1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 1699 OF 2005 Shrigonda Sahakari Sakhar Karkhana Ltd. & another .. APPELLANTS VERSUS Smt. Mathabai Keshav Labade & others .. RESPONDENTS Shri V.D. Hon, Advocate for the appellants. Shri S.D. Kulkarni, Advocate for the respondents. ===== CORAM : R. M. BORDE, J. DATE : 10 th September, 2009 PER COURT : 1 This is an appeal by original defendants raising exception to the concurrent judgments recorded by the courts below. 2 Respondents / plaintiffs instituted Regular Civil Suit no. 532/1994 claiming recovery of possession of the suit property and also for arrears of annual rent. According to the plaintiffs, property bearing survey nos. 207/B and 207/D alongwith other survey numbers was leased out in favour of one Dahanukar and Company for a period of 50 years by executing lease deed 2 on 1-10-1935. It is further contended that by virtue of document of lease executed on 29-12-1965, M/s Dahanukar and Company transferred the leasehold right in favour of Belwandi Sugar Farm. Said Belwandi Sugar Farm thereafter was converted into Co-operative Sugar Factory i.e. Shrigonda Sahakari Sakhar Karkhana Ltd. Thus, the lease property has come in possession of the Karkhana by virtue of transfer of lease in their favour by Dahanukar company. The period of lease which was initially for 50 years remained unaltered and the subsequent leasee was also to remain in occupation of the property for remaining period of lease. It is the contention of the plaintiffs that the defendants have neither paid the annual lease amount nor vacated the possession of leasehold property. According to the plaintiffs, the period of lease has come to an end. It is their further contention that both the properties i.e. survey nos. 207/B and 207/D are converted for non-agricultural user by defendants and the same have been used for non-agricultural purpose. It is further contended that defendants had preferred return with the Ceiling authority under section 12 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 and have shown these two survey numbers alongwith other property having been converted for non-agricultural use. Defendants have claimed exemption from Ceiling Act in respect of 116.30 acres area in possession of the 3 Karkhana on the ground that agricultural properties are being put for non- agricultural use and the provisions of Ceiling Act are not applicable. Survey nos. 207/B and 207/D were shown to have been converted for non- agricultural user in view of order passed by the Mamlatdar bearing no. SR/IV/2/42 dt. 3—5-1942. Plaintiffs thus contend that as the properties are being used for non-agricultural purpose, those are outside the purview of applicability of Bombay Tenancy and Agricultural Lands Act. Plaintiffs as such claim possession of the property. 3 Defendants controverted the contentions raised by plaintiff by filing written statement. According to them, civil court has no jurisdiction to entertain the suit. Defendants contend that in view of the notification issued by the State Government, provisions of Bombay Tenancy and Agricultural Lands Act 1948 are very much applicable. Although section 43A of the Bombay Tenancy and Agricultural Lands Act excludes applicability of certain provisions of the Act in respect of the classes or categories of the lands mentioned in the section by virtue of Section 43A (3), the State Government is empowered to issue notification in the official gazette directing applicability of certain provisions of the Act in respect of lands held on lease by the industrial or commercial undertakings or by certain persons 4 for cultivation of sugarcane and other secondary products. 4 Learned counsel for the appellants contends that infact such notifications have been issued by the State Government which have an effect of conferring applicability of certain provisions of Bombay Tenancy and Agricultural Lands Act in respect of lands held on lease by the appellants/Karkhana. It has also been contended that the dominant purpose for taking the lands on lease is agricultural one and merely because some of the part of the property is converted for non-agricultural use will not in itself exclude applicability of provisions of Bombay Tenancy and Agricultural Lands Act. It is also contended that in view of provisions of section 41 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1961, civil court has no jurisdiction to entertain the suit and pass decree of delivery of possession. 5 Trial court after considering the rival contentions of the parties recorded finding that the civil court has jurisdiction to entertain the suit and grant relief in favour of the plaintiff. It has also been held by the trial court that the lands have been converted for non-agricultural use before provisions of Bombay Tenancy and Agricultural Lands Act were made 5 applicable and as such the provisions of said Act including section 43A will not have any applicability. It has also been held by the trial court that as lease period is over, plaintiffs are entitled to a decree of possession of the disputed property. Trial court thus granted decree in favour of the plaintiffs and directed delivery of possession of the suit property. Being aggrieved by the judgment and decree passed by the trial court, defendants presented Regular Civil Appeal no. 378/2001 which came to be heard and disposed of by the 2 nd Adhoc Additional District Judge, Ahmednagar who was pleased to dismiss the same by judgment dt. 11-8-2005. 6 I have perused the judgments recorded by both the courts below. I have also heard arguments advanced by learned counsel for the respective parties. Shri Hon, learned counsel for the appellants has vehemently contended that the predominant purpose for creation of lease in favour of the defendants or their predecessor was for utilisation of the property for agricultural purpose. Merely because some of the part of the property is utilised for non-agricultural purpose, will not in itself be sufficient to construe or draw inference that the property is being used for non-agricultural purpose or that the provisions of Bombay Tenancy and Agricultural Lands Act 1948 are excluded in its applicability. It is contended that the lands have 6 been held by the defendants on lease for industrial purpose and thus, remedy available for the plaintiffs is not of approaching the civil court but the plaintiffs are required to take recourse of the remedy provided under the Tenancy law. It is to be noted that Chapter III-A of the Act is introduced by virtue of Amendment Act 13/1956. So far as the property involved in the present litigation is concerned, it is to the extent of 1 H and 1 R out of survey nos. 207/B and 207/D. Disputed land is converted for non-agricultural user by virtue of the order passed by the Mamlatdar. Thus, conversion of the disputed land for non-agricultural user is prior to applicability of the provisions of section 43A of the Bombay Tenancy and Agricultural Lands Act. 7 Section 4 of the Bombay Tenancy and Agricultural Lands Act reads thus : 4 (1) A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the owner and if such person is not --- a a member of the owner’s family, or b a servant on wages payable in cash or kind but not in crop share or a hired labourer cultivating the land under the personal supervision of the owner or any member of the owner’s family, or c mortgagee in possession. 