orders made by the Mamlatdar and orders made with jurisdiction. It may be that the Collector could have corrected the Mamlatdar and could have held that the order of the Mamlatdar was ultra vires. But the question is not whether the opponents (landlords) could have appealed to the Collector and could have got the the necessary relief.
opponents
The question is whether
(landlords) are bound to
appeal and prevented or precluded from
going to a Civil Court. In our opinion,
on principle it is erroneous to argue that merely because a statute provides for a right of appeal, the party against whom the order is made is bound to appeal although the order made is a nullity. If the order is a nullity, the party is entitled to ignore it, to treat it as waste paper, and to go to a Civil Court for a declaration that the order is a nullity and no action should be taken against the party under that order which would prejudice his rights.
In the case of Shri Gopinath s/o Ganpatrao Pensalwar...Versus...State of Maharashtra & Anr.::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 35
reported in 2006 (6) ALL MR 504, Full Bench of this Court in paragraph nos.13 and 14 held thus:
13. Section 11 of the Act of 1876 can not, in our view, be said to create a bar in entertaining the suit relating to an action of the Revenue Officer, where he purports to do an act which is without jurisdiction. It goes without ig saying that where acts without jurisdiction or purports to an authority pass an order, that is without jurisdiction, such order is void, nonest and nullity. We do not think it is necessary for us to deal with this aspect at length, as we are benefited by the Full Bench decision of this Court in the case of Abdullamiyan Abdulrehman Vs. The Government of Bombay, Vol.XLIV (1942) Bombay Law Reporter 577. The Full Bench of this Court had an occasion to consider section 11 of the Act of 1876. The Full Bench considered few decisions of this court in the case of Surannanna Vs. Secretary of State for India, 2 Bom.L.R. 261; Malkajeppa Vs. Secretary of State for India, 14 Bom.L.R. 332; Rasulkhan Hamadkhan Vs. Secretary of State for India, 17 Bom.L.R.513; Dhanji Vs. the ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 36 Secretary of State, 23 Bom.L.R. 279;
Patdaya Vs. Secretary of State, 25 Bom.L.R. 1160; Sulleman Vs. Secretary of State, 30 Bom.L.R.431 and Manibhai Vs. Nadiad City Municipality, 28 Bom.L.R. 1465, and concluded the legal position thus:
Those cases have established the principle that where an authority which purports to pass an order is acting without jurisdiction, the purported order is a mere nullity, as Sir.
Lawrence Jenkins puts it, it is mere waste paper; and it is not necessary for anybody who objects to that order, to apply to set it aside. He can rely on its invalidity when it is set up against him, although he has not taken steps to set it aside. The Advocate General does not dispute the proposition established by those cases, but he says that the principle does not apply to S.11 of the Bombay Revenue Jurisdiction Act, which operates when an appeal is possible, and not merely when it is obligatory. I find it ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 37 difficult to see why the principle should not apply. If the true principle be, as those cases decided, that an order, or what purports to be an order, passed without jurisdiction, is a nullity, it cannot give rise to any right whatever, not even to a right of appeal.
ig 14. It was held by the Full Bench that on a strict use of language an order which is invalid, is not an order.
It was further held that where the revenue officer purports to do an act or pass an order which is invalid, his action does not operate to raise a bar under section 11 of the Act of 1876.
In the case of Dhulabhai etc....Versus...State of Madhya Pradesh and another, reported in AIR 1969 Supreme Court 78, the Apex Court in paragraph nos.32 (1), 32 (2) and 32 (7) held thus :
32 (1) Where the statute gives a finality to the orders of the special tribunals the civil court's jurisdiction must be held to be ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 38 excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express
exclusion the examination of the
remedies and the scheme of the
particular Act to find out the
intendment becomes necessary and the
result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 39 tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.
17. It is, thus, clear that the civil Court has jurisdiction in such type of cases. The discussion aforesaid made by me as to how the orders dated 30.9.1966 in both proceedings i.e. Revenue Case No. 1087/59 (13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi made by the Tenancy Tahsildar were null and void, illegal and not binding on the Trust leads me to hold that bar provided by Section 124 of the Tenancy Act cannot have any application in the peculiar facts of this case. I, therefore, answer question no.5 in the negative.
