1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2300/1994 Shri Govind Dagadu Bhambre deceased, through his Legal heirs; 1] Prabhakar Govind Bhambre (dead through L.Rs.) 1-A] Shakuntala Prabhakar Bhambre Age 62 years, Occ-Household, 1-B] Vijay Prabhakar Bhambre Age 40 years, Occ-Service 1-C] Ganesh Prabhakar Bhambre Age 38 years, Occ-Service 1-D] Sharmila Sachin Malwade Age 35 years, Occ-Household All R/o Yeola, Tq. Yeola Dist.Nashik. 2] Madhukar Govind Bhambre 3] Arjun Govind Bhambre 4] Smt. Menabai Govind Bhambre All aged major, Occ-Agril All R/o Village Yeola, Tq.Yeola Dist.Nashik. .. PETITIONERS 2 [ORIG.APPLICANTS] VERSUS 1] Vitthal Durgaji Shingade age major, Occ-Agril R/o Brahmangaon, Tq. Kopargaon, Dist.Ahmednagar. .. RESPONDENT [ORIG.OPPONENT] .... Shri S.K.Shinde holding for Shri K.M.Gadhave Patil,Adv.for petitioners. Shri V.D.Sapkal holding for Shri P.B.Vikhe Patil,Adv.for Respondent 1. .... CORAM : R.K.DESHPANDE,J. DATE : 15/7/2010. ORAL JUDGMENT: 1] The respondent Vitthal Durgaji Shingade initiated the proceedings under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the said Act for short) in the Tenancy Court at Kopargaon, registered as TNC Case No.25/1983, in respect of Gat No.168/4,168/7 and 3 169/9 (Now Gat No.492) of village Brahmangaon, Tq. Kopargaon, Dist.Ahmednagar. It was alleged that the land in question was originally owned by the father of the respondent. However, the same was transferred in the name of the father of the petitioner Govind Dagdu Bhambre by registered sale deed dated 3/3/1943. It was a money lending transaction and the father of the petitioners was not an agriculturist but was a businessman. The father of the respondent got some loan amount from the father of the petitioners and since the said amount could not be repaid, the suit land was transferred. It was alleged that although the sale deed dated 3/3/1943 was executed, the father of the respondent was in cultivating possession of the suit land. The respondent claimed that he is in possession of the land in question as a successor of his father, who was a tenant on monthly rent of Rs.500/-. In view of this, it was claimed that the respondent is a protected tenant under the said Act. 2] The Tenancy Court passed an order on 4/12/1983 dismissing the said application filed by the respondent and 4 held that the respondent was a trespasser in respect of the land in question. It was held that the ownership of the father of the petitioner was established in the Civil Court and the decree for possession was also passed in Regular Civil Suit No. 287/1968, which was executed in Regular Darkhast No. 209/1977. It was held that the respondent failed to prove that he was tenant in respect of the suit land and it was further held that respondent was cultivating suit land and he can be treated as trespasser. Accordingly, Talathi was directed to take note in the column of crops regarding the respondent being a trespasser. 3] The respondent preferred Appeal No.90/1983 in the Court of Sub Divisional Officer, Sangamner, challenging the order dated 4/12/1983 passed by the Tenancy Awal Karkun, Kopargaon in TNC Case No.25/83. The said Appeal was decided by an order dated 18/5/1989. It was held that the respondent was a deemed purchaser as on 1/4/1957 and the Tenancy Court therefore, should have taken action on that basis. It was further held that the Tenancy Court did not 5 consider the question whether the petitioners were agriculturists or not. It was further held that the question whether the respondent was a tenant or not can be decided by the Tenancy Court under Section 70(b) and 32G of the said Act and accordingly, the procedure should have been concluded. It was further held that the Tenancy Court was wrong in holding that the respondent was a trespasser and there was no basis for the same. The Sub Divisional Officer therefore, directed the Tenancy Court to make an enquiry under Section 32G of the said Act as the respondent was cultivating the land since 1952-53. 