1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL JURISDICTION SECOND APPEAL NO.671 OF 1989 Shri Aba Kabaji Lamje aged about 49 years, Occ: Agriculturist, residing at Murud, Taluka: Patan, District: Satara, ...Appellant. v. 1 Shrimant Gopalrao Sawant @ Dhumak aged about 40 yrs. 2 Shri Vittal Narayan Dhumak, aged 78 years, Since deceased through his heirs and legal representatives: A Smt. Godabai Vitthal Dhumak, widow aged about 70 years, Occ: Nil Since deceased through her L.Rs respondent nos.2(B) to 2(F) B Shri Pandurang Vitthal Dhumak, aged about 60 years, Occ: Agriculturist C Shri Shrirang Vitthal Dhumak, aged about 50 years, Occ: Agriculturist Allresiding,at,Dhumakwadi,Murud Taluka Patan, Dist. Satara. D Smt. Kashibai Adhikrao Chavan, aged about 41 years, Occ: Household Work, residing at Shahapur E Smt. Yashodabai Shivaji Jadhav aged about 36 years, Occ: Household work, residing at Tarale, Tal: Patan, Dist. Satara near Sahyadri Sakhar Karkhana Taluka Karad District Satara F. Smt. Tarubai Ramchandra Jadhav, aged about 30 years, Occ: Housewife residing at Jadhavwadi Post Nune, Taluka Patan, District Satara ...Respondents. Mr. Rajesh N. Kachare, adv. For the Appellants. 2 CORAM : J.H. BHATIA, J. JUDGMENT RESERVED ON : 18th September , 2009 PRONOUNCED ON: 8th October, 2009. JUDGMENT: 1 Though the appeal was admitted only on the ground no.1, ground no.2 also raises substantial question of law. Ground nos.1 and 2 read as follows: “(1) Whether order passed under section 32-G by Tenancy authority without serving the mandatory notice to the plaintiff is binding upon him ? (2) Whether tenancy of the plaintiff’s father was inheritable and whether the plaintiff has become entitled to step into the shoes of his father and claim tenancy of his father in respect of the suit land ?” 2 To state in brief, suit land survey no.103/1 (Gat No.852) admeasuring 7 acres 19 gunthas situated at Village Murud, Taluka Patan, District Satara, originally belonged to Ramchandra Marwadi and six others. According to the plaintiff/appellant, his father Kabaji Lamje was inducted as tenant in the suit land during the year 1953-54 on the basis of half crop share. Plaintiff’s father died on 12.4.1955. According to the plaintiff, he was in possession and cultivation of the suit land as tenant on 1.4.1957, i.e., the tiller’s day under the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred as Tenancy Act) and, 3 therefore, he had become deemed purchaser of the land. Defendant nos.1 and 2, who are the respondents before this Court, had no right or title nor they were in possession of the land. Because of the financial difficulty, plaintiff was working in Bombay and so also cultivating suit land personally. Agricultural Land Tribunal conducted enquiry under Section 32-G of the Act without notice to him and recorded names of Bhagubai Lamje, i.e., the mother of the plaintiff, Gopalrao Sawant who was father of the defendant no.1 and defendant no.2 Vithal as deemed purchasers of the suit land to the extent of 1/3rd share each. According to the plaintiff, defendant nos.1 and 2 could not be treated as purchasers because he alone was in possession on the tiller’s day. According to him, enquiry held under Section 32-G by the Agricultural Lands Tribunal was illegal and without jurisdiction and against the principles of natural justice and, therefore, it was illegal, null and void and not binding on the plaintiff. Accordingly, he sought a declaration, injunction and possession of the suit land. 3 Defendant nos.1 and 2 denied that the plaintiff alone was in possession of the land. According to them, plaintiff’s father and the defendant nos.1 and 2 were cultivating suit land as tenants. At the time of death of father of the plaintiff, he was minor. He was cultivating land 4 through his mother and inquiry was held under Section 32-G and the mother of the plaintiff, being his guardian, was party to that proceeding. After enquiry under Section 32-G, the Tribunal held that plaintiff’s mother and the defendant no.1 and 2 were in possession of the 1/3rd share each on the tillers day and accordingly, price of the land was determined. Defendants paid the price according to their shares and accordingly, purchase certificates under Section 32-M of the Act were issued and they have become owners of the land. It was contended that civil Court had no jurisdiction to entertain the suit against the findings of the Tribunal and to declare the said certificates as invalid. 