7 . ‘Land’ has been defined in section 2(8) of the Act thus :- 2 (8) “land” means - a land which is used for agricultural purposes [ or which is so used but is left fallow, and includes the sites of farm buildings ] appurtenant to such land; and b for the purposes of sections 11, 16, 17, 17A, 17B, 18, 19, 20, 26, 28, 29, 29A, 30, 41, 63, 64, 64A, 84A, 84B and 84C - i the sites of dwelling houses occupied by agriculturists, agricultural labourers or artisans and land appurtenant to such dwelling houses; ii the sites of structures used by agriculturists for allied pursuits; . “Tenancy” is defined in section2(17) of the Act which means thus : 2(17) “Tenancy” means the relationship of landlord and tenant; . “Tenant” is defined in section 2(18) of the Act which means 2 (18) “tenant” means a person who holds land on lease and includes - a a person who is deemed to be a tenant under section 4; b a person who is a protected tenant; and c a person who is a permanent tenant; 8 and the word ‘landlord’ shall be construed accordingly. . Thus the enactment i.e. Bombay Tenancy and Agricultural Lands Act essentially regulates relationship of landlord and tenant and the applicability of the provisions is essentially in respect of the lands as defined in section 2(8) of the Act. 8 Thus, the subject matter of the dispute i.e. land survey nos. 207/B and 207/D are admittedly converted for non-agricultural user prior to enforcement of the Bombay Tenancy and Agricultural Lands Act by virtue of Mamlatdar’s order. Contention raised by the appellants founded on applicability of section 43A of the Act therefore is unacceptable. It is also contended that the plaintiff has pleaded in plaint that as the ceiling authority failed to grant him relief in respect of delivery of property, he has approached the court for seeking the relief and, as such, according to learned counsel for the appellants, the provisions of section 41 of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 bars the remedy of approaching the civil court for seeking relief. According to him, matters / disputes governed by the provisions of the Maharashtra Agricultural 9 Lands (Ceiling on Holdings) Act, 1961 cannot be entertained by the civil court in view of bar contained under section 41 of the Act. In the instant matter, any question which is required to be determined by the authority under the Ceiling Act has not arisen for consideration. Bar contained in section 41 of the Act therefore is not attracted to the facts and circumstances of the instant case. Plaintiffs have approached the court contending that the period of lease which is 50 years since the date of commencement i.e. 1-10-1935 has come to an end and secondly, defendants have failed to pay yearly amount which makes them entitled to receive possession of the property. Contentions raised by the original plaintiffs / respondents herein and the issues raised are triable by the civil court. As stated earlier, bar of applicability of provisions of Bombay Tenancy and Agricultural Lands Act, 1948 or Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 is not attracted for entertaining the dispute by the civil court. 9 Learned counsel for the appellant has contended that the plaintiff has not stepped into witness box, however, his power of attorney has deposed on his behalf. Learned counsel for the appellant has placed reliance on a judgment in the matter of Shankar Shridharrao Deshmukh vs. 10 Vyankatesh Shankarrao Deshmukh reported in 2007(1) Mh.L.J. 541. In the instant matter, although the power of attorney has stepped into witness box, it is to be noted that nothing has been stated which is essentially within the personal knowledge of plaintiff. The case put up by plaintiffs and stated by power of attorney is essentially on the basis of documentary evidence placed on record and the documents on which reliance has been placed have not been controverted by the defendants. Thus, as the plaintiff himself has not stepped into witness box and his power of attorney has deposed on his behalf, cannot be construed as lacuna in plaintiffs’ case. As such, in my opinion, the courts below were justified in entertaining the suit and passing decree in favour of the plaintiffs. The view adopted by the courts below is reasonable and does not call for any interference in exercise of powers under section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in the appeal. Appeal therefore stands dismissed summarily. 10 Learned counsel for the appellants states that the factory / structure is erected in the suit premises and his client wishes to approach the Apex Court for raising challenge to the order passed by this court. Considering the submission made by learned counsel for the appellants it is ordered that the 11 decree passed by the trial court which has been confirmed by the first appellate court and this court shall not be put to execution for a period of 8 weeks from today. 11 In view of dismissal of the appeal, pending civil application, if any, stands disposed of. ( R. M. BORDE, J.) dyb/office/sa1699.05.odt FARAD CONTINUATION SHEET NO.__________ 12 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGBAD. CIVIL APPLICATION NO. 8660 OF 2009 IN SECOND APPEAL NO. 1699 OF 2005 Office Notes, Office Memoranda of | Coram, appearances, Court’s orders | Court’s or Judge’s orders or directions and Registrar/s orders | and Registrar’s orders | CORAM : R. M. BORDE, J. DATE : 10 th September, 2009. 1 This application is presented for bringing on record the legal heirs of deceased respondent no. 1 by condoning delay occurred in presenting the application. 2 Heard. For the reasons stated in the application, application deserves to be allowed. Delay of 1475 days occurred in presenting the application for bringing on record legal heirs of deceased respondent no. 1 is condoned. Legal heirs of respondent no. 1 are permitted to be brought on record. Record be amended accordingly. Abatement of appeal so far as it relates to the c oncerned respondent stands set aside. Civil application stands disposed of. ( R. M. BORDE, J.) dyb / office /sa1699.05.odt