1 S.A.NO 71/1992. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. SECOND APPEAL NO. 71 OF 1992 Narsing Zattu through L.Rs. 1. Venkatesh S/o Narsing Salunke, Age Major, Occupation Agril, R/o Chandori, Tal. Nilanga, District Latur. 2 Ram S/o Narsing Salunke,Age Major, Occupation Agril, R/o as above. 3 Mulyabai W/O Pandurang Dhumal, Age 26 years, occup. Household, R/o Shedol, Ta. Nilanga, District Latur. ..Appellants. V E R S U S 1 Manikrao Kadaji Solunke, Aged 53 years, occupation Agril., R/o Chandori, Ta. Nilanga, District Latur. 2. Raosaheb Anandrao Solunke,Aged 46 years, occupation Agril., R/o as above. 3. The State of Maharashtra,Through the Collector,Latur. 4. The Additional Tahsildar, Ta. Nilanga, (Tenancy) Nilanga, District Latur. Respondents 2 S.A.NO 71/1992. ------------------------------------------ Mr.A.R.Kale,advocate,holding for Mr.R.B.Deshmukh,Advocate for appellant Mr.M.V.Deshpande, Advocate for respondent No.1. Mr.V.D.Godbharle,A.G.P. for respondent Nos.3 & 4 Respondent No.2 though,served remained absent. ------------------------------------------ CORAM : A.V. NIRGUDE, J DATE :16th September,2009. ORAL JUDGMENT : The back ground facts leading to this litigation, which are mostly admitted, are as under: 1. The land Survey No.15/A of village Chandori, Taluka Nilanga, District Latur was holding of one Bhairoba. The land admeasured about 10 Acres and 18 Gunthas. There was a tenancy litigation pending between Bhairoba and the appellant who was claiming tenancy rights qua the suit land. All throughout, till the High Court, the appellant succeeded. He was declared till then protected tenant in respect of the land and he was also held to be entitled to the possession. It was Bhairoba, the landlord who had challenged such findings before High Court. While the Special Civil application bearing No. 986 of 1965 was pending before this court between these two parties, they arrived at a compromise. It was recorded on 31st October, 1966, it reads as under- 3 S.A.NO 71/1992. Compromise (Exh.78) The parties to the dispute viz the petitioners-heirs of landholder and respondent No.1 Original Tenant having entered into a compromise reduced to writing duly signed by their Advocates and the terms of compromise agreed to having been taken on the record of the case, which are set out below. (1) The respondent Narsinga shall be deemed to have surrendered his tenancy rights in regard to the suit survey No.15 to the extent of half of the land and as such he shall have no rights, interest or title in regard to the said half area of the land in dispute and the land lord i.e heirs of the original landlord, the applicants above named shall be entitled to retain the possession of the said half area of the land as owner absolutely free from any tenancy rights or any other rights of the Opponent in regard to the said land. (2) The tenant/Opponent is hereby entitled to the Tenancy rights of the remaining half area of the land and as such entitled to possession and shall be entitled to get such possession of the said half area as such tenant. (3) That after the present standing crops are removed by the applicant’s above named, the partition of the land shall be effected by the Tahsildar equitably and opponent Narsinga shall be put in possession of the half portion on or before 31.3.67 same as such tenant as per para (2). The proportionate rent of the said half area of the land shall be determined by the Tahsildar at the time of the partition. (4) In case the applicants, the heirs of the original landlord decide at any time to sell the land in the course of the five years from this date, the first preference to purchase the said land at the market rate shall be given to the opponent by a registered notice which will mention price of land at which anybody is prepared to purchase the same and the opponent shall exercise his right of purchase within 3 months from such notice. In case the opponent does not exercise the choice of purchasing the said land at the said price within the period of three months so specified, the applicants shall be entitled to sell the same to anybody else at the said price or at any higher price. 4 S.A.NO 71/1992. The Court, by consent, passes a decree in the above terms of compromise and directs the Tahsildar to effect an equitable partition. No order as to costs. 