18. As to question no.6 (i) :- There is specific averment in the plaint that Tulshiram expired in the year 1991. The sons who are defendants succeeded to the suit properties and that is why they started making claims and also effected certain transfers of ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 40 the said properties. Thus the facts that Tulshiram expired in the year 1991 and that the respondents are his sons claiming to have succeeded to the suit lands by inheritance from Tulshiram are not in dispute at all. Therefore, even if the issue whether sons of Tulshiram could not inherit the tenancy or not was not averred in the plaint, the same was raised vide paragraph 9 of lower appellate judgment but was not decided. Since ig the said issue can be decided on admitted facts above stated, in exercise of power under Section 103 of the Code of Civil Procedure, this Court thinks it fit to decide the same by answering question no.6 framed above.
The question whether tenancy was heritable in the light of Section 54 of the Tenancy Act in fact is no more res integra in the light of the decision of the Supreme Court in the case of Shriram Mandir Sansthan @ Shri Ram Sansthan Pusda...Versus...Vatsalabai and others, reported in 1999 (1) Mh. L.J. 321, particularly paragraph no.10, which reads thus :
::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 4110. Section 54 (1) (a) makes a slight departure from Hindu Law of Succession. Inheritance by survivorship is conferred on all members of the joint family instead of only the coparceners.
Therefore, all members of the joint family
- male and female inherit. The provisions in the Hindu Succession Act in cases where there are female heirs of a male having an interest in the joint family property, are also not applicable. The whether by reason of this departure from question is ordinary law, the legislature intended that tenancies not covered by section 54 (1) (a) would nevertheless be governed by the ordinary law. In our view section 54 (1) (a) cannot be read differently from section 54 (1) (b) or section 54 (3). The entire section must be read harmoniously. The legislative intention as seen from the scheme of section 54 is, that heritability of any tenancy falling, within the definition of that term under the Tenancy Act of 1958 is governed exclusively by section 54. Where section 54 is made expressly non-applicable under the Tenancy Act of 1958, the tenancy is not heritable at all. An express provision in the Act which excludes the operation of certain provisions, cannot be made nugatory by ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 42 resorting to general law.
19. In view of the above decision of the Supreme Court, point no.6 will have to be answered in accordance with the law laid down by the Supreme Court. Hence, question no.6 (i) is answered in the negative.
Question no.6 (ii):- As a sequel to above answer to question no.6 (i), this question no.6 (ii) will have to be answered in the affirmative.
20. The upshot of the above discussion is that the instant second appeal must succeed. In the result, I make the following order.
O R D E R
(i) Second Appeal No.538/2005 is allowed with costs.
(ii) The impugned judgment and decree dated 23.2.2005, passed by the 4th Ad hoc Additional District Judge, Akola in Regular Civil Appeal No.166/2002 and the judgment and decree dated 29.6.2002, passed by the ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 43 III Jt. Civil Judge (Jr. Dn.), Akola in Regular Civil Suit No.181/1997 are set aside.
(iii) Regular Civil Suit No.181/1997 filed by the appellants/plaintiffs is decreed with costs.
(iv) The orders dated 30.9.1966 in
proceedings i.e. Revenue Case
nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi, passed by the Tenancy Tahsildar are declared to be without jurisdiction, null and void and not binding on plaintiff no.1/Shambhugir Sansthan Trust, Dhotardi, registered as P.T.R. No.A 859, Akola.
(v) It is further declared that defendants have no right and interest in the suit property.
(vi) The defendants are directed to hand over the possession of the suit property bearing Survey no.60/2, admeasuring 7.21 acres, Mouza Dhotardi, now changed into Gut No.167, and Survey no.35/4, admeasuring 4.33 acres situated at village Dhotardi, Tq. and Distt. Akola to the plaintiffs on 1st April, 2012.
(vii) If the possession is not handed over as above on 01.04.2012, the plaintiffs are at ::: Downloaded on - 09/06/2013 17:59:16 ::: sa538.05.odt 44 liberty to execute the decree.
(viii) Enquiry into future mesne profit under Order XX Rule 12 of the Code of Civil Procedure.
Decree be drawn up accordingly.
JUDGE ssw ::: Downloaded on - 09/06/2013 17:59:16 :::