4] The petitioners preferred Revision before the Maharashtra Revenue Tribunal, Bombay, which was registered as Revision No.MRT.AH.VII-3/89 (Tnc.B.180/89) Pune. The said Revision was dismissed by Tribunal by its order dated 21/2/1992. The Tribunal confirmed the findings recorded by the Sub Divisional Officer. It was held that the 7/12 extract from the year 1952-53 upto 1960-61, goes to show that the father of the respondent was cultivating the suit land and in the 6 occupancy column, the name of Dagdu Durgaji Shingade was clearly mentioned. Relying upon the explanatory note given in the 7/12 extract, it was held that the father of the respondent was in cultivating possession of the suit land prior to 1/4/1957. It was further held that the Civil Court has no jurisdiction to decide the question of tenancy rights and therefore, the enquiry under Section 70(b) of the said Act was initiated before the Tenancy Court. With all these findings, the Revision was dismissed. Hence this is the Writ Petition challenging the order dated 18/5/1989 passed by the Sub Divisional Officer, Sangamner and the order of Tribunal dated 21/1/1992. 5] The factual position not in dispute is required to be stated first. The land in question was purchased by the father of the petitioners by registered sale deed dated 3/3/1943. Regular Civil Suit No.384/1944 was filed for restoration of possession of the land in question against the father of the respondent. It was alleged that the father of the petitioner was forcibly dispossessed from the land in question and therefore, Suit was filed for restoration of possession. It was decreed on 7 30/6/1948. The said decree was executed on 19/11/1950 and the father of the petitioner was put in possession of the property. Thereafter, there was again dispossession of the land and hence another Regular Civil Suit No.302/1960 was filed for restoration of possession. It was also decreed on 20/6/1966 and the petitioners were put in possession in execution of the suit decree. Thereafter, Criminal Proceedings were taken up vide Criminal Case No.1943/1966 for criminal trespass and the respondent was convicted for the same and fine was imposed. 6] Since petitioners were again dispossessed, they filed Regular Civil Suit No.287/1968 for restoration of possession and for permanent injunction restraining the respondent who was joined as defendant, from interfering with the possession of the petitioners. The said Civil Suit was decreed by judgment and order dated 25/9/1972. The operative part of the said decree is reproduced below : “ Defendants do hand over the possession of the suit lands to the plaintiff. 8 Enquiry into future mesne profits will be held under Order 20 Rule 12(1)(b) of the C.P.Code. After the plaintiff gets the possession of the suit lands, the defendants are hereby permanently restrained that they should not disturb the possession of the plaintiff in any manner, themselves or through their servants. Defendants do pay the costs of the plaintiff and bear their own.” 7] The respondent preferred Regular Civil Appeal No. 375/1972. The same was also dismissed by the learned Assistant Judge, Ahmednagar by his judgment and order dated 21/8/1974. The challenge was thereafter, not carried further. In the background of this undisputed factual position, the proceedings under Section 70(b) of the said Act were initiated, arising out of which, the orders were passed, which are impugned in the present Petition. 8] Shri Shinde, the learned counsel appearing for the petitioners has urged that the respondent was a trespasser in 9 respect of land in question, in view of the decrees passed by the competent Civil Courts in Regular Civil Suit No.384/1944 on 30/6/1948, Regular Civil Suit No.302/1960 decided on 28/6/1966, Regular Civil Suit No.287/1968 decreed on 25/9/1972, which was confirmed in Regular Civil Appeal No. 375/1972 on 21/8/1974 and also order of conviction passed in Criminal Case No.1943/1966. According to him, the question whether the respondent or his father was tenant/trespasser, was concluded in earlier proceedings, which were initiated under Section 70(b) of the said Act, in which it was held that the father of the respondent was not the tenant in respect of suit land. For this purpose, he relies upon the findings recorded by the Civil Court in Regular Civil Suit No.287/1968, which are confirmed in Regular Civil Appeal No.375/1972 decided on 21/8/1974. In view of this, he submits that the issue of tenancy has been decided by the Mamlatdar’s Court, as required by Section 70(b) of the said Act and the subsequent proceedings initiated vide TNC Case No.25/83 were barred by the principle of res-judicata. According to him, Tenancy Court has rightly considered the issue by holding that the respondent was a 10 trespasser over the land in question. The finding was based upon the evidence available on record and there was no justification for the Sub Divisional Officer to reverse the said findings in Appeal No.19/1983 decided on 18/5/1989 which order is confirmed in Revision No.No.MRT.AH.VII-3/89 (Tnc.B. 180/89) Pune decided by the Tribunal on 21/2/1992. 