4 The trial Court decreed the suit and declared that proceeding under Section 32-G were illegal, ultra vires, void ab-initio and the purchase certificates issued under Section 32-M in favour of the defendant nos.1 and 2 are also illegal and void on the ground that no notice of the enquiry was served on the plaintiff. The trial Court also passed the decree directing the defendant nos.1 and 2 to hand over the possession of the suit land to the plaintiff. 5 The defendants challenged the said judgment and decree in Regular Civil Appeal No.647/86. The learned IIIrd Additional District Judge, Satara allowed the appeal and set aside the judgment and 5 decree passed by the trial Court. Appellate Court came to conclusion that father of the plaintiff was only a deemed tenant at the time of his death and, therefore, plaintiff did not get any right of the tenancy by inheritance in view of the provisions of law prior to Amendment Act 13 of 1956, which came into force on 1.8.1956. At that time, the plaintiff was a minor. His mother was cultivating some portion of land. Taking into consideration the actual possessions of his mother and the defendants, on the tillers day, i.e., on 1.4.1957, Tribunal had declared them to be the purchasers for 1/3rd portion each. In view of this, plaintiff had no right or title to challenge the said proceedings or purchase certificates. 6 Heard the learned counsel for the plaintiff/appellant. Advocate for the respondent did not appear. The learned counsel for the appellant vehemently contended that the deceased Kabaji Lamje was the tenant and in view of the provisions of Section 40 of the Tenancy Act, Tenancy rights are inheritable and, therefore, on his death, plaintiff, being his son and heir, became tenant and continued to be so and on tillers day, he was tenant and, therefore, he would be entitled to be deemed to be purchaser of whole of the suit land and not of any portion. He also vehemently contended that notice was not given to the present 6 appellant and in his absence, the Tribunal held that the defendant nos.1 and 2 were entitled to 1/3rd share each as tenants and were deemed purchasers to that extent. According to the learned counsel, this was totally erroneous and against the basic principles of law and, therefore, decision of the tribunal must be held to be void, illegal and without jurisdiction. 7 To appreciate the contentions of the learned counsel, it will be necessary to look to the relevant provisions of the Tenancy Act. Section 40 of the Tenancy Act, after it’s amendment by the Bombay Act number 13 of 1956 reads as follows: “40. Continuance of tenancy on death of tenant- (1) Where a tenant (other than a permanent tenant) dies, the landlord shall be deemed to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy. (2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have a charge for maintenance on the profits of such land.” Before the amendment, Section 40 read as follows: “Section 40. Continuation of tenancy.- If a protected tenant dies the landlord shall offer to continue the tenancy on the same terms and 7 conditions on which such tenant was holding it at the time of his death to the heir or heirs of the deceased tenant: Provided that the offer required to be made by the landlord under this section shall be made in writing: Provided further that if any heirs of the deceased tenant do not agree to continue the tenancy on the same terms and conditions on which the deceased protected tenant was holding the land, the Collector may select an heir or heirs who is or are willing to continue the tenancy on the same terms and conditions. The decision of the Collector shall be final. “ On perusal of Section 40, before amendment and after amendment in 1956, it would be clear that prior to the amendment , tenancy was inheritable right only if the deceased tenant was protected tenant while after the amendment word ‘protected’ stands deleted and tenancy in respect of every tenant is a heritable right. 