2. As per the terms of the compromise, subsequently, the appellant preferred Eastern half portion of the land as his tenanted land and the the LRs of original landlord Bhairoba preferred Western half as his free hold land. They took over the land and they did not offer on sale that portion of the land to the appellant during the first five years(as was expected). But they eventually sold that portion of land to the respondent No.1, for valuable consideration, who subsequently transferred the same to the respondent No.2 for valuable consideration. It is, after this transaction, the appellant approached the Tahsildar with an application dated 19th September, 1981. The appellant stated that, he was 'protected tenant' in respect of the entire land and he had 'preferential right' to purchase the portion of the land held by Bhairoba’s legal representatives. He suggested that he had preferential right to purchase the land, even as protected tenant. He asserted that the sale transaction between Bhairoba’s legal representatives and the respondent No.1 was illegal. He sought declaration that, he being protected tenant, he had preferential right to purchase the suit portion of 5 S.A.NO 71/1992. the land and to claim possession of the same. He also sought declaration that sale transaction referred to above was void. The respondents opposed this move, but the Tahsildar held against them. They, then went to the Appellate Authority, in appeal. During pendancy of the appeal they sought stay to the execution of the impugned order of the Tahsildar. The Appellate Authority refused to grant them even stay and so they filed the present suit. 3. They contended that after compromise dated dated 31th October,1966 was recorded, the Tahsildar had no jurisdiction to entertain an application filed by the appellant and sought declaration that the order of the Tahsildar dated 06th July,1982 was null and void. 4. The appellant appeared and interalia took a stand that the Civil Court has no jurisdiction to entertain the suit. The Civil Court decided the suit after recording evidence etc., and interalia held that the Civil Court had jurisdiction to entertain the suit and further held that the impugned order of the Tenancy Court was null for want of jurisdiction. Even the Appellate Court followed the suit and dismissed the appellant’s first appeal. 5. When the appeal was admitted in this court, it was indicated that there are substantial questions 6 S.A.NO 71/1992. of law arising from the ground Nos. 2 and 6 of the appeal Memo. However, based on the grounds mentioned above and having heard submissions of the learned counsels, by consent, following substantial question of law is re-drafted and it is as under- 1 Whether the appellant proves that the Civil Court had no jurisdiction to entertain the suit of the respondent in view of Sections 33 and 99 of the Hyderabad Tenancy and Agricultural Lands Act,1950(hereinafter referred to for short as ‘Tenancy Act’? 2 In case, answer to this is in negative, whether the findings of the Courts below that suit portion of the land was still affected with right of tenancy of the appellant.? 6. In order to facilitate the discussion on the points, I would like to first quote the Section 99 of the Tenancy Act. 99(1)Save as provide in this Act, no Civil Court shall have jurisdiction to settle, decide or deal with any question including a question whether a person is or was at any time in the past a tenant or protected tenant and whether any such tenant or protected tenant is or should be deemed to be the full owner of the lands, which is by or under this Act required to be settled, decided or dealt with by the Tahsildar, Tribunal or Collector or by the Commissioner or Government. 7. The learned Counsel Shri A.R. Kale, for the appellant, contended that the Section 99 specifically barred the jurisdiction to the Civil Courts and has refrained it from settle, decide or 7 S.A.NO 71/1992. deal with 'any question' which is required to be settle, decide and deal with by authorities under Tenancy Act. 8. The question, therefore, is whether the Civil Court had attempted to decide any question that is required to be decide or dealt with by the authorities of Tenancy Act. Mr. Kale pointed out that, the appellant went with an application that he was protected tenant in respect of the suit portion of the land and relief sought in the application dependent on such plea. He also pointed out that this claim of being 'protected tenant' was squarely denied by respondents. So, the Tahsildar was under obligation to decide as to 'whether the appellant was protected tenant or otherwise?' He pointed out that such question can be decided only by Tahsildar, in view of Section 8 of the Tenancy Act. He suggested that, if such finding is recorded or if such question is dealt with by Tahsildar, any grievance regarding same is barred from coming to the Civil Court. He placed reliance on the judgments in the matters Rajaram Totaram Patel Vs. Mahipat Mahadu Patel and others reported in AIR 1967 Bom. 408; (ii) Dhulabai etc Vs. State of Madhya Pradesh and mother, reported in AIR 1969 Supreme Court 78; (iii) Ramchandra Keshav Adke (Dead) by Lrs. Vs. Govind Joti Chavare and others reported in AIR 1975 Supreme Court 915 and N.D.M.C. Vs. Satish Chand 8 S.A.NO 71/1992. (deceased) by L.R. Ram Chand reported in AIR 2003 Supreme Court 3187. 