9] Shri V.D.Sapkal, the learned counsel appearing for the respondent has relied upon the Provisions of Section 70(b) of the said Act read with the definition of a “tenant” under Section 2 (18) of the said Act and has urged that it is the Tenancy Court which has got the exclusive jurisdiction to decide the question whether a person is a tenant or a deemed tenant or a permanent tenant as contemplated by Section 2(18) of the said Act. Relying upon the decision of the Single Judge of this Court reported in Vol - LV (1953) Bom.L.R. 56 in the case of Trimbak Sopana Girme V/s Gangaram Mhatarba Yadav, he further urged that even the question whether a person is a trespasser or not is required to be decided by the Tenancy Court under Section 70(b) of the said Act. He further relied 11 upon the decision of the Full Bench of this Court reported in Vol -LXI (1959) Bom.L.R. 957 in the case of Nivrutti Laxman Kondobahiri V/s Shivdayal Laxminarayan Sarda . On the basis of this judgment, he urged that even the landlord can move an application under Section 29 of the said Act for declaration that the respondent is not a tenant. He further invited my attention to the Provisions of Section 85A of the said Act, which requires such question if arises in any suit, to be referred to the competent authority under the said Act for determination. According to him, it was for the first time, the proceedings under the Tenancy Act were initiated by the respondent in TNC Case no.25/1983 before the Tenancy Court. According to him, the Tenancy Court was required to ignore all the findings recorded by the Civil Court in all the earlier suits decided, on the issue as to whether the respondent was a tenant in respect of the suit land. However, this position was ignored by the Tenancy Court and therefore, the Appellate as well as Revisional Courts were right in setting aside the order passed by the Tenancy Court and directing an enquiry under Section 70(b) of the said Act. Shri V.D.Sapkal, the learned counsel for 12 respondent further urged that there is no material placed on record of the Tenancy Court by the petitioners to establish that such an issue between the petitioner and the respondent in respect of the land in question was decided by the competent authority under the said Act. In view of this, the question of attracting the principle of res-judicata does not arise. 10] The only question which arises in the present case is as to whether the respondent or the father of the respondent was a tenant in respect of the land in question. Undisputedly, such a question is required to be decided exclusively by the Tenancy Court and the Civil Court has no jurisdiction to grant any such declaration or to record finding in respect of such issue if involved in the case. In Regular Civil Suit No.287/68 decided on 25/9/1972, a specific Issue No.2 was framed which is reproduced as under : “Do the defendants prove – in the alternative that they are tenants of the suit lands ?” 13 The respondent was the defendant in the said Civil Suit. The trial Court has considered this issue and has recorded finding which is reproduced as under : “ As per these issues the burden was mainly on the defendants to prove their case. As such defendant No.1 Durga Kisan was examined Exh.60. No doubt, he has created his contentions as stated in his W.S. However, he admits his signature on the sale deed exh.62 and claims that it was a nominal sale deed. He has also admitted that so far ,the plaintiff had filed three suits against him for the possession of this land, and in every suit, it was his contention that the sale deed is a nominal one. However, the very fact that those suits were decreed in favour of the plaintiff, means that the contentions of the defendants, that the sale deed is a nominal one, is over-ruled. As such the defendants cannot contend the same point, again and again, it being hit by the principle of Res- judicata. Even otherwise there is no evidence with the defendant to show that it was a nominal sale deed. The defendant had also admitted that the plaintiff had filed a criminal case against him, his 14 sons, and his wife, in which case they were fined Rs.100/- each. He also admitted about the application that he had made in the Court of the Mamlatdar at Kopargaon to get himself declared a tenant of this land. The plaintiff had produced at exh.65 and 66 the certified copies of that application of the defendant, and the judgment in it, which do show that the contention of the defendant is negatived.” 