8 Section 2(18) defines tenant thus, “Section 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) person who is a permanent tenant; (d) a person who, after the surrender of his tenancy in respect of any land at any time after the appointed day but before the specified date has continued, or is deemed to have continued, to remain in actual possession, with and without the consent of 8 the landlord, of such land till the specified date]; and the word “landlord” shall be construed accordingly;]” Thus, the word ‘Tenant’ includes a deemed tenant, protected tenant as well as permanent tenant. Under Section 4, a person lawfully cultivating any land belonging to another person shall be deemed to be tenant if such land is not cultivated personally by owner and if such person is not member of the owners family or a servant on wages payable in cash or kind or a mortgagee in possession. Under Section 2(14) protected tenant means a person, who is recognised to be protected tenant under Section 4A. Under Section 4A, a person shall be recognised to be protected tenant if such person has been deemed to be a protected tenant under Section 3, 3A and 4 of the Bombay Tenancy Act, 1939. Under Section 3 of the Bombay Tenancy Act 1939, a tenant shall be deemed to be a protected tenant in respect of any land if he has held said land continuously for a period of not less than six years immediately preceding either (i) First day of January, 1938 or (ii) First day of January, 1945 and he has cultivated such land personally during the aforesaid years. Under Section 3A of the 1939 Act, every tenant shall from 8th November, 1947 be deemed to be a protected tenant unless on an application by the landlord , Mamlatdar has declared him not to be a 9 protected tenant. Under Section 4 of the 1939 Act, a tenant shall be deemed to be protected tenant if he had cultivated land personally and continuously for a period of not less than six years immediately preceding first day of April, 1937 or April, 1944 and was evicted from said land on or after that date otherwise than by the order of the competent authority. 9 Under Section 2(10A) a permanent tenant means a person who immediately before the commencement of the Bombay Tenancy and Agricultural Lands Act (Amendment Act) Act, 1955 was holding a land as Mulgenidar or Mirasdar or by custom, agreement or decree or order of the Court was holding on lease permanently or the commencement of duration of whose tenancy cannot satisfactorily be proved by reason of antiquity and also if his name or name of his predecessor had been entered into the record of rights or in public record or in any other revenue record as permanent tenant immediately before the commencement of Amendment Act, 1955. Taking into consideration the definition and meaning of the protected tenant under the above referred provisions of Section 2(14) read with Section 4A of the Tenancy Act, 1948 and under Section 3, 3A and 4 of the Tenancy Act, 1939, father of the plaintiff could not be treated as protected tenant because 10 admittedly, he was inducted as tenant in the suit land for the first time in 1953-54 and he cultivated land just for a period of two years till his death on 12.4.1955. As he was lawfully cultivating the land as tenant for a period of about two years only and as his name was never recorded as permanent tenant prior to the commencement of the Amendment Act of 1955, he was neither a permanent tenant nor a protected tenant but in view of Section 4, he could be treated only as a deemed tenant. 10 As pointed out earlier, under section 40, before the 1956 amendment came into force, only tenancy rights of a protected tenant were inheritable rights. Only after that amendment tenancy right of any tenant became inheritable right. Amendment Act, 1956 came into force on 1.8.1956. Father of the plaintiff had died on 12.4.1955 therefore, when he died, his tenancy rights as a deemed tenant were not inheritable under Section 40 of the Tenancy Act, 1948. The learned counsel for the plaintiff/appellant placed reliance upon Vasudeo Ramchandra Kale & Ors. vs. Vijay Bhikaji Raut & Ors. 2001(3) Mh.L.J. 90. On perusal of that judgment, it appears that in that case, predecessor of the respondent was declared as protected tenant and mutation entry recorded to that effect was never challenged by the landlord, therefore, in view of Section 40, tenancy rights were inheritable . In fact, in that case, this 11 Court (Coram: A.M.Khanwilkar, J.) had distinguished provisions of Section 40 before the amendment and after the amendment of 1956. The learned counsel could not point out any provision of law or any authority to show that tenancy rights of deemed tenant, who had died prior to 1956 Amendment Act would be inheritable. 