9. As against this, Mr. M.V. Deshpande, learned advocate appearing for the respondents contended that in view of the implication of the contents of compromise pursis which was filed in the tenancy proceeding on 31.10.1966 and its implementation through partition of the land effected before the Tahasildar, there was no question of the appellant having any tenancy right in respect of the suit portion of the land and he supported the findings of the Lower Court. He asserted that Civil Court did not decide any question, that is required to be decided by the Authorities under Tenancy Act. 10. The learned Judge of the trial Court recorded elaborate reasoning as to why the suit was not maintainable. The question is, while recording such finding, whether the civil Court had attempted to decide a question, that is required to be decided by the authorities under Tenancy Act. 11. Whether the compromise agreement and its implementation extinguished tenancy rights of the appellant? This question was clearly out side the purview of the Tenancy Act. Earlier to the event of the compromise, the appellant was declared tenant and was even declared entitled to possession of the 9 S.A.NO 71/1992. suit portion of the land. Untill then the question between the parties was whether the appellant was protected tenant in respect of entire land survey No.15/A or any part of it. But, the appellant unequivocally declared in the compromise that he has given up his rights in respect of the suit portion of the land. It is common ground that the land was partitioned as provided in the compromise agreement. The appellant even now has not denied this fact, but still suggested that, despite the compromise his tenancy right in respect of the suit portion of the land still existed. Unfortunately, the appellant did not enter into witness box to clarify as to how he would not lose his tenancy right after the compromise. The appellant did not examine any witness in the Lower Court either. Therefore, the contents of the compromise were utilised by Courts below to hold that he had surrendered his tenancy right to the extent of suit portion of the land. It was further held by Courts below that the compromise was a private agreement and that the suit portion of the land is free from tenancy encumbrance. The learned Judge of the Trial Court rightly given importance to the last portion in the contract, whereby the legal representatives of Bhairoba agreed to give preferential right to purchase the suit portion of the land to the appellant for a period of five years. But it is clear that such preferential right was not in terms of Section 48 of the Tenancy 10 S.A.NO 71/1992. Act. It was agreed that the appellant would have preferential right to purchase the suit portion of the land, at the prevailing market value. The learned Judge of the Trial Court rightly held that this term would further suggest that there was complete severance of relationship between the parties as tenant and landlord qua the suit portion of land. In other word the Courts below held that the suit portion of the land is free hold land. With this finding there is no need to discuss the ratios of the judgments relied on by Shri Kale. 12. Let me know discuss the argument of Shri. Kale, based on section 33 of the Tenancy Act. Section 33 reads as under- 33. Save as provided in this Act, the rights and privileges of any tenant under any usage or law for the time being in force or arising out of any contract,grant, decree or order of a Court or otherwise howsoever shall not be limited or abridged. 13. Shri Kale suggests that, in view of the above mentioned provision, the compromise decree and the order passed by the High Court pursuant to it would not affect the appellant’s tenancy right qua suit portion of the land. This argument is again based on presumption of existence of right of tenancy. The appellant had given up his right of tenancy qua the suit portion of the land and therefore, the decree 11 S.A.NO 71/1992. passed on such giving up rights would not be hit by section 33 of the Tenancy Act. Having been party to the execution of compromise agreement it was incumbent on the appellant to seek declaration within limitation about inefficacy of compromise and decree passed in pursuant to it. Having not done so, the argument based on section 33 is not available to the appellant. 14. Thus,the Courts below while examining the question as to whether Civil Court had jurisdiction to try and entertain the suit despite Section 99 of the Tenancy Act, were empowered to examine admitted facts between the parties, and upon examining such facts they were further empowered to draw their own conclusion. The Courts below having regard to contents of terms of the compromise held that the Tahsildar had no jurisdiction to entertain the appellant's application. The appeal, therefore, fails. Hence, appeal is dismissed. ( A.V.NIRGUDE, J. ) MTK/SA.71.92 ok