11] Regular Civil Appeal No.375/1972 was preferred against the aforesaid judgment and in para 8 of the said judgment, it is recorded as under : “8] In the year 1961 defendant no.1 made an application to the Mamlatdar, Kopargaon under Section 70(b) and 29 of the Bombay Tenancy and Agricultural Lands Act for a declaration that he was a tenant of the suit land. That application was dismissed as the learned Mamlatdar recorded a finding that defendant No.1 was not a tenant of the suit land. The certified copy of the application, filed by defendant no.1 is placed on record at Exh.65 and the certified copy of the judgment of the learned Mamlatdar is available at Exh. 66. Admittedly the 15 defendant no.1 did not pursue the matter further and so the decision of the learned Mamlatdar is now conclusive and binding on him. In view of the decision in the above mentioned tenancy case, now it is not open for defendant no.1 to contend that he was a tenant of the suit land. May it be pointed out that it is not the case of claim of defendant no.1 that after obtaining possession in Civil Suit No. 302/60 the plaintiff leased the suit land to him.” 12] Thus, the aforesaid findings of the trial Court have attained finality that the proceedings under Section 70(b) and Section 29 of the said Act were initiated by defendant no.1 in the year 1961 and that the same were dismissed by Mamlatdar’s Court acting under the Provisions of the said Act. It is thus apparent that the Civil Court has though framed an issue of tenancy, it has been held that such issue has already been decided by Mamlatdar’s Court and it is held that respondent has failed to establish that he is a tenant. The Civil Court has certainly the jurisdiction to decide as to whether the issue of tenancy has been decided by the Court/authority competent to decide such issue. Such a view of Civil Court 16 cannot be said to be without jurisdiction. This finding has become final and binding between the parties and is barred by a principle of res-judicata. The Tenancy Court was therefore, right in relying upon the said judgment and holding that the respondent was not the tenant in respect of the suit land and that he was a trespasser. Such a finding recorded by the Tenancy Court is based upon the material available on record cannot be said to be perverse. 13] The Appellate Court as well as the Revisional Court in Appeal and Revision arising out of the order passed by the Tenancy Court, have held that the enquiry should have been made under Section 70(b) read with Section 32G of the said Act, as it is the Tenancy Court, which has got exclusive jurisdiction to decide the said issue and the Civil Court had no jurisdiction to go into the said question. Obviously, this finding cannot be sustained. The Civil Court has not decided the issue of tenancy in Regular Civil Suit No.287/68 but has merely taken cognizance of a decision taken by the Tenancy Court on earlier occasion and the finding is therefore, based upon the decision 17 given under Section 70(b) of the said Act. It cannot therefore, be said that the Civil Court had acted without jurisdiction in recording such findings. Hence, the contention of Shri V.D.Sapkal, the learned counsel for respondent that the findings recorded by the Civil Court are required to be completely ignored, cannot be accepted. 14] The judgments relied upon by Shri V.D.Sapkal, the learned counsel for respondent deals with the jurisdiction of Tenancy Court. The principles laid down therein, cannot be disputed. The same are binding upon this Court. However, the fact remains that the issue of tenancy has been decided in the instant case by the competent authority under Section 70(b) of the said Act and hence the judgments relied upon are of no avail. 15] In the result, the instant Writ Petition succeeds. The judgment and order dated 18/5/1989 passed by the Sub Divisional Officer, Sangamner in Tenancy Appeal No.90/1983 and the judgment and order dated 21/2/1992 passed by 18 President, Maharashtra Revenue Tribunal, Bombay, Bench at Pune in Case No.MRT.AH.VII-3-89 (Tnc.B.180/89) Pune are hereby quashed and set aside. Rule is made absolute in terms of prayer Clauses “B” and “C” of the Petition. No order as to costs. [R. K. DESHPANDE, J.] umg/wp2300-94