11 Anyhow rightly or wrongly name of plaintiff was shown in Cultivation column and his mother was shown as his guardian. Tribunal found that on the Tillers day, plaintiff alongwith his mother was in possession of 1/3rd share of the suit land while defendant nos.1 and 2 were also in possession of 1/3rd share each and accordingly, the plaintiff and the defendant nos.1 and 2 were held to be deemed purchasers to the extent of 1/3rd share each. Section 32G provides that a tenant, in possession on the tillers day, shall be deemed to have purchased the land on the tillers day, i.e., 1st April, 1957. Whether the tenant was in possession of land on that day is the subject matter for enquiry and to be determined by the Tribunal under Section 32-G. The Tribunal has to issue notice to all the concerned parties and to determine the price of the land under Section 32-M. If the price is paid, he has to issue certificate of purchase and if the tenant fails to make the payment, purchase becomes ineffective. If purchase of any land becomes ineffective or the tenant 12 fails to exercise right to purchase the land, Tribunal may resume and dispose off the land under Section 32P. All these powers are to be exercised by the Tribunal under the Tenancy Act, 1948. Section 68 declares that it is duty of the Tribunal to determine purchase price of land under Section 32-G , to dispose off any dispute under Section 32 to 32-R and to dispose off the land under Section 32-P. If anybody is aggrieved by any decision or order passed by the Tribunal, appeal can be preferred to the Collector under Section 74 and revision can be preferred before the Maharashtra Revenue Tribunal under Section 76. Thus, all these questions have to be decided by the authorities provided under the Tenancy Act, 1985. Under Section 85 of the Act, jurisdiction of the civil Court has been ousted in respect of any matters which are required to be settled or decided or dealt with by the Mamlatdar, Tribunal, Collector or MRT. Therefore, when any decision is taken by the Tribunal under Section 32 or 32-G or 32-M, Civil Court has no jurisdiction to entertain any suit. 12 The learned counsel for the appellant contended that no notice was given to the appellant and when no such notice is given and the procedure laid down in the law is not followed, the order passed by the Tribunal is void ab-initio, illegal and without jurisdiction. He placed 13 reliance upon Madhav Kesu Khuspe vs. Sundrabai Mugutrao 1978 Mh.L.J. 289 and Husein Miya Dosumiya V. Chandubhai Jethabhai Desai Bombay Law Reporter Volume 55 page 946. In Madhav K. Khuspe (Supra), the learned Single Judge of this Court held that if the proper procedure has not been followed under Section 32-F or 32-G , the Tribunal had no power to pass the impugned order and it was only colourable exercise of power under Section 32-P on the basis of illegal enquiry. In that matter, notice was not issued to the tenant but to his brother and on the basis of statement of his brother , order was passed to deliver the possession to the landlady. That order was held to be nullity, illegal and without jurisdiction and it was held that such order could be challenged before the Civil Court and under section 85 jurisdiction of the Civil Court could not be taken away. In such circumstances, in paragraph 17 of the said judgment, this Court observed as follows: “17. Mr. Damle also referred to the decision of the Supreme Court in K.C.Dora v. G. Annamandu. In that case, Their Lordships were considering the provisions of Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948. Section 9(1) of that Act makes the jurisdiction of the Settlement Officer and the Tribunal exclusive one. This exclusion of the jurisdiction of the Civil Court was interpreted to be subject to two limitations. First, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the 14 fundamental principles of judicial procedure. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive. The principle laid down by this decision supports the view that merely because a statute bars the jurisdiction of a Civil Court, it does not mean that for all purposes the jurisdiction of the Civil Court is taken away. The power of the Civil Court to examine cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, remains unaffected. In the present case, the express provisions of section 32G have not been complied with, inasmuch as no notice was served upon the plaintiff and no statement of the plaintiff was recorded. The enquiry was patently in breach of section 32G. The principles of natural justice were also not observed as the enquiry was held without notice to the plaintiff, and any decision without notice to the person likely to be affected and without giving him an opportunity of being heard would be not in conformity with the fundamental principles of judicial procedure.” 13 In view of the facts and legal position, the plaintiff could not claim any right of tenancy by inheritance on death of his father. He was admittedly minor, aged about 6 years, as recorded by the First Appellate Court, he could not have cultivated the land himself immediately after death of his father or on Tillers Day i.e., 1.4.1957. At the most his mother could be cultivating the land on Tiller’s day and in her own right she could claim to be a ‘deemed purchaser’ under Section 32G. Therefore, there was no need of any notice to the plaintiff. 15 Admittedly, his mother had received a notice and had also participated in the proceedings. Therefore, no illegality could be found in the procedure on this count. 14 In the present case, however, on careful perusal of the record and proceedings of the lower Court as well as record of the Tenancy Court , which was called before the trial Court, it appears that notice was issued to the present appellant to appear before the Agricultural Lands Tribunal on 17.8.1966 though for reasons given above notice to him was not necessary. However, notice was accepted by his mother Bhagubai on his behalf. Admittedly, during that period, the present appellant was residing in Bombay and not in the village and, therefore, in his absence notice was accepted by his mother. Therefore, it can not be said that notice was not issued to him. Statement of his mother and other concerned persons were recorded and after enquiry the tribunal held that the plaintiff and the defendant nos.1 and 2 were tenants over 1/3rd share of the suit property and accordingly, they were declared to be deemed purchasers . Order was also issued in his name and his mother, Bhagubai was shown as guardian. It is contended on behalf of the appellant that in the record, name of the present appellant was shown as husband of Bhagubai and he was shown to be deceased and the proceeding was 16 continued showing Bhagubai as party. It appears that in the order passed under Section 32(g) on 31.12.1966, it was mentioned that Shri Aba Kabaji Lamje was recorded as tenant in the land; he is dead and his wife Bhagubai Kabaji Lamje; is his legal heir. This was clerical mistake in the order. In fact, in that statement also husband’s name of Bhagubai was shown as Kabaji and that was correct. Name of the present appellant Aba Kabaji Lamje was also correctly recorded but it was wrongly mentioned that he was dead and he was represented by widow Bhagubai Kabaji Lamje . If this sentence in the order is kept aside, nowhere such mistake appears to have occurred. In the title of the order under Section 32-G, name of the present appellant is shown. Notice was also issued to him but it was received by his mother Bhagubai. It is material to note that in 1955, when his father died, age of the appellant was shown to be 6 years. In 1966 when the enquiry under Section 32-G was held, he must have been aged about 17 years. It means he was minor at that time. His two younger brothers were naturally minor. In such circumstances, if the notice was served on his mother, who was his natural guardian service was perfectly valid. It is true that in the suit filed by him in 1983, he had shown his age to be about 34 years. If it is correct, he was aged about 20 years in 1966 but he has not produced any record about his age or 17 date of birth. Even if it is presumed that he had attained majority, fact remains that notice was actually issued to him but because he himself was residing in Bombay and not in the village, the notice was accepted by his mother on his behalf. Therefore, it can not be said that Tribunal acted illegally without following the procedure of law and without issuing notice to him . Tribunal proceeded as per law and, therefore, order of the tribunal could not be challenged before the Civil Court in view of Section 85 of the Tenancy Act, 1948. 15 It is also material to note that as per the record of rights of the relevant period, Tuka, Shiva and Gopala Govinda Dhumak were shown to be protected tenants of the land survey no.103/1 while name of the plaintiff’s father was recorded as ordinary tenant. After his death, name of the present appellant was also recorded as ordinary tenant. The First Appellate Court rightly observed that there is no order of any authority nor any procedure was